What they’re saying …

“Ms. Sarkis’ testimony that her drink glass ‘flew out of her hand’ would seem to contradict most known laws of physics and, in my judgment, constitutes an insufficient basis for proceeding to trial.”

- Michigan Supreme Court Justice Stephen Markman’s incredulous reaction to a litigant’s explanation of why her homeowners’ insurer should defend her from an assault claim by a woman who face was cut by the “flying” glass.

In Sarkis v. Cincinnati Ins. Co., the Michigan Supreme Court, on a 6-1 vote, let stand a Michigan Court of Appeals decision that a jury should decide whether Sarkis’ drink, and later, the glass containing the drink, accidentally, as opposed to intentionally, struck Umesh’s face.

Sarkis and Umesh were dancing at a nightclub, bumped into each other and then apparently bumped each other some more, resulting in the flying beverage and glass.

At issue is whether an intentional acts exclusion in an insurance policy gives the insurer a pass on defending Sarkis from Umesh’s assault claim.

According to Markman, Sarkis’ claim shouldn’t fly at all.

“Coverage is precluded,” Markman observed, perhaps somewhat wryly, “where an insured’s claim ‘flies in the face of all reason, common sense and experience.’”

Two supremely different takes on defendant’s dopey drawers

A recent case before the Michigan Supreme Court is destined to become one of those “silly criminal” filler stories that are sometimes tucked away in newspaper classified ad sections.

But the case produced a serious difference of opinion between two Michigan Supreme Court justices, Chief Justice Marilyn Kelly and Justice Robert Young.

First, the facts: Nathaniel Ward was stopped by the cops, who took his cash after a police dog indicated that the money contained cocaine and heroin residue.

Over the course of the next few days, Ward sold drugs three times to an undercover officer and a confidential informant.

Later, the police called Ward and said they wanted to give back the money they had seized during the traffic stop. When Ward showed up at a State Police post to claim his cash, he was arrested for the drug sales.

Here’s the silly part: when Ward was searched after the police took him to the Grand Traverse County jail, his underwear was loaded with drugs – 20 packets of heroin and 47 grams of crack cocaine, to be exact.

Here’s the serious part: when Ward was sentenced, he was assessed 25 points under OV 19 for threatening the security of a penal institution.

The Michigan Court of Appeals denied Ward’s delayed application to appeal.

Last week, on a 6-1 vote, the Michigan Supreme Court affirmed the Court of Appeals in People v. Ward.

Young took Kelly, the lone dissenter, to task for her vote to grant leave to appeal:

Chief Justice Kelly’s dissent reveals an unusual perspective of criminal law and criminality in general. What Chief Justice Kelly vilifies as a “ruse” and “subterfuge” is a legitimate law enforcement tactic to safely apprehend a known drug dealer. Further, because offense variable (OV) 19, MCL 777.49, plainly does not include an intent element, the caselaw from other states that Chief Justice Kelly cites is irrelevant. Accordingly, there is no basis in the law for rescoring OV 19, as Chief Justice Kelly urges.

Speaking of the way the police lured Ward to the State Police post, Young noted:

I agree that this was a “ruse,” but it offends no principle of law to use a criminal’s stupidity against him.

Chief Justice Kelly chooses to chastise the police officers for their “subterfuge” rather than the defendant, who knowingly carried 47 grams of crack cocaine and 20 packets of heroin into a police station and then attempted to smuggle the same 47 grams of crack cocaine and packets of heroin into the Grand Traverse County Jail. Chief Justice Kelly asserts that defendant “could hardly be said to have intended to engage in conduct that ‘threatened the security of a penal institution.’” It is hard to believe that anyone could sincerely dispute that the presence of illicit drugs “threaten[s] the security of a penal institution.”

Young suggested that Ward could have told the police about the drugs in his underwear but instead chose to smuggle the drugs into the county jail.

Chief Justice Kelly suggests that defendant may be excused from the consequences of that choice “because he wished not to be charged for possession with intent to deliver prohibited substances in addition to his other crimes.” A criminal’s interest in avoiding punishment for his crimes does not, has never, and, hopefully, will never excuse criminal behavior.

