The Gongwer Blog

by Ben Solis, Staff Writer

Open & Obvious Hazards Ruling Means Legal Sea Change For Businesses

Posted: September 4, 2023 4:05 PM

A longstanding mechanism that prevented property and business owners from being sued if a visiting person is injured – and the hazard was open and obvious – was overturned this summer, and now attorneys and business leaders across Michigan are working to understand how that could affect their clients and colleagues.

The 5-2 decision from the Michigan Supreme Court issued in July for the consolidated Kandil-Elsayed v. F & E Oil, Incorporated, and Pinsky v. Kroger Company of Michigan (MSC Docket Nos. 162907 and 163430) overturned a key precedent from 2001, Lugo v. Ameritech, that made the open and obvious doctrine part of a property owner's duty, meaning unless there were special aspects of the situation making it particularly dangerous, the business owner would not be liable.

Chief Justice Elizabeth Clement, writing for the majority, held the Lugo case – one of several hallmark opinions of the Engler-era Supreme Court – was wrongly decided. Instead, statute, prior court precedents and other tort governance indicate that the open and obvious nature of a hazard should be considered in a comparative fault analysis.

That has essentially opened the door for more lawsuits, which would typically be thrown out in the summary judgment stage under the Lugo open and obvious standard, to move forward (See Gongwer Michigan Report, July 28, 2023).

In interviews with Gongwer News Service, attorneys who represent injured parties hailed the decision as a long time coming, agreeing that property owners and businesses should be doing more to ensure their properties are maintained and free of hazards, obvious or not.

Several also added that it would give those parties their days in court and open injury complaints to deeper fact-finding proceedings, which could lead to victories at trial or swifter settlements. The caveat, however, is that the burden of proving premises liability claims may increase as greater scrutiny may be placed on the claims as they go through discovery and trials.

"Now, it's going back to what we have in normal negligence cases, meaning that you have to prove that there was a dangerous condition and what percentage of fault is more of a comparative negligence," said Debra Lujan, an attorney with Collins Einhorn Farrell and co-chair of the State Bar of Michigan's negligence law section. "So, if the plaintiff could have seen it, you still have (a mechanism where) if they're more than 50 percent at fault, they are eliminated from getting any non-economic damages, which means pain and suffering, loss of enjoyment and things. But in terms of economic damages, it's going to reduce their damages by their own percentage of faults."

That said, plaintiffs won't see courts just kicking these cases out as they had before without discovery and without an opportunity for the plaintiff to describe what, what they saw, what they didn't see what the condition was when they were injured, Lujan added.

Todd Stearn, a personal injury attorney who also is a co-chair to the Bar's negligence law section, agreed that the analysis around the open and obvious hazards doctrine was in need of an overhaul for some time, as it incentivized business owners to keep openly defective areas on their properties untouched because they were unlikely to get sued in the event of an injury on premises.

"The Supreme Court, I think, recognized among other things that the law was just really unfair (and this ruling) is a dramatic change," Stearn said. "It was also very arbitrary. Before, one judge might find a defect to be open and obvious and another judge might not find the exact same defect to be open and obvious. You'd be getting very inequitable results based on the judge you had. This should clean that up."

Businesses and property owners are, on the other hand, bracing for the worst. Two heads of Michigan associations representing businesses large and small in interviews with Gongwer said they will now face legal and financial burdens to maintain grounds and fix hazards that were previously insulated from injury claims.

Those sources also said that the rulings now bring an air of uncertainty for businesses as they struggle to bounce back from the pandemic, high costs and inflation on goods and services.

Brian Calley, president and CEO of the Small Business Association of Michigan, said that was "unquestionably true" in the wake of the ruling.

"Business and property owners have previously been assured that common sense plays a key role in liability exposure," Calley said. "Overturning the long standing open and obvious precedent turns that on its head. And it wipes out case law and decisions that were based on that precedent. This creates a lot of uncertainty."

Wendy Block, senior vice president of business advocacy with the Michigan Chamber of Commerce, said that also rang true for the businesses they represent, and that they have significant concerns.

"The Supreme Court's ruling, which abolished 22 years of legal precedent pertaining to the doctrine, will result in a significant increase in slip and fall lawsuits. There's no question about it," Block said. "It will impact businesses of all sizes and types across Michigan, and not only will the ruling increase property owners litigation exposure, it will increase the number of trials that we're seeing across Michigan and could also cause property insurance costs to increase significantly."

At a time when businesses are still attempting to recover from losses during the pandemic and are worried about their bottom lines, the specter of a costly premises liability suit now hangs over their heads if their properties have open hazards that now need to be addressed.

Block said that only time will tell if that leads to more slam dunk injury lawsuits against affected businesses, but the mechanism they relied on to filter out frivolous suits has now been obliterated by the court.

Prior to the ruling, Block said the court has always held that if an average person with ordinary intelligence would have been able to discover a potentially dangerous condition, upon casual observation and avoided the same, the processor had no duty to warn or maintain, absent a special aspect of the potential danger.

"This idea of ice or snow, or a giant pothole or some other defect that an average person could see and subsequently avoid, now, all of those situations will be subject to litigation," she said. "And while the court seems to recognize that a property owner doesn't necessarily need to immediately rectify hazards, the question really is about interpretation. Every jury across Michigan could decide this differently, and so there really is no new standard for the courts to look at and for juries to consider."

That difference interpretation across court systems and jury pools, Block added, will make premises liability cases an evolving situation for years to come.

While the Chamber has been careful not to offer its members legal advice – instead advising them to seek legal counsel from their own attorneys – Block said the group was considering options on how to aid members with support.

Alerts were sent to business owners when the ruling came down explaining the decision and how businesses could be impacted. Those alerts also included some tips on how to limit exposure to legal jeopardy.

Block said they are continuing to monitor the situation and offer help as they can. Calley said the same was the case with SBAM, which has provided briefings and articles on the decision and new things a business owner needs to think about.

"While we do not know how this decision will play out in future lawsuits, we do know that early dismissal of frivolous lawsuits will be much harder. That means small business costs will rise," Calley said. "Business owners who have guests, customers, vendors or contractors on their property need to look at risks with fresh eyes. Hazards or potential hazards, no matter how obvious and easily avoided should be evaluated for actions such as modifications, repairs, barriers, or warning signage. Additionally, business owners should consult with their legal and insurance partners to ensure they are adequately protected."

While the probability of exposure to liability and lawsuits surviving the summary stage have potentially increased, Stearn said that necessarily won't lead to more trials.

He said he sees the ruling playing out in a similar way to the no-fault auto insurance reforms and the court cases that followed.

"There was a period of time where serious impairment of body function was being determined by judges, and a lot of cases were getting dismissed. And then the Supreme Court and through some legislation kind of changed it so that series impairment is by and large now a question of fact for a jury," Stearn said. "There are not necessarily more trials, I don't think, but there's more ability to settle cases for plaintiffs without the cases being dismissed. I think it's going to play out in a very similar way. I don't think it's necessarily going to lead to more trials, but I think it's going to lead to more successful outcomes for plaintiffs."

Lujan also said that defendants in these matters will still have the same kinds of defenses that may have been ignored or passed over in favor of using the summary stage to dismiss cases early on through the open and obvious doctrine.

"Did they have notice of the dangerous condition? How long did they have notice? It kind of goes back to what's reasonable, and whether they or should have known about the dangerous condition," she said, adding that plaintiffs will still have to prove that the condition was dangerous. "I just settled a case where … I said, 'you're right, open and obvious has gone away, but this isn't a dangerous condition, this is an ordinary ADA approved floor plan or a regular step.' Where I think you're going to see a lot more cases survive are like snow and ice cases, or cases where there truly is a danger on the condition. Then you know, it's going to go back to the property owner to keep their property safe."

The standard might change based on who the plaintiff was and if they were an invitee or a licensed person, like a skilled worker, Lujan said, but now owners must be aware of the fact that they just can't say a hazard was obvious and avoid liability.

"This, to me, is a fairer system for everybody in terms of what you look at, but you still have the same defenses you had before: the 50 percent rule, if somebody's drunk, if somebody's intoxicated, on drugs or something," she said. "You still have to look at more of the totality of the situation, as opposed to 'was this condition objectively open and obvious? Therefore, I don't have to fix it' or 'therefore, I don't owe them a duty.' It has definitely shifted, but there are still many defenses available to defendants."

As to the concerns of business and property owners and the groups that support them, Steran said if those organizations were interested in safety and protecting the public, they should have no problem with the change in calculus before the courts. He also disagreed that the ruling would end up costing them more money on repairs or property overhauls, because upfront investments meaning they won't have to defend cases or pay damages if found liable.

"Our laws in Michigan up until now were an outlier in the country. We had probably the most restrictive, the most difficult premises liability cases in the country, including Alaska. They had an easier time bringing a slip and fall case on snow and ice in Alaska than we did in Michigan," he said. "If those organizations are more interested in safety, making sure that people don't have to encounter dangerous conditions, then they should have no problem with these laws at all. And property owners should be taking care of the properties. That's just a fundamental truth."

– By Ben Solis

Advocates Praise Money To Help Corrections Sexual Assault Investigations

Posted: July 24, 2023 12:10 PM

A line item in the 2023-24 fiscal year budget passed last month by the Legislature contains more than $3 million for the Department of Corrections to create a Prison Rape Elimination Act and Harassment Investigations Division, which would investigate all reported assaults of prisoners.

