After second look, Markman grants disqualification in criminal case

Robert Winburn was convicted of murder in 1990 and his appeal bubbled its way up to the Michigan Supreme Court.

Winburn filed a motion under MCR 2.003, seeking to have Justice Stephen J. Markman disqualify himself from the case. Winburn alleged the 1990 conviction had “overlapping facts” with a federal investigation by the Bureau of Alcohol, Tobacco, and Firearms of narcotics trafficking in which Winburn was allegedly involved.

Winburn says that in 1992, then-federal prosecutor Markman reviewed the ATF investigation and declined to press charges.

Markman denied the motion on Nov. 7, stating at the time:

[D]efendant has established no connection between the facts of the 1990 murder that are currently in dispute and the circumstances of the federal drug investigation in 1992, except that defendant was involved in both matters.

Thus, the crux of defendant’s argument is simply that I participated in a decision (not to prosecute defendant) nearly two decades ago, and that I am now participating in another decision concerning a different crime in which defendant was allegedly also involved.

Earlier this week, Markman reversed his decision and will recuse himself from Winburn’s case:

Defendant has now filed a motion for “clarification of material facts.”

In this motion, defendant expands upon the record and presents new evidence supporting his previously unexplained and unsubstantiated assertion that there are “overlapping facts” between the two matters.

This evidence, in my judgment, does establish a connection between the instant appeal — in which I would participate as a judge — and the prior criminal investigation– in which I participated as prosecutor.

Under these circumstances, I believe that my disqualification is warranted, and accordingly I recuse myself from the consideration of this matter.

Sometimes, persistence pays off.

MSC’s Young: COA slip-and-fall ruling ‘defies common sense’

A Court of Appeals ruling that a jury should decide whether soap residue in a YMCA shower is an open and obvious danger is “flabbergasting,” says Michigan Supreme Court Chief Justice Robert P. Young Jr.

Milagros Dascola slipped and fell in the women’s shower at a Lansing YMCA. The case went to trial. At the close of proofs, the trial court granted Dascola’s motion for a directed verdict, ruling as a matter of law that soap scum on the shower floor was not an open and obvious condition.

The case went to the jury on the remaining issues. The verdict was $110,000; Dascola was found 40 percent negligent. The trial court entered a $62,000 judgment.

In a split decision, the COA, in Dascola v. YMCA of Lansing (majority opinion) (dissent), reversed and remanded for a new trial. The majority ruled that the open and obvious issue should have gone to the jury. The dissent, although not openly flabbergasted, said the trial court should have granted the YMCA’s motion for a directed verdict as a matter of law on the open-and-obvious issue and dismissed the case.

Dascola appealed. The MSC denied leave.

In a concurring opinion, Young, joined by Justice Stephen J. Markman, did a little coaching from the bench for the defense while explaining his vote to deny leave:

There is no question that, under Michigan’’s well-established premises liability law, the presence of water and soap residue in a public shower constitutes open and obvious dangers.

As such, these conditions do not give rise to liability for a premises owner, and I believe that the lower courts clearly erred in not reaching this conclusion as a matter of law. However, because defendant has not filed a cross-appeal in this Court challenging the lower court’s determination that defendant is not entitled to summary disposition, I concur in the Court’s order denying leave to appeal.

But Young had some choice words about the notion that there could be any factual dispute about the open-and-obvious issue in this case:

[T]he conclusion by the majority of the Court of Appeals that a question of fact exists regarding whether soap residue in a shower presents an open and obvious danger is, quite frankly, flabbergasting. Even a casual review of this state’s premises liability and “open and obvious” caselaw compels the conclusion that any danger created by soap residue in a public shower presents an open and obvious condition.

Although the proposition is so self-evident that it hardly merits stating, it is within common understanding that the flat tiled surfaces that comprise a shower will by their nature become wet and can therefore become slippery, particularly when soap or similar products are used. It is hardly surprising that soaps, shampoos, or other bathing substances will be used in a shower and may leave residue or “soap scum” on the shower’s surface. That such surfaces may become slippery represents a quintessential “open and obvious” hazard.

