6th Circuit upholds ruling to toss Iraq vet’s $4.4 million jury award

The U.S. 6th Circuit Court of Appeals upheld U.S. District Judge John O’Meara’s decision to throw out a jury’s $4.4 million verdict for James McKelvey, who was subjected to verbal harassment at Selfridge Air National Guard Base because of his disability.

According to the Detroit Free Press, O’Meara decided to take the Army up on its offer to reinstate McKelvey to a job with higher pay at the Tank-Automotive & Armaments Command (TACOM) in Warren.

But the panel reversed O’Meara, concluding that the hostile work environment forced McKelvey to quit his job at TACOM. As a result, the Army must provide McKelvey with about $100,000 in back pay.

McKelvey, who had suffered physical impairments in Iraq during duty with the Army National Guard, commenced his civilian employment with the Army in February 2006. A co-worker initiated the harassment when he asked McKelvey why he used “crippled parking.” After that, McKelvey was called a “cripple” on a regular basis, including by his supervisor, who denied McKelvey’s requests for accommodations such as a touch-screen laptop or voice-activated programming for his computer.

Attorney Kevin Carlson, who co-counseled the October 2009 trial with Joseph Golden, told the Free Press he was glad the appellate court reinstated the jury’s finding that he was forced to quit because of disability discrimination. But he said that going back to the place where McKelvey was mistreated is a lot to ask, and he and Golden aren’t sure it’s legally correct.

An account of McKelvey’s lawsuit can be found at Michigan Lawyers Weekly’s website.

Advertisements

Buh bye, driver responsibility fees

It’s been a law with some serious unintended consequences, and some judges have even said it’s a debtors’ prison, of sorts. And now many of the driver responsibility fees are repealed. Gone. Dead. Good riddance.

Gov. Rick Snyder yesterday signed bills that repeal some of the state’s driver responsibility fees for offenses such as operating a motor vehicle with an expired license, operating without a valid license, having more than one license or failing to surrender licenses from other states.

The bill, Senate Bill 166, was sponsored by state Sen. Bruce Caswell, and is now Public Act 255.

Said the governor of the new law: “This legislation addresses unintended consequences of the previous law and helps protect many of our most economically vulnerable Michiganders.”

‘I want my money back’: COA says ‘no dice’

One could surmise that Italo M. Parise liked to gamble. He patronized the MotorCity Casino in Detroit for at least a seven-year period between 2002 and 2009.

It’s a sure bet that, like most casino patrons, he didn’t like what usually happens over the long run. He lost money. A lot of it. More than $600,000. These places aren’t in business just for their health, folks.

Unlike most casino patrons, he didn’t take it lying down. He sued.

In his complaint, he cited MCL 600.2939(1), which says, in so many words, a person who loses money while gambling can go to court and get it back from the winner.

So, where’s my check, Parise wanted to know. Ask the Court of Appeals, the trial judge said, after booting Parise out of court.

And faster than a stickman whisks away the dice at a craps table, the Court of Appeals affirmed.

The statute Parise relied upon is a general statute that applies to money or goods lost through gaming, said the COA.

The casino where Parise lost his dough is controlled by a much more specific statute, the COA explained, and the casino has two aces in the hole.

First ace: the statute legalizes casino gaming. Second ace: the statute provides that “[a]ny other law that is inconsistent with this act does not apply to casino gaming as provided for by this act.” MCL 432.203(3).

Letting a big loser at the casino get his money back is not consistent with a law that let him legally lose it in the first place.

The house always wins.

The case is Parise v. Detroit Entertainment d/b/a/ MotorCity Casino.

MSC: Screen between victim, accused didn’t violate right to confront

The Michigan Supreme Court has vacated its leave to appeal in a case in which a man said he was denied his right to confront his accuser.

In People v. Rose, Ronald Rose, was accused of sexually abusing his wife’s 8-year-old sister, and of showing pornographic pictures to the girl and her brother. At his trial, the girl testified, and the court allowed for a screen to be placed between Rose and the girl, so that she could not see him, but the jury and Rose could see her.

Rose’s lawyer, Scott A. Grabel of East Lansing said in October at arguments that the screen was nothing more than a theatrical prop — the most prejudicial thing he’d ever seen in a criminal trial.

But Allegan County Prosecuting Attorney Judy Hayes Astle argues that Rose’s defense attorney said it was important for the girl to be present in the courtroom during the trial, rather than testifying by closed circuit television or Skype, and the screen provided a way to allow her testimony while protecting her from having to see the accused.

The jury deliberated for just two hours, and found Rose guilty of four counts of first-degree criminal sexual conduct and two counts of distributing obscene material to minors. He was sentenced to 25-50 years in prison on each count of CSC, and one year and four months to two years for the pornography offenses.

Rose appealed, and the Court of Appeals upheld the conviction.

The Michigan Supreme Court, in a short order on Dec. 9, vacated its Feb. 2, 2011, order granting leave because the Court is “no longer persuaded that the questions presented should be reviewed by this Court.”

Justice Marilyn Kelly dissented, and said that the trial court violated Rose’s due process rights, saying, “The screen branded defendant with ‘an unmistakable mask of guilt’ by suggesting to the jury that the witness had a good reason to fear viewing the defendant; namely, that defendant had abused her.”