The line item, which was included in Governor Gretchen Whitmer's executive recommendations and included in the Senate proposal, also made the final conference committee report that passed in late June.

As a new unit within Corrections, the division would also investigate allegations of discriminatory harassment and retaliation in the workplace.

The line-item proposal contained in House fiscal analysis of HB 4437 notes that the total number of investigations of sexual assault against prisoners has averaged 1,647 per year for the last four years, and that investigations take nearly 15 hours of staff time per case. Investigations are currently conducted by facility staff, including inspectors and front-line supervisors.

The budget would provide $3.3 million General Fund to attack the problem and would authorize 23 new full-time positions.

Corrections spokesperson Kyle Kaminski told Gongwer News Service on Monday that while the agency investigates every claim of a PREA violation, which includes discriminatory harassment, the investment was key in helping those investigations along.

He also said the agency was glad to see the governor and the Legislature supporting the creation of a dedicated division.

"Centralizing these investigations will allow for more consistency, allow the department to identify potential trends earlier on, which can help protect against litigation, and it will allow our first line supervisors, like sergeants who do a lot of these PREA investigations currently, to return to their primary task, which is mentoring and working with officers on professional development and oversight," Kaminski said. "So, by having a centralized unit, we will kind of remove that work from the facilities and get the benefit of being able to have that facility-based staff focused on their most important tasks, and at the same time, get more consistency across our facilities when it comes to the investigations."

Kaminski said the recommendation originated with department leadership. Whitmer included the money in her recommendations and the Senate concurred with that decision. That showed advocates against sexual assault and attorneys who represent victims that state government recognizes the scope of the problem.

"It's a recognition that sexual abuse happening to anyone is horrible, and that's not what we should allow to happen in our prisons or to detained people," Deborah LaBelle, a human rights attorney based in Ann Arbor with a focus on rights of detained people, said in an interview. "You don't want to turn people out more damaged than when they came in, and we're supposedly rehabilitating. I also think there's a recognition that if you investigate things thoroughly, and everybody starts to understand that they will be investigated and held accountable, that is the first step toward preventing it from happening."

Heath Lowry, a staff attorney and policy specialist with the Michigan Coalition to End Domestic and Sexual Violence, said the line item makes addressing prison sexual assault a priority.

"We're very supportive of the line item here. We didn't actively advocate for it (during budget negotiations), but we see improvement of and reduction of sexual assault and sexual crimes against prisoners in Corrections as a great improvement," Lowry said. "There's an obvious need with the number of reports that are made each year to reduce the impacts of sexual violence on people within the system."

Whether those assaults have been properly investigated in the past is up for interpretation, but LaBelle noted that the Department of Corrections often investigates itself, and many times such investigations of credible assaults come up as being inconclusive. Having dedicated funding could give Corrections the resources it needs to investigate more effectively, she said.

LaBelle also said she hopes the money will assist investigations that are more independent, neutral, fair, and most of all, adequate.

PREA annual reporting is required by federal law, but it is a lagging statistic. The most recent public report made available by Corrections is dated 2021. That year, there were 1,594 total allegations. Those allegations considered nonconsensual sexual acts made up 145 of those complaints, but only six had sufficient evidence of a crime. At least 94 of those complaints were found to have insufficient evidence of a crime, 12 were found to have no evidence at 33 allegations were left open without a final determination at the end of 2021.

Abusive sexual contact reports made up 97 allegations of the 2021 total. Of those, only four were found to have sufficient evidence. There were 67 with insufficient evidence, seven with no evidence and 19 left open at the end of the reporting year.

Sexual abuse of an offender complaints made up 326 of the total 2021 allegations, and of those only five had sufficient evidence. There were 184 without sufficient evidence, 54 without evidence and 83 of those cases left undetermined at the year's end.

Sexual harassment between prisoners made up 279 of the complaints, with 14 found to have sufficient evidence, 219 with insufficient evidence, 17 with no clear evidence and 29 reports left open.

Allegations of staff sexually harassing prisoners were the largest reported statistic, with 747 allegations. Of those, eight were found to have sufficient evidence, 541 with insufficient evidence, 69 with no clear evidence and 129 of the allegations left open at year's end.

Although staggering, the number of reported allegations went down in 2021, as there 1,873 total allegations the previous year, which was up from 1,723 total allegations in 2019, public reporting data shows.

Overall, LaBelle said prison assaults tend to be underreported in the grand scope of reported sexual assaults or abuse throughout the state. That was apparent when LaBelle took on two separate cases alleging abuse against youth housed in adult prisons.

One complaint filed in Washtenaw Circuit Court – Does v. Corrections (Washtenaw Docket No. 13-1196) – was a class action on behalf of children confined in those adult prisons operated by Corrections, which alleged that from 2010 to 2013 at least 800 children ranging in ages 13 through 17 had been housed with adults and that they lacked proper oversight and protections from physical and sexual violence, abuse and sexual harassment at the hands of prisoners and prison staff.

In the U.S. District Court for the District of Michigan, LaBelle represented clients in the class action Does v. Corrections (USEDM Docket No. 13-14356), which alleged the same.

The Washtenaw Circuit Court case, after a lengthy battle, was settled in 2020, court records show. The agreement provided the plaintiffs with $80 million in equitable relief. It also put an emphasis on reporting standards that Corrections was ordered to follow in line with the federal act.

Although they were able to come to an agreement, LaBelle said that some of the claims were not viewed as credible or were discredited by the department during their initial investigations, but the credibility of the complaints became clearer as depositions began.

The settlement in state court led to the termination of the federal action spring of 2020, court records show.

Although these victims received some sort of relief through the courts, the problem of preventing those assaults from happening looms large.

Lowry said that a prison sentence should never come with the additional cruelty of a sexual assault while housed in Corrections.

"Sexual assault is never part of someone's prison sentence when the judge hands it down. So, it shouldn't be part of their experience while within the system," he said. "Someone who has been incarcerated is in a marginalized population, but just because someone has committed a crime and has broken the law does not mean that they deserve sexual violence more than anyone else."

Lowry agreed that because budgets determine "the morals of the state as to how the dollars are spent," adding that the new division was important.

"This investment – improving investigations of sexual assault within prisons – is showing that it is being paid attention to now," he said.

Juvenile Justice Reform Bills Could Be Next Big Priority

Posted: July 10, 2023 11:44 AM

Lawmakers and criminal justice leaders behind a push to codify key recommendations from Governor Gretchen Whitmer's Juvenile Justice Reform Task Force remain confident the reforms would keep more minors out of the juvenile justice system and ultimately save the state money in the process.

That includes Rep. Kara Hope (D-Holt) and Sen. Stephanie Chang (D-Detroit), two key lawmakers sponsoring separate packages in the House and Senate. They and one of the bills' most ardent supporters – Supreme Court Chief Justice Elizabeth Clement – told Gongwer News Service in recent interviews that package was guided by a set of recommendations that were well informed through stakeholder input and easy to codify because the reforms make sense.

They also said this has become a priority for legislative leaders with the Legislature beginning its summer break, and that observers could see the bills move and pass by September.

Not all agree with the changes, however, as some opposition has formed to at least one of the bills in the package, HB 4625 , which the Michigan Sheriffs' Association in written testimony to the House Criminal Justice Committee said would eliminate from exclusion specific assaultive crimes that currently serve as disqualifier for juvenile eligibility for diversion.

Still, Hope and her allies on the legislation, including Rep. Sarah Lightner (R-Springport), say the packages can pass with bipartisan support and make real change.

"People are enthusiastic about the juvenile justice package. They would like to see our juvenile justice system improve, and I think that's a view that's shared by our Republican counterparts," Hope said in an interview. "Every type of expert or specialist was represented on the commission. I feel like they've given us a good product to start from, and I don't think this will be terribly painful. It's just a lot."

There is still some work to be done, the triumvirate said, such as holding additional hearings before the packages can be moved to the floors in their respective changes. Codifying the rest of the 30-plus recommendations made by the task force and adopted in late 2022 will be another heavy lift.

The current packages expand diversion opportunities for youth who are not a public safety risk, create a statewide juvenile public defense system and establish best practice standards.

Just six of those recommendations, which are considered some of the top-line recommendations, however, would be codified into law through the two packages. That means there's room for another legislative package addressing those recommendations left further down the line, which Hope said would be a focus going forward.

That could mean some summer committee meetings in July to get the package to the House floor for a vote and then, if it passes, to the governor's desk, Hope added.

"I know that's a little unusual, but there's so much work to be done here," she said. "I feel like we lost some time over the course of the term … so I'm trying to make up some of that time over the summer and I would like to have these voted on over the summer if possible. "I realize that might be a little bit of a challenge, but my hope would be to have these voted out of committee before we return in September, and then hopefully, it would be some something of a fast track in the full House."

The House bills – which have received at least one hearing before the Criminal Justice Committee – include various changes to screening and risk assessment tools for minors placed in diversion programs and court alternatives and to rules on detaining juveniles in certain circumstances. Additionally, the Legislature would expand laws governing the Michigan Indigent Defense Commission to also allow appellate defenders for youth.

A key proposal in the package increases individual counties' Child Care Fund reimbursement rate, which several advocates giving testimony on Tuesday said would be the driving factor in seeing the reforms take hold.

