MSC’s Cavanagh receives Ingham Bar’s Lifetime Achievement Award

Michigan Supreme Court Justice Michael F. Cavanagh is the 2011 recipient of the Ingham County Bar Association’s Thomas E. Brennan Sr. Lifetime Achievement Award.

The ICBA gives the award “to lawyers who have made a significant and longstanding contribution to the advancement or improvement of the justice system and the betterment of the legal profession in the State of Michigan and have also attained professional excellence as demonstrated by accomplishments in the law or service to the profession during his or her career.”

The award will be presented at the ICBA’s 117th Annual Dinner on Nov. 2 at the Country Club of Lansing.

The ICBA will also honor several of its members at the dinner:

• Karen Bush Schneider – Leo A. Farhat Outstanding Attorney Award
• Shauna L. Dunnings – Theodore W. Swift Civility Award
• Michael Brennan Farrell – Camille S. Abood Distinguished Volunteer Award

In addition, Heather Spielmaker, Director of the Center for Ethics, Service and Professionalism at the Thomas M. Cooley Law School, and Sgt. Major David L. Dunckel will receive the ICBA’s Liberty Bell Award.

The award “recognizes outstanding service performed by a non-lawyer citizen who has given time and energy to strengthen the effectiveness of the American system of justice.”

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: Affidavit of merit not a pleading, can’t be amended retroactively

Since it was decided in 2009, the Michigan Supreme Court’s decision in Bush v. Shabahang has been used by the Court of Appeals to allow plaintiffs to fix several different types of defects in medical malpractice-specific pleadings.

But the court’s decision in Ligons v. Crittendon Hospital denied a plaintiff the opportunity to amend a defective affidavit of merit (AOM) and dismissing the case.

Writing for the majority, Justice Brian Zahra said the AOM isn’t a “pleading” under the court rules, so any rule allowing an amended “pleading” doesn’t apply.

An AOM, even if required to be appended to a complaint, is not included in this restrictive definition of a “pleading.” Plaintiff relies heavily on a statement in Barnett v Hidalgo, which described an AOM as “part of the pleadings” in determining that an AOM is “generally admissible as an adoptive admission[.]” But plaintiff fails to appreciate the context in which the statement was made: describing a document as “part” of the pleadings when addressing an evidentiary issue does not turn the document into a pleading for purposes of MCR 2.118(D) if it does not meet the definition in MCR 2.110(A).60 Indeed, elsewhere Barnett clearly referred to the AOM as distinct from the complaint, stating that AOMs “are required to accompany a complaint . . . .” Id. at 160. Under MCR 2.110(A)(1), for purposes of the court rules it is the “complaint” itself that constitutes a “pleading,” not the complaint and any document accompanying it. Barnett neither held nor relied on the premise that an AOM is a pleading for purposes of the rule permitting amendment of pleadings, MCR 2.118

Zahra also wrote that Bush doesn’t apply to AOMs either.

The Bush Court’s application of MCL 600.2301 to a medical malpractice NOI was rooted in the Legislature’s 2004 amendment of MCL 600.5856(c), the notice-tolling statute, and does not apply to AOMs. Unlike NOIs, which give notice to defendants, AOMs are meant to weed out frivolous cases before they are ever filed. Applying Bush beyond the scope of the 2004 amendment of MCL 600.5856(c) and NOIs to AOMs would be an unwarranted expansion of its focus on the notice-tolling statute, would free the opinion from its statutory moorings, would frustrate the purpose of the AOM requirement, and would create unnecessary conflict with existing caselaw, such as Kirkaldy, which Bush did not overrule. We therefore decline to apply the rationale of Bush beyond its limited statutory focus.

The majority said dismissal with prejudice is required in such circumstances.

Justice Michael Cavanagh dissented, arguing that the AOM in the case wasn’t defective because the statute doesn’t require specificity, and even if it was, the statutes don’t require that the case be dismissed with prejudice.

Nevertheless, assuming arguendo that the AOM in this case was deficient, I believe that MCL 600.23013 should apply to allow a cure of the alleged deficiency within the AOM. To begin with, applying MCL 600.2301 would not conflict with MCL 600.2912d, when the latter is read as a whole. Indeed, as recognized by Justice HATHAWAY, the AOM statute does not expressly provide a penalty for deficiencies within the contents of an AOM. And, notably, the allowances of additional time to file an AOM in MCL 600.2912d(2) and (3) do not explicitly preclude amending or disregarding defects within the contents of an AOM. Instead, those provisions merely provide a plaintiff additional time in which to file the initial AOM and, thus, do not address curing an arguably defective AOM. And while I continue to adhere to my position in Kirkaldy v Rim, 478 Mich 581, 586-587; 734 NW2d 201 (2007) (CAVANAGH, J., concurring), as Justice HATHAWAY suggests, allowing a defect within an AOM to be cured under MCL 600.2301 would simply provide an alternative remedy to that of Kirkaldy, in which the majority opined  that the remedy for a successful challenge to a deficient AOM is dismissal without prejudice, id. at 586 (majority opinion). Accordingly, I believe that MCL 600.2301 should apply.

