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pick which precedents it opts to keep without offering a valid explanation as to why the old precedent is irrelevant/outdated/etc.)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 That decision, also unanimous, was unpublished and not discussed at all in the McCracken opinion.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?

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Michigan Medical Marihuana Act: Perfectly unclear

The rulings by Court of Appeals Judges Patrick M. Meter and Donald S. Owens in People v. Redden are clear enough:

  • defendants charged with manufacturing marijuana can invoke the Michigan Medical Marihuana Act as an affirmative defense even though they weren’t registered under the act when the police raided their home.
  • the prosecutor can take them to trial and try to prove that their patient relationships with the doctor who authorized their marijuana use were too tenuous to be bona fide, they possessed an unreasonable amount of marijuana and that their medical conditions didn’t warrant the doctor’s authorization.

“I concur,” said Judge Peter D. O’Connell.

And most folks would concur with what O’Connell went on to say: the MMMA is perfectly unclear.

O’Connell notes that the law is “inartfully drafted,” creates “much confusion,” is internally contradictory, and also contradicts the state Public Health Code and federal drug laws.

The police, prosecutors, defense attorneys and trial judge wrestling with the MMMA, through no fault of their own, don’t know which end is up.

And “healthy recreational marijuana users incorrectly view the MMMA as a de facto legalization of the drug, seemingly unconcerned that marijuana use remains illegal under both state and federal law.”

O’Connell’s 30-page concurrence exhaustively dissects the MMMA and makes a cogent case for legislative and administrative officials to issue a comprehensive set of administrative rules to implement the act.

It’s required reading for anyone who has an interest, academic or otherwise, in issues arising under the MMMA.