In March 2020, Attorney Carson J. Tucker of Lex Fori PLLC filed another pro bono Supreme Court application in Michigan seeking to ensure that federally protected veterans’ disability benefits are used for the purpose that Congress intended, i.e., to support and provide for disabled veterans whose service to the United States resulted in their injuries. Congress has passed laws pursuant to its enumerated Military Powers in the Constitution providing veterans with benefits since the beginning of the republic. The federal statutes also affirmatively shield certain veterans’ benefits from any state court process and jurisdictionally prohibit any legal process from being used to take these benefits.
Part of Mr. Tucker’s practice is focused on providing pro bono and low bono legal representation to servicemembers and veterans throughout the country and abroad. It makes up about 30 to 40 percent of his law practice at any given time. As an appellate law expert admitted to the United States Supreme Court and other state courts and federal courts, Mr. Tucker also provides amicus curiae (friend of the court) briefs to various entities and organizations to protect their interests in cases addressing legal issues of significant importance to those organizations.
We have been preparing, formatting and filing our briefs in the Court of Appeals and Supreme Court under Administrative Order 2019-6, which allows us to use all the readability and formatting tools of Adobe to create fully interactive and e-friendly briefs. As a former Supreme Court law clerk and an insurance coverage counsel, Mr. Tucker understands the convenience of having a fully interactive document with all file contents and citations referenced and linked for quick review.
The ideal briefs and appendices (which we strive to create) will contain fully interactive table of contents and bookmarks, links to cases, links to the direct location (page and line) in the Appendix and/or accompanying attachments and indices and tables of contents that are fully interactive – meaning the reader can toggle back and forth to the references and have immediate confirmation and documentary support for our arguments and factual assertions, respectively. We can also use a larger, eye-friendly font, which is critical for those who must read brief after brief, day in and day out!
Here’s one we filed in the Court of Appeals last month (January 2020) in a constitutional and property law case in the Michigan Court of Appeals. Mitchell.Brief.on.Appeal.01.17.2020
This is old news to some. But, I had some thoughts on this as I ran across it looking for a contact in the Department of Justice while I was in the process of writing a brief in the United States Supreme Court.
Apparently, the Department of Justice (at least in the Principality of Delaware) has a rather unique definition of the “common law”. I believe there are other DOJ websites that use this phrase.
Follow the link to see for yourself: http://www.justice.gov/ust/r03/wilmington/staff.htm
Apparently, this “quote” came from a philosopher in the early 1900’s. And, the DOJ has apparently adopted it as their own view.
Based on my understanding of the Constitutional Republic in which we live, and the principles of federalism, constitutional law, the rule of law, and state sovereignty, the “will of mankind” is the precise force of tyranny against which our forefathers so valiantly fought for our independence. If the “will of mankind” issuing from the “life of the people” is defined as the “common law”, and we the People are bound by the common law, then does not it follow we are at the mercy of this “will of mankind”?
Does this mean that the “will of mankind” expressed in the streets, more loudly by one group than another, or with more vitriol and fear-instilling fervor, is the “common law” because it “issue[s] from the life of the people”?
Is the “will of mankind” sufficient to overcome hundreds of years of case law that established the structures of the “rule of law” as being ensconced within and protected by the Constitution in the Bill of Rights?
Whose “will” is the “will of mankind”?
Is it the “will” of the southern slaveholders that once attempted to control the will of others?
Is it the “will” of the northern industry barons grounding men to meat as they engaged in their enterprises at the turn of the 2oth Century?
Is the “will of mankind” the masses in the street shouting “What do we want? Dead Cops.” after every unfortunate, but justified, “use of force” incident is cleared by a “grand jury” (the latter of which, by the way some would say is the Fourth Branch of Government)?
And, what is this “life of the people” from which such “will of mankind” issues?
How is this defined?
What measure of surety do we have to indicate that the “common law”, which we are all held responsible to know and follow, has changed, or been modified, if not by the highest courts of the respective states, or the United States, the only true arbiters of what the law is, and what the law should be until the Legislature amends, modifies or repeals the “common law”?
