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.

Putting the cart before the horse: Dismissed defendant gets post-trial surprise

“This cannot be right.”

The incredulous reaction of U.S. District Court Judge Jack Zouhary, sitting by designation on 6th U.S. Circuit Court of Appeals, to a decidedly unusual order of events in Dillon v. Cobra Power Corp., et al.

Cobra made speedboat engines. Dillon had two of them in the boat she bought from Cumberland Marine. Dillon claimed the engines gave her lots of problems. She sued Cobra and Cumberland. Cobra’s president, Garciga, got his company out of the suit on summary judgment with an affidavit stating that there was no warranty on the engines.

Dillon took Cumberland to trial. Garciga took the stand and apparently contradicted his earlier statement about the lack of a warranty.

That was all the federal district judge needed to hear. In a series of post-trial rulings, summary judgment for Cobra was reversed, Dillon was granted summary judgment against Cobra and the judge hit Cobra with a $50,400 judgment.

All of this happened based on Garciga’s testimony and without Cobra being brought back into the suit.

As Judge Zouhary put it:

Federal Civil Rule 56 makes clear that summary judgment is a pretrial procedure. The district court correctly noted that trial testimony may be submitted for consideration at the summary judgment stage, but such testimony comes from prior proceedings that are submitted as part of the pretrial record. In other words, sworn testimony given in earlier court proceedings is the same as “the pleadings, the discovery [including depositions] and disclosure materials on file, and any affidavits” which Rule 56(c) expressly allows the court to consider. Here, Garciga’s testimony was produced at trial in the very case for which summary judgment was decided, long after the pretrial process had come to an end. This is not the type of evidence on which a court may base summary judgment. …

[T]he post-trial order … reversing the earlier summary judgment order – a pretrial order – was decided by a motion filed after trial and based solely on Garciga’s trial testimony. This cannot be right.

What would have been right, according to Judge Zouhary

would have been to adjourn the trial, join Cobra again as a party defendant, and allow it an opportunity to respond to the new testimony.

Participation at trial as a party may well have prevented any prejudice by such a late reversal of summary judgment.

Dillon will get another shot at Cobra on remand.