In response, Kelly argued that the threat, if any, to the penal institution existed because of police trickery:

Clearly, defendant should not have been in possession of illegal drugs and should not have taken them to the police station. But his purpose in going there was not to deal drugs. He could hardly be said to have intended to engage in conduct that “threatened the security of a penal institution.” If his behavior can be said to have been a threat, regardless of defendant’s intent, it must be conceded that the threat existed only because of a police subterfuge. I believe this crucial fact could make defendant’s conduct an insufficient basis for the scoring of OV 19 here.

Justice Young observes that defendant could have avoided having his sentence increased by telling the officers that he carried prohibited substances on his person when he was arrested at the station. He points out that it was defendant’s choice to bring the drugs into the county jail. However, defendant chose not to reveal the drugs, presumably because he wished not to be charged for possession with intent to deliver prohibited substances in addition to his other crimes. It seems unlikely that he chose to conceal the drugs because he intended to “threaten the security of a penal institution.”

Kelly argued that threatening the security of a penal institution may require a finding of actual intent to do so before points can be assessed under OV 19:

Caselaw from our sister states supports the conclusion that intent is necessary for a defendant to be liable for conduct of this sort. Courts in some other jurisdictions have come to contrary conclusions. … Clearly, the issue is of jurisprudential significance and this Court should not summarily dismiss it. …

I would have no difficulty with the scoring of OV 19 in this case if the OV provided extra points for trying to avoid having drugs being detected during a booking, or, as Justice Young suggests, simply for “stupidity.” But it does neither. I think the assessment of 25 points here may have lengthened defendant’s sentence for conduct not covered by OV 19.

In a footnote, Kelly concluded:

It seems I should be entitled to this and similar conclusions without being accused of holding “an unusual perspective of criminal law and criminality in general,” especially given the divergent outcomes on the issue in other states.

That’s too much!

I took my family to Los Angeles a few years ago because my wife and daughter were obsessed with being in the studio audience of “The Price Is Right” game show, then starring Bob Barker.

The sights and sounds of Hollywood after dark, as we passed a nine-hour evening on the sidewalk outside the studio, waiting for the gates to open at 6 a.m. to get front-row seats, is a story in itself.

One of the games played on TPIR is “That’s Too Much!” The game involves a new car and a series of cards with concealed numbers, each higher than the last.

As each number is revealed in sequence, the contestant decides whether it matches the price of the car. If the contestant thinks the number is too low, another number is revealed.

Here’s how the game is won: when the contestant has a hunch that the number on a card exceeds the price of the car, they’re encouraged to scream at the top of their lungs, “That’s too much!”

If the contestant has stopped at the first price that exceeds the price of the car, they get to drive it home and figure out how to pay the tax bill on their new ride.

Yesterday, a five-justice majority of the U.S. Supreme Court ruled that a plaintiff was deprived of the constitutional right to a fair trial when the state-court judge hearing the case refused to step aside, even though the defendant company’s owner contributed $3 million to elect the judge.

Writing for the majority in Caperton v. Massey, Justice Anthony Kennedy said:

Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.

And an easy case in which to cry out, “That’s Too Much!”

But in most cases, how do you know how much is too much when it comes to judicial campaign contributions?

When should a litigant yell, “That’s Too Much!”

From Caperton, we know that when $3 million is traceable to a single donor-litigant, “That’s Too Much!”

But what about in Michigan, where, according to the Michigan Campaign Finance Network, state campaign finance laws don’t always require disclosure of who is paying for the election ads? From the MCFN:

The U.S. Supreme Court noted that the Caperton case was extreme, but “because the States may have codes with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard’s application rare.”

This decision underscores the wisdom of the Michigan Supreme Court’s ongoing effort to establish workable recusal standards for itself that will consider extreme campaign spending of the sort that has become a regular feature of contemporary Michigan Supreme Court election campaigns.

Highlighting that last point is the MCFN’s recent report that documented campaign spending in the November 2008 election.

Of the $7.5 million spent for the Supreme Court campaign, over half the money is not disclosed in campaign finance reports. The money spent by the Michigan Chamber of Commerce and the Democratic and Republican Parties for candidate-focused “issue” advertising is entirely off the books.

