COA backpedals on published premises case

Earlier this year, Court of Appeals Judge Amy Ronayne Krause, joined by Judges Davis Sawyer and Peter O’Connell, issued for publication a noteworthy premises liability decision, Chesser v. Raddisson Plaza Hotel at Kalamazoo Center.

They’ve apparently had seconds thoughts on the matter. They recently vacated the decision and replaced it with an unpublished opinion.

Chesser, a convention speaker, was injured when she fell from the back of a stage.

The hazard was open and obvious, the panel ruled. There were no guards at the back of the elevated stage and there was a gap between the stage and a wall.

In the original opinion, the panel addressed two issues: Did the hazard have “special aspects” that made it unreasonably dangerous despite its open and obvious nature? And was the hazard effectively unavoidable?

Second question first: The COA rejected a defense argument that Chesser, being aware of the hazard, could have chose not to get on the stage and speak, no matter how awkward or embarrassing that may have been.

Being on defendant’s stage was the primary reason for her presence at defendant’s premises in the first place. Ms. Chesser could technically have avoided the hazard, but she could not have avoided the hazard without completely undermining her use of defendant’s facilities. A condition is “effectively unavoidable” if it cannot be avoided by an invitee without that invitee avoiding the premises altogether. Hoffner v Lanctoe, 290 Mich App 449, 461-464; 802 NW2d 648 (2010), lv pending 489 Mich 877 (2011)[.]

So, what about those “special aspects?” In the original, published opinion, part of the panel’s reasoning that Chesser had no claim included a discussion of other speakers who had crossed the stage without incident. Everyone else made the trip safely. So, the panel reasoned, the hazard was effectively avoidable.

Chesser’s accident was a “statistical fluke,” as Krause put it.

We, and others, found the decision interesting, so we summarized the published case, blogged about it and wrote a news story about it.

Now we’re telling you to forget about it.

On April 5, the COA issued an order vacating Chesser. The order stated a new opinion would be issued.

The new opinion was issued later. It took the COA two tries to get it right.

On April 17, the COA issued an unpublished opinion in Chesser. But unless one knew about the April 5 order, there was no solid indication of the unpublished opinion’s significance.

A quick note: when the COA vacates an opinion, the vacating order is usually accompanied by the replacement opinion, or, when the replacement opinion is issued later, there is usually an order referring back to the order that originally vacated the opinion being replaced.

There must have been a “What’s going on here?” inquiry because two days later, on April 19, the unpublished opinion was released again, with an order vacating the April 17 opinion and the key phrase “ON RECONSIDERATION” (which should have been on the April 17 opinion) displayed on the first page of the unpublished April 19 opinion.

It was an uncharacteristic lapse in the COA’s usually meticulous handling of its opinion releases.

Okay, so administrative miscues aside, what’s the difference between the vacated published version of Chesser and the unpublished, non-binding version of Chesser?

The statistical- fluke discussion is gone, along with the suggestion that Chesser didn’t really have the option of dodging her speaking engagement.

What’s emphasized is that photographs of the accident scene showed an open and obvious hazard, which a reasonable person would have appreciated given the elevation, the tight quarters and the lack of railings or guards.

To the extent the parties were arguing what the photographs showed or didn’t show regarding the hazard from Chesser’s perspective, both parties missed the mark, said the panel in the newly issued opinion. The test is what a reasonable person would have perceived, not Chesser.

Bottom line: the COA issued a published opinion with noteworthy statements about avoiding hazards and calculating whether a hazard is avoidable based on the number of other safe encounters. The COA took that one back and replaced it with a legally less-ambitious opinion resolving an “open and obvious” premises claim.

The published version of Chesser was fun while it lasted.

MSC shortens late appeals period in criminal cases

Defendants challenging their convictions with a delayed application for leave to appeal will have less time to do so under the Michigan Supreme Court’s amendment of MCR 7.205(F).

The MSC, on a 4-3 vote, has shortened the late appeal period from 12 months to six. The amendment takes effect Sept. 1, 2011.

The majority adopted the rule without comment. Justice Marilyn Kelly dissented, joined by Justices Michael F. Cavanagh and Diane M. Hathaway.

