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May 19, 2007

Michigan Supreme Court at it Again

Two recent cases from the Michigan Supreme Court are of note.

In People v. Thompson, 2007 WL 1266053 (Mich. May 1 2007), a statute made it a crime to "keep or maintain" a vehicle for drug sales. A prior panel had held that a vehicle had to be kept or maintained for an "appreciable period of time" before it was "kept or maintained" under the statute -- simply sitting in a car while a drug deal went down didn't make the car one that was "kept or maintained." In reaching a slightly different conclusions, the majority in Thompson held that "keep" meant the same thing as "maintain" (missing the point that such construction rendered language superfluous, a cardinal sin of statutory construction), and that as a result all that was required was some degree of continuity of use of the vehicle, which it reasoned was less than an "appreciable period of time," but more than one incident.

One judge concurred, and another concurred in part and dissented in part. He chastised the majority for picking the one dictionary definition of both "keep" and "maintain" that rendered them synonyms, and argued that they in fact had separate meanings and that, under "keep," one isolated incident was enough.

You oughta read the opinion with the thought in mind that this is a criminal statute that's supposed to give fair warning. I have a hard time in normal parlance of thinking that if I drive somewhere and sell drugs, I've "kept and maintained" a vehicle for drug sales. I think both majority and dissent were wrong and that the appreciable period test is probably the correct one for this criminal statute, but no one on the Michigan Supreme Court agreed with me.

In the other case, sent by a reader, Apsey v. Memorial Hosp. __ N.W.2d. __ (Mich. May 1, 2007), the court tackled rather intricate circumstance that I've not had enough coffee to summarize. It's got about 8 different opinions, and is worth reading, but not without more coffee...

May 19, 2007 in Current Affairs | Permalink

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Regarding People v. Thompson, the Michigan Supreme Court held over a century ago, in interpreting the statute prohibiting the keeping of bawdy houses,that a single act of prostitution is insufficient for conviction. People v. Gastro, 75 Mich. 127, 42 N.W. 937 (1889). It also held that the statute was only aimed at those places that were sufficiently notorious as to have acquired a reputation as bawdy houses, so as to be offensive as nuisances. People v. Pinkerton, 79 Mich. 110, 44 N.W. 180 (1889). I had hoped the Court would interpret the drug-house / drug-vehicle statute in the same tenor. However, that would have helped criminal defendants, something the present Court is loathe to do.

Regarding Apsey, medical-malpractice actions in Michigan require an affidavit of merit from an expert to proceed. If the defendant is a specialist, the affdavit must be from an expert in that same specialty. Often those affidavits must be obtained from out-of-state experts. Apsey overturned a ruling from the Court of Appeals that had required certification from others that the out-of-state notary really is a notary, etc. While the Michigan Supreme Court favors defendants in civil litigation, and favors insurers over plaintiffs, it overturned this stumbling block, which had nothing to do with whether malpractice had occurred, and said compliance with another statute regarding notaries was sufficient.

Posted by: Greg Jones | Jun 1, 2007 1:55:52 PM

Regarding Thompson, the Michigan Supreme Court held over a centry ago, in interpreting the bawdy-house statute, that proof of a single act of prostitution in the house is insufficient to convict. People v. Gastro, 75 Mich. 927, 42 N.W. 937 (1889). It held the statute is aimed only at those places that were so notorious, as to have acquired a reputation as bawdy houses, and therefore to be offensive as nuisances. People v. Pinkerton, 79 Mich. 110, 44 N.W.180 (1889). I had hoped the Court would interpret the keeping-a-drug-house/vehicle statute in the same tenor, but the Court is unwilling to rule in favor of criminal defendants.

Reagrding Apsey, medical malpractice actions in Michigan require the plaintiff to provide an affdavit of merit from an expert to proceed. If the defendant is a specialist, the affidavit must be from an expert in the same specialty. Often, those affdavits must come from an out-of-state expert. The Michigan Court of Appeals had held that affdavits from out-of-state experts needed to be accompanied by certificates from others, to the effect that the out-of-state notary really was a notary, etc. This decision, though favoring plaintiffs in civil litigation, and therefore a surprise, removed that stumbling block, which had nothing to do with whether malpractice occurred.

Posted by: Greg Jones | Jun 1, 2007 2:06:20 PM

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