So, according to the MCFN, recusal guidelines from the Michigan Supreme Court need to be augmented by some reform legislation.

[R]igorous recusal standards for the Michigan Supreme Court will be undermined by the failure of Michigan’s Campaign Finance Act to require disclosure of contributors to organizations such as the Michigan Chamber of Commerce and the state’s political parties that sponsor candidate-focused “issue” advertisements that seek to define judicial candidates’ records, qualifications and suitability for office without explicitly exhorting a vote for or against a candidate. Without knowing who contributes to the committees that sponsor candidate-focused issue ads, it will not be clear when a motion for recusal rightfully should be filed.

The decision in the Caperton case provides an important buttress for citizens’ due process rights to an impartial judicial hearing. However, Michigan legislators must address the shortcomings in our campaign finance disclosure regulations if this protection is to have its full effect.

That’s not too much to ask from the lawmakers in Lansing.

MSC divided on publishing proposed changes to debt collection court rules

A divided Michigan Supreme Court, on a 4-3 vote, has published for comment a proposal that would add additional filing requirements in consumer debt collection cases and give court clerks the power to reject filings that do not conform with the proposed requirements.

The proposed amendments of MCR 2.112, 2.113, 3.101 and 8.119 are being pushed by Judges William J. Richards, Susan M. Moiseev and Shelia R. Johnson of the 46th District Court in Southfield.

An MSC staff comment accompanying the proposal summarizes the key features:

These proposed amendments reflect in substantial part a proposal submitted by the 46th District Court to require more specific pleading in debt collect cases than in other types of cases, and to allow a chief judge to authorize court clerks to screen pleadings in all cases and to reject them if they do not comply with the Michigan Court Rules, Michigan statutes, or the Michigan Supreme Court records standards. A party whose documents were rejected wouod be entitled to a prompt judicial review upon request. Further, the proposal would require the a request for a writ of garnishment include information regarding the total amount of postjudgment interest and costs accrued to date, and the total amount of postjudgment payments made to date.

The publication-for-comment order drew a dissent from Justice Maura Corrigan, who was joined by Justices Stephen Markman and Robert Young.

The dissenters believe that the proposal vests too much power with court clerks. Corrigan, while sympathizing with the 46th District Court’s “burdensome workload,” wrote:

I am concerned that in attempting to dispose of requests for garnishment in an orderly fashion, the 46th District Court would grant its clerks and all clerks across the state overly broad authority, thereby allowing clerks to exercise an adjudicative function. Historically, this Court has refused to adopt proposed amendments that would delegate too much authority to clerks.

As examples, Corrigan cited two past proposals the MSC thumbed down that would have allowed the Court of Appeals clerk to dismiss appeals for filing defects and for failure to prosecute.

Corrigan continued:

I see no appreciable distinction between such past proposals and the 46th District Court’s current proposal. Additionally, I believe that further scrutiny of this proposal before publication would have yielded a less troubling product that satisfies my concerns about the improper delegation of judicial authority to clerks. Because I cannot support the Court’s order publishing the proposed amendment of of MCR 8.119 for comment permaturely, I respectfully dissent.

The comment period on the proposal is open until Sept. 1, 2009. Send your comments to Supreme Court Clerk Corbin Davis in writing or electronically.
Box 30052, Lansing, MI 48909
email: MSC_clerk@courts.mi.gov

MSC mulls time limits for medmal pleadings

The Michigan Supreme Court is considering limitations periods for certain pleadings in medical malpractice cases.

Under proposed amendments to MCR 2.112 and 2.118, there would be time limits in which to challenge affidavits of merit and meritorious defense, and notices of intent to sue.

The key language from the proposed amendment of MCR 2.112 Pleading Special Matters:

(L) Medical Malpractice Actions.

