Police officer immunity

In Lego v Liss, __ Mich __ (#149246, 47, 1/4/2016) the Supreme Court considered the scope of the immunity provision of the firefighter’s rule for governmental entities and employees, MCL 600.2966.

During an attempted apprehension of an armed-robbery suspect, the defendant, a police officer, shot the plaintiff, also a police officer. Plaintiff and his spouse filed suit against the defendant, asserting gross negligence.

The trial court denied the defendant’s motion for summary disposition based on MCL 600.2966 and the Court of Appeals affirmed in a divided opinion. The Supreme Court granted leave to appeal. 497 Mich 926 (2014), and then reversed in part the judgment of the Court of Appeals and remanded the case to the Wayne Circuit Court for entry of an order granting summary disposition to the defendant. Specifically, the Supreme Court disagreed with the Court of Appeals majority that the applicability of MCL 600.2966 could not be decided at this time as a matter of law under the facts presented in this case.

MCL 600.2966 provides in part as follows: The state, a political subdivision of this state, or a governmental agency, governmental officer or employee, volunteer acting on behalf of a government, and member of a governmentally created board, council, commission, or task force are immune from tort liability for an injury to a firefighter or police officer that arises from the normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession.

The Court of Appeals erred by affirming the denial of summary disposition to the defendant on the basis that the plaintiffs’ allegations, if true, would demonstrate that the defendant acted in disregard of his police training and violated numerous safety procedures. The Court of Appeals essentially determined that the defendant might not be entitled to immunity if his actions were especially egregious; in other words, if the defendant were grossly negligent, he would not be entitled to immunity because the injury resulting from his actions would not “arise from the normal, inherent, and foreseeable risks of his profession” as required under MCL 600.2966. This interpretation of the language “normal, inherent, and foreseeable risks,” however, contravenes MCL 600.2966, especially when it is read in conjunction with the general firefighter’s rule, MCL 600.2967. That rule provides that a firefighter or police officer may sue for damages for injuries arising out of a normal, inherent, and foreseeable risk of his or her profession if the injuring party acted with (among other mental states) gross negligence. MCL 600.2967(1)(a)(i). But MCL 600.2966 exempts governmental entities and employees from that general rule by immunizing them from all tort liability “for an injury to a firefighter or police officer that arises from the normal, inherent, and foreseeable risks of the firefighter’s or police officer’s profession.” To hinge the applicability of this immunity provision on the degree of recklessness with which the defendant acted would undermine the statutory language by potentially denying immunity to a governmental defendant on the very basis for which the statute is intended to provide such immunity. Rather, when determining the applicability of the immunity provision of MCL 600.2966, the inquiry must be whether the injury arose from the normal, inherent, and foreseeable risks of the police officer’s or firefighter’s profession.

Defendant entitled to a portion of the increased value of the home inherited by the plaintiff.

In Piccard v Piccard, Unpub Per Curiam Opin (#316582, 11/17/2015) the Court of Appeals held that defendant was entitled to a portion of the increased value of the home inherited by the plaintiff pursuant to MCL 552.401, and the trial court erred by finding that the home’s value did not increase during the parties’ marriage.

                                                                                                                                    

When dividing property in a divorce proceeding, a trial court must first determine whether property is a marital asset or a party’s separate asset. Reeves v Reeves, 226 Mich App 490, 493-494 (1997). In general, marital assets are subject to division among the parties, but a party’s separate assets may not be invaded. McNamara v Horner, 249 Mich App 177, 183 (2002). Marital assets are those assets that are earned or acquired during the marriage, while separate assets are those assets that are obtained or earned before the marriage. Cunningham v Cunningham, 289 Mich App 195, 201 (2010). “Normally, property received by a married party as an inheritance, but kept separate from marital property, is deemed to be separate property not subject to distribution.” Dart v Dart, 460 Mich 573, 584-585 (1999). However, “separate assets may lose their character as separate property and transform into marital property if they are commingled with marital assets and ‘treated by the parties as marital property.’ ” Cunningham, 289 Mich App at 201, quoting Pickering v Pickering, 268 Mich App 1, 11 (2005). The conduct of the parties is the clearest indicia of whether they intended to treat the asset as marital or separate property. Cunningham, 289 Mich App at 209.

 

 

In Piccard, supra, property records indicated that the inherited home had an assessed value of $68,482 in 2002 and $72,200 in 2012. Generally, property is assessed at 50% of its true cash value. MCL 211.27a(1). Thus, the property records show that the value of the inherited home increased from $139,964 to $144,400 during the marriage.

