Defendant faces computer-snooping charges

Leon Walker, who accessed his estranged wife’s email account without permission and later gained unauthorized access to computerized police records, see People v. Walker,  can be tried on charges arising from those incidents, the Michigan Supreme Court has ruled in a 6-1 decision.

The Court of Appeals, in the email incident, held that defendant was properly bound over for trial under MCL 752.795:

A person shall not intentionally and without authorization or by exceeding valid authorization … [a]ccess or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.

Walker worked for Oakland County’s information technology department. After he was charged, his superiors told him he could no longer access police and court databases. Despite the directive, Walker, with the unwitting help of two other Oakland County employees, gained access to a police records database, resulting in a second charge under MCL 752.795.

The COA ruled that Walker was properly bound over on that charge as well.

The MSC agreed in both instances but three justices expressed concern that the statute paints with a very broad brush.

In her dissent, Justice Marilyn Kelly said that Walker raised some arguments that are “worthy” of review:

Defendant argues that the language of MCL 752.795 is ambiguous. Also, he insists that the statute was not intended to criminalize a person’s reading of his or her spouse’s e-mails. He provides examples of innocuous conduct for which a person could be criminally prosecuted under the prosecution’s reading of the statute.

[Footnote 4] For example, defendant argues that a parent could be convicted for monitoring his or her child’s Internet and e-mail usage. He argues that a person could be convicted for using the calculator or word-processing programs on his or her spouse’s computer without permission. [end footnote]

Defendant also raises a significant question about whether Internet-based e-mail accounts fit within the statute’s reference to “a computer program, computer, computer system, or computer network.” …

I note that the Legislature is considering a bill [HB 4532] introduced specifically because of this prosecution that would exempt defendant’s conduct from the scope of MCL 752.795.

Given that this Court has declined to consider the issues involved here, the Legislature would do well to consider whether it intends that MCL 752.795 subject the behavior involved here to criminal penalties.

Justice Stephen Markman, in a concurrence joined by Chief Justice Robert Young Jr., said that Walker’s conduct “unquestionably” fell within MCL 752.795 but wrote “separately to urge the Legislature to consider whether it intends to criminalize the full range of conduct to which the statute potentially extends.”

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MSC affirms conviction despite basic “duty to retreat” instruction in castle doctrine case

In People v. Richardson, the Michigan Supreme Court considered a defendant’s claim of self-defense. After a boondoggle1 between the Richardsons and their neighbors, the Abrams, in which names were called, rocks were thrown and spit was, well, spit, Brandy Abrams came to the Richardson’s door with a baseball bat to challenge Ms. Richardson to fight. After what can properly be described as a heated exchange, the defendant decided he’d had enough, grabbed a gun and stepped out on the porch.2  Shots were fired and Abramses were hit.

Richardson said he was acting in self defense  because he was on his porch and, under the castle doctrine, he had no duty to retreat. He was convicted of assault to do great bodily harm less than murder and felony-firearm in the Wayne Circuit Court.

The dispute on appeal was whether the trial court properly instructed the jury on self defense. The jury was read an instruction for basic self defense, including the general duty to retreat, along with the exceptions, including the castle doctrine. Initially, the judge didn’t explain that curtilage is considered part of the home under Michigan’s castle doctrine statute, MCL 768.21c , but did so after the jury asked for a clarification of the definition of “home.”

The Michigan Supreme Court affirmed the conviction. Justice Marilyn Kelly wrote for the majority:

We wholeheartedly agree with the dissent that the castle doctrine and the right of personal self-defense are longstanding and precious rights that we must vigorously uphold. But this case jeopardizes neither. The factual dispute was whether defendant honestly and reasonably believed that he was entitled to use deadly force. The court correctly instructed the jury that defendant had no duty to retreat if attacked in his home. Once the trial court clarified
that the porch was part of defendant’s home, the jury instructions removed any remaining questions about whether defendant had a duty to retreat. We further agree with the dissent that had the jury not been instructed that a person has no duty to retreat when attacked in his or her home, reversal would have been required. Our decision in Pond v People and 150 years of subsequent caselaw clearly mandate such a result.
But nothing in that caselaw required the judge in this case to sua sponte give the jury an instruction not to let the fact that defendant did not retreat into his house enter its deliberations. People v Riddle addressed this question in a footnote in dictum. But we do not agree that the footnote mandates reversal in the instant case. As noted, the success of defendant’s self-defense claim did not hinge on whether he was required to retreat or stand his ground on his porch. Rather, it hinged on whether he honestly and reasonably believed that it was necessary to use deadly force while standing his ground. After being properly informed that defendant had no duty to retreat if attacked in his home, the jury concluded that deadly force was not necessary. It recognized that the evidence showed that defendant was unharmed and could have continued to stand his ground and remain unharmed without shooting the victims. The dissent makes the right arguments in the wrong case.