Another would see the expansion of the Office of Children's Ombudsman to handle and investigate reports and incidents at juvenile facilities and throughout the child welfare system (See Gongwer Michigan Report, June 20, 2023).

The House package includes 20 bills: HB 4624 , HB 4625, HB 4626 , HB 4627 , HB 4628 , HB 4629 , HB 4630 , HB 4631 , HB 4632 , HB 4633 , HB 4634 , HB 4635 , HB 4636 , HB 4637 , HB 4638 , HB 4639 , HB 4640 , HB 4641 , HB 4642 and HB 4643 .

Hope is sponsoring two of the 20 bills, which would limit the length of time a youth can be placed in a pre-court diversion program, and another that would eliminate juvenile fines, fees and costs.

A package of nearly identical bills was introduced last week in the Senate, Chang said.

The Senate package runs a similar gamut with 20 bills: SB 418 , SB 419 , SB 420 , SB 421 , SB 422 , SB 423 , SB 424 , SB 425 , SB 426 , SB 427 , SB 428 , SB 429 , SB 430 , SB 431 , SB 432 , SB 433 , SB 434 , SB 435 , SB 436 and SB 437 .

Chang also sponsors two of the bills in the Senate package, another to eliminate fees, fines and costs and one amending references to the Children's Ombudsman in the state's child protection law to "child advocate."

She, like Hope and her Democratic colleagues, Chang says she wants to make sure the bills get on a fast track but still is working out whether that would include some summer committee meetings of the Senate Civil Rights, Judiciary and Public Safety Committee , of which Chang is the chair.

"We're definitely eager to get these moving. They're a big priority for me, and for Sen. Sylvia Santana. It's very bipartisan in both chambers. We really just believe that these are great policy ideas that will bring a lot of good reforms and updates to our justice system. So, they'll work hard to get it done."

Clement, who sat on the task force, previously testified in support of the House package in June.

In an interview with Gongwer, Clement said the various sponsors of the House and Senate package understood what the consensus was among the group as far as priorities when it came time to transform the task force findings into law.

"I've been working in that area for so many years, and I have said repeatedly that that the fact that we are able to prioritize youth in the (juvenile justice) system is because of the leadership of the governor and lieutenant governor to get the task force started," Clement said.

She was also happy to see each member sponsoring parts of the package, on both sides of the aisle, which made her feel like everyone was on the same page when it came to understanding the importance of the pending reforms.

"The support that we are seeing from individual legislators and from the Legislature, as a whole, for youth in the JJ system is overwhelming," Clement said. "But this (legislation) is such a crucial piece. There's a lot of work that can be done in departments or rule changes, but the legislative changes that we need, we knew that that partnership was going to be key."

Clement added that "seeing that support, being at that first committee hearing to talk about this package, seeing that room filled with so many people that were not only involved in the task force, but many that were not involved in the task force, but care about juvenile justice, was tremendous."

Clement was among those during that June 20 Criminal Justice Committee meeting who noted that there were other recommendations the task force wanted placed into law.

When asked about how the House would work to check off the remaining recommendations, Hope said the package in her chamber has always been considered a good first step, especially since pushing all the recommendations at one time would simply be too much to process.

"Six recommendations resulted in 20 bills, so it's going be a process over years, not just months, not just one term probably," Hope said.

Almost all the in-person and written testimony delivered to the Criminal Justice Committee last month was indeed positive and supportive of the reforms. That said, the state's sheriffs remain concerned about one of the bills.

HB 4625 proposes eliminating assaultive crimes from a list of prohibited offenses when it came time for a judge to determine whether a youth would be diverted out of the juvenile justice system.

Matt Saxton, CEO and executive director of the Michigan Sheriffs' Association, wrote that the crimes of manslaughter, mayhem, felonious assault in a school zone, assault with intent to do great bodily harm or suffocation, assault to commit a felony, unarmed robbery and a prisoner taking someone hostage were among those that should warrant disqualification from diversion.

"Each of these offenses involve an intentional act involving the use or threatened use of force or violence against an innocent victim," Saxton wrote. "Each of these offenses has the potential for causing physical injury and harm to the victim. The offense of manslaughter results in the death of a victim, and mayhem results in a person suffering great pain as they are maimed or mutilated by an offender."

That amounted to a red line for the sheriffs' support, he said.

"The MSA supports a juvenile justice system that creates outcomes that result in a balanced approach, one that takes into account the best interests of the child philosophy but not to the detriment of public safety," Saxton wrote. "MSA believes that HB 4625 is counterproductive to public safety and that it discounts the trauma experienced by victims and the additional potential adverse impacts that could have occurred."

Saxton said the bills that MSA has chosen to support – HB 4624, HB 4626, HB 4627, HB 4628, HB 4629, HB 4631, HB 4632 and HB 4633 – would bring positive balance to the system.

As for bridging the gap on juvenile justice reforms between the Democrats who control the chambers and their GOP colleagues in the minority, Hope said she has not had much conversation about the reforms with her Republican colleagues other than what was presented to her committee last month. She did say, however, that having Lightner on board was a big deal and that it signaled that Republican support could be obtained up as the process continues.

Sen. Ruth Johnson (R-Groveland Township), Sen. John Damoose (R-Harbor Springs) and Sen. Roger Victory (R-Georgetown Township) each are sponsoring bills in the senate package, broadening GOP support.

The chief justice said much of the same and regarded Lightner has having some sway with conservative Republicans in the House.

"I've worked with (Lightner) on juvenile justice issues for a number of years. She's a conservative and she sees the benefit and has been right there with us on the task force and even before on juvenile justice issues," Clement said. "I think there's a lot of, regardless of party affiliation, people that understand that many times we're failing kids in the child welfare system, and this is where they're ending up. And many times, kids face challenges these days we need to make sure that what we're doing and what we're responsible for is really aimed at helping them get back on the on the right track."

Clement, who was appointed by former Governor Rick Snyder, also said there was a financial argument to be made that could ease some worries from fiscal conservatives. She pointed to the state's problem-solving courts as an example.

"Twenty-plus years ago when we started down this path, there were a lot of people that's not how the justice system is supposed to work, or this is how it's always worked, she said. "But we did our work on the front end, showing through data and through the money that is being invested into this, this is the return on that investment, and we prove to those naysayers that these programs save lives, they work and it's a different way of doing things."

Clement said the task force and the legislators behind the reforms can do the same thing with juvenile justice.

"It comes down to the very same issue that it does on the adult side with problem solving courts, and that is that I've never met someone that doesn't have a family member or a friend that hasn't experienced some issue that has gotten them into a problem-solving court," she said. "I have never met anyone that doesn't have a family member or a friend who knows a child or a young adult that has faced challenges and has made bad decisions and may possibly have interacted with the juvenile justice system."

– By Ben Solis

Court Of Appeals To Decide Path Forward In Failed Dam Lawsuit

Posted: May 21, 2023 1:07 PM

The battle over who is to blame for flooding when the Edenville Dam breached in 2020, leading to a downstream failure of the nearby Sanford Dam, is at a crossroads before the Court of Appeals, as affected residents and the state – the defendants in the case – await a resolution on whether claims for damages can proceed.

On Thursday, attorneys for those residents, who sued the state shortly after the event, held a rally and press conference decrying what they called undue delays in the court proceedings by the state raising a governmental immunity defense. The attorneys also said the state has sought appeals that have stayed the case while the Court of Appeals decides the matter without any discovery taking place.

However, the Department of Attorney General, representing the defendant state agencies in Krieger, et al v. Department of Environment, Great Lakes and Energy, et al (COA Docket Nos. 359895-919), have said that the government takings claims raised by the residents is misplaced and that they are protected by governmental immunity. It has also argued that the legal strategy employed by the plaintiffs is forbidden, and that the affected land was never put to public use, let alone the plaintiffs' property that was damaged in the flooding.

Krieger is a class action suit claiming that EGLE and the Department of Natural Resources failed to properly monitor the dam and contributed to the disaster, which could have been averted with proper oversight. The destruction of those residents' personal property, the lawsuit argues, amounts to de facto taking and infringes on their constitutional rights.

The plaintiffs are seeking punitive and compensatory damages, a declaration that EGLE's and DNR's conduct was unconstitutional and an injunctive order to remediate flood damage to private property. The lawsuits also seek to have the court appoint a monitor who will assist in the development of remedial plans including but not limited to repairs and replacement of private property (See Gongwer Michigan Report, June 8, 2020).

The case is currently pending before an appellate panel and awaiting a ruling after being fully briefed several weeks ago.

On Thursday, attorneys Ven Johnson of Ven Johnson Law and Robert Palmer of Pitt McGehee Palmer Bonanni & Stern Group gathered with residents to express their displeasure with the fact that the state has delayed proceedings some three years removed from the flooding event. During that time, some residents have had to pay mortgages on destroyed homes while also paying to live elsewhere.

"We're still on appeal on an issue that the state claims is barred by governmental immunity when it clearly is not. … We normally have deposition after deposition and all sorts of things we could show you that documents what the state did in order to completely ignore a problem that they knew for years was – not if but when – going to happen," Johnson said, surrounded by Sanford residents. "And we have nothing to show for it because the state, who we pay, these folks pay, paid them to do their job which they didn't do. And even worse, they caused the actual catastrophic loss by adding water to a horrible situation, which again, they knew was going to happen. But we have nothing to show for it because of governmental immunity."