Justice Diane Hathaway also argued that the statute doesn’t require the specificity the majority is requiring.

The Legislature chose not to incorporate any of these phrases heightening the level of specificity in the AOM statute. If the Legislature had chosen to incorporate such qualifying language in MCL 600.2912d(1), then the majority might have a basis for its conclusion. However, MCL 600.2912d(1) is silent concerning the level of specificity with which the information in an AOM must be conveyed. Nothing in the plain language of this statute mandates the heightened level of specificity that the majority demands, and this Court is not free to add words or phrases to a statute. Thus, the requirement that the AOM “shall contain a statement of each of the following” simply means what it says. The statute requires that “a statement” must be made, not a “detailed statement,” “a complete statement,” or a “full explanatory statement.”

One of the other two MSC decisions that are supposed to be out today, Driver v. Cardiovascular Clinic, will also deal with application of Bush v. Shabahang and Burton v. Reed City Hospital. Stay tuned.

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.

MSC: Anonymous tip was sufficient for school search, reverses Perreault

The Michigan Supreme Court reversed the decision in People v Perreault, in which a Court of Appeals panel said a school administrator’s search of a student’s vehicle on school grounds violated the defendant’s Fourth Amendment rights.

At issue in that case was whether the school took appropriate steps to verify the information contained in the anonymous tip on which it based its search.

The Supreme Court said it reversed the decision “for the reasons stated in the Court of Appeals dissenting opinion.” The court also rejected a defense argument that the role of the police “rendered this a police search.” The police passed the tip it obtained from an anonymous tip line to a school administrator, and the police’s liaison officer was present during the search, but did not conduct the search himself.

The dissenting judge, Peter D. O’Connell, wrote that the totality of circumstances provided the administrator with “sufficient indicia of reliability to support reasonable suspicion of criminal activity.”

Justice Stephen J. Markman, joined by Justices Maura D. Corrigan, Robert P. Young Jr. and Elizabeth A. Weaver, concurred with the order, writing:

Thus, there was corroborating information to indicate that the tipster’s information was reliable. In my judgment, the tip and the corroborating information were sufficient for school officials to form a particularized suspicion that defendant was, in fact, selling drugs from his truck in the school’s parking lot. Therefore, the search of defendant’s vehicle conducted by school officials on school property did not violate defendant’s constitutional rights. Rather, it was an entirely reasonable search under the Fourth Amendment.

Chief Justice Marilyn Kelly, joined by Justice Michael F. Cavanagh, dissented, saying the case was a close call and that she would grant the parties leave to appeal.

MDP Chair Brewer slams MSC Justice Young

Michigan Democratic Party Chair Mark Brewer

Michigan Democratic Party Chair Mark Brewer is getting a jump start on the silly season of politics.

Brewer jabbed at Michigan Supreme Court Justice Robert P. Young Jr. in a press release issued yesterday. Young, who is running for re-election to the MSC this fall, doesn’t care about the average working Joe or Josephine, says Brewer.

Young, along with a majority of the justices, reversed the Michigan Court of Appeals in Alderman v. J.C. Development Communities, a construction-accident case in which Randy Alderman, a subcontractor’s employee, was badly burned when a crane hit a power line.

Michigan Supreme Court Justice Robert P. Young Jr.

At issue was whether the general contractor was liable to Alderman under the common-work-area doctrine. Under Ormsby v. Capital Welding, Inc., 471 Mich. 45 (2004), the doctrine requires proof of four elements:

• (1) that the defendant contractor failed to take reasonable steps within its supervisory and coordinating authority;
• (2) to guard against readily observable and avoidable dangers;
• (3) that created a high degree of risk to a significant number of workers; and
• (4) in a common work area.

Judge Edward Sosnick of the Oakland County Circuit Court said Alderman hadn’t made his case, reasoning that Alderman and the other five members of his crew were the only ones in the area. According to Sosnick:

At most, six employees of one subcontractor were exposed to the risk of electrocution. This is not sufficient to establish a common work area.

The COA panel, Judges Donald S. Owens, Deborah A. Servitto and Elizabeth L. Gleicher, disagreed.