Then, Kelly said the trial court made it even worse: “This error was compounded when the trial court gave no instruction to the jury directing it not to draw an inference adverse to the defendant from the use of the screen.”

She said that use of the screen is not expressly permitted under MCL 600.2163a, which provides procedures for presenting child witness testimony.

Kelly wrote that when balancing the need to protect minors’ well-being, and protecting a defendant’s constitutional right to confront witnesses, “The trial court must make a ‘case-specific’ finding that the procedure is necessary to further that state interest. Here, the Court of Appeals concluded that the trial court made sufficient findings that the screen was necessary to protect [the girl]. It relied on the trial court’s conclusion that there was a ‘high likelihood’ that [the girl] would suffer psychological damage if forced to testify without the screen.”

The U.S. Supreme Court, she said, has not addressed whether the use of such a screen violates a defendant’s due process rights.

But it has determined that some procedures are “so inherently prejudicial that they are generally not permitted at trial.” The test of such procedures is whether there is “an ‘unacceptable risk that impermissible factors will come into play,'” which hinge on “a ‘wider range of inferences that a juror might reasonably draw’ from the procedure other than to band defendant ‘with an unmistakable mark of guilt.'”

She wasn’t buying the Court of Appeals’ opinion that stated a reasonable juror might conclude that the child was being screened because she “fears to look upon the defendant because she is not testifying truthfully.”

Nonsense, Kelly wrote: “No reasonable juror could so conclude. Courts are not in the habit of protecting people who proffer perjured testimony.”

Rather, the screen could only send one message to the jury: “[T]hat the court deemed the witness to be worthy of protection from the defendant.”

It’s true: ‘True majority’ WCAC decisions no longer required

When the Workers’ Compensation Appellate Commission reviews a magistrate’s decision concerning a comp claim, the long-standing law in Michigan has been that the WCAC must issue a “true majority” opinion — one in which a majority agrees in the result and the reasoning behind it.

Not any longer, the Michigan Supreme Court has ruled.

In Findley v. DaimlerChrysler Corp., a workers’ comp magistrate denied a benefits claim. The WCAC affirmed. The WCAC’s decision consisted of a lead opinion by one commissioner. The second commissioner concurred in the result only, without adopting the facts found in the lead opinion or making findings of his own. A third commissioner dissented.

The Michigan Court of Appeals vacated the WCAC decision. Citing MCL 418.274(8) and Aquilina v. General Motors Corp., 403 Mich. 206 (1978), the COA ruled in Findley, that “a true majority decision is one in which at least a majority of the commissioners agree regarding the material facts and the ultimate outcome.”

In making its ruling, the COA turned aside the defendant’s argument that Aquilina was good law when the Workers’ Compensation Appellate Board (the predecessor to the WCAC) reviewed cases de novo but the review standard now is “substantial evidence,” so true majorities are no long necessary.

Importantly, however, our review of the WCAC’’s findings remains the same as our previous review of the WCAB’s findings — we must determine if any competent evidence exists to support the WCAC’s findings. … Thus, the mere fact that the WCAC’s standard for reviewing a magistrate’s decision has changed since Aquilina was decided is simply not relevant to whether competent evidence supports the WCAC’s findings. And, in determining whether any competent evidence exists to support the WCAC’s findings, “we cannot discharge our reviewing responsibilities unless a true majority reaches a decision based on stated facts.” … To allow otherwise would be to corrupt the integrity of the administrative process. … Accordingly, the true-majority requirement articulated in Aquilina continues to be valid.”

Not true, ruled the MSC in a 4-3 order released late Friday. The MSC reversed the COA and reinstated the WCAC’s decision:

In contrast with the statutory mechanism in place at the time Aquilina was decided, the WCAC is now required to treat as conclusive the factual findings of the magistrate where those findings are “supported by competent, material, and substantial evidence on the whole record.” MCL 418.861a(3). Because the WCAC must now give deference to the magistrate’s factual determinations, and may no longer engage in de novo fact finding, a WCAC decision does not require a “true majority” “decision based on stated facts.”

Justice Michael Cavanagh, joined by Justice Marilyn Kelly, dissented.

Although the 1985 legislative amendments brought reforms to the Worker’’s Disability Compensation Act, as the Court of Appeals recognized, the review function of appellate courts remains the same. See, e.g., Holden v Ford Motor Co, 439 Mich 257, 262 (1992). And, even after the legislative amendments, this Court has generally recognized the importance of a “carefully constructed opinion by the WCAC” in facilitating appellate review. … Thus, under the facts of this case, I do not believe that the Court of Appeals clearly erred in applying Aquilina where, as in Aquilina, a commissioner in the majority did not issue a separate opinion but, instead, concurred only in the result reached by the lead opinion.

Cavanagh would have denied leave to appeal. Justice Diane Hathaway would have granted leave to appeal.

MSC leaves advertising rule alone

The Michigan Supreme Court issued an order Dec. 8, declining to adopt controversial amendments to the rule that governs lawyer advertising.

One proposed amendment would have imposed a 30-day waiting period before lawyers could contact injured plaintiffs or their survivors. Another amendment would have required all written correspondence with prospective clients to include the words “advertising materials.” And the Court said, “No thanks.”

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.