Plaintiff can’t amend NOI to add a party, MSC rules

A medical malpractice plaintiff can’t use Bush v. Shabahang and MCL 600.2301 to amend his notice of intent (NOI) to add a party to the lawsuit, the Michigan Supreme Court ruled.

In the majority decision of Driver v. Cardiovascular Clinic, Justice Mary Beth Kelly wrote that the NOI only applies to the person upon which it was served. Therefore it didn’t toll the statute of limitations for any non-parties.

Further, she wrote, Bush is inapplicable to the case because it requires the case be pending, which this one was not, at least against the non-party.

By its plain language, MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. “An action is not ‘pending’ if it cannot be ‘commenced’ . . . .” In Bush,
however, this Court explained that an NOI is part of a medical malpractice “proceeding.” The Court explained that, “[s]ince an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding.’ As a result, [MCL 600.2301] applies to the NOI ‘process.’”
Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any “proceeding” against CCA because plaintiff’s claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barred at the outset. Therefore, MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case.

She also said that allowing the plaintiff to amend the NOI would alter the substantial rights of the non-party.

Every defendant in a medical malpractice suit is entitled to a timely NOI. The legislative purpose behind the notice requirement “was to provide a mechanism for ‘promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs . . . .’” Applying MCL 600.2301 in the present case would deprive CCA of its statutory right to a timely NOI followed by the appropriate notice waiting period, and CCA would be denied an opportunity to consider settlement. CCA would also be denied its right to a statute-of-limitations defense. These outcomes are plainly contrary to, and would not be in furtherance of, the Legislature’s intent in enacting MCL 600.2912b.

Finally, the court held that Burton v. Reed City Hosp. is still alive, even under Bush.

Nothing in Bush altered our holding in Burton. The central issue in Bush involved the effect an NOI had on tolling when the NOI failed to comply with the content requirements of MCL 600.2912b(4). The central issue in Burton involved the effect the plaintiff’s failure to comply with the notice-waiting-period requirements had on tolling. Indeed, the Bush Court repeatedly emphasized that the focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b.67 In contrast to placing doubt on the viability of Burton, this aspect of Bush aligned with Burton’s holding that a plaintiff must comply with the notice waiting period to ensure the complaint tolls the statute of limitations.

Chief Justice Robert P. Young Jr. concurred, incorporating by reference his dissent from Potter v. McCleary regarding the service of an NOI on a professional corporation.

Justice Diane M. Hathaway dissented, arguing that the plaintiff should have been allowed to amend the notice of non-party statute.

The majority erroneously asserts that plaintiff cannot use the NNPF 91-day window because plaintiff did not provide an NOI to CCA six months before filing the original action. However, the majority errs in this analysis. Under this reasoning, no plaintiff who brings a malpractice lawsuit under the discovery rule can ever use the NNPF statute to bring a claim against an identified nonparty at fault because no plaintiff will ever have provided an NOI to a nonparty at fault six months before filing the original suit. This reasoning renders an entire provision of the NNPF statute, the provision
allowing plaintiffs to file claims against nonparties at fault, nugatory. This clearly was not the intent of the Legislature and violates the basic tenets of statutory construction.

The majority fails to recognize that the NNPF statute creates it own 91-day window in which to bring claims against identified nonparties at fault. If the majority’s reasoning were correct, and a plaintiff were not afforded the opportunity to start his or her claim by providing an NOI to the nonparty at fault during the 91-day window, the NNPF and NOI statutes would be in irreconcilable conflict.

She wrote that, in this instance, the plaintiff tried to meet the requirements of the statute, and therefore, Bushshould have allowed him to amend the NOI.

Justice Michael F. Cavanagh said he would concur with the result of Hathaway’s dissent.

Plaintiff must show experimental medical procedure is effective in no-fault action

In the second-to-last Michigan Supreme Court decision of the term, the court has found that a first party no-fault plaintiff must show verifiable and objective medical evidence that an experimental procedure is effective in order to prevail.