Plaintiff presented evidence that this construction project was rather large and that his employer was not the only subcontractor working in the vicinity of the power lines on the date of this accident. …

Plaintiff’s crew may have been the only subcontractors working on lot 273 when the accident occurred, but the power lines did not merely run along the one lot. They ran along several lots under active construction, and electricity is commonly understood to be hazardous.

The crane could easily have torn down the power lines, creating a hazard to anyone within striking distance of the fallen lines, or could have caused a fire. The risk of harm associated with a crane hitting the power lines is high and is not as narrow as defendant would suggest.

The risk at issue is the potential harm to be had if the crane hit the power lines — not merely the harm to be had if the crane made contact with the power lines and someone was involved in the electrical circuit between the power lines the crane.

In an order issued last week, Young and four other justices reversed, using language that generally tracked Sosnick’s when he initially dismissed the case:

The risk of injury at issue here was the risk of electrocution from a subcontractor’s crane coming into contact with power lines above the construction site.

The only employees exposed to the risk of electrocution were two to six employees of one subcontractor, including the plaintiff, and therefore there was not a high degree of risk to a significant number of workers.

Brewer, on the Democratic Party’s website, was quick to pounce, painting Young as a friend of insurance and business interests and a working-class enemy:

On Law Day, which is intended to celebrate the benefits to all Americans of the American legal system, Michigan Supreme Court Justice Bob Young again denies those benefits to injured workers.

In an order released Friday, April 30th, Young and his colleagues denied relief to a construction worker, severely burned and nearly electrocuted on the job, because there was “not a high degree of risk to a significant number of workers.” …

“If six employees at risk of electrocution is ‘not a high degree of risk to a significant number of employees’ according to Young, how many workers doing what dangerous job is enough?” asked Michigan Democratic Party Chair Mark Brewer. …

“To Young, only insurance companies, corporations and their CEO’s, the people who fund his campaigns, are entitled to legal protection.”

But Brewer’s rhetoric proves a little too much.

Could you imagine Brewer leveling the same broadside against MSC Justice Michael F. Cavanagh, who has had the warm support of the Democratic Party in elections past? Not in this lifetime.

But Cavanagh joined Young, and Justices Elizabeth A. Weaver, Maura D. Corrigan and Stephen J. Markman in reversing the COA and reinstating Sosnick’s dismissal. Chief Justice Marilyn Kelly and Justice Diane M. Hathaway would have denied leave to appeal the COA’s decision.

That might make one think that Alderman is not about one justice looking for an opportunity to kick someone when they are down and, instead, is better understood as a principled disagreement about the scope of a legal doctrine that forecloses one avenue of relief.

The silly season of politics is upon us.

The curious case of Hon. Benjamin H. Logan

A deal to resolve misconduct charges filed by the Judicial Tenure Commission against 61st District Court Judge Benjamin H. Logan may be on the rocks.

Last fall, the JTC’s formal complaint alleged that Logan’s intervention to grant bond to Kent County Commissioner James Vaughn gave the “appearance of impropriety.” See, The Michigan Lawyer: Special master appointed in Grand Rapids judicial misconduct case

Vaughn had been arrested for domestic violence.

The complaint alleged that Logan intervened after a telephone call with another commissioner, Paul Mayhue, who visited Vaughn in jail. Logan initially denied that any phone conversations took place. He eventually conceded in a JTC settlement agreement that he and Mayhue spoke for 15 minutes on the day Vaughn was arrested.

The JTC recommended a public censure for Logan and sent the file to the Michigan Supreme Court for approval.

Wait a minute, something doesn’t seem to be adding up, we’re curious, a little more “explication,” please, said Justices Elizabeth A. Weaver, Maura D. Corrigan, Robert P. Young, Jr., Stephen J. Markman and Diane M. Hathaway.

We DIRECT the Judicial Tenure Commission to file a supplemental report within 56 days of the date of this order, explaining:

(1) whether it has determined that the respondent did not lie to the Commission, despite the allegations in Count II of the complaint; and

(2) if the respondent did not lie to the JTC, then how does the respondent explain his admitted 15-minute phone call received from Mayhue in light of his multiple denials of having any conversations with Mayhue on the date in question? See page 4 of the settlement agreement (admitting that the 2:08 p.m. phone call from Mayhue to the respondent on 6/17/08 lasted approximately 15 minutes), pages 5-6 of the complaint (alleging that the respondent denied having any conversations with Mayhue on that date), and page 2 of the respondent’s answer (continuing to deny that he had any conversation with Mayhue on that date).

One possible reading of the tea leaves: if a judge lies to the JTC, something more than a public slap on the wrist is in order.

Chief Justice Marilyn Kelly and Justice Michael F. Cavanagh “would adopt the recommendation of the Judicial Tenure Commission.”