(2) In a medical malpractice action, unless the court allows a later challenge for good cause:

(a) all challenges to a notice of intent to sue must be made at the time the defendant files its first response to the complaint, whether by answer or motion, and

(b) all challenges to an affidavit of merit or affidavit of meritorious defense, including the qualifications of the signer, must be made within 63 days of service of the affidavit on the opposing party. If the court finds that the affidavit is insufficient, it shall afford the party that filed the challenged affidavit to file a revised affidavit unless the information before the court shows that amendment would
not be justified. See MCR 2.116(I)(5).

MCR 2.118 Amended and Supplemental Pleadings would also be amended. The proposed added language is in italics:

(D) Relation Back of Amendments. An amendment that adds a claim or defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of original filing of the affidavit.

The staff comment accompanying the proposal states:

The proposal also would allow amendment when an affidavit is found to be insufficient unless such amendment would be unjustified, and would explicitly state that the amended affidavit of merit or meritorious defense relates back to the date of the affidavit’s original filing.

Send your comments to Supreme Court Clerk Corbin Davis in writing or electronically by Sept. 1, 2009.
Box 30052, Lansing, MI 48909
email: MSC_clerk@courts.mi.gov

Post a copy here at The Michigan Lawyer while you’re at it.

Is tailpipe emissions event a smokescreen for Granholm SCOTUS vetting?

Governor Jennifer Granholm is in Washington today for a White House announcement on federal tailpipe emissions legislation.

But Granholm may be getting some extra mileage from her D.C. trip.

From Deb Price in this morning’s edition of The Detroit News:

Her trip to Washington today — and her cancellation of a public appearance in Warren on Monday — fueled speculation that she’s being vetted for the seat Justice David Souter will relinquish at the end of the court’s term in June. But White House press secretary Robert Gibbs wasn’t saying whether that was the case.

He ducked answering the question at the briefing Monday, intensifying the media spotlight on the governor and former Michigan attorney general, who reportedly is on a short list of contenders that includes Janet Napolitano, the secretary of Homeland Security; Solicitor General Elena Kagan; and U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood.

Closer to home, Granholm Press Secretary Liz Boyd was equally coy when asked about her boss and possible SCOTUS vetting.

From a report in Michigan Information and Research’s Capitol Capsule:

Granholm spokeswoman Liz BOYD told MIRS that the Governor would be there for an announcement that was “unrelated to the Supreme Court buzz.” When asked if she had been contacted by the Obama administration about the job, Boyd said: “I am not offering a comment on anything related to speculation about a possible appointment with the Obama administration.”

Although Boyd isn’t offering any comment, plenty of other pundits have.

Price gave her reasons in a Sunday Detroit News column about why Granholm’s on President Obama’s short list.

And Detroit News columnist Laura Bergman, also on Sunday, marshaled what she called “powerful arguments” for Granholm to be Obama’s pick.

But last Thursday, blogger Susan Demas, in her Capitol Chronicles, had an interesting take on why the president will select someone other than the governor.

With all the gloomy news about Michigan’s budget, rampant unemployment in the state and automakers teetering through bankruptcy court, speculation about Granholm and a possible U.S. Supreme Court nomination is a fun game to play.

Enjoy it while it lasts.

It’s already beginning …

We’re still 18 months away from the next time we select Michigan Supreme Court justices but a quick visit to the Michigan Democratic Party’s Web site might convince you that Election Day was just around the corner.

Justice Robert Young is drawing early re-election heat

Having dispatched Cliff Taylor in last November’s contest with Justice Diane Hathaway’s election to the high court, the Democrats are already putting the smack on Justice Robert Young, who is up for re-election in 2010.

From the Dem’s home page this morning:

“Justice Robert Young: Enemy of the People”

“Young: Doing Good Not Judges’ Role”

“Law Day 2009: Justice Young Erodes Vital Constitutional Right – Young Undermines Right to Trial By Jury”

“Justice Young Calls Plaintiffs, Justice Weaver Liars”

Wow! At this rate, by October 2010, the Dems may be blaming Young for earthquakes, tornadoes, wildfires, tsunamis and possible asteroid strikes.

Seriously, this sort of partisan ballyhoo is to be expected but what’s noteworthy is the amount of it, and so early in the game, too.