In Krohn v. Home-Owners Insurance Co., the plaintiff went to Portugal for experimental spinal surgery after suffering catastrophic injuries in an auto accident . The surgery wasn’t FDA approved and wasn’t available in the U.S. He was warned by his doctor that the surgery was dangerous, experimental and likely wouldn’t be covered by insurance.

The no-fault insurer told the plaintiff it wouldn’t pay for the surgery, but would pay for tests to see if he was a candidate and therapy sessions after. After having the surgery, he sued the no-fault insurer for the cost of the surgery.

After the surgery, the plaintiff reported some improvement in his condition. The majority, in an opinion written by Justice Brian Zahra, said experimental procedures aren’t all excluded by coverage, but more is required than the plaintiff’s perceptions that it worked/will work.

We reject defendant’s position and conclude that experimental treatments are not necessarily barred from being compensable under the no-fault act. The ultimate question whether the surgical procedure at issue here is a covered expense under the no-fault act does not turn on its status as experimental. Rather, like all claims for allowable expenses, the question turns on whether the procedure was reasonably necessary for plaintiff’s care, recovery, or rehabilitation.

Zahra wrote that the test for whether something is “reasonably necessary” must be an objective standard. Specifically, in footnote 47, the majority approved of the Court of Appeals’ assertion that using hindsight evidence, i.e. “it worked” “is inconsistent with making an objective determination of whether medical treatment was ‘reasonably necessary.’”

Zahra defined the experimental procedure test as follows:

Thus, a service, product, or accommodation must be (1) objectively reasonable and (2) necessary for an insured’s care, recovery, or rehabilitation. If, as in this case, the service under consideration is an experimental surgical procedure, the insured must present evidence that the surgery may result in care, recovery, or rehabilitation. In other words, there must be evidence that the surgery is efficacious. Further, because a surgery involves the exercise of medical judgment, the efficacy determination must be based on objective and verifiable medical evidence. Experimental surgical procedures lacking objective and verifiable medical evidence of their efficacy cannot be “reasonably necessary” simply because it cannot be shown to effect the insured’s care, recovery, or rehabilitation. …

If a surgical procedure is experimental, an insured cannot establish its reasonable necessity under MCL 500.3107 unless expert testimony indicates that the surgery presents a reasonable chance that it will be efficacious in the injured person’s care, recovery, or rehabilitation.

MCL 500.3107(1)(a) does not require that medical treatment be shown to have gained general acceptance within the medical community. Rather, an insured must present objective and verifiable medical evidence that medical treatment is efficacious in an injured person’s care, recovery, or rehabilitation. If there is objective and verifiable evidence that an experimental surgical procedure is efficacious, the finder of fact can begin to make an informed decision in regard to whether the treatment was reasonably necessary by considering whatever factors were relevant in that case, which may include but are not limited to the severity and chronicity of the condition, the outcomes of any previous treatments, the likelihood that alternative treatments would be efficacious, a personal physician’s recommendation in conjunction with the a patient’s preference, and both the short-term and long-term risks and benefits. Absent objective evidence to establish that the experimental surgical procedure is at least efficacious, there would not exist a material question of fact about whether the medical treatment was reasonably necessary to the care recovery or rehabilitation of an insured.

In a dissent, Justice Diane Hathaway accused the majority of adding to the statute:

The majority holds that in order for an expense related to an experimental surgical procedure to be “reasonably necessary,” a court must first determine as a matter of law that there is “objective and verifiable medical evidence establishing that [the experimental surgical procedure] is efficacious.” Further, the majority holds that plaintiff did not meet the “objective and verifiable medical evidence” standard because Dr. Lima’s research “was unsupported by any controlled studies, it was not subject to  peer review, and the medical evidence was not debated in scholarly publications.” Thus, the majority’s new standards add language to the statute that is simply not there.

She also disputed the majority’s result under its own holding, stating that 40 of the 110 people who have had the surgery came from the doctor whose opinion the majority relied upon to dispute the “efficaciousness” of the procedure, the ironically named Dr. Hinderer.

Only one opinion left.

