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Grand Rapids ‘peace and tranquility’ ordinance is declared unconstitutional

Posted on Friday, April 29, 2016
    A Grand Rapids ordinance that prohibits the use of a premises “which shall destroy the peace and tranquility of the surrounding neighborhood” is unconstitutionally vague, the Michigan Court of Appeals has ruled in a published opinion.
   The appeals court, in People of the City of Grand Rapids v Gasper (Docket No. 324150), distinguished this case from other disturbing the peace situations, and said: “There is simply no standard for determining what ‘destroys’ the peace and tranquility of a neighborhood, which compels ‘men of common intelligence’ to guess as to what conduct is proscribed by [the ordinance].”
   The defendants in the case owned and worked for the Tip Top Deluxe Bar and Grille. They were accused of violating § 9.63(3) of the City of Grand Rapids Noise Ordinance, which says: “(3) No person shall use any premises or suffer any premises under his or her care or control to be used which shall destroy the peace and tranquility of the surrounding neighborhood.”
   The defendants sought to have the charges dismissed. Police officers testified they had responded to various noise complaints at Tip Top, and had issued citations for violating § 9.63(3). Officers also indicated they did not record the decibel levels, and that departmental policy was to strictly enforce noise violations at Tip Top.
   The Grand Rapids district court ruled that § 9.63(3) was unconstitutionally vague because reasonable minds could differ about what destroys the peace and tranquility of a neighborhood, and there was no objective way for law enforcement to make such a determination.
   On appeal, the Kent County Circuit Court reversed, finding that § 9.63(3), when read in conjunction with other parts of the noise ordinance, and § 9.63(11) in particular, provided notice of the maximum sound levels during the day and night, and how those levels would be measured.
   The Court of Appeals agreed with the district court, and concluded the noise ordinance was unconstitutionally vague.
    In particular, the appeals court pointed out the circuit court “acknowledged that a person could be cited for violating section (3) regardless of compliance with section (11): ‘Section 9.63 delineates clear standards for establishing a per se violation under Sec. 9.63(11) and also allows enforcement … when noise levels are believed to destroy the peace and tranquility of the surrounding neighborhood.’”
   Therefore, consistent with this acknowledgement, the Court of Appeals said the existence of maximum decibel limits in § 9.63(11) did not help citizens determine whether their conduct violated § 9.63(3), nor did it place any constraints on enforcing police officers’ discretion.
   “We therefore hold that the circuit court erred in determining that the language of § 9.63(11) saved § 9.63(3) from vagueness,” the appeals court ruled.
   The Court of Appeals further explained there was too much “guesswork” involved in enforcing the noise ordinance.
   According to the appeals court, the ordinance provided “virtually no guidance” in determining whether conduct is prohibited. The panel also pointed out that compliance with the decibel limits in § 9.63(11) still did not protect an individual from being cited for violating § 9.63(3).
   “And on the other side of the coin,” the Court of Appeals said, “it vests the enforcing officer with almost complete discretion to determine whether the ordinance has been violated.”
   Persons making noise were basically required to guess whether police would consider the noise level as disturbing the neighborhood’s peace and tranquility, the Court of Appeals said. “Simply put, conduct that ‘destroys’ the peace and tranquility of some would not affect others to such an extent,” the court said. “There is simply no standard for determining what ‘destroys’ the peace and tranquility of a neighborhood, which compels ‘men of common intelligence’ to guess as to what conduct is proscribed by § 9.63(3).”
   As a result, law enforcement and fact-finders were unconstitutionally vested with “’virtually complete discretion” to determine whether a violation of § 9.63(3) has occurred,” the Court of Appeals concluded.