And, finally, does the “will of mankind” supersede the properly enacted laws of the legislature, and the rules enunciated by the courts, all of which do in fact issue from the Life of the People by virtue of the People’s vesting in the Congress, and the respective legislatures and courts the “constitutional imperative”; the right, and the sole right to make the law, and to say what the law is, respectively.
Our servants, the various government institutions, should be careful that their “mottos” are not taken for their views, and that the perception will not be that they implement their policies based on these ill-conceived cliches.
Happy New Year!
It is the eve of trial. The trial court judge, bent on forcing you into an unsavory settlement with opposing counsel, has granted opposing counsel’s motion in limine to exclude your proposed evidence from the jury’s consideration. This is a key part of your client’s case and without it your client may be facing 100 percent of the responsibility for the damages alleged as a result of the significant allegations in the underlying lawsuit. Sound familiar?
Is there a way to even the playing field, or, even better, to have the trial court’s errant legal rulings on the motion corrected? Or, do you simply capitulate?
There is still hope. And it can be done, even during the trial.
Carson J. Tucker specializes in prosecuting high-stakes, last-minute emergency appeals seeking interlocutory review of suspect legal rulings. After all, if the trial court is wrong, or even if the Court of Appeals agrees to take a closer look, this can significantly alter the posture of the parties to the lawsuit.
I am experienced and adept at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and ruled upon as soon as possible.
In most cases, these actions have stopped the trial from immediately proceeding. In many of the cases handled by Mr. Tucker, these actions have even resulted in the creation of precedent from the Michigan Court of Appeals and Michigan Supreme Court that changes the entire make-up of the pending lawsuit. In the least, this type of action can properly re-orient the parties positions and attitudes with respect to settlement demands.
With adept and efficient appellate counsel ready to assist at a moment’s notice, your case can be quickly analyzed by objective review of the facts of the case, the strengths and weaknesses of the legal issues being addressed, and the potential for success at the appellate level. It’s never too late to act until your case is submitted!
I have real stories and experiences to share from lawsuits in which our clients and the other law firms we have assisted have been able to save thousands of dollars in litigation costs and, more importantly, in damages awards or forced verdicts because I have been able to step in and make new law, or at least bring the parties together to discuss realistic settlement options.
Please do not hesitate to contact me if you are contemplating an appeal, any appeal.
I started casually reading the Second Circuit’s opinion released yesterday, June 23, 2014, in the case of New York Times, et al. v. DOJ, et al, which includes a redacted version of the government’s now infamous legal memorandum outlining legal justification for executive decisions to assassinate American citizens abroad and I could not help casually analyzing the legal arguments therein provided.
1. The opening premise of the analysis misses the mark completely. While common law and state statutory law historically provided “defenses” for homicide, i.e., justification and excuse, these defenses also historically only applied in the context of a prosecution of an individual’s act of homicide vis-à-vis another individual. Justifications and excuses include the traditional defenses like self-defense, defense of others from death or great bodily harm, and mitigating elements to reduce the gravity of the crime like crimes of passion, intoxication, gross and general recklessness.
Remarkably, no one even tries to explain away the “generalization” of the analysis, which is then used to justify a state actor / government’s purported, and self-pronounced authority to commit premeditated murder precisely as defined – the unlawful killing of a human being with malice aforethought. This is the specific intent crime of murder, which is preceded by the requirement to show the necessary the mental elements of intent to kill, i.e., premeditated murder (assassination) of a specific individual. If this is proved, that a specific individual was targeted and killed, there is no common-law or state statutory defense to such a crime. This is premeditated murder without justification. Self defense requires immediacy and imminence in the harm to be exacted upon the defendant. In other words, the only time “self defense” is a legitimate justification for the killing of another is if the act of killing is surrounded by the factual circumstances that meet the respective state’s common law or statutory law prerequisites. (Not to mention even yet that there is no such thing as federal common law in this regard – and so the crime as identified by statute must be fulfilled by satisfaction of whatever statutory elements (and, defenses) exist in the statute).