MSC: Affidavit of merit not a pleading, can’t be amended retroactively

Since it was decided in 2009, the Michigan Supreme Court’s decision in Bush v. Shabahang has been used by the Court of Appeals to allow plaintiffs to fix several different types of defects in medical malpractice-specific pleadings.

But the court’s decision in Ligons v. Crittendon Hospital denied a plaintiff the opportunity to amend a defective affidavit of merit (AOM) and dismissing the case.

Writing for the majority, Justice Brian Zahra said the AOM isn’t a “pleading” under the court rules, so any rule allowing an amended “pleading” doesn’t apply.

An AOM, even if required to be appended to a complaint, is not included in this restrictive definition of a “pleading.” Plaintiff relies heavily on a statement in Barnett v Hidalgo, which described an AOM as “part of the pleadings” in determining that an AOM is “generally admissible as an adoptive admission[.]” But plaintiff fails to appreciate the context in which the statement was made: describing a document as “part” of the pleadings when addressing an evidentiary issue does not turn the document into a pleading for purposes of MCR 2.118(D) if it does not meet the definition in MCR 2.110(A).60 Indeed, elsewhere Barnett clearly referred to the AOM as distinct from the complaint, stating that AOMs “are required to accompany a complaint . . . .” Id. at 160. Under MCR 2.110(A)(1), for purposes of the court rules it is the “complaint” itself that constitutes a “pleading,” not the complaint and any document accompanying it. Barnett neither held nor relied on the premise that an AOM is a pleading for purposes of the rule permitting amendment of pleadings, MCR 2.118

Zahra also wrote that Bush doesn’t apply to AOMs either.

The Bush Court’s application of MCL 600.2301 to a medical malpractice NOI was rooted in the Legislature’s 2004 amendment of MCL 600.5856(c), the notice-tolling statute, and does not apply to AOMs. Unlike NOIs, which give notice to defendants, AOMs are meant to weed out frivolous cases before they are ever filed. Applying Bush beyond the scope of the 2004 amendment of MCL 600.5856(c) and NOIs to AOMs would be an unwarranted expansion of its focus on the notice-tolling statute, would free the opinion from its statutory moorings, would frustrate the purpose of the AOM requirement, and would create unnecessary conflict with existing caselaw, such as Kirkaldy, which Bush did not overrule. We therefore decline to apply the rationale of Bush beyond its limited statutory focus.

The majority said dismissal with prejudice is required in such circumstances.

Justice Michael Cavanagh dissented, arguing that the AOM in the case wasn’t defective because the statute doesn’t require specificity, and even if it was, the statutes don’t require that the case be dismissed with prejudice.

Nevertheless, assuming arguendo that the AOM in this case was deficient, I believe that MCL 600.23013 should apply to allow a cure of the alleged deficiency within the AOM. To begin with, applying MCL 600.2301 would not conflict with MCL 600.2912d, when the latter is read as a whole. Indeed, as recognized by Justice HATHAWAY, the AOM statute does not expressly provide a penalty for deficiencies within the contents of an AOM. And, notably, the allowances of additional time to file an AOM in MCL 600.2912d(2) and (3) do not explicitly preclude amending or disregarding defects within the contents of an AOM. Instead, those provisions merely provide a plaintiff additional time in which to file the initial AOM and, thus, do not address curing an arguably defective AOM. And while I continue to adhere to my position in Kirkaldy v Rim, 478 Mich 581, 586-587; 734 NW2d 201 (2007) (CAVANAGH, J., concurring), as Justice HATHAWAY suggests, allowing a defect within an AOM to be cured under MCL 600.2301 would simply provide an alternative remedy to that of Kirkaldy, in which the majority opined  that the remedy for a successful challenge to a deficient AOM is dismissal without prejudice, id. at 586 (majority opinion). Accordingly, I believe that MCL 600.2301 should apply.

Justice Diane Hathaway also argued that the statute doesn’t require the specificity the majority is requiring.

