MSC to COA: Tell us why arguments can’t be filmed

In last week’s issue, Gary Gosselin wrote about Eric VanDussen, a freelance journalist who asked the Court of Appeals if he could film  a the May 10 oral argument involving Michigan’s medical marijuana law.

The Court of Appeals’ administrative order denying VanDussen’s request, vaguely stating that “fair administration of justice requires such action.”

In an April 27 order, the Michigan Supreme Court said that reason wasn’t good enough.

On order of the Court, the motion for immediate  consideration is GRANTED. The complaint for superintending control is considered and, in lieu of granting relief at this time, we REMAND this case to the Court of Appeals to articulate the reason why “the fair administration of justice” warrants the denial of the plaintiff’s request to film oral argument on May 10, 2011. Administrative Order 1989-1(2)(b).

The court asked for an answer by May 2 and will likely make a ruling on the order soon thereafter.

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No SORA registration for Romeo & Juliet offenders

In November 2009, the Michigan Court of Appeals held that so-called Romeo & Juliet offenders1 who had their sentences expunged through the Holmes Youthful Training Act didn’t have to register for the sex offender list. (See “Court remands ‘Romeo and Juliet’ ruling.)

1 A Romeo & Juliet offender is a person accused of statutory rape for having sex with a girlfriend or boyfriend under 16 years of age.

In that decision, the Court ruled that forcing “a person who engaged in [consensual] sexual activity with a teen” was cruel and unusual punishment, and thus, unconstitutional.

But the decision left some question as to whether it applied to just R&J offenders under the Holmes Act, or all such offenders.

Now, the Michigan Legislature has solved the problem, passing a bill that would remove the registration requirement in such a situation if the person is less than four years older than the person with whom they were charged for having consensual sex. [Detroit Free Press]

Governor Rick Snyder signed the bill Tuesday. The new law, which goes into effect on July 1, will only apply to cases in which the victim was 13-15 years old.

Snyder says two open COA judgeships won’t be filled

If you were waiting by the phone in anticipation of Governor Rick Snyder’s call to congratulate you on being appointed to the Court of Appeals, you can go about your business.

According to the Detroit News, Snyder has decided not to fill court’s two open seats, which were created by Richard Bandstra’s retirement and Brian Zahra’s appointment to the Supreme Court.

Lansing — Gov. Rick Snyder will not fill two Michigan Court of Appeals vacancies and will ask for legislation to reduce the number of appeals judges to 26 from 28, a spokeswoman said Wednesday.

“This decision to not fill these two posts reflects the governor’s desire to match and align the number of judgeships with a significantly reduced caseload at the court,” said Sara Wurfel, Snyder’s press secretary.

The appeals court reductions account for two of the six judicial reductions Snyder announced in his Feb. 17 budget presentation. Having six fewer judges is projected to save close to $942,100 in the fiscal year that starts Oct. 1. Wurfel said cutting two appeals court judgeships will save about $343,000.

According to the story, four more judgeships are expected to be eliminated from the state’s circuit and district courts.

Plaintiffs can’t sue for each onset of asbestos-related cancer

An asbestos plaintiff with a previous history of asbestos related cancer can’t sue for a later onset of asbestos-related cancer, the Michigan Court of Appeals said.

The decision involved an interpretation of the Michigan Supreme Court’s 1986 decision in Larson v Johns-Manville, an asbestos-specific decision that allows a plaintiff to sue for either an asymptomatic case of asbestosis and the fear of developing cancer, or wait and see if he develops lung cancer, said Ogne, Alberts & Stuart, PC, attorney Michael A. Ross.

“What Larson said was that if you get asbestosis, or something that is basically asymptomatic, we’re not going to start the clock ticking,” Ross said. “We’re going to give the plaintiff the option: he can sue for asbestosis and the possibility that he might get a malignancy later, or he can wait and see if he develops a malignancy, and therefore the clock won’t start ticking.”