2. Second, even if the “public authority” justification doctrine exists in a purely federal law application (a questionable premise in itself given that, but for very limited, unique and isolated circumstances not pertinent to these situations of targeted killings of American citizens, there is no federal common law, and therefore there can be no recognition of some general federal common-law defenses to murders prosecuted under federal statutes (if the federal statute says it’s murder, then it’s murder upon proofs and if the statute does not codify a defense or defenses, then there is no common-law defense available because there is no federal common law in this regard (there might be a common-law defense to murder of an American citizen on the high seas because maritime law is one of those rare instances in which there is a recognized federal “common law” because of the jurisdiction by the federal government over defined maritime circumstances), the “doctrine” as it is regurgitated in the OCD memo merely states predicate elements to consider when addressing government or state action vis-à-vis another (entity or individual).
In its most directly applicable format when looking at this case in particular, consider what is meant by “public authority” in the context of arrests accompanied by the use of force upon an individual. When state and/or federal law enforcement officers effectuate an arrest, and, in doing so, utilize force to subdue and detain the arrested individual they must act with prima facie public authority to engage in the specific act. In the case of law enforcement officers that prima facie public authority is usually articulated as the performance by the officer “in the course and scope of his duties”; acting on behalf of the government in the performance of his or her official discretionary duties; etc. So, the decision by an individual or individual law enforcement officers at the time of their actions and their discretionary decisions to effectuate an arrest is preceded by the requirement that in doing so they be acting within the scope of their public authority.
That an entity, governmental organization, or agency has general public authority to act in a variety of discretionary and ministerial ways has nothing to do with the “public authority” of officials or even government agencies to act and effectuate certain action vis-à-vis American citizens. And, as well, as with the example of conducting an arrest of an individual, the constitutional rights of the individual must still be protected during the particular action when the individual law enforcement officer is exercising legitimate public authority to effectuate the arrest. So, in the extreme case, when, in doing so, the law enforcement officer is required to use deadly force against the individual to protect himself or herself, his or her colleagues, or the citizenry in general, the question remains whether the officer’s individual conduct in utilizing that public authority was performed in an objectively reasonable manner and thus subject to a qualified immunity privilege.
This has nothing to do with a premeditated decision to walk up to an American citizen and assassinate them, which, when disrobed of the veiled cloth with which the government here attributes to it, is simply the same act and conduct that is being contemplated, and which has in fact been executed by the American government in this circumstance. That there is some science fiction element to the circumstances and logistics of the act that somehow (in some people’s minds) mitigates the temporal reality of the act itself, the point of the matter is whether this act is done by a mid-level technician in a virtual-reality video game room from an operations center in Florida or California, it is still a real act of premeditated murder performed by a government authority (upon direct and specific orders) because it is an executed (indeed an executive) decision to take a lethal weapon, track down and locate a specific individual, target that individual, and execute the means to effectuate the lethal force thereby imposed. It is as direct and blatant as one individual walking up to another specific and targeted individual on a street or in a public place and pulling a gun, pointing it at the individual and firing a shot with the specific intent to eliminate that individual’s life. This is pure, unadulterated, premeditated murder, and there is simply no justification and excuse or defense to this crime at common law, or in state statutory law.
Justifications and defenses depend on specific factual circumstances and must be shown in every case to exist before they can be applied to the otherwise proved act of murder. Carefully perused “footnote 12” to the memorandum is an attempt to work around this inevitable weakness in the government’s legal analysis. It is an attempt to say that the federal statute automatically incorporates the public authority doctrine. But that is a non-sequitur when used to extrapolate that the public authority automatically or impliedly incorporated therein can then be transmogrified into a defense of the crime of murder.