The Legislature chose not to incorporate any of these phrases heightening the level of specificity in the AOM statute. If the Legislature had chosen to incorporate such qualifying language in MCL 600.2912d(1), then the majority might have a basis for its conclusion. However, MCL 600.2912d(1) is silent concerning the level of specificity with which the information in an AOM must be conveyed. Nothing in the plain language of this statute mandates the heightened level of specificity that the majority demands, and this Court is not free to add words or phrases to a statute. Thus, the requirement that the AOM “shall contain a statement of each of the following” simply means what it says. The statute requires that “a statement” must be made, not a “detailed statement,” “a complete statement,” or a “full explanatory statement.”

One of the other two MSC decisions that are supposed to be out today, Driver v. Cardiovascular Clinic, will also deal with application of Bush v. Shabahang and Burton v. Reed City Hospital. Stay tuned.

Three MSC opinions in, five remain

Mary Beth Kelly (lowrez)

Justice Mary Beth Kelly

The Michigan Supreme Court released opinions in three of the eight cases that remain pending for the 2010-2011 term.

All three opinions released yesterday were criminal cases.

In the first, People v. Kowalski, the court found that the trial judge’s omission of the actus reus was a plain error, but upheld the defendant’s conviction for accosting a minor for immoral purposes or encouraging a minor to commit an immoral act. The court found that defendant effectively waived the issue because his counsel didn’t object to the jury instruction, and even if he didn’t waive it, the prosecutor produced sufficient evidence at trial to support the jury’s guilty verdict. The count was 7-0, but Justices Michael Cavanagh and Marilyn Kelly concurred in the result only. Cavanagh wrote a concurrence in which he disagreed with the lead opinion’s waiver analysis. He also suggested the lead opinion should have applied a harmless error analysis for a constitutional error, rather than the plain error analysis it used.

Stephen J. Markman (lowrez)

Justice Stephen J. Markman

In People v. Huston, the court considered whether to upgrade the defendant’s sentence for engaging in “predatory conduct” on a “vulnerable victim.” In the majority opinion, Justice Markman wrote that the preoffense conduct need not be directed at “any specific victim,” just a victim, to be considered predatory under the statute, and the victim need not be “inherently vulnerable.”

Instead, a defendant’s “predatory conduct,” by that conduct alone (eo ipso), can create or enhance a victim’s “vulnerability.”

This was a 6-1 decision with Justices Diane Hathaway and Marilyn Kelly concurring in the result but dissenting to the part about predatory conduct. Justice Michael Cavanagh dissented.

Finally, in People v. Bonilla-Machado, the court found that a prison employee is a “person” to establish a continuing pattern of criminal behavior for scoring offense variable 13. Probably more importantly, it held that the application of enhanced maximum sentencing is discretionary and not mandatory as the trial court had stated. The justices quibbled over the scope of crimes OV 13 can be scored.

MDP Chair Brewer slams MSC Justice Young

MDP Chair Mark Brewer

Michigan Democratic Party Chair Mark Brewer

Michigan Democratic Party Chair Mark Brewer is getting a jump start on the silly season of politics.

Brewer jabbed at Michigan Supreme Court Justice Robert P. Young Jr. in a press release issued yesterday. Young, who is running for re-election to the MSC this fall, doesn’t care about the average working Joe or Josephine, says Brewer.

Young, along with a majority of the justices, reversed the Michigan Court of Appeals in Alderman v. J.C. Development Communities, a construction-accident case in which Randy Alderman, a subcontractor’s employee, was badly burned when a crane hit a power line.

MSC Justice Robert P. Young Jr.

Michigan Supreme Court Justice Robert P. Young Jr.

At issue was whether the general contractor was liable to Alderman under the common-work-area doctrine. Under Ormsby v. Capital Welding, Inc., 471 Mich. 45 (2004), the doctrine requires proof of four elements:
  • (1) that the defendant contractor failed to take reasonable steps within its supervisory and coordinating authority;
  • (2) to guard against readily observable and avoidable dangers;
  • (3) that created a high degree of risk to a significant number of workers; and
  • (4) in a common work area.