 

 

Defendant also testified that he believed the value of the home was $250,000 or $350,000, and that he spent approximately $80,000 on improvements to the home. Although the trial court acknowledged defendant’s testimony, it noted that he did not substantiate the testimony with any documentary evidence. Under these circumstances, the trial court did not clearly err by discounting defendant’s testimony regarding the value of the inherited home and his monetary contributions toward improvements on the property.

 

 

However, the trial court did clearly err by finding that the home did not increase in value. Indeed, the only documentary evidence before the trial court indicated that the home increased by $4,436 in value during the marriage. Under Reeves, the trial court should have included this amount in the marital estate. Therefore, the Court of Appeals reversed the trial court’s finding regarding the increased value of the inherited home and remanded the case for equitable distribution of the $4,436 increased value.

Intentional infliction of emotional distress stemming from parental alienation.

In Fujimaki v Ichikawa, Unpub Per Curiam Opin (#324173, 11/17/2015) the Court of Appeals reversed the trial court’s order of summary disposition on a claim of intentional infliction of emotional distress stemming from parental alienation.

Plaintiff’s complaint stated that the parties were previously married and had one child together, but they divorced in May 2004. In September 2008, defendant acquired sole legal and physical custody of the child. Plaintiff alleged that after defendant acquired sole custody, she commenced a campaign to destroy his relationship with the minor child. Plaintiff alleged that defendant consistently denied him parenting time, and, for that reason, was found in contempt of court on two occasions and sentenced to jail. Plaintiff claimed that the trial court ordered the child to stay with plaintiff during defendant’s incarceration, but defendant, the child, and the child’s school manipulated the situation, and the child stayed with a teacher instead. Plaintiff’s complaint further alleged that the trial court ordered the parties to undergo a psychological evaluation who found extreme parental alienation by defendant. According to plaintiff, the trial court also found extreme parental alienation by defendant, but concluded that it had limited options regarding custody arrangements because the child was 17 years old and his relationship with plaintiff was already damaged. Plaintiff alleged that he had no relationship with his son as a result of defendant’s willful and deliberate acts of denying him access to the child.

In order to establish a claim of intentional infliction of emotional distress, a plaintiff must show “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress.” Graham v Ford, 237 Mich App 670, 674 (1999). Liability attaches when a plaintiff demonstrates that a defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. The test to determine whether a defendant’s conduct was sufficiently extreme and outrageous is whether the facts of the case would lead an average member of the community to arouse resentment against the actor and exclaim, “Outrageous!” Lewis v LeGrow, 258 Mich App 175, 196 (2003) (citations omitted). 

A claim of intentional infliction of emotional distress must be brought within three years after the claim accrues to avoid being time-barred. Nelson v Ho, 222 Mich App 74, 85 (1997). MCL 600.5827 provides that “the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.” The term “wrong” as used in MCL 600.5827 refers to the date the plaintiff was harmed by the defendant’s act, not the date the defendant acted. Frank v Linkner, ___ Mich App___, ___ (2015), citing Moll v Abbott Laboratories, 444 Mich 1, 12 (1993). Otherwise, a claim could be barred before a plaintiff suffered any injury. Frank, supra. “Accordingly, a cause of action for a tortious injury accrues when all the elements of the claim have occurred and can be alleged in a proper complaint.” Schaendorf v Consumers Energy Co, 275 Mich App 507, 512 (2007) (citation omitted).

In this case, the harm on which plaintiff’s claim was based was parental alienation, or defendant’s destruction of the relationship between plaintiff and the child, which resulted in psychological damage to plaintiff. The trial court found that plaintiff’s claim accrued in September 2008, when defendant acquired sole physical and legal custody of the child and had the ability to effectively alienate the child from plaintiff. There is no evidence indicating that plaintiff’s relationship with the child was destroyed due to parental alienation at that point in time, or that defendant had yet exhibited intentional conduct that was sufficiently extreme or outrageous in nature to give rise to a claim of intentional infliction of emotional distress. 

Accepting plaintiff’s affidavit as true, facts sufficient to sustain the elements for a claim of intentional infliction of emotional distress did not arise until at least December 31, 2011, when defendant began denying plaintiff parenting time, which, it could be argued, constituted extreme and outrageous conduct. See Schaendorf, 275 Mich App at 512 (holding that a tortious injury claim does not accrue until all the elements of the claim have occurred). Moreover, it does not appear that the harm of extreme parental alienation occurred until 2013. In either case, plaintiff’s May 29, 2014 complaint fell well within the three-year limitations period for tort claims. Accordingly, the trial court erred by finding that plaintiff’s claim accrued in September 2008, and that summary disposition was therefore warranted under MCR 2.116(C)(7).

The remedy for an untimely habitual offender notice.