Moreover, there were no special attributes to this shower that rendered it uniquely or unreasonably dangerous. A reasonably prudent person of ordinary intelligence understands that a wet public shower poses a slip-and-fall hazard, particularly where soap or other residue may be present on the shower’s surface.

The conclusion of the Court of Appeals majority holding that there is a question of fact in this regard defies common sense.

Supreme Court recusal over spouse’s interest again at issue

Last February, Congressional Democrats sought to have U.S. Supreme Court Justice Clarence Thomas recuse himself from the inevitable challenge of the Patient Protection and Affordable Health Care Act of 2008. While Thomas himself had no history with the bill, his wife, Ginny, is a lobbyist that represents groups trying to overturn the controversial health care reform package.

So, the Dems argue, the Thomas family is profiting handsomely from opponents of the law, therefore, Justice Thomas should recuse himself.

A similar situation has developed here in Michigan in the challenge over the constitutionality of Gov. Snyder’s emergency financial manger bill.

The new law is being challenged in the Michigan Supreme Court. Opponents of the law have moved for the recusal of Michigan Supreme Court Justice Stephen J. Markman because his wife is defending the law in a federal suit. [The Detroit News].

Markman’s wife, Kathleen, who works for the Michigan Attorney General’s Office, is one of two lawyers representing state officials in a federal lawsuit in which a city of Detroit pension fund alleges the emergency manager law is unconstitutional.

A recusal by Markman would be significant because it would erase the 4-3 majority on the court held by justices nominated by the Michigan Republican Party.

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.

Battle lines drawn as MSC denies leave in black ice case

The Michigan Supreme Court’s denial of leave to appeal in Brown v. Taubman Co., et al., means that a slip-and-fall plaintiff can take her black-ice case to a jury.

The Court of Appeals had ruled that there was conflicting evidence whether the black ice was open and obvious. The MSC denied leave on a 3-3 vote.

Justice Brian K. Zahra sat this one out because he was on the Brown panel.

The black-ice issue needs to be addressed, said Justice Stephen J. Markman in his dissenting opinion.

This case illustrates the ongoing confusion in the law of this state concerning the “open and obvious” status of “black ice,” confusion that this Court has an obligation at some point to dispel. Instead, once again, we fail to afford guidance and direction on this matter, leaving in place conflicting and discordant decisions, and thereby enabling defendants and plaintiffs to each rely upon different precedents in support of their respective positions that “black ice” is or is not “open and obvious.” …

As the highest court of this State — a state in which snow and ice have sometimes been known to accumulate during winter months — it is our responsibility to address the confusing and inconsistent approaches in our caselaw and to clarify the rights and obligations of persons who must regularly confront these conditions.

True enough.

As to how it should be resolved, the black-ice battle lines are drawn in Justice Marilyn Kelly’s concurrence and Markman’s dissent.

Here’s Markman’s take:

The Court of Appeals, citing the existence of conflicting evidence, concluded that reasonable minds could differ regarding whether the so-called “black ice” was open and obvious. I disagree. A lifelong resident of Michigan should be well aware that during winter, when for several days snow has been falling, and when temperatures have been and remain below freezing, ice may form on parking lots. These factors are more than sufficient, in my judgment, to establish the presence of potentially hazardous conditions that would have alerted an average person of ordinary intelligence to discover and react to the “danger” upon casual inspection.

Just a minute, replied Kelly, you appear to be saying that all icy conditions are open and obvious:

The dissent opines that a lifelong resident of Michigan should be aware that black ice forms during the winter. Hence it is open and obvious even when invisible. If this position were adopted by the Court, people in Michigan would be on notice that, in winter, black ice is to be expected and no liability for falling on it exists. This proposition is unprecedented in Michigan law. As our Court of Appeals has astutely observed, black ice, defined as an invisible or nearly invisible coating of ice on a paved surface, is not by its nature open and obvious.