In his dissent, Justice Stephen Markman wrote that Richardson’s conviction should have been vacated because the jury should never have been permitted to consider retreat as an option because the Adamses were in the curtilage of Richardson’s house, and there’s no duty to retreat in the home.

1 This is highly technical legalese. Use with caution.

2  This decision will forever be memorable to me for this passage:

It is agreed that at this point defendant remonstrated that he was “getting tired of this shit,” pulled out one of his three loaded handguns, and fired six times.

Three MSC opinions in, five remain

Mary Beth Kelly (lowrez)

Justice Mary Beth Kelly

The Michigan Supreme Court released opinions in three of the eight cases that remain pending for the 2010-2011 term.

All three opinions released yesterday were criminal cases.

In the first, People v. Kowalski, the court found that the trial judge’s omission of the actus reus was a plain error, but upheld the defendant’s conviction for accosting a minor for immoral purposes or encouraging a minor to commit an immoral act. The court found that defendant effectively waived the issue because his counsel didn’t object to the jury instruction, and even if he didn’t waive it, the prosecutor produced sufficient evidence at trial to support the jury’s guilty verdict. The count was 7-0, but Justices Michael Cavanagh and Marilyn Kelly concurred in the result only. Cavanagh wrote a concurrence in which he disagreed with the lead opinion’s waiver analysis. He also suggested the lead opinion should have applied a harmless error analysis for a constitutional error, rather than the plain error analysis it used.

Stephen J. Markman (lowrez)

Justice Stephen J. Markman

In People v. Huston, the court considered whether to upgrade the defendant’s sentence for engaging in “predatory conduct” on a “vulnerable victim.” In the majority opinion, Justice Markman wrote that the preoffense conduct need not be directed at “any specific victim,” just a victim, to be considered predatory under the statute, and the victim need not be “inherently vulnerable.”

Instead, a defendant’s “predatory conduct,” by that conduct alone (eo ipso), can create or enhance a victim’s “vulnerability.”

This was a 6-1 decision with Justices Diane Hathaway and Marilyn Kelly concurring in the result but dissenting to the part about predatory conduct. Justice Michael Cavanagh dissented.

Finally, in People v. Bonilla-Machado, the court found that a prison employee is a “person” to establish a continuing pattern of criminal behavior for scoring offense variable 13. Probably more importantly, it held that the application of enhanced maximum sentencing is discretionary and not mandatory as the trial court had stated. The justices quibbled over the scope of crimes OV 13 can be scored.

MSC: Statute of repose doesn’t apply to a breach of contract claim

The limitations period for breach of contract claims against contractors, architects and/or engineers related to improvements is governed by the breach of contract statute, MCL 600.5807(8), rather than the statute of repose, MCL 600 5839(1), the Michigan Supreme Court ruled in Miller-Davis Co. v. Ahrens Construction, Inc.

In the case, the plaintiff, a general contractor, filed a breach of contract claim against the defendant, a subcontractor hired to rebuild the roof of a YMCA building in Battle Creek. The claim alleged that the defendant’s work didn’t meet specifications, a condition that wasn’t discovered until the roof was removed to repair it. The plaintiff didn’t allege any defective or unsafe condition, only that it wanted indemnification for having to fix the roof itself.

The problem was that the claim was filed more than six years after the YMCA took occupancy. The statute of repose protects contractors from actions “to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death arising out of the defective and unsafe condition of an improvement to real property. …” Under the statute, the limitations period expires six years after occupancy.

Plaintiff said the statute didn’t apply because it was a breach of contract claim, so the statute of repose doesn’t apply.

The two statutes each allow a six year limitation period, so what’s the difference, you ask? It’s when the clock starts ticking. A statute of repose claim accrues on the date of “occupancy of the completed improvement, use or acceptance of the improvement,” while the clock for a breach of contract claim starts on the day the claim accrues.

The Supreme Court agreed with the plaintiff, essentially adopting a 6th U.S. Circuit Court of Appeals decision on the same issue in Garden City Osteopathic Hosp. v. HBE Corp. which used one of its own decisions, Huhtala v. Travelers Ins. Co., to arrive at its conclusion. The Huhtala court said an action founded on a “consensual” duty or breach of “express promise” isn’t a tort action, but a contract action.

