Seven reappointed to Workers’ Compensation Board of Magistrates

Governor Jennifer Granholm has announced seven reappointments to the Workers’ Compensation Board of Magistrates.

The following were named to additional four-year terms on the board:

• Michael T. Harris of Okemos
• Timothy M. McAree of Rockford
• Thomas G. Moher of Sault Ste. Marie
• Melody A. Paige of Fenton
• Paul M. Purcell of Saginaw
• George J. Quist of Grand Rapids
• Joy A. Turner of Grosse Pointe Park

All terms expire Jan. 26, 2013.

Workers’ compensation magistrates hear administrative claims for benefits and resolve disputes arising under the Workers’ Disability Compensation Act.

The board functions within the Department of Energy, Labor and Economic Growth.

Under the state constitution, the Michigan Senate has 60 days to disapprove the reappointments.

Does victim’s intoxication give drunken driver a free pass?

“I am concerned that our caselaw now suggests that the presence of a controlled substance in the blood of a victim may require that a legally intoxicated defendant be acquitted as a matter of law ….”

– Michigan Supreme Court Justice Stephen Markman, dissenting in People v. Soares.

Soares drunkenly drove his car through a stop sign and killed the victim, who apparently had used marijuana at some point before the accident in violation of MCL 257.625. The trial court refused to allow evidence showing how much THC, marijuana’s active ingredient, was in the victim’s system. Soares was convicted of driving while intoxicated causing death.

The Court of Appeals ruled that the trial court goofed by excluding the THC evidence. The COA reversed Soares’ conviction and ordered a new trial. In a two-page order, the Michigan Supreme Court denied the prosecutor’s application for leave to appeal, over Markman’s dissent.

Markman acknowledged that the excluded evidence was admissible:

This Court has held that a defendant may use evidence of a victim’s negligence to determine if defendant was the proximate cause of the victim’s death. People v Tims, 449 Mich 83, 97 (1995). More specifically, if an “intervening act by the victim or a third party was not reasonably foreseeable – e.g., gross negligence or intentional misconduct[,]” then defendant generally is not considered to be the proximate cause of the victim’s death. People v Schaefer, 473 Mich 418, 437-438 (2005). Additionally, the presence of THC in a victim’s system, at the time of the accident, is a proper factor to consider in determining if the defendant caused the death. People v Moore, 246 Mich App 172, 179-180 (2001).

But Markman argued that the court’s decision in People v. Lardie, 452. Mich. 231 (1996), has the potential to stand the law on its head. In Lardie, said Markman:

[T]his Court examined a situation in which a driver drank alcohol and smoked marijuana before driving and, as a result, killed three passengers after crashing into a tree, in violation of MCL 257.625(1),(4), and (8). Lardie stated that “the Legislature essentially has presumed that driving while intoxicated is gross negligence as a matter of law.” Lardie, supra at 251. If Lardie‘s irrebuttable presumption of gross negligence applies to all drivers involved in a multiple vehicle accident, including victims who violate MCL 257.625, then a defendant would likely avoid a conviction for killing a victim who is also intoxicated, or who has “any amount” of a schedule 1 controlled substance in his system because the defendant will not be the legal cause of death.

Lardie has the potential to set up the following scenario, according to Markman:

[A] victim, who is either intoxicated or has “any amount” of a schedule 1 controlled substance in his system, has properly stopped at a stop sign. While stopped, the defendant, an intoxicated driver, crashes into the stopped victim. Applying Lardie‘s irrebuttable presumption of gross negligence to the victim, the defendant’s actions will not be deemed the proximate cause of death and the defendant must be acquitted as a matter of law. This interpretation at least poses significant problems for prosecutions of operating a motor vehicle while under the influence of liquor or a controlled substance throughout this state by enabling intoxicated defendants who have caused death to avoid sanction under MCL 257.625(4) because the victim showed a similar disregard for the lives of others.

Markman argued that the Soares case provided the opportunity

to consider whether Lardie‘s irrebuttable presumption of gross negligence: (a) is limited to the driver causing death in violation of MCL 257.625(4) in a multiple driver situation; and (b) is limited to only “intoxicated” drivers as defined in MCL 257.625(1) or is also applicable to any driver who violates MCL 257.625 by operating a motor vehicle with “any amount” of a schedule 1 controlled substance in his system at the time of the accident.

MSC will mull court rule on recusal

From the Thursday, Jan. 22, 2009 Administrative Agenda of the Michigan Supreme Court, newly minted Chief Justice Marilyn Kelly presiding:

New Items
3. 2009-04
Subject: Proposed court rule regarding recusal of a Supreme Court Justice
Issue: Whether to publish for comment a proposal or several proposals regarding procedures for disqualification of a Supreme Court Justice, based on the proposals contained in closed ADM File No. 2003-26.
Status: Awaiting conference consideration.