It is nothing more than saying that if a federal law enforcement officer, in the examples provided here, were prosecuted under the statute criminalizing murder being discussed here, that the federal officer could take advantage of the fact that he or she may have been acting with authority. For example if the federal officer in effectuating an arrest of an American citizen abroad ends up using lethal force in a situation in which that force is justified by the facts and circumstances arising from the arrest itself, then presumably, the officer would be acting with the prima facie public authority he or she already had to engage in the act of the arrest, but there is no per se public authority to seek out and kill that individual rather than simply arrest him or her. This is, again, targeted assassinations of American citizens whether or not performed by an individual operating covertly or not, or by a technician playing a video game in some bunker in the desert. And, again, the government here tries to obfuscate the distinction between specific acts and general acts in footnote 13 to explain away this apparent anomaly. The “public authority” doctrine is nothing more than a recognition that in performing certain acts public officials and public entities have prima facie authority to engage in acts in the performance of their ordinary governmental duties and functions – effectuating arrests, conducting searches and seizures of property (with or without a warrant), taking or condemning private property. However, there are only a small subset of actions that are discretionary rather than ministerial and it is these types of actions that are at issue here. It is ministerial to declare a certain swath of private property as condemnable and subject to a lawful taking (a taking of private property with adequate and just compensation by the government for the needs of the government / public). It is ministerial to seek out and secure a search warrant to then be able to effectuate that search and seizure, which, when executed is discretionary.
Discretionary actions that are cloaked with public authority are actions that must always still be scrutinized by the conduct and actions of the officials or entities in question after the discretionary decision to act has been made. And these are the very specific details that are scrutinized under the still and omnipresent protections of the United States Constitution, and, particularly, those individual liberties protected by the Bill of Rights – due process, right to be free from unlawful searches and seizures, 1st, 2nd, 4th, and 5th amendment rights are protected and cannot be swept away simply by saying the government had a predicate “public authority” to engage in the specific actions that are the subject of scrutiny when held against these ever present constitutional rights. The public authority doctrine or “justification” is no “traditional” justification or excuse, that is to say a “defense”, to the crime of murder – like self-defense, defense of others, crimes of passion (where the specific intent is mitigated by the rage of the individual), etc.
The government, generally, and government officials in particular, always have public authority to engage in certain ministerial and discretionary acts to perform or effectuate their public duties and functions. A police officer always has a duty to seek out, investigate, and arrest (that is to say stop or inhibit) the commission of crimes. This is his or her function. He or she has “public authority” to go about performing these duties and functions in his or her day-to-day job.
Likewise, prosecutors and judges have public authority to act with discretion in performing their respective duties and functions. A large swath of the government (that is to say the majority of individual performing government functions) is supposed simply to be performing the day-to-day non-discretionary ministerial tasks of government. They are simply bureaucratic functionaries following laws, regulations, and acting thereupon to perform day-to-day ministerial tasks. A parking enforcement officer charged with the responsibility to issue parking citations issues the citation without discretion if a car is parked in a spot where the time on the meter is expired. There is no discretion in the premises, nor should there be.
A government official that issues a license or a permit upon application (such as a vehicle registration renewal to remain within the example of the transportation department of government) does so upon presentation of the proper documents, license information, vehicle ownership information, insurance, etc., and does so without discretion upon payment of the proper fee. This is, like most acts of government should be, merely ministerial.
All government officials whether performing trivial ministerial tasks or exercising discretion, act with a prima facie public authority. But the “public authority” doctrine or defense or justification (although these latter two terms are an overly generous characterizations) stops at the threshold of the door that opens up to the rights afforded every citizen by the Bill of Rights and the United States Constitution; and therefore the actions and conduct of all government officials acting with “public authority”, must still be scrutinized under the constitutional protections afforded all American citizens, whether at home and abroad when actions and conduct are effectuated upon them by the American government.
And, thus, no matter how it is stated, the public authority justification simply does not afford a defense to the premeditated, specific intent crime of targeted murder.