Palmer said similarly, stating his belief that the state should be helping these residents in their time of need instead of trying to have the case thrown out and attacking the plaintiff's main argument on appeal.

"I think the state of Michigan should help us but at the same time, I think they should get the message that we are not going away," Palmer said. "We are here, we are fighting this battle as vigorously as we can. We're fighting it on all fronts. We're in all courts. And hopefully in the next couple of months, we'll be back in front of the courts arguing our case because we are not going away. We are here with these people."

The case was initially filed in the Court of Claims, but the state raised a motion for summary disposition based on governmental immunity. Johnson's law firm responded by arguing that governmental immunity in this matter doesn't apply because the plaintiffs raised a constitutional inverse condemnation claim, which is, in their view, a governmental takings claim, said Chris Desmond, an appellate attorney with Ven Johnson Law, in a separate interview with Gongwer News Service.

Michigan courts have held that a governmental immunity defense doesn't exist under a constitutional claim like the one raised by Desmond and Johnson's firm, which was supported by the Court of Claims.

"Just because the government says we're immune doesn't mean it's really the sort of case in which governmental immunity was contemplated as a defense that could lead to an automatic appeal," Desmond said.

However, a Michigan court rule amended in 2002 states that the judiciary must provide an interlocutory right to appeal and automatic stay of proceedings if a party appeals a trial court's denial of governmental immunity.

As such, the state filed an appeal on August 6, 2021, under MCR 7.202 attempting to overturn the Court of Claims order, court records show. On November 8, 2021, a Court of Appeals panel dismissed the state's appeal for lack of jurisdiction. A request for consideration was denied on December 21, 2021.

The state next filed an application for leave to appeal in January 2022, which the Court of Appeals later granted to attach the Court of Claims' order allowing the inverse condemnation claims to proceed. The appeal also stayed proceedings in the Court of Claims, which Johnson and his firm attempted to have lifted but was denied on January 12 of this year.

The case has been fully briefed and the Court of Appeals heard arguments in the matter several weeks ago, and Desmond said his firm is now in a holding period as the Court of Appeals weighs a ruling.

It remains unclear when a ruling will be issued.

While the plaintiffs have asserted that the Court of Claims was correct in allowing the constitutional claims to move forward, the briefs on appeal filed between July 7, 2022, and September 20, 2022, argue otherwise.

The state argued that the plaintiffs' allegations repeatedly cite from, quote, and refer to publicly available government documents – but they mischaracterize those documents. The state further argued that the plaintiffs' allegations contradict what were described as readily accessible public knowledge, and that nothing about Michigan's jurisprudence required courts to assume the truth of an allegation "that the sky is green without looking out the window to see that it is blue."

In that regard, the state argued that the matter arises from a tragic failure of privately owned and operated infrastructure, that the Edenville dam's owners are now bankrupt, and that as part of their effort to recover against someone, the plaintiffs filed what the state called misguided lawsuits against EGLE and DNR.

Although the plaintiffs allege the state negligently regulated the dam, their negligence claims are barred by law and the plaintiffs' attempted to circumvent governmental immunity by labeling their tort claims as inverse condemnation claims, the state argued.

Therefore, the state believes the Court of Claims erroneously allowed claims to proceed despite settled law forbidding the strategy.

Additionally, the state argued that the defendants' regulation of the privately owned and operated Edenville Dam does not even put the dam to a "public use," let alone put the plaintiffs' properties to a public use. Nor is regulation of the private third-party dam an affirmative act specifically aimed at the plaintiffs' property, the state said in its filings.

If the court allowed the claims to proceed, there would be no limit on inverse condemnation claims if people whose property is damaged by a private third party can pursue the government under the Takings Clause simply because the government regulated that private third party.

Aside from the issues in the lawsuit, the Michigan Supreme Court is revisiting the court rule that gives the state or its agents an automatic right to appeal when governmental immunity is denied.

The proposed amendment to MCR 7.202 and MCR 7.209 went out for public comment after being issued on December 21, 2021, and the comment period expired on April 1 of this year. More than 300 comments were collected on the matter, of which Johnson said his firm commented and advocated for the rule to be changed.

Although the public comment period has ended, a public hearing on the amendment is scheduled for Wednesday, June 7, via Zoom beginning at 9:30 a.m. The hearing will offer the public a chance to give supplemental or additional comments on the proposal, and can also be collected as written comments submitted during the hearing.

Asked if the high court's potential amendment would affect the case, Desmond said it was unlikely as the case could be decided before a decision is made on the court rule.

The legal wrangling notwithstanding, Johnson said there remain continued hardships for the residents who were affected by a wholly manmade and state-made catastrophe.

Sanford Village Councilmember Carl Hammond on Thursday recalled being in the thick of the evacuation when the dams failed and expressed dismay that they still have not been able to return home or to life as it once was before the event in May 2020.

"When you go downtown, you see that there's been a lot that's been rebuilt and those businessmen had decided to stay and rebuild, and build this community back," Hammond said. "Every one of them and every one of these people you see behind me are facing double mortgages that we won't pay off in our lifetime. But we stayed and we're rebuilding. The state of Michigan isn't helping us. Those people are elected by the by the public. They're supposed to be there to protect us."

Hammond, who has lived in Sanford since 1967, said residents knew there were problems with the dams in the 1980s.

"The can has been kicked down the road for 35 years. They knew that these dams were going to fail," he said. "The state of Michigan and the federal government kicked the can down the road several times. …They knew that this could happen, but they had no way to fix it. No way to work with private individuals. Now that it's happened, we're going to pay the price."

High Hopes For Expungement Algorithm As Clean Slate Work Begins

Posted: April 23, 2023 9:28 PM

Criminal reform activists and government agencies grappling with the state's new "clean slate" automatic expungement laws are hopeful that a technological approach will help courts and prosecutors ferret eligibility for the setting aside of convictions.

But while the tool being used to determine eligibility has been said to be extensively tested, the specter of a computer program determining eligibility standards and failing to do so correctly looms large in Lansing given the scandal surrounding the state's unemployment auto-adjudication system falsely accusing recipients of fraud – a scandal that resulted in the seizure of property without due process and a $20 million class action lawsuit settlement.

Still, the Department of State Police told Gongwer News Service that the program has been tested and looks at a number of data sequences before deciding whether a person is eligible or ineligible for expungement.

Law reform advocates also appear to be less worried about the program failing and incorrectly determining eligibility, and are more concerned that there is not a public facing data system that shows a person's full criminal history including lower end misdemeanors that carry 92 days or less in jail.

Active conversations with administrators are ongoing on that front to create an online portal encompassing all of that data held by State Police and the courts, but it is far off from being a reality soon.

The laws known as "clean slate" passed by the Legislature in the 2019-20 term, enabling the expungement of certain criminal offenses from people's records. PA 361 of 2020 and PA 193 of 2020 require automatic expungement of some offenses starting two years after the bill's effective date without the person having to apply for expungement.

Only nonpublic records in some cases would be kept on the offenses.

Several offenses are not eligible: arson, first-degree criminal sexual conduct, first-degree murder, any crime punishable by life in prison, any crime in which the juvenile was tried as an adult, felonious assault, child abuse, manslaughter, stalking, sexual intercourse under guise of medical treatment, willful killing of an unborn child by injury to the mother, death due to explosives and others.

Residents can have up to four misdemeanors punishable by 93 days or more in jail expunged once seven years have elapsed since the sentencing date. There is no limit on misdemeanor expunctions when the sentence is less than 93 days other than the seven-year waiting period.

For felonies, up to two convictions can be automatically expunged 10 years either after the sentencing date or the completion of a prison term in a Department of Corrections facility, whichever is later.

A program created by, maintained and launched by the Department of State Police went online last week and does just that. On the first day it launched, it has resulted in a reported 842,593 people seeing a total of nearly 1.2 million convictions set aside (See Gongwer Michigan Report, April 11, 2023). Those figures, however, only represented convictions on the criminal history record maintained by the State Police. Courts will set aside misdemeanors punishable by less than 93 days in jail, and the State Police will not have that data.

Updated numbers provided to Gongwer from State Police show that the system from April 11 to Thursday has set aside a total of 1.09 million 93-day or more misdemeanors and 105,140 felonies, a total of 1.95 million set asides. Those figures also only represented eligible convictions in the criminal history record managed by State Police. The updated figures also show that the high for 93-day or more misdemeanor set asides was on the launch date. It trailed off to about 300 daily between April 12 and April 15, dropping again to 77 the next day and to a low of just seven misdemeanor set asides on April 17.

There were 10,224 misdemeanor set asides on Tuesday, and then 841 on Wednesday.

The figures also show that the high for felony set asides managed by State Police was on the algorithm's launch, with zero felonies set aside between April 12-18, and 62 on Wednesday.

John Cooper, executive director of Safe and Just Michigan, called the implementation of the algorithm and the state court program a historic step for the state when they became active.

In an interview with Gongwer, Mr. Cooper said his group was briefed on the State Police algorithm and their initial concerns about the program had been addressed. That said, Safe and Just has not been provided an opportunity to review the coding, as it was told the coding was not something State Police could release.

Mr. Cooper said what was more of a concern was the fact that there does not exist a tool to capture a person's entire record and make it available to them at no or low cost.