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Party didn’t meet MCR 3.206 requirements: Must pay own attorney fees

Posted on Monday, April 25, 2016
An ex-wife who filed a motion to modify a custody order was not entitled to attorney fees associated with the motion, because she was able to pay her own fees and the fees were not the result of her ex-husband’s failure to obey a court order, the Michigan Court of Appeals has ruled.
   In Hayley v Martin (Docket No. 324689), the plaintiff ex-wife filed a motion to modify the custody and parenting-time order, which the trial court granted in part. Afterward, the plaintiff filed a motion for attorney fees pursuant to MCR 3.206(C), which the trial court denied, finding that both parties worked and were responsible for their own fees.
   MCR 3.206(C) says:
“(1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the action, and that the other party is able to pay, or
(b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.”
   The plaintiff appealed and the Court of Appeals remanded the case, finding the trial court did not adequately address the plaintiff’s fee request.
   On remand, the trial court determined the plaintiff improperly sought appeal costs and post-appeal costs, and so the requested fee amount was reduced. The trial court also held that the billable rate and number of hours claimed were reasonable.
   The trial court ultimately found the plaintiff failed to prove that she could not pay her own attorney fees or that the defendant was able to pay her fees. Because the requirements of MCR 3.206(C)(2)(a) were not met, the trial court denied the plaintiff’s fee request. The trial court also held the plaintiff was not entitled to fees under MCR 3.206(C)(2)(b), because she did not establish that the fees were incurred because the defendant had violated a previous court order.
   Therefore, the trial court held — as it did the first time — that both parties were responsible for their own attorney fees.
    On appeal for the second time, the plaintiff argued the trial court applied an incorrect standard to determine whether she could pay her attorney fees. The Court of Appeals disagreed, finding the trial court adequately considered the ability to pay, as required by MCR 3.206(C)(2)(a).
    In particular, the Court of Appeals noted that the plaintiff had been paying her own legal fees throughout the case. And while the appeals court said the plaintiff had to prove that financial assistance was necessary, it noted that she had already paid $71,000 in attorney fees.
   “Further, plaintiff earned about $62,000 a year and testified that she was paying her attorney $150 a month,” the Court of Appeals said. “Thus, … plaintiff did not prove that she was unable to pay her attorney fees incurred by the filing of her motion to modify the consent judgment of divorce.”
   The Court of Appeals also rejected the plaintiff’s argument that the trial court applied an incorrect legal standard.
   According to the Court of Appeals, the trial court properly found that the plaintiff failed to show the defendant was “living an extravagant lifestyle and earning $200,000 to $400,000 a year.” The appeals court also noted that the defendant had his own attorney fees to pay. Therefore, the trial court correctly held that the plaintiff did not meet her burden of proof under MCR 3.206(C), and the trial court’s ruling was “amply supported by the record evidence.”
   Regarding MCR 3.206(C)(2)(b), the Court of Appeals said the plaintiff did not point to any evidence indicating that she filed her motion to modify custody because the defendant had failed to comply with a prior order. As a result, the appeals court ruled the trial court did not abuse its discretion in finding that the plaintiff was not entitled to fees under MCR 2.306(C)(2)(b).




    “In summary, the trial court did not abuse its discretion in denying plaintiff’s request for attorney fees related to the filing of her motion to modify the custody and parenting time provisions of the consent judgment of divorce,” the appeals court concluded.

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Court of Appeals: Michigan did not have jurisdiction under UCCJEA to hear custody case

Posted on Tuesday, April 19, 2016
The Michigan Court of Appeals has peremptorily vacated a trial court order that denied a mother’s motion to transfer a child-custody case from Michigan to Idaho.
In Ansah v Ansah (Docket No. 330121), the parties’ divorce judgment was entered in Calhoun County, Michigan. Several years later, the father filed a motion to modify custody in the Calhoun County Circuit Court. The mother requested that the court transfer the case to Idaho, where she had lived with the parties’ child since the divorce was final in 2013. The trial court denied the motion.
The mother appealed, asking the Court of Appeals to peremptorily reverse the trial court’s order denying her motion to transfer the custody case to Idaho.
In making this request, it was argued the trial court erred by not dismissing the father’s custody motion for lack of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), because neither party, nor the child, resided in Michigan. Rather, it was asserted the mother and the child resided in Idaho, while the father resided in Connecticut.

Given these facts, counsel for the mother argued that:
· Michigan did not retain exclusive, continuing jurisdiction under the UCCJEA, specifically MCL 722.1202(1)(b); and
· when a Michigan court lacks exclusive, continuing jurisdiction, in order to modify a child-custody determination it must have jurisdiction to make an initial child-custody determination under the UCCJEA, specifically MCL 722.1201.