The government’s “conclusion” therefore that “citizenship” provides no basis for concluding the federal murder statute does not incorporate “the established public authority justification for a killing” is a vacuous proposition because it is based on the equally vapid conclusion that the “public authority” doctrine or justification is a defense to premeditated murder. That is as blatantly wrong as it sounds.
Even more preposterous is the conclusion, a few sentences later, in which the government rewrites history with this invented defense to murder by stating that “[a]t the time of the predecessor versions of the [federal statute criminalizing murder by U.S. citizens of U.S. citizens abroad] were enacted, it was understood that killings undertaken in accord with the public authority justification were not “unlawful” because they were justified” OCD Memo, as redacted, at p. 75 of the opinion. I would challenge the government to provide an example of this statement.
It is such an absurd statement, I have to repeat it. The government states that “it was understood that a killing undertaken in accord with the public authority justification was not “unlawful” because it was “justified”. Aside from the rather loose utilization of the term “killing”, as if we are talking about slaughter of sheep, and we may indeed be, I would challenge the government to demonstrate a case in which a “killing” was undertaken with public authority and was therefore justified by the mere virtue of the existence of that public authority. Not to cheapen the grave tone in which I am writing on this topic, but this memorandum is going to provide a “field day” for Kennedy assassination conspiracy theorists. Clearly, if the CIA or the government has to retroactively rewrite the history of the common law to come up with a non-existent legal defense to publicly authorized and executed assassinations of American citizens to avoid being charged with outright murder, then certainly, they have done a great job of that here. To what prior “killings” is the government referring to here where we have had the opportunity to apply the public authority justification for the murder of an American citizen, notwithstanding there was and is no such defense to the crime of murder?
And, to entertain the false premise, who was it “understood” by? Was the defense presented to a judge or a court of law? Was it addressed even in a single legal treatise, or even, a desperately concocted law review article? What is a “killing undertaken in accord with the public authority justification”?
Certainly, I would concede that a “killing” of an individual by a law enforcement officer in the performance of an arrest where the arrested individual has the immediate means to and resorts to use deadly force and/or does threaten the life of the arresting officer and/or his or her colleagues, or even the citizenry in general, that the “killing” in that circumstance would be defensible, but not by any ethereal “public authority” justification. The “killing” is “justified” because it was executed in self defense or in defense of others from threat of death or great bodily harm at the moment it occurred. The law enforcement officer would not be subject to criminal prosecution for murder. He would also be able to avail himself of the privilege of qualified immunity from a civil liability lawsuit brought under federal law pursuant to 42 U.S.C. 1983, among other federal statutes and constitutional provisions, and presumably, he or she would be similarly protected under the state-law equivalents of immunity depending on the jurisdiction in which the act occurred.
But what does the vague “public authority” doctrine, or “defense”, or “justification” do to protect a premeditated, unprovoked, and targeted assassination of an American citizen that is clearly not executed for the immediate reason of a need to protect the life of oneself, of others, or of the public in general?
The answer is “Nothing!” Because there is no such absurd and asinine thing as a “public authority” justification or defense to the crime of murder. Simply put, the government executed an American citizen and when it was questionable whether a murder charge could be brought against it or the individuals or individual that ordered it, the Department of Justice retroactively invented a non-existent common-law defense to the crime of first-degree, premeditated murder or assassination.
More troubling, however, is the OCD memorandum’s reference to statutory authority in the Patriot Act as a means of justifying the targeted assassination by the American government of American citizens upon executive order. I will address this analysis later. For now, you can read the imbecilic “legal” analysis contained in the government’s memorandum in this opinion released June 23, 2014. By the way, the Court ordered release of the memorandum on or about June 10 (in a previously redacted form), but the government immediately moved for an injunction for the release, and a rehearing. The opinion released on June 23 contains an additionally redacted version.
In Ghanam v. John Does et al. the Michigan Court of Appeals reversed a trial court’s decision to allow the deposition of a fact witness in a defamation suit filed against ostensibly anonymous commentators on an internet-based public forum.