"The resources that State Police has made available are a search of their ICHAT system for $10, but the ICHAT doesn't actually include the lowest level misdemeanors that are eligible for sealing (which) are being sealed separately by the courts," he said.

Mr. Cooper added that his group has been talking to administrators about creating such a portal, but it wasn't near close to being a reality. That said, Mr. Cooper thought those conversations have been positive thus far.

"People recognize the need for it and we have a decent template for how this could work from the ways in which Pennsylvania and Utah, the other two states that have done automatic expungement, have handled the situation," he said. "Pennsylvania has created a pretty simple system where they scrape court data and just run the court data through an eligibility tool for clients. Utah has a more complex system that can do more, but it was more expensive to create and maintain. It requires people to give up personal information to use it, so there's some trade-offs that come within the sort of functionality and design of the system."

Mr. Cooper further stated his belief that such a tool, if implemented here in Michigan, should first and foremost be a public resource, which was not the case in Pennsylvania nor Utah, which are both run by legal services or other nonprofit organizations.

"I personally think these are state records we're talking about," he said. "The state should make this resource available to people and manage it."

The state's program runs off a conditional algorithm using the parameters defined in the statute to populate offenses that were ineligible for automatic set aside, operating on a set of "IF/THEN" computation rules, the department said in an email.

At the outset, the algorithm looks at the charging code for the offense defined by the Prosecuting Attorneys Coordinating Council. A PACC code is required to enter an offense into the criminal history record.

The department outlined that if an offense is ineligible for set aside, the program stops for that offense, and then checks the next offense to see if it is eligible. Offenses that are ineligible for automatic set side are found in the Setting Aside Convictions Act of 1965, which was amended in 2020.

If the offense is eligible, then the program looks to other requirements laid out in statute to determine if the offense remains eligible for set aside – looking at aspects like if the appropriate time period has passed, there are no intervening offenses, the statutory maximum of automatic set asides has not been reached, to name a few.

If the program does not find anything making the offense ineligible for automatic set aside, then it sets the offense aside for misdemeanors.

For felonies, if the program does not find anything making the offense ineligible for automatic set aside, State Police then communicates a potentially eligible felony conviction to the Department of Corrections, which in turn provides State Police with the date of "completion of any term of imprisonment" within the MDOC, said Shanon Banner, manager of the State Police Public Affairs Section. Communication with MDOC in this process is required under Setting Aside Convictions Act.

State Police further outlined the process for felonies, noting that the rule then uses the date provided to determine when 10 years has passed, making the offense eligible for automatic set aside.

Ms. Banner said the algorithm runs on the Criminal History Record daily to set aside offenses that are eligible on that date.

The department was asked if it had any specific safeguards built in aside from the basic parameters coding in the algorithm to distinguish eligibility, bearing in mind that the state had just dealt with the fallout from the Unemployment Insurance Agency scandal.

Ms. Banner responded only by saying that the rules engine was extensively tested based on the parameters provided in statute.

The department was also asked if State Police had heard any complaints or encountered any early problems with the system, or if there were any situations where someone who had their past convictions set aside and reoffended soon afterward.

Ms. Banner said that it is likely too early to tell on that, but it was likely a question for prosecutors and the courts rather than law enforcement as they would have the most insight.

One of the reasons courts are responsible for the 92 days or less convictions has to do with fingerprinting, according to a summary of clean slate laws provided to Gongwer from the Michigan Supreme Court.

The law only requires fingerprints to be captured on arrests for offenses that are punishable by 93 days or more in jail, and once fingerprints are taken, a criminal record is created in the State Police database commonly known as LEIN and the publicly accessible ICHAT. Fingerprints are not required for offenses punishable by 92 days or less, so the criminal record is not created in the State Police database and a record of the conviction only resides with the court.

That means the courts are responsible for setting aside those convictions. Because the set aside is automatic, a defendant doesn't need to take any action to initiate the set aside.

While State Police has its algorithm, SCAO has developed programming for the courts using the Judicial Information Services case management system to automatically set those 92 days or less convictions aside. It also marks those offenses as nonpublic in the system.

The summary provided by the courts notes that SCAO does not yet know how many total convictions will be set aside, as the volume will take several weeks to fully process and update all of the case management systems.

One potential speedbump there is the fact that several of the state's largest courts are on systems other than Judicial Information Services, and those courts are responsible for developing similar programming with their case management system vendors.

A memorandum dated April 3 sent to Judicial Information Services courts from State Court Administrator Tom Boyd also notes that due to the sheer volume of initial set asides, Judicial Information Services can only update the system in batches.

The courts are also required to notify arresting law enforcement agencies about the number of 92 day or less set asides that occurred in the previous month by the 10th day of each month.

While State Police is responsible for those 93 days or more conviction set asides, SCAO is collaborating with State Police and the Department of Technology, Management and Budget to ensure that court records match what is being set aside in the State Police database.

The courts have said that they would do this by having State Police provide the courts with a list of all convictions State Police set aside each day. The information in that report will then be pulled by Judicial Information Services and automatically updated in the court's system to mark the conviction as set aside.

On March 29, the Michigan Supreme Court entered two orders regarding the implementation of the clean slate laws. One was an amendment that requires courts to continue to restrict access to case records involving set aside convictions while providing access to charges not set aside.

The amendment was said to provide guidance and uniformity when less than an entire case is set aside, with language similar to how the act restricts access to records maintained by State Police.

A new rule also provides procedural guidance on how to reinstate an automatically set aside conviction. It requires courts to provide notice and an opportunity to be heard before reinstating a conviction for failure to make a good faith effort to pay restitution under the act.

It further requires a reinstatement to be ordered on a SCAO-approved form that advises the individual that he or she may request a hearing if the reinstatement is ordered. SCAO made these forms available before the State Police algorithm implementation date of April 11.

The second order published for comment proposed an amendment requiring all case records maintained by district courts to become nonpublic immediate after bind-over to the circuit court. The amendment would also expand the types of documents that must be transmitted to the circuit court.

Asked if SCAO's work to get every court on the same page with the same system and sharable data among them would help get closer to that goal, or if he was at the very least encouraged by the work, Mr. Cooper said there was a lot of complexity to that effort, so it was hard to say.

However, Mr. Cooper said it was important for a group like his to have the ability to understand what's happening statewide with the criminal justice system, and that collaboration leading to a public facing portal could be of real value to people whose records are being sealed.

"There's just so much data in there from the convictions themselves to fines and fees and other criminal justice debt, to probation data that we haven't really been able to study in a systemic statewide way, so I'm certainly supportive of changes that will make that possible," he said.

Background Checks Debated As Safety Tool, Excessive Registration

Posted: March 27, 2023 9:20 AM

Bills with public support creating universal background checks on all firearm purchases are racing through the Legislature in the wake of two mass shootings in Michigan, but the legislation is under criticism from Republicans and gun rights activists who say the bills go further than claimed and lack clear enforcement details.

The bills passed their respective legislative chambers this month, moving the bills in a larger package of firearms regulations closer to the governor's desk. For Democrats and gun control advocates, the legislation is a long-sought common-sense change designed to prevent people without the legal right to purchase a firearm from doing so.

But questions remain on how the bills will act as improvements to the state's background checks system – all firearms purchased from a federally licensed dealer in Michigan require a background check already. Some gun rights activists and Republican legislators say parsing the bills has been difficult because they focus on licensure and registration as a means to effectuate background checks. One of their biggest criticisms of the legislation is it would require all firearms to be registered going forward, a major expansion of the requirement now only for pistols.

There's also questions on how the state would be able to appropriately enforce an added requirement for purchasing licenses on long guns since the bill would only affect future purchases after the implementation date, and not the millions of long guns currently owned by Michigan residents.

Still, Democratic members of the House and Senate – each voting in favor of the bills when they passed – have said that a universal background checks system was a vital measure in keeping guns out of the hands of bad actors who could turn those guns against others resulting in injury, death and more importantly mass deaths.

The party in power in Lansing also believes that inalienable rights come with a high degree of responsibility, and that by creating a framework where every firearm sold must be licensed creates a pathway to automatic or universal background checks on all firearms.

In an interview with Gongwer News Service, Rep. Kelly Breen (D-Novi), the House Judiciary Committee chair, said the entire idea behind background checks is to curb illegal sales and gun violence, and that she and her colleagues do not want to disarm or take away the rights of average citizens to purchase or keep arms. She did say, however, that HB 4138 and SB 76 would amount to a mere inconvenience for future gun owners.

"What we're talking about here is tantamount to an inconvenience. It is not meant to keep firearms out of the hands of law abiding citizens, but also with personal rights come personal responsibilities. And a vast majority of the gun owners that I know, including members of my own family, they have no problem whatsoever making sure that one their firearms are stored safely to keep them out of the hands of kids," Ms. Breen said. "Most 'good citizens with guns' also undergo safety and training courses. If you want a CPL, you have to (train) but if you don't have a CPL and you just want to own a gun, fine, you're not required to, but I would hope that a responsible gun owner would take the time to understand that with that personal right comes responsibility with how to know and handle those firearms correctly. That's what we're asking for, and is tantamount really to inconvenience."