Judge Edward Sosnick of the Oakland County Circuit Court said Alderman hadn’t made his case, reasoning that Alderman and the other five members of his crew were the only ones in the area. According to Sosnick:

At most, six employees of one subcontractor were exposed to the risk of electrocution. This is not sufficient to establish a common work area.

The COA panel, Judges Donald S. Owens, Deborah A. Servitto and Elizabeth L. Gleicher, disagreed.

Plaintiff presented evidence that this construction project was rather large and that his employer was not the only subcontractor working in the vicinity of the power lines on the date of this accident. …

Plaintiff’s crew may have been the only subcontractors working on lot 273 when the accident occurred, but the power lines did not merely run along the one lot. They ran along several lots under active construction, and electricity is commonly understood to be hazardous.

The crane could easily have torn down the power lines, creating a hazard to anyone within striking distance of the fallen lines, or could have caused a fire. The risk of harm associated with a crane hitting the power lines is high and is not as narrow as defendant would suggest.

The risk at issue is the potential harm to be had if the crane hit the power lines — not merely the harm to be had if the crane made contact with the power lines and someone was involved in the electrical circuit between the power lines the crane.

In an order issued last week, Young and four other justices reversed, using language that generally tracked Sosnick’s when he initially dismissed the case:

The risk of injury at issue here was the risk of electrocution from a subcontractor’s crane coming into contact with power lines above the construction site.

The only employees exposed to the risk of electrocution were two to six employees of one subcontractor, including the plaintiff, and therefore there was not a high degree of risk to a significant number of workers.

Brewer, on the Democratic Party’s website, was quick to pounce, painting Young as a friend of insurance and business interests and a working-class enemy:

On Law Day, which is intended to celebrate the benefits to all Americans of the American legal system, Michigan Supreme Court Justice Bob Young again denies those benefits to injured workers.

In an order released Friday, April 30th, Young and his colleagues denied relief to a construction worker, severely burned and nearly electrocuted on the job, because there was “not a high degree of risk to a significant number of workers.” …

“If six employees at risk of electrocution is ‘not a high degree of risk to a significant number of employees’ according to Young, how many workers doing what dangerous job is enough?” asked Michigan Democratic Party Chair Mark Brewer. …

“To Young, only insurance companies, corporations and their CEO’s, the people who fund his campaigns, are entitled to legal protection.”

But Brewer’s rhetoric proves a little too much.

Could you imagine Brewer leveling the same broadside against MSC Justice Michael F. Cavanagh, who has had the warm support of the Democratic Party in elections past? Not in this lifetime.

But Cavanagh joined Young, and Justices Elizabeth A. Weaver, Maura D. Corrigan and Stephen J. Markman in reversing the COA and reinstating Sosnick’s dismissal. Chief Justice Marilyn Kelly and Justice Diane M. Hathaway would have denied leave to appeal the COA’s decision.

That might make one think that Alderman is not about one justice looking for an opportunity to kick someone when they are down and, instead, is better understood as a principled disagreement about the scope of a legal doctrine that forecloses one avenue of relief.

The silly season of politics is upon us.

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MSC decides not to deal with sidewalk notice to cities after all

In the April 12 issue of Michigan Lawyers Weekly, I previewed oral arguments in Mawri v City of Dearborn, a case which dealt with requirements of a claimant’s notice to a city of an injury caused by a sidewalk defect.

In the case, the plaintiff sent a letter to the city in which he gave the wrong address (using the address next door) and did not describe the defect in the sidewalk.

The court heard arguments on April 13, and were apparently unmoved by Mawri’s case, vacating its order for leave affirming the Court of Appeals’ decision.

Justices Diane M. Hathaway and Chief Justice Marilyn Kelly dissented, citing the court’s 2009 decision in Bush v Shabahang:

The primary purpose of any notice statute is to provide timely notice to a defendant prior to suit. That objective was met in this case. The opinion of the Court of Appeals focuses on form rather than on the meaningful substantive requirements of MCL
691.1404(1). We recently addressed a similar pre-suit notice requirement in Bush v Shabahang, 484 Mich 156 (2009), and held that defects in a statutorily mandated pre-suit notice of intent in medical malpractice cases can be disregarded or cured by amendment under MCL 600.2301 as long as the plaintiff makes a good-faith attempt to comply with the notice provision.

