$9.2M: Michigan tops nation in supreme court campaign spending

Michigan led the nation in campaign spending for 2009-2010 on state high-court elections, according to a report prepared by the Justice at Stake Campaign and two of its partners, the Brennan Center for Justice and the National Institute on Money in State Politics.

“The New Politics of Judicial Elections 2009–10” compiled figures that showed high-court spending in Michigan was nearly $4 million more than in Pennsylvania, the next state on the list:

Michigan: $9,243,914
Pennsylvania: $5,424,210
Ohio: $4,437,302
Alabama: $3,538,805
Illinois: $3,477,649
Texas: $2,951,719

The report had this to say about the election cycle:

In Michigan … interest groups and political parties dominated the airwaves, estimates of campaign spending ranged from $9.1 million to $11.1 million (with $6.8 million to $8.8 million in non-candidate spending). Regardless of the precise figure, Michigan’s judicial election spending was easily the nation’s highest in 2009-10. …

So great was the independent spending in Michigan that the four supreme court candidates [Young, Kelly, Justice Alton Davis and Judge Denise Langford-Morris], who raised a total of $2.3 million, at times seemed like bystanders in their own elections.

The state Republican Party single handedly outspent all four candidates, investing more than $4 million in electoral support. Kicking in more than $1.5 million was the state Democratic Party, while the Law Enforcement Alliance of America (LEAA), a Virginia-based group with ties to the National Rifle Association, also made a major TV splash.

Most of the special-interest spending in Michigan was concealed from the public, a fact that accounts for the variation in estimates of total spending. Although ads by both parties and the LEAA were blatant attempts to sway votes, Michigan’s outdated disclosure law treated them as apolitical “issue ads,” and required no campaign finance filings disclosing the amounts spent. Estimates of total spending therefore were largely based on the volume of TV ads each group ran, and estimates of what that airtime cost. It also was impossible to decipher who ultimately bankrolled independent efforts in Michigan.

After being the preeminent player in the previous five supreme court campaigns, the state Chamber of Commerce sponsored no television advertisements in 2010. But it did give $5.4 million to the Republican Governors Association (RGA), a national campaign organization. The RGA ultimately transferred $5.2 million back to Michigan’s Republican Party, which was the leading television sponsor in this year’s high court campaign. Accountability was lost in the face of the RGA’s massive national shell game.

The report also slammed the Michigan Democratic Party’s campaign against Young:

The Democrats anti-Young campaign reached rock-bottom … when they ran an ad that said Young “used the word ‘Slut!’ and ‘The “N” Word!’ in deliberations with other justices” and urged voters to call Young and “tell him we don’t need a racist or a sexist on the Michigan Supreme Court.”

Plaintiff can’t amend NOI to add a party, MSC rules

A medical malpractice plaintiff can’t use Bush v. Shabahang and MCL 600.2301 to amend his notice of intent (NOI) to add a party to the lawsuit, the Michigan Supreme Court ruled.

In the majority decision of Driver v. Cardiovascular Clinic, Justice Mary Beth Kelly wrote that the NOI only applies to the person upon which it was served. Therefore it didn’t toll the statute of limitations for any non-parties.

Further, she wrote, Bush is inapplicable to the case because it requires the case be pending, which this one was not, at least against the non-party.

By its plain language, MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. “An action is not ‘pending’ if it cannot be ‘commenced’ . . . .” In Bush,
however, this Court explained that an NOI is part of a medical malpractice “proceeding.” The Court explained that, “[s]ince an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding.’ As a result, [MCL 600.2301] applies to the NOI ‘process.’”
Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any “proceeding” against CCA because plaintiff’s claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barred at the outset. Therefore, MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case.

She also said that allowing the plaintiff to amend the NOI would alter the substantial rights of the non-party.

Every defendant in a medical malpractice suit is entitled to a timely NOI. The legislative purpose behind the notice requirement “was to provide a mechanism for ‘promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs . . . .’” Applying MCL 600.2301 in the present case would deprive CCA of its statutory right to a timely NOI followed by the appropriate notice waiting period, and CCA would be denied an opportunity to consider settlement. CCA would also be denied its right to a statute-of-limitations defense. These outcomes are plainly contrary to, and would not be in furtherance of, the Legislature’s intent in enacting MCL 600.2912b.