HB 4138 and SB 76, sponsored by Rep. Jaime Churches (D-Wyandotte) and Sen. Kevin Hertel (D-Saint Clair Shores), passed in their respective chambers this month. Both chambers will have to pass the other's respective bills before they can reach the governor's desk for approval. That could come with a flurry of additional hearings with hours of testimony seen with earlier movement on the bills, giving advocates and opponents another chance to lobby lawmakers to either pass or vote against them.

Overall, both bills would create a system much like the one Michigan requires for the carrying of a concealed pistol, which necessitates purchasers and owners to have their weapons licensed. One of the steps toward licensure is a background check. Other guns, like the long guns that have taken center stage in the gun control debate, do not currently require licensure or registration to purchase or own.

Ms. Breen said that bills would institute the licensure and registration requirement on pistols across the spectrum of firearms bought and sold in Michigan, and by proxy requiring background checks on those sales. The bills, she said, would also the require the same on private sales, which are currently left unregulated under state law.

More specifically, Mr. Hertel's bill in the Senate would amend the Handgun Licensure Act to prohibit an individual from purchasing or acquiring a firearm that was not a pistol without a license, specifying that the prohibition would not apply to the purchase or acquisition of a firearm that occurred before the bill's effective date.

It would also apply qualifications a person must have to apply for a pistol licensee to the qualifications that person would need to possess for all firearm licensure; specify exemptions, procedures, and penalties prescribed in the act for pistol licensure to all firearm licensure; and exempt an individual purchasing a firearm other than a pistol who had a federal National Instant Criminal Background Check System (or NICS) check performed by a federally licensed firearms dealer within five days of the purchase.

Mr. Hertel's bill would further modify certain circumstances under which a person would not have to obtain a license to possess a pistol or firearm.

Ms. Churches' bill reads along the exact same lines, however, and the adopted substitute stated that current long gun owners would be grandfathered in to ensure that long guns don't need to be retroactively registered.

The current nationwide purchase system requires federally licensed firearms dealers to initiate background checks on the purchaser prior to a sale. As mentioned, the nationwide system does require the same on private sales, data provided by Giffords Law Center shows, but provides states with an option of serving as a point of contact and allows them to conduct their own background checks. Those checks have access to state and federal records and databases. States can also opt to have the FBI conduct the check using only the NICS system, which does not always include state data.

Michigan is a partial point-of-contact state for the NICS database. Background checks requested by licensed dealers are processed directly through the FBI, Giffords Law Center states, which enforces the federal purchaser prohibitions referenced in FBI processes. If a handgun seller is not a federally licensed dealer, Michigan requires the purchaser to obtain either a valid handgun purchase license or a license to carry a concealed handgun, according to Michigan law.

Handgun purchase licensees are subject to a background check as part of the licensing process for each purchase license and for each handgun purchased through the Department of State Police, as directed by statute.

Concealed pistol licensees only have to submit to a background check once every five years, state law dictates, at the time of renewal of their concealed carry license.

In Michigan, a law was enacted in 2015 to require law enforcement to conduct background checks through the state's Law Enforcement Information Network and the FBI's NICS database.

That said, the Giffords Law Center notes that federal law does not require dealers to conduct a background check if a firearm purchaser presents a state permit to purchase or possess firearms that meets certain conditions. The center further notes that, as a result, handgun purchase license holders in Michigan are exempt from the federal background check requirement when buying a firearm.

Long gun transfers by private sellers, however, are not currently subject to background checks in Michigan.

Neither Ms. Churches nor Mr. Hertel responded to multiple requests to be interviewed in the past week about their bills, why the licensing requirement was an important addition to the framework of background checks and what they made of criticism against their bills, which passed with solely party line votes.

Ms. Breen did say, however, that it was her belief that one of the main reasons background checks and licensure haven't been applied to long guns was because of opposition from the previously Republican-led Legislature and that bills addressing long guns were tanked because they were Democratic-sponsored bills.

Republican critics and those engaged in gun rights activism have questioned the need for the new bills at all and have further questioned whether the state would be able to properly enforce not only the background checks requirement but also the licensing requirement on long guns. Some have also criticized the committee hearings and floor debates on the bills thus far for lacking a great deal of analysis and wrangling with the details, instead focusing on testimony from gun violence victims and advocacy groups.

For Rep. Andrew Fink (R-Hillsdale), the bills would fail to address the types of shootings that likely accelerated the Democratic Party's recent push in Lansing for gun reform, those being the deadly shootings at Oxford High School in 2021 and the shooting on Michigan State University's campus earlier this year.

"This is not just about any one crime, right, but the pistol used at Oxford, the pistol used at Michigan State, many of the pistols used in crimes every day, people already have to go through this licensing process to legally purchase a pistol," Mr. Fink said. "And yet something like 94 percent of acts of gun violence occur with pistols. So, how effective this process is at reducing gun violence, I think you can be skeptical of it based on the fact that we already have it for the very weapons that are used to commit, not all, but the vast, vast majority. Twenty-times more gun crimes are committed with pistols than with long guns."

He went on to say that it was his understanding that a much lower, like four or six percent, of gun crimes area actually committed with long guns, and that statistical noise tends to outshine the effect pistols have had on the gun violence equation.

Mr. Fink also worried about the liability that would be enforced on gun sellers in another bill in the overall package, which would open up gun sellers and manufacturers to civil lawsuits in the instance of malicious injury or death that involved the use of a firearm.

"Why if we trusted background checks, are we putting this additional burden of strict liability on the sellers?" he said. "In other words, you would think if we think the background checks are worthwhile, that the seller would be absolved of responsibility for what the person (with a gun did) as long as he did it right."

Brendan Boudreau, executive director of the Great Lakes Gun Rights advocacy group, told Gongwer that they were opposed to the bills as they were interpreted as infringing on residents' right to own a firearm, among other concerns.

But, as it relates to the background checks question, Mr. Boudreau expounded by saying that the language was deceptive.

"When we're talking about what they're calling the universal background check bill, it is actually more accurately a universal gun licensing scheme. It's not universal background checks, it's a universal permit to purchase," he said. "(Legislators supporting the bills) go even farther and say, well, 'we're not going after law abiding gun owners.' Well, actually they are because specifically in the bill, they're repealing an exemption under current law that would allow a CPL holder, someone who has been trained and someone who has gone through a background check, to now get a purchase permit to go purchase a pistol."

Even without that caveat, Mr. Boudreau decried the bills because they would be a vast expansion of the pistol purchase permit system in Michigan, which he asserted wouldn't have prevented the shooting at Oxford High School in late 2021 and would severely hinder the free practice of having the right to keep in bear arms in the state.

Specifically, Mr. Boudreau's interpretation was that the background check bills themselves would ultimately criminalize several activities involving firearms which he labeled as "innocent activities."

"Let me give you an example here. It's unclear whether or not someone could loan a hunting rifle or shotgun to a close family member or a hunting buddy without (the receiving party) having to get a purchase permit. How do you how do you do that?" he said. "You could go Up North to a deer camp, and let's say your rifle breaks and your friend wants to loan you a gun. Well, under these packages, it's unclear whether or not that's a crime. That's a pretty innocent thing that they're now criminalizing."

He also used the example of an heirloom hunting rifle handed down to younger generations of family members, saying that because the receiver was not the original grandfathered exempt owner of the firearm, it was now unclear if that heirloom was considered an unregistered illegal gun under the proposed licensure framework.

The process could also add, in his interpretation of the proposals, another layer of what Mr. Boudreau called unnecessary bureaucracy.

Mr. Fink had similar concerns about the language of the bills and them being potentially hard to decipher from both a legal and layman's standpoint. The Senate bill includes a provision that notes firearms purchased or acquired before the effective date of the pending legislation were not subject to the licensing requirements, but the House bill does not include "acquired."

When looking in the bill for a definition of acquired, Mr. Fink said there was not one to be found. Even as an attorney, Mr. Fink said it was hard to know exactly what that meant in the context of the bill.

"We can use it casually. I think most of the time if a person uses the phrase acquire, you don't mean like, I borrowed it for a while," he said. "If I told you I acquired a new guitar, you would think that I had either purchased it or been given it or something like that. I think that's one source of ambiguity. … Purchaser is defined as either a buyer or a giftee. And that that actually does conform to what you might have expected because everybody always knew if your dad gives you a pistol, you still have to go get a license and have it registered. So, we've always known that about pistols. Does that mean that in the House version, the term purchase also means gift?"

Mr. Fink added that he has pointed these issues out to the bill sponsors but has not received a satisfactory response from the sponsors or other Democratic legislators.

For Ms. Breen's part in pushing the various pieces of legislation, the representative and Judiciary chair said she has had conversations with her Republican colleagues and maintains a good relationship with them to try and hear individual concerns. She also said that there was ample opportunity for those opposed to be heard and have a hand in the process of crafting the best legislation.

Ms. Breen cited her ongoing conversations with law enforcement to figure out their concerns, noting that some in law enforcement have come out in support of the background check changes. To concerns that the Democrats were moving too quickly and by proxy could be drafting poorly crafted laws in the process, Ms. Breen said if the bills have to be amended later, so be it – as long as they at least tried and make a dent in the problem of ballooning gun violence.

"Just because we can't solve the entire problem doesn't mean we can't solve part of the problem. You know, we, we can't let the perfect get in the way of good," Ms. Breen said when asked to react to some of her opponents' comments. "And that's another reason why we didn't want to retroactively register long gun is for those very reasons you cited. … Yes, there are millions of guns out there are already. People continue to buy firearms. This isn't something that we see slowing down. This isn't something that's going to stop. People are buying firearms every single day. So, there's no reason in the world why we can't at least prospectively going forward try to make a dent in the problem."