Well, Markman responded, if you just focus on the visibility aspect:

black ice will never be considered “open and obvious,” and property owners, to whom black ice is similarly invisible, will always be held liable for accidents arising from this condition.

Further, contrary to the analysis of Justice KELLY, “[t]he [‘open and obvious’] test is objective, and the inquiry is whether a reasonable person in the plaintiff’s position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.” …

That “black ice” may have obtained in this case does not alter the reality that as wintry conditions persist in this state, a reasonable person will increasingly be alerted to the hazardousness of such conditions, and will increasingly be assumed to have encountered conditions fairly characterized as “open and obvious.”

Another black-ice case will find its way to the MSC in the foreseeable future and perhaps the Court will then seize the opportunity to provide needed guidance.

Until then, there’s plenty of a la carte precedent from which to choose.

MSC: You can, at least, try to blame the horse

In our May 3, 2010 edition, Carol Lundberg detailed a case before the Michigan Supreme Court involving equine liability. (See “A horse with no blame”). In the case, Trina Beattie was asking the court to grant leave to appeal the Court of Appeals decision dismissing her negligence case against the owner of a horse that had bit her.

At issue was the Equine Activity Liability Act (EALA), which immunizes a horse owner from liability unless the owner was negligent.

The Michigan Supreme Court reversed the Court of Appeals decision and remanded the case back to the trial court:

A plaintiff is not required to plead a claim in avoidance of the limitations on liability provided in the Equine Activity Liability Act (EALA), MCL 691.1661 et seq. Cf. Mack v Detroit, 467 Mich 186, 198 (2002). In addition, although EALA abolished strict liability for horse owners, Amburgey v Sauder, 238 Mich App 228, 245 (1999), it did not abolish negligence actions against horse owners. Indeed, EALA expressly states that “[s]ection 3 does not prevent or limit the liability . . . if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury.” MCL 691.1665. …

Justice Robert P. Young, Jr. wrote a partial dissent arguing that the COA properly dismissed Beattie’s claim under the EALA:

MCL 691.1663 limits the liability of “an equine activity sponsor, an equine professional, or another person” (a “horse owner”) when the alleged injury or damage “result[s] from an inherent risk of an equine activity.” …

I agree with the Court of Appeals that MCL 691.1665(d) cannot be construed as broadly allowing general negligence claims without completely eviscerating the entire concept of limited liability under the EALA. MCL 691.1665 must be read in conjunction with MCL 691.1663 to give effect to the act as a whole.4 Giving effect to both provisions, the Court of Appeals correctly interpreted the exception of MCL 691.1665(d) as involving “human error” “not within the gamut of ‘inherent[ly] risk[y] . . . equine activity.’”

MCL 691.1665 provides such “a general term follow[ing] a series of specific terms.” Subsections (a) – (c) provide specific exceptions in specific situations: where the horse owner has provided faulty tack, failed to match the rider’s ability to the horse’s personality, or failed to warn of a known latent dangerous condition on the land. Each of
these exceptions obviously involves an equine activity and a danger that could potentially arise in the course of that activity. However, each also involves an affirmative act or omission on the part of the horse owner, above and beyond the “inherent” or essential risks of an equine activity, which makes the equine activity even more dangerous. Therefore, we must interpret the more general negligence exception of subsection (d) “to include only things of the same kind, class, character, or nature” as the more specific, preceding subsections. Accordingly, a negligence claim pursuant to subsection (d) must also involve a negligent act or omission beyond the “inherent” risk of the equine activity, making the activity even more dangerous.