In People v Muhammad, __ Mich __ (#150119, 10/30/2015) the Supreme Court in lieu of granting leave to appeal, vacated the Court of Appeals judgment and remanded the case back to the Court of Appeals for reconsideration. The Court of Appeals erred by applying harmless error analysis without first determining whether the trial court’s order dismissing the habitual offender notice was erroneous. See MCR 2.613(A) (stating that a judgment or order of the court may not be vacated, modified, or otherwise disturbed “unless refusal to take this action appears to the court inconsistent with substantial justice”). The prosecutor has conceded that it did not timely serve the habitual offender notice under MCL 769.13. On remand, the Court of Appeals is directed to determine whether the trial court erred by concluding that the proper remedy for the prosecutor’s statutory violation was dismissal of the habitual offender notice. See In re Forfeiture of Bail Bond, 496 Mich 320 (2014).

The 'reasonableness' of a departure under Lockridge

In People v Steanhouse, __ Mich  App __ (#318329, 10/22/2015) the Court of Appeals set forth the appropriate procedure for considering the reasonableness of a departure sentence.  Under Steanhouse, supra a sentence that fulfills the principle of proportionality under People v Milbourn, 435 Mich 630 (1990),  and its progeny, constitutes a reasonable sentence under People v Lockridge, ___ Mich ___ (2015).

 

When Milbourn, supra, was decided, the Legislature had not enacted the statutory sentencing guidelines; the guidelines in effect were those developed by the Michigan Supreme Court and promulgated by administrative order. People v Hegwood, 465 Mich 432, 438 (2001). Trial court judges were not required to impose a sentence within the range recommended by the sentencing guidelines; they were only required to score the guidelines and articulate the reasons for a departure from the recommended range. Id. In this context—which is strikingly similar to the role of the sentencing guidelines after Lockridge, supra, the Michigan Supreme Court overruled the “shocks the conscience” test that was previous employed under People v Coles, 417 Mich 523, 550 (1983), and adopted the “principle of proportionality” test in order to determine whether a trial court abused its discretion in imposing a sentence. Milbourn, 435 Mich at 634-636. Under the new test, “a given sentence [could] be said to constitute an abuse of discretion if that sentence violate[d] the principle of proportionality, which require[d] sentences imposed by the trial court to be proportionate to the seriousness of the circumstances surrounding the offense and the offender.” Id. at 636. As such, trial courts were required to impose a sentence that took “into account the nature of the offense and the background of the offender.” Id. at 651.

 

In Lockridge, supra, the Court held that “the rule from Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), as extended by Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), applies to Michigan’s sentencing guidelines and renders them constitutionally deficient.  To the extent that the OVs scored on the basis of facts not admitted by the defendant or necessarily found by the jury verdict increase the floor of the guidelines range, i.e. the defendant’s ‘mandatory minimum’ sentence, that procedure violates the Sixth Amendment. Accordingly, [t]o remedy the constitutional violation, [the Court] sever[ed] MCL 769.34(2) to the extent that it makes the sentencing guidelines range as scored on the basis of facts beyond those admitted by the defendant or found by the jury beyond a reasonable doubt mandatory. [The Court] also str[uck] down the requirement in MCL 769.34(3) that a sentencing court that departs from the applicable guidelines range must articulate a substantial and compelling reason for that departure.  The Lockridge Court also stated that a guidelines minimum sentence range calculated in violation of Apprendi and Alleyne is advisory only and that sentences that depart from that threshold are to be reviewed by appellate courts for reasonableness. To preserve as much as possible the legislative intent in enacting the guidelines, however, a sentencing court must determine the applicable guidelines range and take it into account when imposing a sentence.

 

Under Milbourn, supra, and now Lockridge, supra and Steanhouse, supra, factors to be considered by Michigan courts under the proportionality standard included, among others, (1) the seriousness of the offense, People v Houston, 448 Mich 312 (1995); (2) factors not considered by the guidelines, such as the relationship between the victim and the aggressor, id. at 323; Milbourn, 435 Mich at 660, the defendant’s misconduct while in custody, Houston, 448 Mich at 323, the defendant’s expressions of remorse, id., and the defendant’s potential for rehabilitation, id.; and (3) factors that were inadequately considered by the guidelines in a particular case, id. at 324.

Trial court’s compulsory use of the sentencing guidelines is erroneous.

In People v Terrell, __ Mich App __ (#321573, 9/29/2015) the Court of Appeals held under the recently decided Michigan Supreme Court opinion, People v Lockridge, __ Mich __ (2015), judicial fact-finding did not increase the minimum sentence guidelines, but a remand for the United Stated v Crosby, 397 F3d 103, 117-118 (CA 2, 2005) procedure was necessary to determine whether the error resulting from the trial court’s compulsory use of the guidelines was harmless.
 