Current, Former Prosecutors Say CCW Plea Deals Are Commonplace

Posted: February 20, 2023 4:40 PM

As lawmakers and gun reform advocates push for stronger laws to prevent future mass shootings, with many still reeling from the tragic incident on Michigan State University's campus this week, it remains unclear if current law could have prevented the suspect from gaining access to and owning a gun even with a prior gun charge on his record.

Several have questioned in the wake of the shooting that left three dead and five critically injured on Monday evening if the suspect, Anthony McRae, should have faced a stiffer penalty that would have barred his legal access to firearms instead of pleading down the CCW charge – a felony – to a high court misdemeanor.

Much criticism has also since been lobbed at former Ingham County Prosecutor Carol Siemon for a policy shift to limit felony firearm gun charges that she said disproportionately affect Black residents.

That said, sources in interviews with Gongwer News Service asserted that the general inclination for prosecutors is to seek plea deals in first offense of carrying a concealed weapon without a license convictions, much like the one Mr. McRae received for an incident in 2019 in which was arrested for CCW but not in the commission of another crime and with no prior felony or gun offenses.

Mr. McRae also exited his probationary period without incident in 2021, around the same time the policy from Ms. Siemon was implemented. While prosecutors have broad discretion over whether to bring charges, drop them, seek plea deals or convictions at trial, one former defense attorney said aside from the policy, Ms. Siemon's charging policies were not well respected by the law enforcement and legal communities. She has since left office and been replaced by appointed Prosecutor John Dewane, who in January reversed his predecessor's policy on felony firearm, but says that the policy wouldn't have affected Mr. McRae's 2019 conviction.

Former Rep. David LaGrand, who prior to seeking elected office served as an assistant prosecutor in Kent County for eight years, further stated that his read of the reduction offered to Mr. McRae wasn't much of a reduction in sentence at all.

"The reality is, when you say high court misdemeanor … it's essentially the same thing as a low level felony in some context. So, it's not like it was a dramatic reduction here," Mr. LaGrand told Gongwer. "The other thing is, yeah, quite likely, he wouldn't get jail time for that. … I was a prosecutor for years and I don't offhand remember virtually every case, but in the vast majority of cases some offer is made, because if there isn't an offer, the defendant has no incentive not to go to trial."

Even if there was a high likelihood of success for winning at trial, there's no 100 percent guarantee that the prosecutor would win at trial, he added. The inclination is to seek a conviction by the swiftest possible means.

"If you're a prosecutor, you're always confronted with that moment where a bird in the hand is worth two in the bush. Even a 95 percent chance of conviction has a 5 percent chance the guy's going to walk," Mr. LaGrand said. "So, in that situation, that is a calculus that prosecutors make every single time in every single case, whether it's shoplifting, armed robbery, drunk driving or something else. There will be some kind of offer made, whether it's reduced charges, whether it's a cap on the consequences. 'I'll guarantee the guy goes to jail, but doesn't do prison time,' or something like that."

Mr. LaGrand also said that in those cases, if an offer was not made, the defense attorney would think the prosecutor was being unreasonable and not doing his job. The line that is often drawn, however, is in high profile murder cases where prosecutors often refrain from making a deal.

This is what sets Ms. Siemon apart in that she was known for offering lenient sentences even in murder cases that angered law enforcement and judges.

Midland Assistant Prosecutor J. Dee Brooks said it was not unusual for first offense CCW charge with no priors or carrying in the commission of another crime to be pleaded downward to some sort of misdemeanor firearms charge.

"If you look at CCW, even under the old sentencing guidelines and before some of the criminal justice reforms where they really restricted what a court can do on low level, low guideline offenses, and this would be one of those, it would allow for at most a possible jail sentence in some local jail," Mr. Brooks said in an interview. "And under the criminal justice reform, the restrictions on the courts and what they want them to do, it would be going against those recommendations even to give jail time (and instead give) a lengthy probationary sentence or something like that."

The factors prosecutors examine and weigh before making charging decisions and potential plea deals are numerous, Mr. Brooks said, but often top of mind are considerations for danger to the community and if it appears the arrested individual was contemplating some sort of criminal activity while carrying a weapon.

"I've had situations where people were out hunting, or target practicing, and just didn't bother to do all the procedures that they should have done. Perhaps even forgot about it. They always claim, and sometimes it might be true, that they forgot they even had the gun in the car (for CCW auto charges)," he said. "You're making an assessment of the circumstances. Did they appear to be someone that is a responsible gun owner, generally, but made a mistake? Or does it appear to maybe be somebody that doesn't appreciate the seriousness or potential danger of their situation, their circumstances? We're always concerned with community safety, that always has to be our primary concern."

Mr. Brooks added that charging decisions also weigh what's fair to the arrested subject, balancing competing constitutional rights at the same time. Mental health is also a major factor, but one that's hard to gauge if the person isn't adjudicated and in the system for mental health monitoring and treatment.

"People feel very strongly about firearms rights and some people even say, 'we shouldn't even be requiring any type of permit or licensing requirements.' Then others appreciate that they have the potential to cause lethal harm so quickly and easily," he said. "One of the concerns always is mental health issues, and I think that's part of the problem that we have right now. Unless somebody has been legally adjudicated as mentally incompetent through the court process or has been involuntarily committed, there's no way to check that. There's no way to make a record of that."

Various Republican lawmakers for about the past six to eight years have attempted to eliminate the requirement to obtain a license to carry a concealed pistol and thus eliminate the crime of carrying a concealed pistol without a license. Bills moved to varying degrees but never made it to the governor's desk.

Mr. LaGrand and Mr. Brooks were asked if they believed mandatory minimums for first offense CCW convictions, unpaired with another crime, or blanket gun ownership prohibitions for such offenders should be reconsidered as penalties in the wake of frequent mass shootings – and in cases like Mr. McRae's.

Both said no, citing research and first-hand experience that shows mandatory minimums and blanket bans don't work and are often hard to enforce.

"My experience is that every time they try to do mandatory penalties, it gets blindly effectuated without discretion, and there gets to be some bad examples like the jails or prisons filling up. People will then say, 'oh, well we don't want that. We want to reduce costs and keep people out, or keep them in for shorter periods of time,'" Mr. Brooks said. "I think there is something to be gained by the felony firearm law, which by the way doesn't apply. We can't use it with a CCW charge, so again, the punishment and penalties that we get out of CCW charge, even as a five year felony, are pretty insignificant. … There should be some discretion as to how it is applied."

Gongwer requested interviews with prosecutors in Kent, Macomb, Oakland and Wayne counties to ask how prevalent it was for prosecutors to plead down first offense concealed weapons charges if that individual had no prior convictions and was not committing another offense – let alone another felony.

Neither Macomb's nor Oakland's offices of the prosecutor responded to interview requests. Kent Prosecutor Christopher Becker's office notified Gongwer that he was out of the office and was not available for comment before publication.

Wayne Prosecutor Kym Worthy declined the interview request and further declined comment on the matter in a statement provided to Gongwer. Ms. Worthy also stressed that her office would not be comparing its process to another prosecutor's, nor would did she intend to criticize the policies or discretion decisions of another fellow prosecutor. She did, however, call for stricter gun laws.

"While I understand why you may want this information, any comment I make will be construed as a comparison, and every case we as prosecutors review are independent from each other. So, I will not be commenting on this," Ms. Worthy said adding that society and leaders need to face the broader conversation of gun law reform. "There needs to be a deep dive regarding Michigan's nonexistent and necessary gun law reform. I have personally called for changes for nearly eight years. I was always told that gun reform will never happen in Michigan. It is way past time for action on that front."

Mr. Brooks agreed that a conversation was now warranted on gun reforms.

"I think there are some things that we can do with the background checks, with being able to keep track of all the firearms out there and who's amassing them, in terms of mental health checks. We're much better now at being able to track criminal histories, but even sometimes those … are lacking," he said. "We've been promoting a safe storage law for a while that we think makes a lot of sense, and I do think that the red flag laws, that's going to be interesting, but I certainly am interested in taking a look at that. We want to be careful about protecting people's rights and making sure that due process is provided for, but I do think this latest example at Michigan State … does show that there are situations where something like that could be effective. We can figure out a fair, constitutional, legitimate way to do it."

As to whether his former colleagues in the new Democratic-led Legislature's call for reforms were timely and warranted, Mr. LaGrand said yes but with a caveat that there needs to be more than legal reform to help solve the scourge of gun violence and mass shootings.

"I think that in America, we have to realize that there has to be a cultural shift on guns. Unless we put pressure on people to not hyper saturate the community with guns, no amount of legislation is going to actually significantly reduce the saturation of guns in the community," Mr. LaGrand said.

He also said society can't "fall into the trap of thinking politicians have to save us from all of our problems."

"We the citizens of America have to solve our problems and be accountable for our own behavior. Legislation is by definition coercive. It's forcing people to do something," Mr. LaGrand posited. "And this has got to be a cultural conversation, where we achieve a cultural shift, and that's probably not going to be most effective if it happens coercively."