Finally, the court held that Burton v. Reed City Hosp. is still alive, even under Bush.

Nothing in Bush altered our holding in Burton. The central issue in Bush involved the effect an NOI had on tolling when the NOI failed to comply with the content requirements of MCL 600.2912b(4). The central issue in Burton involved the effect the plaintiff’s failure to comply with the notice-waiting-period requirements had on tolling. Indeed, the Bush Court repeatedly emphasized that the focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b.67 In contrast to placing doubt on the viability of Burton, this aspect of Bush aligned with Burton’s holding that a plaintiff must comply with the notice waiting period to ensure the complaint tolls the statute of limitations.

Chief Justice Robert P. Young Jr. concurred, incorporating by reference his dissent from Potter v. McCleary regarding the service of an NOI on a professional corporation.

Justice Diane M. Hathaway dissented, arguing that the plaintiff should have been allowed to amend the notice of non-party statute.

The majority erroneously asserts that plaintiff cannot use the NNPF 91-day window because plaintiff did not provide an NOI to CCA six months before filing the original action. However, the majority errs in this analysis. Under this reasoning, no plaintiff who brings a malpractice lawsuit under the discovery rule can ever use the NNPF statute to bring a claim against an identified nonparty at fault because no plaintiff will ever have provided an NOI to a nonparty at fault six months before filing the original suit. This reasoning renders an entire provision of the NNPF statute, the provision
allowing plaintiffs to file claims against nonparties at fault, nugatory. This clearly was not the intent of the Legislature and violates the basic tenets of statutory construction.

The majority fails to recognize that the NNPF statute creates it own 91-day window in which to bring claims against identified nonparties at fault. If the majority’s reasoning were correct, and a plaintiff were not afforded the opportunity to start his or her claim by providing an NOI to the nonparty at fault during the 91-day window, the NNPF and NOI statutes would be in irreconcilable conflict.

She wrote that, in this instance, the plaintiff tried to meet the requirements of the statute, and therefore, Bushshould have allowed him to amend the NOI.

Justice Michael F. Cavanagh said he would concur with the result of Hathaway’s dissent.

MSC overturns ‘Champion,’ finds employer not liable for employee quid quo pro sexual harassment

In Hamed v. Wayne County, the Michigan Supreme Court overturned its holding from Champion v. Nation Wide Security that imposed  liability on employers for the quid pro quo sexual harassment by a supervisory employee under the Michigan Civil Rights Act (CRA).

For the 4-3 majority, Justice Mary Beth Kelly wrote that the Champion court ignored traditional common law principles of respondeat superior which were incorporated into the CRA by reference.

First, we note that Champion’s holding was contrary to the plain language of the CRA. As we explained in Chambers, the CRA specifically incorporates common-law agency principles in its definition of “employer.” Michigan’s common-law agency principles, however, do not include the aided-by-agency exception, and the Legislature did not modify the common law by including the aided-by-agency exception in the CRA. The Champion Court failed to recognize this clear intent. Rather, like the dissenting justices here, the ChampionCourt reasoned that the remedial purpose of the civil rights law justified holding the defendant employer vicariously liable for the acts of its employee, based on an apprehension that adherence to traditional agency principles would completely foreclose employer liability for quid pro quo sexual harassment claims.

Aside from failing to give effect to the Legislature’s intent, this reasoning is flawed for two additional reasons. First, it wrongly elevates the CRA’s general remedial purpose above its plain language. Such reasoning is contrary to the cornerstone of statutory interpretation, which is the rule that the plain language used is the best indicator of the Legislature’s intent. Second, the policy concern at the heart of Champion is fundamentally flawed because it was premised on an unfounded fear. Application of
traditional agency principles does not foreclose employers from vicarious liability in the context of quid pro quo sexual harassment claims. An employer may still be liable for and act of quid pro quo sexual harassment that was committed within the scope of employment or for a foreseeable act that was committed outside the scope of employment. Thus, liability may certainly attach if there is sufficient cause to impute the employee’s or agent’s acts to the employer because the employer knew of the employee’s propensity to commit the type of act involved.

Kelly also said the Championcourt relied on federal case law interpreting the federal statute, which is different than the Michigan CRA.