The Court of Appeals adopted the remedy crafted in People v Stokes, __ Mich App __ (2015) as the appropriate remedy, because regardless of the fact that judicial fact-finding did not increase defendant’s minimum sentence guidelines range, the trial court’s compulsory use of the guidelines was erroneous in light of Lockridge, supra. In Stokes, supra, the Court of Appeals concluded that where judicially-found facts increased the minimum sentence guidelines range, the proper remedy was to remand for the Crosby procedure to be followed to determine whether the error was harmless. In Crosby, supra, the United States Supreme Court held that in cases in which a defendant’s minimum sentence was established by application of the sentencing guidelines in a manner that violated the Sixth Amendment, the case should be remanded to the trial court to determine whether that court would have imposed a materially different sentence but for the constitutional error. See also United States v Fagans, 406 F3d 138, 141-142 (CA 2, 2005) (remanding for resentencing, even though judicial fact-finding did not increase the guidelines range, because the compulsory use of the guidelines was erroneous).
 

In Terrell, supra, judicial fact-finding did not increase the minimum sentence guidelines because the scoring was supported by the jury verdict. Nonetheless, the Court of Appeals adopted the remedy crafted in Stokes, supra as the appropriate remedy here, because regardless of the fact that judicial fact-finding did not increase defendant’s minimum sentence guidelines range, the trial court’s compulsory use of the guidelines was erroneous in light of Lockridge, supra.

Ineffective assistance of counsel for failing to move to suppress a police officer’s impermissibly suggestive identification of defendant at the preliminary examination.

In People v Clay, Unpub Per Curiam Opinion, (#319450, 8/20/2015) the Court of Appeals held that defendant was denied the effective assistance of counsel because counsel failed to move to suppress a police officer’s impermissibly suggestive identification of defendant at the preliminary examination.

Whether a defendant has been deprived of the effective assistance of counsel presents a mixed question of fact and constitutional law. People v Trakhtenberg, 493 Mich 38, 47 (2012). A trial court’s findings of fact are reviewed for clear error, and questions of constitutional law are reviewed de novo. Id. The United States and Michigan Constitutions guarantee a defendant the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To establish ineffective assistance of counsel, the defendant must show that “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.” Trakhtenberg, 493 Mich at 51. Effective assistance of counsel is presumed, and a defendant bears a heavy burden of proving otherwise. People v Solmonson, 261 Mich App 657, 663 (2004). Stated otherwise, a defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy. Trakhtenberg, 493 Mich at 52. “Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim.” People v Carbin, 463 Mich 590, 600 (2001).

An identification procedure that is unnecessarily suggestive and conducive to irreparable misidentification constitutes a denial of due process. People v Williams, 244 Mich App 533, 542 (2001). If the trial court finds the procedure was impermissibly suggestive, evidence concerning the identification is inadmissible at trial unless an independent basis—one that is untainted by the suggestive pretrial procedure—can be established for the in-court identification. Id. at 542-543.

By failing to move to suppress the officer’s identification defendant’s counsel’s performance fell below an objective standard of reasonableness. On this record, based on the totality of the circumstances, a reasonable probability exists that the first part of a motion to suppress would likely have been granted because the pretrial identification procedure was so suggestive that it led to a substantial likelihood of misidentification, particularly because it had been three years since the officer had observed defendant from 100 yards away and defendant was the only noncaucasian seated at the defense table.  At that point, because the pretrial identification was so suggestive that it could lead to a substantial likelihood of misidentification, the trial court would have needed to determine if the officer had an independent basis for an in-court identification that was untainted by the suggestive pretrial procedure. Williams, 244 Mich App at 542. Appropriate factors in considering whether a witness and had independent basis for an in-court identification include: (1) the witness’s prior knowledge of the defendant, (2) the witness’s opportunity to observe the criminal during the crime, (3) the length of time between the crime and the disputed identification, (4) the witness’s level of certainty at the prior identification, (5) discrepancies between the pretrial identification description and the defendant’s actual appearance, (6) any prior proper identification or failure to identify the defendant, (7) any prior identification of another as the culprit, (8) the mental state of the witness at the time of the crime, and (9) any special features of the defendant. People v Gray, 457 Mich 107, 116 (1998).

But for counsel’s failure to move to suppress the officer’s identification of defendant there would not have been sufficient evidence of a nexus between defendant and the marijuana and guns to show defendant was in possession of the marijuana and guns. But for counsel’s error, a reasonable probability exists that the result of the proceeding would have been different. Accordingly, the trial court erred in concluding that defendant was not prejudiced by counsel’s error. Rather, defendant was denied the effective assistance of counsel because “(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability that the outcome would have been different.” Trakhtenberg, 493 Mich at 51.