We agree that the language of the provision strongly supports the conclusion that MCL 600.5839 does not apply to a breach of contract claim for a defect in a building improvement. We conclude that the Legislature intended the provision to be limited to actions in tort. Thus, it does not apply to a claim against an engineer or contractor for a defect in an improvement when the nature and origin of the claim is the breach of a contract.

The court overruled the Court of Appeals’ 1992 decision in Michigan Millers Mut. Ins. Co. v. West Detroit Bldg Co. which found the opposite in dictum.

By expanding the scope of MCL 600.5839 to contract actions, Michigan Millers blurred the critical distinction between third-party tort claims and contract claims between parties to an express contract. It expanded the applicability of the statute beyond any arguable legislative intent. Furthermore, its holding exceeded that necessary to resolve the issues involved. In sum, the Court of Appeals in this case relied on Michigan Millers for a proposition that is unsubstantiated. We overrule Michigan Millers and Travelers Ins Co. [v. Guardian Alarm, which relied upon Michigan Millers] because they are inconsistent with § 5839.

Applying its interpretation of the statutes, it found the plaintiff’s claim didn’t fall under the statute of repose.

There was no allegation that the roof deck system caused any “injury to property” or “bodily injury or wrongful death.” Nor was there any allegation of a “defective and unsafe condition.” Rather, plaintiff claimed that, because defendant failed to build the roof to the agreed-upon specifications, plaintiff was forced to expend money repairing it. Thus, the damages involved in this case were not to plaintiff’s person or property, but rather to its financial expectations. A claim for damages for deficiencies in an improvement is not an “action to recover damages for any injury to property . . . or for bodily injury or wrongful death . . . .” It is a suit for breach of contract. Here, there was a contract. Plaintiff did not rely on a duty implied in law, but solely on the terms of the contract. Thus, defendant’s obligation to plaintiff arose out of the contract. Because plaintiff claimed that defendant breached the contract that defendant and plaintiff entered into, the six-year period of limitations for contract actions, MCL 600.5807(8), applies in this case.

Battle lines drawn as MSC denies leave in black ice case

The Michigan Supreme Court’s denial of leave to appeal in Brown v. Taubman Co., et al., means that a slip-and-fall plaintiff can take her black-ice case to a jury.

The Court of Appeals had ruled that there was conflicting evidence whether the black ice was open and obvious. The MSC denied leave on a 3-3 vote.

Justice Brian K. Zahra sat this one out because he was on the Brown panel.

The black-ice issue needs to be addressed, said Justice Stephen J. Markman in his dissenting opinion.

This case illustrates the ongoing confusion in the law of this state concerning the “open and obvious” status of “black ice,” confusion that this Court has an obligation at some point to dispel. Instead, once again, we fail to afford guidance and direction on this matter, leaving in place conflicting and discordant decisions, and thereby enabling defendants and plaintiffs to each rely upon different precedents in support of their respective positions that “black ice” is or is not “open and obvious.” …

As the highest court of this State — a state in which snow and ice have sometimes been known to accumulate during winter months — it is our responsibility to address the confusing and inconsistent approaches in our caselaw and to clarify the rights and obligations of persons who must regularly confront these conditions.

True enough.

As to how it should be resolved, the black-ice battle lines are drawn in Justice Marilyn Kelly’s concurrence and Markman’s dissent.

Here’s Markman’s take:

The Court of Appeals, citing the existence of conflicting evidence, concluded that reasonable minds could differ regarding whether the so-called “black ice” was open and obvious. I disagree. A lifelong resident of Michigan should be well aware that during winter, when for several days snow has been falling, and when temperatures have been and remain below freezing, ice may form on parking lots. These factors are more than sufficient, in my judgment, to establish the presence of potentially hazardous conditions that would have alerted an average person of ordinary intelligence to discover and react to the “danger” upon casual inspection.

Just a minute, replied Kelly, you appear to be saying that all icy conditions are open and obvious:

The dissent opines that a lifelong resident of Michigan should be aware that black ice forms during the winter. Hence it is open and obvious even when invisible. If this position were adopted by the Court, people in Michigan would be on notice that, in winter, black ice is to be expected and no liability for falling on it exists. This proposition is unprecedented in Michigan law. As our Court of Appeals has astutely observed, black ice, defined as an invisible or nearly invisible coating of ice on a paved surface, is not by its nature open and obvious.