Last week, I filed an application for leave to appeal in the Michigan Supreme Court in this case on February 13, 2014, working with co-counsel for the Plaintiff. 99784 sc application and attachments date stamped copy
I wrote about this issue of law in a previous post, here:Court of Appeals Addresses Anonymous Internet Blogger’s Rights to Remain Anonymous
In that case, the decision of the Court of Appeals was not appealed to the Supreme Court.
Feel free to call Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP at (248) 283-0763 if you have any questions about any of these cases. Mr. Tucker regularly participates in cases before the Supreme Court and Court of Appeals on issues touching many subject-matter areas of civil litigation, including insurance coverage disputes such as that at issue in the instant case.
Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group. Effective appellate representation demands different skills than those required by litigation attorneys. Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective. From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts. Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases. We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon. During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage. Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court. Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.
- State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
- Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
- Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
- Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
- Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
- Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
- Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
- Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
- McMurtrie v Eaton Corp, 490 Mich 976 (2011)
- Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
- Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
- Stokes v Chrysler, 481 Mich 266 (2008)
- Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
- Rakestraw v Gen Dynamics, 469 Mich 220 (2003)
- Sington v Chrysler Corp., (2002)
Other appeal cases Carson Tucker has handled include
- Hamed v. Wayne County, et al., 490 Mich. 1 (2011), reversing Court of Appeals published opinion after being briefed and argued by Carson J. Tucker on behalf of Wayne County
- Odom v. Wayne County, et al., 482 Mich. 459 (2008), reversing Court of Appeals after being briefed and argued by Carson J. Tucker on behalf of Wayne County and Wayne County Sheriff and Deputies
- Michigan Department of Transportation v Employers Mutual Casualty Co, et al., 481Mich. 862 (2008), reversing Court of Appeals after being briefed and argued on application by Carson J. Tucker for Trucking Company and Insurer
- Nuculovic v. Hill and SMART, 287 Mich. App. 58 (2010), briefed by Carson J. Tucker for SMART
- Molnar v. Amy Allen, Oakland County Care House, et al, 359 Fed. Appx. 623 (6th Cir. 2009), affirming district court’s judgment in favor of client represented by Carson J. Tucker
- Molnar v. Amy Allen, Oakland County Care House, et al., Case No. 09-1536 (2009), successful defense of application to United States Supreme Court by Carson J. Tucker
- Wetherill v. McHugh, et al., Case No. 10-638 (2011), co-draft response on behalf of South Dakota National Guard to petition for appeal to United States Supreme Court, cert denied by Supreme Court.
In Price v. High Pointe Oil Co, Inc., the Michigan Supreme Court provides a clear pronouncement on the constitutional limitations and legitimate authority the judiciary has to change the common law. In doing so, the Court refused to extend as a common-law rule the view that a plaintiff may recover non-economic damages (i.e., mental and emotional distress, etc.) for claims arising out of destruction of real property.
The facts are quite remarkable. The plaintiff owned residential property, which was constructed in 1975. For nearly 30 years, the home was heated by a furnace that utilized heating oil as fuel. However, in 2006 the plaintiff replaced the oil furnace with a propane furnace. She canceled her contract with the oil company, which was the predecessor of defendant oil company. However, the oil fill pipe remained attached to the house.
In November of 2007 plaintiff’s house remained on the defendant’s “keep full” list. While plaintiff was at work, defendant’s truck driver pumped nearly 400 gallons of fuel oil directly into plaintiff’s basement through the oil fill pipe before realizing his mistake and immediately calling 911. Plaintiff’s house and many of her belongings were destroyed. Between plaintiff’s and defendant’s insurers, the site was remediated, a new house was built in a different location, plaintiff’s personal property was either cleaned or replaced, and she was reimbursed for all temporary-housing related expenses. It was undisputed that plaintiff was fully reimbursed and compensated for her economic losses arising out of the incident.