Moreover, the majority order, as well as Justice MARKMAN’s concurring statement, base their interpretation of the negligence exception to the EALA on an overly narrow and faulty linchpin: that the exception was intended simply to eliminate strict liability for horse owners. However, this interpretation fails to consider that, if the Legislature’s goal were merely to eliminate strict liability, it could have accomplished that goal in a much simpler and more direct fashion. Instead, the Legislature drafted a complex limitation on liability for injuries arising from an inherent risk of an equine activity and accompanied that limitation with numerous specific exceptions. …

Here, plaintiff was injured while assisting defendant to saddle a horse. Saddling a horse in preparation of riding is clearly an equine activity and a horse’s unexpected and negative reaction to being saddled is clearly an inherent risk of such activity. Further, both plaintiff and defendant were aware of the particular horse’s personality and of plaintiff’s level of experience with horses.

Young concurred with the majority’s holding that the trial court improperly shifted the burden of proof onto the plaintiff to “state her claim in avoidance of the EALA limitation on liability.” He was joined in his concurrence/dissent by Justices Elizabeth A. Weaver and Maura D. Corrigan.

Justice Stephen J. Markman concurred in the order to rebut the Young’s dissent:

Both the Court of Appeals and the dissent conclude that the Equine Activity Liability Act (EALA), MCL 691.1661 et seq., only permits a negligence claim when it involves something other than inherently risky equine activity. I respectfully disagree. …

It is uncontested that plaintiff was a “participant” “engage[d] in an equine activity” when she was injured. The issue is whether plaintiff’s claim fits within the “negligent act or omission that is a proximate cause of the injury” exception of EALA. The Court of Appeals correctly held that EALA does not provide blanket immunity to a horse owner. However, I believe that it read the immunity that EALA does provide too broadly. …

Here, defendant admitted that he knew that the horse was “green broke,” and thus that only the most experienced riders should handle the horse. That is, defendant had knowledge of the horse’s abnormally dangerous propensities. Indeed, that is why, according to his own testimony, he refused to let plaintiff ride the horse. Therefore, if, as plaintiff alleges, defendant did give plaintiff permission to ride the horse, and did instruct plaintiff to hold onto the lead rope while he placed the saddle on the horse, defendant under the common law would have been strictly liable for plaintiff’s injuries. Because EALA abolished strict liability for horse owners, Amburgey v Sauder, 238 Mich App 228, 245 (1999), defendant is not strictly liable for plaintiff’s injuries.

However, EALA did not abolish negligence actions against horse owners. …

Contrary to the dissent’s contention, nowhere in this statement do I suggest that the Legislature’s only goal was to eliminate strict liability. Given that the Legislature enacted a general limitation on liability and four exceptions to this limitation, eliminating strict liability was obviously not the Legislature’s only goal. The dissent also criticizes me for violating the principle of ejusdem generis by failing to read the negligence exception in accord with the other three exceptions. Again, I respectfully disagree, and believe that our disagreement stems from the fact that I also disagree with the dissent’s premise that the other three exceptions pertain to risks that are “above and beyond” the “inherent risk[s] of an equine activity.” Instead, I believe that faulty tack, the rider’s ability not matching the horse’s personality, and dangerous latent conditions of the land are all “inherent risk[s] of an equine activity.” Again, if they were not, there would be no need for the Legislature to exempt them from the general limitation on liability because such limitation only applies in the first place to injuries “resulting from an inherent risk of an equine activity.”

Markman was joined by Chief Justice Marilyn Kelly in his concurrence.

MSC reverses Pellegrino

The Michigan Supreme Court has reversed Pellegrino v Ampco System Parking, and has remanded for a new trial on the issue of damages. The court also suggested that the trial court judge’s actions could alert the Judicial Tenure Commission to investigate.

The damages in Pellegrino were high the first time around, more than $15 million.

Shirley Pellegrino died in an April 2003 shuttle bus crash after she and husband Anthony had just returned from a vacation in California. The bus slipped on ice and rammed into a concrete wall. Anthony Pellegrino sustained serious injuries.