All of this underscores just how important the Dems think it is to secure another reliable seat on the Michigan Supreme Court. The current lineup, by political party, has Chief Justice Marilyn Kelly, and Justices Michael Cavanagh and Diane Hathaway in the Democratic corner, and Justices Young, Maura Corrigan and Stephen Markman in the Republican camp.

Justice Elizabeth Weaver, a Republican, has been critical of the other Republican justices and has sided with the Democrats on some issues. Weaver is also up for re-election in 2010. There’s been talk that the Republicans may not nominate her and that she might run as an independent.

With that in mind, the Democrats are likely thinking that it’s critical to deliver a knock-out punch to Young in 2010 to achieve a solid 4-3 majority on the court.

The Democrats are getting some early help in other quarters.

First, some context: The State Bar of Michigan’s Consumer Law Section recently released a study, which concluded that Michigan Supreme Court decisions have left the Michigan Consumer Protection Act “toothless.”

The study examined MSC opinions dealing with the Michigan Consumer Protection Act and found that, over the years, the court has exempted from the act most of the businesses that generate most of the consumers’ complaints.

It didn’t take long for the Detroit Free Press to paint some faces on the study’s statistical analysis and finger who the Freep’s editorial board thought was the main culprit. From last Friday’s editorial page:

In two landmark cases in 1999 and 2007, the Republican state Supreme Court majority installed by Gov. John Engler effectively gutted the Michigan Consumer Protection Act, ruling that the intent behind the law was to exempt nearly three-quarters of the businesses that generate the most consumer complaints.

Both rulings, authored by Justice Robert Young Jr., contravened 23 years of aggressive enforcement in which the attorney general and consumer advocates relied on the MCPA to hold unscrupulous businesses accountable for deceptive and unfair practices.

It looks like Young is in for a long, hard campaign.

Granholm SCOTUS buzz continues

Governor Jennifer Granholm so far has not entertained any talk about being on short lists of potential nominees for the opening on the U.S. Supreme Court being created by Justice David Souter’s retirement later this year.

Gov. Jennifer Granholm: Let's talk about something else

Granholm last week demurred when pressed by Andrea Mitchell on MSNBC and, locally, Paul W. Smith on WJR, about her possible SCOTUS nomination. In fact, Granholm told Smith that her nomination would never fly because she’s never been a judge.

But that’s an excellent reason why she should be considered, according to University of Maryland School of Law Professor Sherrilyn A. Ifill. In a commentary published yesterday on CNN’s Web site, Ifill argued that the Supreme Court has been overpopulated by former appeals court judges.

It’s been nearly two decades since anyone who has not served as a federal appellate judge — for at least a little while — has been confirmed to sit on the court. What this means is that justices on the court have come to be representative of a very narrow slice of the profession.

Federal appellate judges, former federal prosecutors and high-powered federal appellate practitioners stand a very good chance of getting nominated. State court judges, full-time law professors, former criminal defense attorneys, even civil practice trial lawyers — not so much.

Ifill says that relying on the federal appellate bench as “the sole feeder to the Supreme Court also means that the pool from which nominees are considered is overwhelmingly white and male.”

That’s why Ifill is pleased to hear that

three women with more diverse backgrounds may be on President Obama’s shortlist for the court. Elena Kagan is the former dean of Harvard Law School and Obama’s new solicitor general. Leah Ward Sears is the chief justice of the Georgia Supreme Court. And of course Jennifer Granholm is the governor of Michigan.

As could be expected, we’ve already heard murmurs that Kagan and Granholm should not be considered because they lack judicial experience. This is just wrong-headed and reflective of the wholesale acceptance of an increasingly narrow view of Supreme Court qualifications.

Each of these nominees has been touted as a talented lawyer who could help bring much-needed gender diversity to the court (which after the retirement of Justice Sandra Day O’Connor in 2006 left Justice Ruth Bader Ginsburg as the lone woman justice). But perhaps these candidates should best be recognized for their potential to bring much-needed professional diversity to the court.

The shoe is on the other foot

The “new minority” on the Michigan Supreme Court, Justices Maura Corrigan, Robert Young and Stephen Markman, is complaining that the “new majority,” Chief Justice Marilyn Kelly, and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway, is ignoring established precedent.