In this case, counsel claimed the most recent time the child could have resided in Michigan was 2013 during the father’s parenting time, but only if the father had not yet relocated to Connecticut. However, the record was unclear as to when the father actually moved to Connecticut. Because the child had spent two-and-a-half years in Idaho before the custody action was filed in Calhoun County Circuit Court, counsel maintained that Michigan no longer had the requisite connection for exclusive, continuing jurisdiction.
Meanwhile, it was also argued that, even if the father returned to Michigan and the Calhoun County Circuit Court did have exclusive, continuing jurisdiction, the trial court still committed error by not considering all the factors in MCL 722.1207. This section of the UCCJEA lets a trial court transfer a case because Michigan is an inconvenient forum. And according to counsel, Michigan was an inconvenient forum and the trial court abused its discretion by not transferring the case to Idaho pursuant to §207.
The Court of Appeals agreed with the foregoing arguments. In an order issued by Judges Joel P. Hoekstra, David H. Sawyer, and William B. Murphy, the appeals court said the Calhoun County Circuit Court did not have continuing jurisdiction to hear the custody dispute and vacated the trial court’s order.
In reaching this conclusion, the Court of Appeals simply cited §201 and §202 of the UCCJEA, and did not elaborate further on its reasoning.



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Trial Courts Must Now Use Specific Language When Finalizing Adoptions

Posted on Monday, April 11, 2016
The Michigan Supreme Court has directed that, when finalizing adoptions, trial courts must use specific language on the record, indicating that no appeal is pending in the underlying termination of parental rights case.

   Pursuant to an order denying leave to appeal in In re Jackson (Docket No. 152404), the Supreme Court instructed that, based on In re JK, 468 Mich 202 (2003), any trial court finalizing an adoption must include the following on the record:

“I have determined that any appeal of the decision to terminate parental rights has reached disposition, that no appeal, application for leave to appeal, or motion for rehearing or reconsideration is pending, and that the time for all appellate proceedings in this matter has expired.”

   As a result of the Supreme Court’s directive, the State Court Administrative Office has already revised forms PCA 321, PCA 321a, and PCA 321b to reflect the new requirement.

   In Jackson (Docket Nos. 325838 and 325839), the Court of Appeals ruled that the parental rights of the respondent-father and respondent-mother were properly terminated by the Ingham County Circuit Court and the trial court did not err in finding that termination of rights was in the child’s best interests.

   On September 10, 2015, the appeals court denied a motion for reconsideration. On that same day, the Ingham County Circuit Court finalized the child’s adoption.

   Pursuant to MCR 7.215(F)(1)(a), unless otherwise ordered by the Court of Appeals or the Supreme Court, or provided for in the court rules, a Court of Appeals judgment “is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.” The Ingham County Circuit Court violated this rule by forging ahead with the adoption before the Court of Appeals judgment was final.

   Further, MCL 710.56(2) says that, if an appeal of right from an order terminating parental rights has been filed, the trial court “shall not” order an adoption until one of the following occurs:

·        - the petition for rehearing is granted and, at the rehearing, the order terminating parental rights is not modified or set aside, and the period for appeal as of right to the Court of Appeals has expired without an appeal being filed.
·         - the petition for rehearing is denied and the period for appeal as of right to the Court of Appeals has expired without an appeal being filed.
·         - the Court of Appeals affirms the termination of parental rights order.

   On October 6, 2015, the respondent-father timely filed an application for leave to appeal with the Supreme Court. However, appellate counsel did not discover that the trial court had finalized the adoption until after the application was filed. Upon learning this information, appellate counsel immediately notified the Supreme Court clerk.

   After the Supreme Court was informed of the adoption, it issued the order declaring that In re JK had been violated and instructing the trial courts to make certain findings on the record when finalizing adoptions, in order to prevent this type of procedural mistake from again happening.

   Notably, Justice Bridget M. McCormack concurred with the decision to deny leave to appeal in Jackson, but expressed “reservations” about relying on MCL 712A.19b(3)(l) to terminate parental rights. That statute says a court may terminate rights to a child if clear and convincing evidence show that the parent’s rights to another child were also terminated in a prior proceeding. In Jackson, a court had previously terminated the respondent-father’s parental rights to another child.

