Affirmative action on affirmative defenses

I wrote a story for next week’s Michigan Lawyers Weekly about the Court of Appeals decision in McCracken v City of Detroit. The issue in the case was whether the plaintiff has to comply with the defendant’s demand for a response to affirmative defenses.

In that case, the Court of Appeals said no, a response is optional and the penalty for not complying with the demand is that the defenses are assumed to be denied. The court decided not to follow a previous case from 1968, Vannoy v City of Warren, using the ol’ “it’s not binding because it’s from before 11/1/1990.” (Someone will have to explain to me why that court rule exists and if we are the only state that has one like it. It seems like it’s there so the current court can cherry pick which precedents it opts to keep without offering a valid explanation as to why the old precedent is irrelevant/outdated/etc.)

The unanimous published decision was released on February 8. The judges were Henry Saad, Douglas Shapiro and Kirsten Frank Kelly.

What’s interesting is that just two weeks earlier, the same court ruled the exact opposite in a different case. (By “the same court” I mean the Court of Appeals, not necessarily the same judges).

In Donaldson v Department of Agriculture, a FOIA dispute, the court followed Vannoy and ruled the trial court properly dismissed the plaintiff’s case because he didn’t reply to the state’s demand for answers to affirmative defenses. That decision, also unanimous, was unpublished and not discussed at all in the McCracken opinion. The judges were Patrick Meter, Michael J. Kelly and Amy Ronayne Krause.

That kind of indecision results in this: yet one more opinion, Prins v Michigan State Police, filed just this morning. The facts are virtually identical to Donaldson in that it’s a FOIA case in which the plaintiff didn’t respond to the state’s demand for answers to the affirmative defenses. The difference? The opinion was filed three weeks after Donaldson:

We lastly note the state police’s appellate contention that the circuit court should have granted summary disposition on an alternate ground. The state police maintain that Prins did not timely respond to its demand for a reply to the affirmative defenses set forth in its answer, as mandated by MCR 2.110(B)(5). According to the state police, the circuit court should have deemed the affirmative defenses admitted. However, we reject the state police’s reading of the relevant court rules, on the basis of the following pertinent analysis of this Court in McCracken v Detroit, ___ Mich App ___; ___ NW2d ___ (Docket No. 294218, issued 2/8/11), slip op at 4-5 …

Same dispute, same procedural facts, three weeks apart, and completely different results. The lesson is that timing is everything, I guess.

Question for You, The Reader: Has this defense strategy become an epidemic? Was the panel in McCracken reacting to an overabundance of appeals on this issue?

In their opinions

“Plaintiff’s perplexing arguments contend that it is illegal for defendant to set uniform standards for becoming a member of its association. However, plaintiff’s pleadings cite no authority supporting this position. What is vexing about plaintiff’s arguments is that plaintiff instead cites to authority that is directly in opposition to his position.”

Court of Appeals Judges Mark D. Cavanagh, E. Thomas Fitzgerald and Douglas B. Shapiro, in Davis v. Michigan High School Athletic Ass’n, an unpublished per curiam opinion, explaining why Wayne County Circuit Court Judge Kathleen Macdonald correctly took matters into her own hands and sanctioned a pro per plaintiff $6,076.60 for filing a frivolous complaint.

In the world of high school sports, the MHSAA tries to keeps the playing fields level with an elaborate system of rules governing just about every aspect of student athletics.

Robert Davis, a Highland Park School Board member, decided to take on the MHSAA’s requirements, to which the board had previously agreed, that school districts commit to MHSAA for one year and not join other associations with different rules.

Davis argued that these requirements usurped the school district’s “authority and decision-making capacity.”

Not even close, the COA ruled. The Davis panel pointed out that MSHAA membership is voluntary, the district can still belong to other associations, oh, and by the way, the cases plaintiff cited actually bolster the MHSAA’s defense of the complaint.


“We find ourselves in the situation akin to that of a court being asked to apply the laws governing transportation adopted in a horse and buggy world to the world of automobiles and air transport.”

Court of Appeals judges Cavanagh, Fitzgerald and Shapiro, again, this time in Howell Education Ass’n MEA/NEA, et al. v. Howell Board of Education, et al., a published per curiam decision.

The panel was giving context to the task at hand: how to apply the Freedom of Information Act, enacted when paper and ink, carbon paper and mimeographs were king, to a FOIA case involving e-mails.

The school district’s computers retained private e-mails of teachers, who were also union officers, even after the e-mails were deleted.

At issue was whether a citizen, who apparently had an intense interest in school district-teacher contract negotiations, could invoke FOIA to get the e-mails.

Nothing doing, said the Davis panel.

E-mails have in essence replaced mailboxes and paper memos in government offices. Schools have traditionally, as part of their function, provided teachers with mailboxes in the school’s main office.

However, we have never held nor has it even been suggested that during the time those letters are “retained” in those school mailboxes that they are automatically subject to FOIA.

Now, instead of physical mailboxes, we have e-mail. However, the nature of the technology is such that even after the e-mail letter has been “removed from the mailbox” by its recipient, a digital memory of it remains, possibly in perpetuity.

This effect is due solely to a change in technology and, absent some showing that the retention of these e-mails has some official function other than the retention itself, we decline to so drastically expand the scope of FOIA.

Appointments made to Model Civil Jury Instruction Committee

Court of Appeals Judge Douglas B. Shapiro and attorney Daniel J. McCarthy of Hyman Lippitt, PC, Birmingham have been appointed to the Committee on Model Civil Jury Instructions.

The Michigan Supreme Court has also reappointed Judge John A. Hohman, Jr., Monroe County Probate Court, Monroe; Noreen L. Slank, Collins Einhorn Farrell & Ulanoff, PC, Southfield; Angela J. Nicita, Allen Park; Gary P. Gordon, Dykema Gossett PLLC, Lansing; and Joseph C. Smith, Smith & Gibson, PC, Southfield.

From the MSC’s statement announcing the appointments:

The committee is charged with ensuring that the Model Civil Jury Instructions are concise, understandable, conversational, unslanted, and not argumentative. …

The Model Civil Jury Instructions are online… . The web site also includes information on how to contact the committee to comment on existing or proposed jury instructions, or to suggest new instructions.