In an April 24 order, the MSC voted 4-3 to let stand the Michigan Court of Appeals decision in Juarez v. Holbrook, et al., which approved the trial court’s award of case evaluation sanctions to defendant based on attorney fees of $97.50 per hour – the discounted rate defense counsel charged the no-fault insurer in this case. Defense counsel complained the rate was too low.

Juarez was decided July 1, 2008. The next day, the MSC decided Smith v. Khouri, authored by then-Chief Justice Clifford Taylor. Justice Taylor was joined by Justice Young. Justice Corrigan, joined by Justice Markman, in large part concurred with the lead opinion’s clarification of calculating reasonable attorney fees:

[W]e review a trial court’s award of “reasonable” attorney fees as part of case-evaluation sanctions under MCR 2.403(O) calculated under some of the factors we listed in Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982), and Rule 1.5(a) of the Michigan Rules of Professional Conduct. We take this opportunity to clarify that the trial court should begin the process of calculating a reasonable attorney fee by determining factor 3 under MRPC 1.5(a), i.e., the reasonable hourly or daily rate customarily charged in the locality for similar legal services, using reliable surveys or other credible evidence. This number should be multiplied by the reasonable number of hours expended. This will lead to a more objective analysis. After this, the court may consider making adjustments up or down in light of the other factors listed in Wood and MRPC 1.5(a). In order to aid appellate review, the court should briefly indicate its view of each of the factors.

Justice Cavanagh, joined by Justices Kelly and Weaver, accused Justices Taylor, et al. of tinkering with something that wasn’t broken:

Today the majority says much, but changes little, in its attempt at “fine tuning,” ante at 11, our longstanding method for assessing reasonable attorney fees under MCR 2.403(O), which has remained unchanged since this Court unanimously adopted it 25 years ago in Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982). In fact, despite the majority’s attempt to aid appellate review and increase the consistency of reasonable attorney-fee awards, its new variation of the Wood-factors method changes little because, in the end, it still leaves the trial court with broad discretion in awarding reasonable attorney fees under the rule. Accordingly, I would not tinker with the Wood factors simply because in this case a contingency-fee attorney was awarded an hourly-rate fee that some on this Court would not have accepted had they been the trial judge. The Wood-factors method is not broken; therefore, I respectfully dissent from the majority’s attempt to fix it.

Armed with the 4-3 decision in Smith, the attorneys in Juarez appealed to the MSC, arguing that the justices should take a look at the trial court’s award of case evaluation sanctions.

Leave to appeal is denied, said the “new majority” in the April 24 order, because “we are not persuaded that the questions presented should be reviewed by this Court.

The “new majority” term was used by Justice Markman in his dissent, in which he claimed existing precedent was being ignored:

A remand to the trial court for compliance with Smith is clearly required here. See Young v Nandi (Docket No. 134799, order entered October 3, 2008). However, the majority’s disdain for Smith is apparently viewed as adequate justification for ignoring Smith. Rather than forthrightly overruling this decision, something the new majority is apparently loathe to do (perhaps because several majority justices repeatedly and loudly proclaimed fealty to stare decisis, and dissented, whenever the former majority overruled a precedent), it is increasingly becoming the modus operandi of this Court that relevant precedents simply be ignored. See, e.g., VanSlembrouck v Halperin (Docket No. 135893, order entered April 24, 2009), where the new majority ignored Vega v Lakeland Hospitals, 479 Mich 243, 244 (2007), Hardacre v Saginaw Vascular Services (Docket No. 135706, order entered March 27, 2009), where the new majority failed to follow Boodt v Borgess Med Ctr, 481 Mich 558 (2008), and Sazima v Shepherd Bar (Docket No. 136940, order entered April 3, 2009), where the new majority failed to follow Chrysler v Blue Arrow Transport Lines, 295 Mich 606 (1940), and Camburn v Northwest School Dist (After Remand), 459 Mich 471 (1999).

It wasn’t too long ago when the “old minority” (Cavanagh, Kelly and sometimes Weaver) was left to complain that the “old majority” (Taylor, Corrigan, Young and Markman) was busily overturning precedent left and right for no other reason than the “old majority” didn’t like the way the old cases had been decided.