Well, Markman responded, if you just focus on the visibility aspect:

black ice will never be considered “open and obvious,” and property owners, to whom black ice is similarly invisible, will always be held liable for accidents arising from this condition.

Further, contrary to the analysis of Justice KELLY, “[t]he [‘open and obvious’] test is objective, and the inquiry is whether a reasonable person in the plaintiff’s position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.” …

That “black ice” may have obtained in this case does not alter the reality that as wintry conditions persist in this state, a reasonable person will increasingly be alerted to the hazardousness of such conditions, and will increasingly be assumed to have encountered conditions fairly characterized as “open and obvious.”

Another black-ice case will find its way to the MSC in the foreseeable future and perhaps the Court will then seize the opportunity to provide needed guidance.

Until then, there’s plenty of a la carte precedent from which to choose.

Federal judge speaks to Wayne grads; Stupak joins D.C. firm

Here’s a roundup of upcoming legal events and people of note:

• The Hon. Avern Cohn of the U.S. District Court for the Eastern District of Michigan will speak at Wayne State University Law School’s annual commencement ceremony.

Cohn also will receive an honorary doctor of laws degree at the ceremony, which takes place 5 p.m. May 16 at the Max M. Fisher Music Center in Detroit.

“I am deeply honored to join the past recipients of an honorary degree from the Law School, to wit: Eugene Driker, Dennis Archer, Maura D. Corrigan, Marilyn Kelly and Harold Koh,” Cohn said.

Admission to the commencement is by ticket only. For more information, contact the Law School’s Dean of Students Office at (313) 577-3997 or lawdso@wayne.edu.

• Former nine-term Congressman Bart Stupak, D-Michigan, who played a lead role in passage of the landmark health care legislation of 2010, has joined Venable LLP as a Legislative and Government Affairs partner in the firm’s Washington office.

Stupak was a senior member of the House Energy and Commerce Committee and Chairman of its subcommittee on Oversight and Investigations.

A former police officer and Michigan state trooper, Stupak became one of the leading congressional voices on law enforcement issues: in 1994 he created the first law enforcement caucus in Congress and went on to help write and pass substantial legislation to support law enforcement professionals.

Stupak also is serving as a Fellow at Harvard University’s Institute of Politics and will be leading a study group on government investigations at the Kennedy School of Government entitled “Investigate or Irritate: Changing Corporate and Government Behavior.”

• A ribbon-cutting ceremony to open the Crime Victims Rights Exhibit at the Michigan Supreme Court Learning Center in Lansing is this coming Wednesday, April 13, at 3 p.m.

Chief Justice Robert P. Young Jr., Sen. Tonya Schuitmaker, former state legislator Senator Bill Van Regenmorter (author and proponent of Michigan’s Crime Victims Rights Act), and Attorney General Bill Schuette are scheduled to speak.

The Prosecuting Attorneys Association of Michigan is co-sponsoring the event.

The educational exhibit is a tribute to crime victims and those who advocate for them. It will feature four panels, the exhibit educates the viewer about the act, and its meaning for crime victims, through interactive educational games.

• Know a great young attorney who has made great strides in his or her career? Then the Young Lawyers Section of the State Bar of Michigan wants to know more.

The section is now accepting nominations for the 2011 Regeana Myrick Outstanding Young Lawyer Award.

All nominations must be received by May 6. The recipient of the award will be chosen by the SBM-YLS Outstanding Young Lawyer Award Subcommittee, and will notified by May 13. The award will be presented during the Fourth Annual YLS Summit on Saturday, May 21, at the Amway Grand Plaza Hotel in Grand Rapids.

In 1997, the Young Lawyers Section renamed its Outstanding Young Lawyer Award in honor of Regeana Myrick, an executive council member of the section who passed away in August of that year.

For more information, contact Brandy Y. Robinson at byrobinson@gmail.com.

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Study planned of how Mich. appellate judges picked

DETROIT (AP) — A task force will propose revisions to Michigan’s system for selecting state Supreme Court and Court of Appeals judges in the wake of an election season that included the heavy use of negative ads.

The 24-member Judicial Selection Task Force announced Tuesday is co-chaired by state Supreme Court Chief Justice Marilyn Kelly and 6th Circuit Judge James L. Ryan. Retired U.S. Supreme Court Justice Sandra Day O’Connor is an honorary co-chair.

Starting in January, the task force will look at how Michigan’s appellate judges are picked and examine recent campaign spending for Michigan Supreme Court races. Kelly says in a statement that the 2010 judicial elections in Michigan saw “vitriolic advertising.”

The task force plans to release its recommendations in 2011.