Kelly said the majority’s justification for the shortened period — that Michigan’s delayed appeal period is too generous when compared to other states — doesn’t hold water because Michigan’s appeals procedure has some significant differences.

A criminal defendant in Michigan has 42 days from the date of entry of a final judgment in which to file an appeal as of right. He or she has 21 days to file an appeal by leave.

Before today’s amendment, if an appeal was not sought within these time limits, a delayed application could be filed within 12 months from the date of entry of the final judgment. This is a two-tiered system but it is not typical of other two-tiered systems.

A majority of states with a two-tiered system have a period as long as ninety days in which to appeal. To perfect the appeal in those states, all that need be filed is a notice of intent. The deadline for filing the appellant’s brief is tolled until the trial transcripts are filed. The brief is then due within six months.

In Michigan, Kelly continued, there are a couple of big differences.

First, the time for appeal begins to run from the final judgment and is not tolled for production of the transcript. A defendant may use the deferred appeal period if he or she misses the initial deadlines because preparation of the transcript is delayed.

Second, Michigan requires an appeal by leave to be made on the merits. Hence, the appealable issues must be identified before the appeal can be filed. And in order to identify the issues, counsel must have the trial transcript. Therefore, the time for appeal by leave in Michigan must be longer than in states that do not require the issues to be identified when the appeal is filed.

Kelly said that in a “significant percentage” of cases, transcripts aren’t ready when the 21-day appeal period expires. In such cases, the delayed appeal period comes into play. And, unlike other states where only a notice of intent to appeal is required, Michigan defendants must present an application on the merits.

It’s a critical difference, Kelly maintained.

[T]he difference between Michigan’s procedures and those of states requiring only a notice of intent to perfect an appeal is highly significant. And it explains why
there is no sound basis to lower Michigan’s appeal period for delayed applications from one year to six months.

Lowering the appeal period for leave cases to six months does not bring Michigan’s appeal period into conformity with the appeal period of other states.

Moreover, the amendment renders Michigan’s rule far more oppressive on appellants than is currently the case.

ADM File. No. 2009-19.

6th Circuit: Go ahead, take another crack at this

In the vast majority of the United States federal district courts, plaintiffs suing under the Americans with Disabilities Act must show that their disability was a “motivating factor” for being fired from their jobs.

But the bar is set much higher in Michigan, Ohio, Tennessee and Kentucky. The Sixth Circuit has ruled in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), that a plaintiff’s disability must be the “sole reason.”

And that’s the reason, Judge Gilbert S. Merritt wrote in Lewis v. Humboldt Acquisition Corp., a federal district court in Tennesse correctly rejected an ADA plaintiff’s proposed jury instructions, which contained the more generous “motivating factor” language.

But in doing so, there was a clear invitation to Lewis’ attorney, Michael L. Weinman of Jackson, Tenn., to move for an en banc hearing.

One panel of the Sixth Circuit can’t overrule another, Gilbert explained, citing Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685 (6th Cir. 1985), and 6th Cir. R. 206(c).

Gilbert noted that Salmi had tied the hands of four other panels previously asked to overrule Monette’s “sole reason” standard. In a footnote, Gilbert explained how to get past that:

To avoid the inefficiency of appealing to a panel that could not grant her the remedy that she seeks, Lewis could have filed a petition requesting that her appeal initially be heard en banc, rather than by this panel. See Fed. R. App. P. 35. Although en banc hearings are “not favored,” they may be ordered when “the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a)(2).

One such example is a case in which a panel decision “conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.” Fed. R. App. P. 35(b)(1)(B). Of course, after this panel issues its opinion, Lewis may still move for rehearing en banc. See Fed. R. App. P. 40.

I asked Weinman if he was going to file the en banc motion.

“I sure am,” he said, adding that if that didn’t work in his favor, “this may be my shot at the Supreme Court.”

Weinman has tried the case twice. The first jury hung. The second deliberated “for several hours,” he said. Then, the jury sent out a note asking whether Lewis’ disability had to be the sole reason she was fired. The jury no-caused his client after getting the answer.