Three justices dissented. Justice Michael Cavanagh wrote that Champion was correctly decided, noting that it was a unanimous decision at the time.

In light of this understanding of the CRA’s purpose and the Legislature’s intent in enacting the CRA, I believe that Champion properly advanced the legislative intent by ensuring that clearly discriminatory conduct is eradicated. The majority’s interpretation, however, bars plaintiff from pursuing a claim in furtherance of this goal and ignores “the legislative intent that employers, not the victims of sexual harassment, bear the costs of remedying and eradicating discrimination.” Champion, 450 Mich at 714. The majority erroneously discards Champion’s interpretation of the legislative intent as based “purely on policy considerations,” ante at 22, and ignores the fact that the policy considerations discussed in Champion were the motivation behind the Legislature’s enactment of the CRA. As a result, “in seeking to shield employers from liability, the majority instead places the burden of preventing an abuse of authority and the corresponding harm on people powerless to prevent it.” Zsigo v Hurley Med Ctr, 475 Mich 215, 236; 716 NW2d 220 (2006) (MARILYN KELLY, J., dissenting).

Cavanagh said the majority is wrong “under any standard” based on the deputy’s previous conduct and violation of jail policies requiring female officers to be present anytime a female inmate is in jail.

Three MSC opinions in, five remain

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.

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.

Bills would streamline adoption process for foster care children

LANSING, Mich. – Michigan Supreme Court Justice Mary Beth Kelly and Michigan Department of Human Services Director Maura D. Corrigan have urged legislators to approve bills before both chambers that will streamline the adoption process for children in foster care. The passage of these bills could pave the way for expedited placement in qualified, permanent homes for more than 1,100 children.

Currently, the only person authorized to approve adoptions for children in foster care is the Michigan Children’s Institute (MCI) superintendent. Since April 2010, the MCI superintendent has received 1,100 such cases for approval.

Under the bills, the MCI superintendent, the legal guardian for children committed to MCI when parental rights have been terminated, may authorize a designee to provide written consent to the adoption, marriage, guardianship or emancipation of MCI wards. The designee would be allowed to authorize adoption requests where the child is already living in the recommended adoption home and a review by a caseworker and supervisor has determined there are no concerns about the placement.

Kelly said her experience as a family court judge convinced her that the bills are needed.

“No matter how good a job the MCI superintendent does, he or she is only one person, and it is simply unrealistic to expect one person to perform in-depth reviews of hundreds of these cases each year,” Kelly told legislators.

While finding a permanent, loving home for children in foster care is a key mission for DHS, Corrigan was clear that the expedited process will not sacrifice due diligence in the examination of potential adoptive families. The department will be systematic, careful and considerate when determining who will be named as a designee, Corrigan told members of the Senate Families, Seniors and Human Services committee.

“The best place for a child is in a stable, permanent home. That is our goal for each of the 4,150 children in foster care available for adoption. Joining a family should not be delayed because only one person in the entire state can authorize a child’s adoption or guardianship,” Corrigan said.

Among the bills’ supporters is the Michigan Probate Judges Association. In a March 15 letter to Sen. Judith Emmons, Judge Dorene Allen, chief judge of the Midland County Probate Court and chair of the MPJA’s Juvenile and Adoption Issues Committee, wrote that the legislation “will facilitate the permanency of children in the abuse and neglect system, certainly a goal we can all agree upon.”

Source: Michigan Department of Human Services

Mary Beth Kelly criticized as her appointment set to expire

From the Metro Times, several Wayne County judges and departments are apparently displeased with the leadership of Chief Circuit Judge Mary Beth Kelly, whose appointment as Chief Judge expires at the year’s end.

Critics of Kelly — who came to the bench as an appointee of Republican Gov. John Engler in 1999 — sometimes characterize her policies as part of an effort by outstate conservatives to control leaders in the more liberal Detroit. They say some of her actions reflect the region’s longtime inability to come to terms with racial issues. She’s not making the correct, albeit difficult, decisions about how to effectively manage governmental operations with limited dollars, they say. And she should be stopped.

"I say Mary Beth Kelly has got to go," Detroit City Councilwoman Brenda Jones told one gathering held to "learn about the injustices taking place in our court system."

Defenders in the story call her fair-minded and say that her biggest problem is that she “came to power in an unusual way.