MCL 600.2301 provides:

The court in which any action or proceeding is pending, has power
to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the
proceedings which do not affect the substantial rights of the parties.
[Emphasis added.]

I see no reason why MCL 600.2301 should not apply to the notice requirement in the present case for the same reasons expressed in Bush. Here the plaintiff made a good faith attempt to notify the defendant in a timely manner but the notice contained an ostensible defect. The defendant, however, had actual notice of the defect on a timely basis and accordingly no substantial right of any party was affected. Because § 2301 mandates that the court “shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties,” the Court of Appeals was required to disregard this minor technical defect.

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Hathaway won’t step away from Aceval case, Markman complains of delay

The wheels of justice almost never spin quickly, and in People v. Aceval (majority opinion) (concurring opinion), the pace may now be especially slow, according to Michigan Supreme Court Justice Stephen J. Markman.

Aceval, you’ll recall, was charged with a major drug offense. The jury deadlocked. Later, Aceval alleged that the trial judge and the prosecutor knew some of the prosecution’s witnesses were lying under oath and did nothing about it.

His second trial got underway but ended abruptly with his guilty plea in the face of allegations that he persuaded a prosecution witness to lie on his behalf. See, The Michigan Lawyer, “MSC to consider COA’s conflict ruling in Waterstone case“, for more background on Aceval’s case and the messy business of trying to get a perjury prosecution going against the judge who presided over Aceval’s first trial.

Diane M. HathawayThe latest chapter in the protracted saga: Aceval’s attorney, David L. Moffitt, moved to disqualify Justice Diane M. Hathaway from participating in Moffitt’s motion to have the Court rehear its 3-3 denial of Aceval’s application for leave to appeal. See, The Michigan Lawyer, “MSC denies drug defendant’s appeal on 3-3 vote, Corrigan may testify for former judge in related case.”

Hathaway denied the motion and wasn’t shy about her reasons for doing so:

I have carefully reviewed this matter and I find that I have had no involvement in defendant’s case as a trial court judge or as a former member of the Wayne County Circuit Court bench. I did not have any actual knowledge of defendant during my time on the Wayne County bench. Further, I am not personally acquainted with defendant, or counsel for the defendant, and accordingly harbor no bias or prejudice against either of them …

Defendant essentially alleges that I cannot be impartial in this appeal because I was a member of the Wayne County bench at the time of his conviction and am acquainted with the other members of that bench. However, the mere fact that I was a member of the same trial bench clearly does not support recusal in and of itself. …

Defendant’s challenge to my ability to be impartial in this appeal is also based on the unsupportable and fictitious premise that there is widespread corruption and cronyism among Wayne County judges and prosecutors. This bold assertion is supported only by numerous disjointed and bizarre allegations and opinions of his counsel. …

He further challenges my ability to be impartial based on my former marriage to Richard Hathaway, (former Wayne County Circuit Judge) currently a Wayne County prosecutor. However, I have been divorced from Richard Hathaway for over 15 years, we do not share any common financial or business interests, and I do not harbor any bias or prejudice for or against him. Moreover, I am unaware of what specific role Richard Hathaway has played in this prosecution, or its relevance to any issue in this case, and defendant has failed to provide any details in this motion.

Stephen J. MarkmanMarkman also provided a statement regarding the motion to disqualify. Whatever thoughts he had about the motion’s merits, or Hathaway’s disposition of it, he appropriately kept to himself.

Under MCR 2.003(D)(3)(b), “the challenged justice [emphasis added] shall decide the issue and publish his or her reasons about whether to participate. If the challenged justice denies the motion for disqualification, a party may move for the motion to be decided by the entire Court.”