It’s a fairly safe bet the motion will be granted. Judge Richard Allen Griffin, concurring in Lewis, wrote:

[O]ur precedent on this issue of exceptional importance is misguided and contrary to the overwhelming authority of our sister circuits. Accordingly, the question appears appropriate for rehearing en banc. See Fed. R. App. P. 35(b)(1)(B).

We lifted the “sole reason” requirement from the Rehabilitation Act’s “solely by reason of her or his disability” language, see 29 U.S.C. § 794(a), and imported it into the ADA, reasoning in a footnote in Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir. 1995), that “[t]he analysis of claims under the Americans with Disabilities Act
roughly parallels those brought under the Rehabilitation Act.” Monette, 90 F.3d at 1177- 78 (citing Maddox, 62 F.3d at 846 n.2).

As a super-majority of our sister circuits have held, however, the plain language of the ADA does not support application of the Rehabilitation Act’s “sole reason” standard.

The “super-majority” breaks down like this: there are 12 regional circuits; 10 have considered the issue; eight have adopted the “motivating factor” standard. The Sixth and Tenth Circuits use the “sole reason” standard.

We’ll keep an eye on this one.

Law students, recent grads can make COA appearance for legal aid clients

The Michigan Supreme Court has authorized law students and recent law school graduates who are legal aid clinic members to represent legal aid clients in the Court of Appeals.

The MSC’s amendment of MCR 8.120 takes effect Jan.1, 2011. According to the staff comment accompanying the amendment:

The appearance would require the same protections that now exist, i.e., supervision by a licensed attorney who signs all pleadings, and approval by a majority of the judges of the assigned panel. In addition, the amendments require that an indigent person indicate in writing that he or she consents to the representation by the student, and the student must certify that he or she is familiar with the Michigan Rules of Professional Conduct and the Michigan Court Rules.

The amendments further state that the supervising attorney shall assume personal professional liability for the student’s or graduate’s work, and require students and recent graduates to take an oath similar to the
one taken by licensed attorneys. The Court will review the effects of this rule in two years.

Justice Stephen J. Markman dissented.

Markman indicated that he was pleased that the court incorporated his suggested changes: students and grads must take an oath “reasonably equivalent” to the Michigan Lawyer’s Oath; the supervising attorney is personally on the professional responsibility hook for the student’s representation and the supervising attorney must be present at appellate arguments if there’s a possibility the client could be imprisoned.

But Markman still has some problems with the amendment.

By our supervision of the Michigan State Bar, the Attorney Grievance Commission, the Attorney Discipline Board, and the Board of Law Examiners, a significant responsibility of this Court is to enhance the quality of legal practice in this state.

I respectfully believe that extending authority to law students to argue before the second-highest court of our state does not fulfill this responsibility.

My opposition is not intended in any way to disparage the students who will engage in this new practice, the attorneys who will supervise these students, or the law schools that will train these students. Each is to be respected and commended for their efforts.

However, in the final analysis, I cannot ignore that such students have not yet completed their legal education, they have not yet been judged competent to practice law by the examination and “character and fitness” procedures of this state, and they have not garnered the experience, perspective and judgment that comes with the sustained practice of the law.

With few exceptions, these are all attributes and qualities that characterize those who engage in advocacy in our Court of Appeals.

While I have little doubt that those students who have demonstrated the energy and initiative to participate in clinical and training programs, and who have been selected by their schools to argue before the Court of Appeals, will come to be among the best of our appellate practitioners, I do not believe it is in the best interests of their clients, or of our legal system, that this occur prematurely.

I respectfully dissent.

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‘Anglers’ environmental case not moot, says MSC majority

A split ruling by the Michigan Supreme Court to go forward with an environmental law case has produced some heated discussion among the justices about whether the case is moot.

It also provoked a charge by Justice Robert P. Young Jr. that some members of the court were keeping the case alive for an easy opportunity to overrule recent environmental law precedent decided by the former Republican majority on the court.

Some background on the case currently before the Court:

A few years back, Merit Energy bought a production facility located near Gaylord Michigan from Shell Western Exploration and Production.