Plaintiff filed suit against the oil company in 2008 alleging claims for negligence, gross negligence, negligent infliction of emotional distress, nuisance, trespass, and a private claim under the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq. Plaintiff’s only claim to survive to trial was for the recovery of non-economic damages for defendant’s negligent destruction of her real property.
A jury found in favor of plaintiff in the amount of $100,000. The trial court denied defendant’s motion for a judgment notwithstanding the verdict. On appeal, the Court of Appeals affirmed, holding that in a negligence action, a plaintiff may recover mental anguish damages naturally flowing from the damage to or destruction of real property. See Price v. High Pointe Oil Co., 294 Mich. App. 42, 60 (2011).
The Supreme Court granted defendant’s application for leave to appeal. The issue before the court was whether non-economic damages are recoverable for the negligent destruction of real property. In a thorough and well-researched opinion authored by Justice Markman (with Justices Cavanagh, McCormack and Viviano not participating) the Court held, without dissent, that the common law of Michigan has long provided that the appropriate measure of damages in cases involving the negligent destruction of property is the cost of replacement or repair of the property. The Court ruled that it was not persuaded that this long-standing common-law rule should be changed.
The Court goes through the history of the common-law rule respecting the measure of damages available for the negligent destruction of property in Michigan. In arriving at this conclusion, the Court discusses in detail the meaning and application of the common law by Michigan courts, the means by which the common law may be abrogated, and, particularly, the manner in which the Supreme Court can alter or change a common-law rule.
The Court notes it is the “principal steward” of the common law. Slip Op. at 20, citing Mich. Const. 1963, art. 7, § 3, which provides: “[t]he common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.” See also Longstreth v. Gensel, 423 Mich. 675 (1985). The common law remains as such until modified by the Supreme Court or by the Legislature. In regard to the former, the Court goes on to note that change or alteration of the common law by the Court is to be made with the utmost of caution. Id. at 20-21, 25 and n. 20. Ordinarily, the Court goes on to explain, the changes in the law should come about by legislation, because the Legislature is best equipped to consider the social and political ramifications of changing the law. Id. In footnote 20, the Court further explains the restraint it will ordinarily exercise in considering whether it should change, alter or modify a common-law rule.
While the rule of law analyzed by the Court is important in guiding future courts, and can also lend aid in the consideration of valuation of real property in a variety of contexts (e.g., takings claims, condemnation proceedings, etc.), the discussion regarding the application and tenacity of the common law is particularly enlightening for future cases anytime courts are faced with established common-law rules.
It is safe to say from this opinion, and others the Court has issued in the past several years, that the non-abrogation principle in the Michigan Constitution is a strong indication that the Court will retain the common-law rule in most cases. Thus, it is incumbent on advocates to determine whether an existing common-law rule applies in the given case and to determine whether and to what extent a court, and particularly the Supreme Court, rather than the Legislature, will be willing to alter or change that rule as applied.
I updated this post with some important legal authority.
I have written in the past about unconstitutional usurpation of Constitutional Sheriffs’ arrest powers. I have also mentioned that whimsical and hastily made decisions that attempt to eradicate by sweeping measures time-honored common-law rules and principles are a threat to the respective states’ sovereignty.
As I have also mentioned, if the citizenry of a state allows its Executive or Legislative branches to disenfranchise it and remove its choice to elect its own chief law enforcement officer in the respective counties or parishes as the case may be, then not much can be done but to educate that citizenry about the folly of its ignorance in this regard. It is, ultimately, although I would contend only, through a state’s constitution that a citizenry can make choices ultimately surrendering their sovereign right to govern themselves. This is of the very essence of the privilege of our liberty and the responsibility of our…
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As promised, attached is a memorandum of law penned by the Department of Justice in 2004 for the U.S. Attorney General. It is a thorough, well-researched, and well-written article that comes to the inescapable, correct conclusion about this issue. What has changed since 2004 as it relates to the constitutional right?
Since this memorandum of law was written, the United States Supreme Court has affirmed this conclusion as the correct conclusion in the two following cases from 2008 and 2010.