The legal scholars will endlessly debate who, if any, has the most intellectually honest position: the “old majority,” the “old minority,” the “new majority” or the “new minority.” And the political operatives will furiously and superficially spin things to their perceived advantage.

But for right now, as far as the new minority is concerned, the shoe is on the other foot, and it is an apparently uncomfortable fit.

A mail-box rule for inmates?

A state prison inmate will finally be able to mount a circuit-court challenge of an administrative determination that he intentionally kicked a prison guard while trying to escape.

The Michigan Supreme Court, on a 5-2 vote, has ordered the Ionia County Circuit Court to hear the case based on “unique procedural facts.”

Unique, indeed.

Patrick Kinney pleaded guilty to three of the four misconduct charges lodged against him after he attempted to escape from prison. But he was adamant that he did not intentionally kick a guard during the attempt. A Department of Corrections hearing officer found otherwise and later denied a rehearing.

From Chief Justice Marilyn Kelly’s concurring statement in Kinney v. Dep’t of Corrections:

Under MCL 791.255, plaintiff had 60 days from the delivery or mailing of that denial of rehearing, until May 3, 2004, to file an application for direct review by the circuit court. He delivered his application to prison officials on April 14, 2004. The prison records show that plaintiff’s petition was placed in the outgoing mail the next day, April 15. But the Ingham Circuit Court did not date-stamp the application as received until May 10, 2004, ten days after the filing deadline.

The circuit court issued an order allowing plaintiff to resubmit his application within 21 days. Plaintiff’s new deadline was August 4, 2004. He delivered his application to prison officials well in advance of the deadline, on July 20. The prison records indicate that this application was placed in the outgoing mail on July 21. Again, however, the circuit court did not record the application as received until well after the deadline, on August 13, 2004, 25 days after plaintiff delivered it to prison officials.

This time, the circuit court entered an order dismissing plaintiff’s petition as untimely. Plaintiff sought delayed leave to appeal the order, but the Court of Appeals denied it. This Court denied leave to appeal on October 31, 2006.

Almost three full years after filing his application for review of his assault conviction, plaintiff sought superintending control in the Ionia Circuit Court. That court dismissed the complaint, adopting the defendant’s reasoning that plaintiff’s only remedy had been a direct appeal of right to the circuit court. The Court of Appeals affirmed the dismissal.

Nearly five years after plaintiff filed the initial appeal challenging his assault conviction by the DOC hearing officer, this Court is finally granting plaintiff his day in court. The outrageousness of such a lengthy delay is obvious.

Kelly went on to say that that the case is a perfect example of why the MSC needs to adopt a prison-mailbox rule, under which a petition for review would be considered “filed” on the day it is handed to prison authorities for mailing.

No so fast, say Justices Maura Corrigan and Robert Young.

Corrigan, joined by Young, dissented from the court’s action of giving Kinney his day in court.

Corrigan said the appropriate remedy would be to

remand this case to the trial court and order the Department of Corrections (MDOC) to show cause for the consistent delays in transmitting the plaintiff inmate’s legal mail to the courts. First, the delays may have originated from the MDOC’s Baraga Maximum Correctional Facility, where plaintiff is housed. The MDOC is a party both to this suit and to the underlying suit in which plaintiff petitioned for judicial review of an MDOC hearing officer’s decision. The MDOC is also the beneficiary of the delays, which resulted in the dismissal of plaintiff’s petition in the underlying suit. Accordingly, it is appropriate to order the MDOC to explain the delays at a show cause hearing. Second, until the court has additional facts concerning the cause of the delays, providing relief to plaintiff is premature. Finally, the courts will benefit from explicit fact-finding by the trial court in this case. Even if the delays originated with the MDOC, their causes remain a mystery.

The MSC has opened an administrative file on adopting a prison-mailbox rule and will soon be considering the merits of such a rule.

Update 04/13/09: MSC Public Information Officer Marcia McBrien has informed The Michigan Lawyer Blog that the court will take up the prison-mailbox rule at the court’s May public administrative conference.