   According to Justice McCormack, MCL 712A.19b(3)(l) raises “significant constitutional questions” because it creates a presumption that a parent currently before the court is unfit. “When someone is accused of a crime, due process does not permit the state to put forth evidence of a prior conviction as sufficient proof to convict him or her of the new charge,” she said. “I do not see why similar process is not due a parent in jeopardy of losing the constitutional right to control the care and custody of his or her children.”

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Appeals court: Combining arbitration claims is up to arbitrator, not trial court

Posted on Friday, April 1, 2016
Whether to consolidate multiple arbitration claims is a decision for the arbitrator, and not the trial court, unless the arbitration agreement specifically addresses the issue, the Michigan Court of Appeals has ruled in a published decision.

   The ruling in Lauren Bienenstock & Associates, Inc v Lowry, et al (Docket No. 323986) solidifies that, when there is no contractual language indicating otherwise, an arbitrator will determine the procedural question of whether numerous arbitration claims should be combined.

   The Bienenstock case began when the defendants sued the plaintiff, claiming they were owed more than $1 million for court reporting services they had provided as independent contractors. The independent contractor agreements included the following arbitration provision:

“Any dispute relating to this Agreement, or breach thereof, shall be settled pursuant to the rules and regulations of the American Arbitration Association (‘AAA’). Either Party requesting arbitration under this Agreement shall make a demand on the other party by registered or certified mail, with a copy to the AAA’s Southfield, Michigan office, which shall be the location of any arbitration hearing. The arbitration shall then take place as noticed by the AAA, and the outcome thereof shall be binding regardless of whether one of the parties fails or refuses to participate.”

   Based on this clause, the trial court granted summary disposition to the plaintiff. The defendants appealed, claiming the agreements were unenforceable. The Court of Appeals disagreed in a December 2014 unpublished ruling, Lowry v Lauren Bienentock & Associates, Inc (Docket No. 317516).

   When the defendants filed a demand for arbitration with the AAA, the plaintiff brought a declaratory judgment action, asserting the defendants could not pursue a class arbitration. The plaintiff argued a trial court must determine the “gateway issue” of whether class arbitration is allowed, and not an arbitrator.

   The Court of Appeals rejected this argument, finding that an arbitrator has the authority under the Federal Arbitration Act, 9 USC § 1, et seq., to determine whether a class arbitration should proceed.

   According to the court, there are two scenarios where a trial court can determine whether consolidation is permissible:
·         if the contract explicitly states the court should decide the issue (i.e., the intent is clear); and
·         if the parties’ intent in unclear from the face of the contract, the court must make presumptions regarding the parties’ intent, and should only decide an issue if it is a gateway issue involving whether a contract to arbitrate exists, or whether a particular type of claim falls under the arbitration agreement.

   In this case, the Court of Appeals noted the arbitration clause did not mention consolidation. Therefore, the court turned to making presumptions about the parties’ intent, and whether a gateway issue existed.

   Looking at the arbitration clause at issue, the Court of Appeals pointed out the defendants’ underlying claim for past-due payments fell within the contract’s terms. “Consequently, the issue of who decides whether to consolidate arbitration claims does not fall within the general purview of a gateway issue … and is instead a procedural or subsidiary issue for the arbitrator to decide,” the court said. “Under the facts presented, the issue of consolidation is a procedural one.”

   According to the Court of Appeals, an arbitrator is in the best position to decide whether arbitrations should be consolidated. In making this ruling, the court relied on authority from the federal circuit courts and the U.S. Supreme Court, including its decision in Stolt-Nielsen SA v Animal Feeds Int’l Corp, 559 US 662 (2010).

   In conclusion, the Court of Appeals held: “The virtual unanimity amongst the federal courts prior to (and after) Stolt-Nielson, holding that consolidation decisions are subsidiary ones left to the arbitrator to decide under the contract (when the contract does not provide for a different venue or otherwise address consolidation), remain persuasive authority, and nothing in the case law since then requires a different conclusion. We therefore agree with and follow the rationale of those cases and hold that, absent any contractual language addressing the issue, whether multiple arbitrations should be consolidated is a procedural or subsidiary issue for the arbitrator to decide.”

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