It’s the second sentence in the above quote that prompted Markman’s statement:

I write separately only to observe that this Court adheres to a different procedure in the present motion for disqualification than it did with regard to the recent motion for disqualification in Pellegrino v AMPCO, #137111, [see, The Michigan Lawyer, "Judicial disqualification: To participate or not participate? That is the question"] and that this change in procedure has significant consequences for the new disqualification process.

In Pellegrino, this Court allowed other justices an immediate opportunity to respond to my statement to deny the disqualification motion directed toward me. In the instant case, justices are not to be afforded a similar opportunity until after, and unless, the attorney who initially moved the disqualification motion against Justice Hathaway has requested that her decision be reviewed by the full court.

Thus, one procedure entitles justices to review the disqualification decisions of other justices, while the other procedure allows such review only if sought by the attorney.

What’s the harm in that? Plenty, according to Markman:

Relevant to the instant procedure is that the motion for disqualification here was filed on Oct. 16, 2009. Now, more than six months later, a denial and an accompanying statement have been issued, and yet the process may still not be close to an end.

Defense counsel will now be entitled to respond to the targeted justice, the targeted justice will then be allowed to respond to defense counsel, the other six justices will then assess these ongoing exchanges between the lawyer and the justice, these other justices are then obligated to respond with their own statements explaining their decisions as to whether the targeted justice can participate in the case, and then finally the targeted justice will be entitled to a responsive or dissenting statement if he or she disagrees with the court majority.

Thus, an entire term of this Court will likely have passed and there will have been no resolution of the dispute that has brought this criminal appeal to the Michigan Supreme Court in the first place.

Not only then does the instant procedure improperly confer a monopoly upon lawyers in triggering full Court review of disqualification decisions, but it extends the disqualification process to unreasonable lengths to the detriment of justice.

The tail now wags the dog where a disqualification motion has been made, and it is quite certain that some number of such motions will be incentivized in order to delay rather than to facilitate justice.

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The curious case of Hon. Benjamin H. Logan

A deal to resolve misconduct charges filed by the Judicial Tenure Commission against 61st District Court Judge Benjamin H. Logan may be on the rocks.

Last fall, the JTC’s formal complaint alleged that Logan’s intervention to grant bond to Kent County Commissioner James Vaughn gave the “appearance of impropriety.” See, The Michigan Lawyer: Special master appointed in Grand Rapids judicial misconduct case

Vaughn had been arrested for domestic violence.

The complaint alleged that Logan intervened after a telephone call with another commissioner, Paul Mayhue, who visited Vaughn in jail. Logan initially denied that any phone conversations took place. He eventually conceded in a JTC settlement agreement that he and Mayhue spoke for 15 minutes on the day Vaughn was arrested.

The JTC recommended a public censure for Logan and sent the file to the Michigan Supreme Court for approval.

Wait a minute, something doesn’t seem to be adding up, we’re curious, a little more “explication,” please, said Justices Elizabeth A. Weaver, Maura D. Corrigan, Robert P. Young, Jr., Stephen J. Markman and Diane M. Hathaway.

We DIRECT the Judicial Tenure Commission to file a supplemental report within 56 days of the date of this order, explaining:

(1) whether it has determined that the respondent did not lie to the Commission, despite the allegations in Count II of the complaint; and

(2) if the respondent did not lie to the JTC, then how does the respondent explain his admitted 15-minute phone call received from Mayhue in light of his multiple denials of having any conversations with Mayhue on the date in question? See page 4 of the settlement agreement (admitting that the 2:08 p.m. phone call from Mayhue to the respondent on 6/17/08 lasted approximately 15 minutes), pages 5-6 of the complaint (alleging that the respondent denied having any conversations with Mayhue on that date), and page 2 of the respondent’s answer (continuing to deny that he had any conversation with Mayhue on that date).

One possible reading of the tea leaves: if a judge lies to the JTC, something more than a public slap on the wrist is in order.

Chief Justice Marilyn Kelly and Justice Michael F. Cavanagh “would adopt the recommendation of the Judicial Tenure Commission.”