The purchase came with an obligation to formulate a plan acceptable to the Michigan Department of Environmental Quality to treat a sizable (60-acre) plume of contaminated groundwater that had already affected two residential drinking wells.

The DEQ signed off on Merit’s plan to blow air through the contaminated water to evaporate the hydrocarbons and then discharge the treated water via a 1.3 mile-long pipeline into Kolke Creek. The creek flows into Lynn Lake. The creek is the headwater system for the AuSable River watershed.

The AuSable River is a celebrated trout stream, attracting anglers from around the world.

Merit built the pipeline, after obtaining an easement from the DEQ to traverse about a half-mile of state-owned land. Merit’s plan called for discharging 700 gallons of treat water per minute, which would cleanse the plume in 10 years.

The plan was challenged by a property owner along the creek, a property owner on Lynne Lake and by Anglers of the AuSable, whose members fish in Lynne Lake.

The plan was upheld after an administrative hearing but a circuit court suit brought the plan to a halt. The trial court ruled that Merit’s easement from the DEQ didn’t convey the riparian right to discharge the treated water, and the amount to be discharged was unreasonable.

The Court of Appeals reversed the trial court on the easement/riparian rights issue but agreed that the proposed discharge rate was unreasonable. See, Anglers of the AuSable, Inc., et al. v. Dep’t of Environmental Quality, et al.

The parties headed to the Michigan Supreme Court, which granted leave. Subsequently, Merit quitclaimed its easement back to the DEQ and said it was abandoning any plans to discharge water into Kolke Creek. Accompanying these actions was Merit’s motion to dismiss the MSC appeal as moot.

No chance, said a divided Court.

Chief Justice Marilyn Kelly, and Justices Michael F. Cavanagh, Elizabeth A. Weaver and Diane M. Hathaway said the case was still a live wire. Cavanagh, in a concurring statement joined by Kelly and Hathaway, explained:

This Court originally granted leave to appeal to consider several issues, including whether the state could convey an easement to defendant, Merit Energy Company, that granted the right to discharge water on state-owned land; the proper test for determining the extent to which defendant may discharge water; and whether plaintiffs may pursue a cause of action against the Department of Environmental Quality (DEQ) that challenges the propriety of the DEQ approving and issuing a permit to defendants. …

Defendant now argues that the case is moot because, since the Court granted leave to appeal, defendant has quitclaimed its interest in the easement and claimed that it has abandoned any plans to discharge water into Kolke Creek. I am not convinced. …

Defendant’s conduct amounts to nothing more than a ‘voluntary cessation of allegedly illegal conduct’ that does not render the case moot unless the defendant shows that the alleged wrong will not arise again. I cannot see that defendant has met this heavy burden. The legality of the practices addressed by the Court of Appeals remain important public questions. Moreover, because defendant prevailed before the Court of Appeals on several of these important public issues, and did not move to moot the issues until after this Court had granted leave to appeal, this Court’s interest in preventing defendant from insulating a favorable decision from review is strongly implicated.

Young , in his dissent, said the case is clearly moot but was being kept alive for the opportunity to overrule Michigan Citizens v. Nestlé Waters, a case authored by Young that denied standing to some plaintiffs in an environmental law case, and Preserve the Dunes v. DEQ, authored by then-chief justice Maura D. Corrigan, joined by Young, which ruled that the Michigan Environmental Protection Act was an improper vehicle with which to challenge a sand dune mining permit the DEQ had issued.

Young counseled Merit to abandon its appeal:

As it stands now, Merit has no stake in the future outcome of this case, and thus has no remaining interest to pursue the appeal vigorously.

Why would Merit pay the expense of contesting in the Supreme Court a matter in which it has already conceded by its actions? By rights, having abandoned the pipeline, Merit should also abandon this case even if a majority insists on it going forward.

Accordingly, I am greatly concerned by the resulting total collapse of the adversarial process in this case — having no party vigorously to argue in defense of the cases with which the plaintiffs and Chief Justice KELLY and Justices CAVANAGH, WEAVER, and HATHAWAY intend to overturn.