The plaintiff in Falk v All-Acquisition Corp. et al didn’t sue for a 1993 diagnosis of asbestosis. Nor did he sue when he developed lung cancer in 1999.

“That’s when the clock started,” Ross said.

When his lung cancer returned in 2006, he did sue. During his deposition, he testified that he was told his earlier onset was asbestos-related. The trial court dismissed the case.

On appeal, the plaintiff argued that Larson:

created a rule that regardless of prior asbestos-related diagnoses, the occurrence of any new asbestos-related disease constitutes a new accrual of a cause of action.

In an unpublished decision, the Court of Appeals disagreed:

We do not read Larson quite so broadly. Instead, we read Larson as holding that individuals who develop non-cancerous asbestos-related diseases and who accordingly have concerns that they will develop cancer need not bring suit relating to those less serious conditions and may instead wait to see if they develop cancer, at which time they would have the right to initiate their claim even though the time since the non-cancerous diagnosis exceeded the statute of limitations.

The Larson Court … fashioned a tolling period unique to asbestos cases, which allowed for a cause of action when a plaintiff suffered from asbestosis, and a new cause of action years later when the separate and independent disease of cancer developed.

That doesn’t mean, the court ruled, that the plaintiff can sue for each onset of the same disease.

[T]hese concerns are not present here, as the disease plaintiff developed in 1999 was itself cancer. Thus, when his 1999 cancer was diagnosed, his cause of action for asbestos-related injury accrued. There was no need for him to wait and see if he would develop cancer at a later point in time; he had already developed it. Consequently, the concerns set out in Larson do not arise and the 1999 cancer constituted the sole accrual date for cancer caused by plaintiff’s asbestos exposure. Accordingly, plaintiff’s claims are barred by the three-year statute of limitations.

Ross said the “two-disease” policy, in practice, allows plaintiffs to still receive something while not having to gamble on whether they later develop a more serious disease, like mesothelioma. Most asbestosis cases settle for a fraction of what the malignancy cases do.

“This way, they can funnel as much money to the malignancies, while not putting the plaintiff in a situation where, as soon as he gets anything, even if it’s asymptomatic, he has to go to court or lose his cause of action,” Ross said.

So Falk’s 1993 asbestosis diagnosis, was irrelevant, but he should have sued in 1999, when he was first diagnosed with asbestos-related lung cancer.

“He had three diseases,” he said. “In 1993, he had asbestosis, so, pursuant to Larson, he didn’t sue. He waited. Then in 1999, he got lung cancer. That’s when you’re supposed to sue.”

Ross said the facts of this case leave open the question of what would happen if Falk didn’t know his earlier cancer was asbestos-related, partially because Larson was based on the common law discovery rule, which the Michigan Supreme Court abrogated in Trentadue v Buckler Automatic Lawn Sprinkler Co.

“It’s an open question,” Ross said. “The general rule is that subsequent damages from the same exposure don’t start the clock ticking over again. They would be out of luck unless they could establish that they had no idea that [the earlier] diagnosis was asbestos-related.”

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?

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.

COA reinstates lawsuit against muffler manufacturer

DETROIT (AP) — If someone dies from inhaling exhaust in a garage, is it the fault of the companies that make or market a muffler-repair kit?

The family of a deceased Livingston County man thinks so. The Michigan appeals court has reinstated a lawsuit that claims the repair kit should have carried a warning about the dangers of carbon monoxide.

Craig White died in 2005 while working on his Buick. His family says companies associated with the product had a duty to warn that cars should not be run in a closed space.

A Livingston County judge ruled against the family in 2008, but the appeals court, in a 2-1 decision, sent the lawsuit back for more work this week.

The majority says there wasn’t enough evidence in the record to dismiss the case. The dissenting judge says White was knowledgeable about engines.

The per curiam decision can be found here, and the dissent from Judge Kirsten Frank Kelly is here.