Clement As Chief Justice: Independence Is At The Core Of Who I Am

Posted: January 23, 2023 9:15 AM

Throughout her career, Chief Justice Elizabeth Clement has endeavored to keep an open mind, to listen first and talk later and to hear every voice at the table before making a consequential decision.

And, as she takes the reins of the state's judiciary as the high court's newly elected chief justice, the same mantra remains at the heart of her work: to better the lives of those who interact with the courts – particularly in the mode of juvenile justice, elder abuse and data sharing.

It also allows the newly elected chief to further exhibit her reputation as an eagerly independent jurist and a reliable swing vote that is always ready to buck her party's minority to side with its majority Democrats, and often vice versa, depending on the legal challenge and arguments presented.

In a wide-ranging interview with Gongwer News Service, Ms. Clement detailed the moments that kept her motivated to serve on the state's highest court, her views on the partisan nature of judicial nominations in election years and why it was important to maintain collegiality on the bench even after a rocky start to the latest term – one that saw two of the bench's Democrats have a public spat over the hiring of a clerk with a criminal history.

Ms. Clement has come to be known as the high court's most reliable wildcard, but she also said that her penchant for fierce independence was neither for show nor a sign of philosophical inconsistency, saying instead that it was at the core of why she got into public service.

"I think I have a reputation from when I was in the Legislature and when I was working in the executive branch of being open minded and being a listener more than a talker. Someone that wanted all of the information, wanted to hear every voice, and take all of that in and make really thoughtful decisions and recommendations," Ms. Clement said. "And I brought that experience with me to the court starting day one as a justice. … I had never been a judge before, but I think the experience that I had prior to that really made it a transition that that felt natural. At bottom, the role of the judiciary is to be independent."

The new chief justice was tapped to fill in as chief justice during the end of former Justice Bridget McCormack's tenure after the latter announced her retirement in November 2022. Last week, with the installation of Ms. McCormack's immediate successor, Whitmer-appointed Justice Kyra Harris Bolden, the new bench voted unanimously again to elect Ms. Clement as its leader.

She will now hold the post for the entirety of the current two-year term.

The selection is significant because Ms. Clement is a GOP-nominated justice, who was first appointed to the bench by Republican former Governor Rick Snyder, and the Supreme Court has a 4-3 majority of justices nominated by Democrats.

Justice Richard Bernstein, the bench's ranking Democrat, in a previous interview with Gongwer, noted Ms. Clement's independence as a key factor for his vote but also her previous work in the other two branches.

That, too, is a strength Ms. Clement said she possesses that will guide her as chief justice. She served in various capacities as a Republican legislative staffer before becoming the chief counsel to former Republican Governor Rick Snyder, who later appointed her to the bench before she won election to an eight-year term in 2018.

"I think when it comes to being the chief, I think that experience really brings something to the table that I'm excited about," she said. "I know how the other two branches of government work, having extensive experience in them, and also having five years on the court, seeing how our court interacts with those other branches."

That experience will undoubtedly be useful as the judiciary furthers its goals in data sharing, expanding reforms and enhancements to the juvenile justice system and efforts in elder abuse – all things Ms. Clement has championed during her time on the bench.

She credits much of that effort to work of Ms. McCormack, however she was part of the group that developed recommendations for juvenile justice reforms and has worked in child welfare for the better part of her career.

A major focus for the judiciary will be to implement its data sharing goals by creating a statewide data repository of pretrial data to better inform judges and prosecutors and assist defendants as they face decisions on bond or pre-trial incarceration (See Gongwer Michigan Report, February 9, 2022 and Gongwer Michigan Report, November 12, 2021).

With money in the 2023-24 budget to make that a reality, or at the very least implement its first steps, Ms. Clement said the judiciary was "incredibly fortunate to have the support of the governor and the legislature to create a statewide case management system, which is really going to be transformative."

"It's a huge appropriation that we received. It's one of the things that we're working on day in and day out to get implemented. The goal is to make the courts more understandable and user friendly to all of the individuals that use the court system and to expand our educational and other resources so that so that the public is able to access and conduct business successfully, whether they're in person or virtually. That's one of the things that is at the at the very top of our list."

Ms. Clement said the judiciary is still at the preliminary stages of identifying the systems that work and the best approach to either growing or overhauling the current system.

"Once that decision is made of how we're going to move forward, it is it is going to be a multi-year project," she said. "I'll say that I don't know that we have an end date in mind of when we can say we have a statewide system that is usable to all of the users of that system. But I can tell you, with the appropriation that we got and with the team that we have in place, this being one of our very top priorities, we're putting an extreme amount of resources behind getting that up and running as quickly as we can, because it's so important."

Those issues with data extend to the juvenile justice system, and that too is a priority for Ms. Clement.

Ms. McCormack was, by and large, one of the biggest supporters of the project. She had a knack for getting stragglers on board with something that could mean massive change in the way that the court inputs offender data and disseminates it across the state. Asked if any of the support has faltered with Ms. McCormack's departure, Ms. Clement said she wasn't seeing any regression.

"I've got a very strong relationship with those various stakeholders in the system. And I think that they know my approach and me taking up the priorities of the court. These are not just my priorities because these are priorities that have been expressed by the Supreme Court," she said. "That's not to say that there may be judges or court staff or other partners in the system that maybe want to want to see us do things differently or may not be supportive of some of these efforts. But I'm not hearing that there's that there's been a shift since Bridget has stepped down as chief and is no longer with the court."

When Ms. McCormack spoke to Gongwer in her final interview last month, she said she gave little to no advice to Ms. Clement because she didn't need it, adding that she was eminently capable, equipped and ready to take on the role.

One thing that seems to be common between the two – aside from their close personal relationship and reverence for judicial independence – is their view that collegiality and public trust are what keep the court relevant and viable as an arbiter of law, a backstop for constitutional rights and a check on the other branches.

Collegiality appears to be a major focus for Ms. Clement. The commitment will be even more important as the Clement court got caught in a snag last week when Mr. Bernstein publicly lambasted Ms. Bolden's choice of a clerk in the press, leading to that clerk's resignation. It is unclear whether the two have fully moved on outside of statements to Gongwer that show they've moved on – at least professionally – from the situation (See Gongwer Michigan Report, January 6, 2023 and Gongwer Michigan Report, January 5, 2023).

Although she had to put out a few fires within her first week, Ms. Clement said she was committed to keeping the court's streak of collegiality going. Despite that bump in the road, she said she didn't believe that the Supreme Court, nor its lower state and local courts, were affected or influenced by the same kind of blind partisanship sometimes seen on the national stage with the federal courts.

"I have read and seen things that do cause me concern, whether it's actual or whether its perception, or in outside pressure trying to bring politics into the judiciary. I definitely can see that on the national and federal level. I do not see that in our state courts," she said. "I work with my colleagues on the Court of Appeals, and our in our trial courts, and these are dedicated jurists that that are going to work every day and understand that the people that are before them, this is their day in court. And I truly believe – and I am sure there may be an exception that someone can raise – but when I look at the judiciary as a whole and I look at my colleagues, I do not see partisan politics or politics in general in play in in the judicial branch."

That said, Ms. Clement has had a particular distaste for party politics even before she joined the high court bench and even though she was a partisan actor as the chief counsel to Ms. Snyder.

Although she was appointed by the former Republican governor, Ms. Clement found herself in hot water with MIGOP delegates and activists when she was one of five justices who ruled that a ballot proposal changing the state's redistricting process could go before voters.

That measure eventually passed in 2018 and created the Independent Citizens Redistricting Commission. The body's mission was to create fairer maps than the state had before by virtue of the process not being handled by the Legislature, but its work was mostly derided by Republicans who saw it as creating an advantage for the state's Democrats.

The Democratic Party went on to gain a narrow majority in both the state House and Senate during the 2022 elections, the first year the new maps were in play.

Rewind to 2018, when Ms. Clement faced enormous pressure from outside Republican activist groups to rule against the proposal, which Ms. Clement labeled then as bullying and did not cave. That led to her being removed from election door hangers in certain targeted areas, with the hangers instead carrying information on the MIGOP's other judicial candidates. She also received boos and jeers at the party's nominating convention that year.

In retrospect, Ms. Clement said the process of the parties nominating candidates for Supreme Court justice and the Court of Appeals was flawed.

"I thought this before I went through it, but it was demonstrated to me in my experience. I think it's an unfair system for the public to have to have your highest court nominated by a political party and then, immediately after that nomination, that that nominee becomes a candidate that is on the nonpartisan section of the ballot," she said. "I have had conversations and thoughts what the what the better way is, but I'm not going to say the 'right way' because I don't know that there's a perfect solution to this."

The Court of Appeals candidates run on the nonpartisan primary ballot. Nonincumbents must collect sufficient signatures from registered voters to gain ballot access. Incumbents can simply file an affidavit of candidacy.

Despite the 2018 anger among some Republicans, Ms. Clement was the top vote-getter among the justice candidates, proving her abilities as a strong candidate and as a justice the people wanted returned to the bench.

"What that told me is that, because of my experience and because the media took an interest in what was going on with my campaign, I think people were informed and I think people said, 'We do not want justices that are connected or beholden to partisan politics," Ms. Clement added. "We want justices that make independent decisions based on how they read the law and leaving any of those other relationships or connections or past experiences out of that decision making. And I think the fact that I was successful in that election really speaks volumes of the people of the state of Michigan that saw through that."

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