For those who wish to overturn cases decided by “the Republican-dominated Court,” it is useful to have no one with a serious interest in defending them.

Young also took some additional swipes at Kelly, Weaver and Hathaway in general, and Cavanagh in particular:

[T]he majority’s decision to permit the appeal to proceed despite the absence of a live controversy demonstrates that it has other fish to fry; irrespective whether the case before it presents a legitimate vehicle for it to accomplish its goal, it will entertain plaintiffs’ argument in favor of overturning yet another precedent with which it disagrees.

The fact that the members of the majority have for 10 years been stout supporters of stare decisis illustrates how “situational” was their prior claimed fidelity to precedent.

The concurring justice claims that it is “remarkably ironic” that I raise the majority’s selective interest in respecting precedent. However, my position on stare decisis has not changed, and the concurring justice attempts to shift focus to me in order to avoid confronting his own inconsistency.

The public should understand when Justices’ positions on important matters shift. And that is the focus of this dissent: when the concurring justice was in the minority, he liked stare decisis a lot; now that he is in the majority, it is not an issue. That is the “irony” the public should understand.

Having no substantive response to my noting the reversal of his reverence for precedent, the concurring justice has entered into the explicitly partisan realm, referencing an article by a Wayne State University law professor [Robert A. Sedler].

Not everything written by a law professor is unbiased, nor is this particular law professor. In fact, this professor’s ubiquitous appearances on the Democratic Party web site attacking me and urging my political defeat demonstrates that he has a dog in the November hunt.

So does the concurring justice.

Of interest: the Democrats last week rolled out a video that, among other things, hammered Young for his decision in Michigan Citizens v Nestlé Waters. See, The Michigan Lawyer, “Dems target Young’s environmental record in MSC campaign.”

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In their opinions . . .

“Because I question defendant’s right to appellate relief while she is in contempt of the trial court’s orders, and to avoid the harsh sanction of outright dismissal, I would explore the approach of the Arizona Supreme Court in Stewart v Stewart, 91 Ariz 356 (1962), and condition the grant of any relief this Court concludes is otherwise appropriate on defendant’s compliance with the trial court’s orders.”

– Michigan Supreme Court Justice Maura Corrigan, concurring in the MSC’s leave granted order in Friend v. Friend.

Exactly. The fugitive disentitlement doctrine is based on the notion that an appellate court can boot an on-the-run criminal defendant’s appeal.

The MSC is mulling whether to adopt some version of the doctrine in civil settings and has asked the parties in this hotly contested divorce case for briefs on the issue.

* * *
“It cannot reasonably be disputed that, in general, senior citizens and the elderly are more susceptible to falls and injuries from falls, especially where there is some defect present in a walking surface, considering natural frailities and the loss of agility and balance that unfortunately come with age.”

– Michigan Court of Appeals Judge William B. Murphy, dissenting in Ford v. Nat’l Church Residences, Inc.

Everyone needs to watch their step. Ford, an 88-year-old woman, tripped on a cracked sidewalk leading to her senior-citizens’ apartment.

The majority turned aside Ford’s argument that her landlord breached the covenant in MCL 554.139(1)(a) or (1)(b) “[t]hat the premises and all common areas are fit for the use intended by the parties” and “[t]o keep the premises in reasonable repair.”

The majority noted that the crack was “open and obvious.”

Murphy acknowledged

that, in the context of the open and obvious danger doctrine, an objective standard is used and that the fact-finder must consider the condition of the premises, “not the condition of the plaintiff.”

But, Murphy continued, under MCL 554.139(1)(a)

defendant had a legal obligation to keep the sidewalk “fit for the use intended by the parties.” (emphasis added.)

The express language of the statute has a subjective component to it, where the language refers to the parties’ intent as to use. The parties’ intent here, clearly and necessarily, was that the sidewalks would be used to walk on for purposes such as ingress and egress relative to the apartments.

But encompassed within that intent and the parties’ knowledge was the fact that the sidewalks would be used to a great extent by the elderly.

Murphy argued that a jury should decide whether the sidewalk was fit for the use intended by the parties.