According to Justice Stephen J. Markman, who authored the opinion:

Before voir dire, the trial court instructed the attorneys that “it would be a goal of [the court] to have a jury that represented the racial composition of this county.”  Subsequently at voir dire, defense counsel sought to peremptorily excuse prospective juror Sylvia Greene, an African-American woman, and plaintiffs’ counsel raised an objection based on Batson, alleging that defense counsel had already peremptorily challenged two prospective jurors on the basis of race.  In response, defense counsel argued that he wanted to excuse Greene because she had been widowed two times and was in the process of grieving over the death of her mother.  Without making any finding about whether plaintiffs’ counsel had established grounds for denying the peremptory challenge, the trial court denied it, and Greene remained on the jury.

Defense counsel said that he had a legitimate reason for his peremptory challenges, and argued that “plaintiffs’ Batson issue was a ‘red herring’ and unsupported,” wrote Makrman.  “He then advised the trial court that he intended to file a motion either to remove Greene or for a mistrial, to which the trial court responded:  ‘We have a jury of eight women.  Three are African-American.  In my view, it adequately represents the community from which this case arises.’ “

The jury awarded $15,613,960.48 to the plaintiff.

Ampco appealed the trial court’s denial of the peremptory challenges. In a split decision the Court of Appeals affirmed.

Wrote Markman:

The majority concluded that although the trial court had not followed Batson procedures, no constitutional error occurred because such an error occurs only when a prospective juror is excused on the basis of race, rather than included on that basis.  Thus, the majority opined, the trial court had merely denied defendant the use of a single peremptory challenge, which was subject to a harmless-error analysis.  The majority then concluded that the error was, in fact, harmless because the only issue at trial had been damages and the verdict had been unanimous. …

Plaintiffs argue that the trial court’s refusal to allow defendant to exercise a peremptory challenge of prospective juror Greene was consistent with the constitution and court rules because the trial court was merely seeking to ensure that that the jury represented a “fair cross-section of the community.”  We reject this argument because the trial court’s actions violated the race-neutral requirements of both the constitution and MCR 2.511(F)(2).  Greene’s retention on the jury was predicated on her race, as well as the races of other jurors; each of these racial considerations was paramount in the decision of the trial court to reject defendant’s peremptory challenge.  As MCR 2.511(F)(2) makes explicit, a court’s desire to achieve a “balanced, proportionate, or representative jury” does not justify taking race into consideration in selecting a jury.  Notwithstanding this express prohibition, the trial court premised its jury-selection decisions on its determination to secure “proportional representation” based on the racial composition of the county in which the trial occurred.  In denying defendant’s peremptory challenge, the court expressly took Greene’s race into account and expressly evaluated her race in light of the race of every other juror on the panel.  It is hard to conceive of a more flagrant and unambiguous violation of the court rule.

Markman wrote that the trial court’s error was anything but in good faith. Rather, he wrote, he judge  “deliberately refused to follow the three-step process required under Batson because it thought that process required the court to ‘indulge’ in ‘race baiting.'”

The trial court judge had stated:

[U]ntil either removed from the bench by the disciplinary committee or ordered to have a new trial, I am going to seek to have this proportional representation on the juries that hear cases in this court.  I can’t be clearer.  I’m going to do it until I’m ordered not to do it and then when I’m ordered not to do it, then I’ll have to decide what’s next for me.

That was just too much, Markman wrote:

These comments, and the trial judge’s attendant actions taken in conformity in denying defendant’s peremptory challenge, establish a basis for concluding that this is the unusual case in which retrial should occur before a different judge.  Moreover, we believe that these same comments and actions could supply a basis for the Judicial Tenure Commission to investigate whether judicial misconduct has occurred should it choose to do so.

Chief Justice Marilyn Kelly, and justices Michael F. Cavanagh, Maura D. Corrigan, and Robert P. Young concurred with Markman.

Justice Elizabeth A. Weaver wrote a short dissent, stating, “I believe that leave to appeal was improvidently granted.  I am not persuaded that the decision of the Court of Appeals was clearly erroneous or that defendant has suffered any injustice in this case.

“Further, I do not support the majority’s discussion regarding possible referral of the trial judge to the Judicial Tenure Commission.”

Justice Diane M. Hathaway concurred with Weaver.