Back in October 2007, I predicted that given the court’s then-current makeup, the court would never take up this matter on its own.

But the court’s makeup is different now and the recusal issue has been revived.

A brief backgrounder: When a party before the Michigan Supreme Court moves that a justice should be recused from a case, the justice who is the subject of the motion decides the motion. Historically, justices typically didn’t offer any reasons why they should stay on the case or back off.

Beginning in 2003, Justice Elizabeth Weaver began arguing that a justice’s recusal decision is required, under the state constitution, to be accompanied by reasons for the decision. An administrative file, ADM 2003-26, was opened on the recusal issue but it languished under former Chief Justice Maura Corrigan’s administration and was closed under former Chief Justice Clifford Taylor’s administration.

Taylor and Corrigan, along with Justices Robert Young and Stephen Markman, had been content with the status quo. Presumably, Corrigan, Young and Markman still are.

Kelly, Weaver and Justice Michael Cavanagh, want the current practice changed.

Since May 2003, proposals had been floated:

• to require a challenged justice to “publish his or her reasons” for granting or denying a recusal motion;
• to provide for review of a disqualification ruling by either “the entire court,” the chief justice, or both; and
• to prevent the challenged justice from having any say in the outcome of a motion seeking her or his disqualification.

There was also a move afoot in the 2008 legislative session to amend the state constitution to spell out disqualification grounds for Michigan Supreme Court justices.

It remains to be seen how freshman Justice Diane Hathaway will weigh in on the matter, but presumably she’s simpatico with Weaver, Kelly and Cavanagh.

And so, the first steps are being taken to revive the recusal issue.

Sixth Circuit reflects on mirror ornament law

Fuzzy dice, rosaries, beads and all that other stuff you see dangling from rear-view mirror posts while you’re motoring around town (or maybe from your own if you’re into ornaments) are once again fair game for a police stop in Michigan, thanks to the 6th U.S. Circuit Court of Appeals.

What are you talking about? Never knew that pair of laced-together baby shoes could get me in trouble in the first place.

Well, maybe yes and maybe no.

MCL 257.709(1)(c) has been on the books for years. It says:

A person shall not drive a motor vehicle with any of the following … [a] dangling ornament or other suspended object that obstructs the vision of the driver of the vehicle, except as authorized by law.

The Sixth Circuit, in its Dec. 19 ruling in United States v. Davis, said the law gave the cops too much leeway to determine whether, in Davis’ case, a four-inch tall Tweety Bird air freshener obstructed his vision:

This law does not ban all dangling objects; rather, it bans only ornaments that “obstruct the vision of the driver of the vehicle.” Yet the statute does not specify to what degree the driver’s vision must be obstructed or for how long. This leaves an undefined category of dangling ornaments that arguably violate the statute – one that could be very large depending upon how individual law enforcement officials interpret it – because the statute itself provides no additional guidance to govern enforcement. This is problematic for two reasons. First, the breadth of discretion it delegates to law enforcement: legislatures have a constitutional duty to set out “minimum guidelines to govern law enforcement,” Kolender v. Lawson, 461 U.S. 352, 358 (1983), but here no such neutral, objective standards are set forth. Second, the discretion delegated to law enforcement by this statute has a potentially far-reaching application in practice.

It sure did in Davis’ case. Westland cops stopped Davis around 2 a.m. after spotting his air freshener. Davis couldn’t produce a driver’s license. One thing led to another, and before long, the prosecutor and defense counsel were arguing whether the guns, drugs and open pint of cognac found in Davis’ vehicle were admissible evidence.

The Sixth Circuit had little trouble concluding that all the contraband was admissible under the good faith exception to the exclusionary rule. But the court ruled that the statute itself was unconstitutional:

Objects hung from rearview mirrors are legal in Michigan and are indeed quite common. Many vehicles on the road today have something hanging from the rearview mirror, whether it be an air freshener, a parking pass, fuzzy dice, or a rosary. And many organizations, both public and private, either encourage or require their use. Because of this, many vehicles on the road may violate the obstruction law, but the statute itself provides no guidance either to motorists or police as to which ones do. It is simply up to the officer on the street to decide. We believe that the Constitution requires more of Michigan’s legislature.

Happy days for everyone with a graduation mortarboard tassel suspended from the rearview mirror.

But wait! Not quite two weeks later, on Dec. 31, the Sixth Circuit changed its mind and withdrew the opinion.

How come?

The Associated Press talked to the court’s clerk, who said she had no idea why but ventured that a new opinion was in the works.

In the meantime, it’s once again up to the cops to decide whether you can see the road well enough with those dog tags, bridal garters, dried flowers or what have you dangling in front of the windshield.