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