OV 19--Interference with the Administration of Justice (Sentencing Guidelines)

In People v Hershey, __ Mich App __ (#309183, 12/5/2013) the Court of Appeals held that the trial court erred by scoring 10 points for OV 19, holding that the defendant did not interfere with the administration of justice by failing to pay child support because although he failed to comply with the child-support order, he did not "hamper, hinder or obstruct the act or process of the circuit court administering judgment . . . ." It further found that he did not interfere with the administration of justice by violating the terms of his probation.

This plain and ordinary meaning of the phrase “interfere with the administration of justice” is consistent with the published case law addressing OV 19. Opposing so as to hamper, hinder, or obstruct the act or process of administering judgment of individuals or causes by judicial process has broad application, just as “interfered with or attempted to interfere with the administration of justice” is “a broad phrase.” People v Barbee, 470 Mich 283, 286 (2004). It “encompasses more than just the actual judicial process” and can include “[c]onduct that occurs before criminal charges are filed,” acts that constitute obstruction of justice, and acts that do not “necessarily rise to the level of a chargeable offense.” Id. at 286-288.

 

Decisions of both the Court of Appeals and the Supreme Court have found the following conduct to constitute an interference or attempted interference with the administration of justice: threatening or intimidating a victim or witness, telling a victim or witness not to disclose the defendant’s conduct, fleeing from police contrary to an order to freeze, attempting to deceive the police during an investigation, interfering with the efforts of store personnel to prevent a thief from leaving the premises with unpaid store property, and committing perjury in a court proceeding. See id. at 286; People v Ratcliff, 299 Mich App 625, 633 (2013), vacated in part on other grounds, People v Ratcliff, __Mich__ (Docket No. 146861, entered October 25, 2013); People v McDonald, 293 Mich App 292, 299 (2011); People v Smith, 488 Mich 193, 196-197 (2010); People v Ericksen, 288 Mich App 192, 204 (2010); People v Steele, 283 Mich App 472, 492 (2009); People v Underwood, 278 Mich App 334, 339 (2008); People v Passage, 277 Mich App 175, 179-181 (2007); People v Endres, 269 Mich App 414, 420-421 (2006). Each of these acts hampers, hinders, or obstructs the process of administering judgment of individuals or causes by judicial process. For instance, the acts of witness intimidation and deceiving police investigators seek to prevent incriminating evidence from being used throughout the process of administering judgment of individuals by judicial process, including during both the pretrial and, potentially, trial stages.

No issue of material fact if the non-moving party's evidence is blatantly contradicted by the record.

In Fuhr v Trinity Health Corporation, __ Mich __ (#147158, 10/2/2013) the Michigan Supreme Court reversed the judgment of the Court of Appeals, for the reasons stated in the Court of Appeals dissenting opinion, and reinstated the March 30, 2012 order of the Kent Circuit Court granting summary disposition to the defendants. 

The Court of Appeals dissent had opined that the  plaintiff’s self-serving deposition testimony was blatantly contradicted by the record such that no reasonable jury could believe it.  In Scott v Harris, 550 US 372, 380; 127 S Ct 1769; 167 L Ed 2d 686 (2007), the United States Supreme Court, considering summary disposition under FR Civ P 56(c), which is parallel to MCR 2.116(C)(10), held that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary disposition.” Under those circumstances, a “genuine” issue of material fact does not exist.

Emotional distress damages for breach of contract---no unless . . .

In Benefield v Village at Stonegate Pointe Condominium Association, __ Mich __ (#147214, 10/12/2013) the Michigan Supreme Court reversed that portion of the Court of Appeals judgment that reversed the trial court’s exclusion of emotional distress damages for the plaintiff’s breach of contract and negligence claims. 

Emotional distress damages are generally not recoverable for breach of a commercial contract unless such damages were within the contemplation of the parties at the time the contract was made. Kewin v Massachusetts Mutual Ins Co, 409 Mich 401, 419 (1980). Emotional distress damages are also generally not recoverable for the negligent destruction of property. Price v High Pointe Oil Co, Inc, 493 Mich 238, 264 (2013).

Motion to compel an independent examination.

In Burris v KAM Transport, Inc, 301 Mich App 482 (2013) the Court of Appeals held the trial court abused its discretion when it denied defendants’ motion to compel independent medical examinations. MCR 2.311(A) provides a trial court with discretion to order a party to submit to a physical or mental examination. See Muci v State Farm Mut Auto Ins Co, 478 Mich 178 (2007). MCR 2.311(A) states: When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental or blood examination by a physician (or other appropriate professional) or to produce for examination the person in the party’s custody or legal control. The order may be entered only on motion for good cause with notice to the person to be examined and to all parties. The order must specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made, and may provide that the attorney for the person to be examined may be present at the examination. In Burris, supra, the Court of Appeals concluded that the trial court abused its discretion in denying defendants’ request for an independent medical examination by a doctor with expertise in physical medicine and rehabilitation. While there can be cases where it is not an abuse of discretion for a trial court to decline ordering a second independent medical examination, such as where the second examination would be duplicative, under the facts of this case, it was an abuse. Plaintiff does not argue—and the trial court did not find—that defendants request for independent medical examinations by a doctor with expertise in physical medicine and rehabilitation would be duplicative or unnecessary. Additionally, the exams were taken in the AAA case almost three years ago, and the passage of time has been found to constitute good cause for ordering a second independent medical examination, and the persistence of plaintiff’s impairment is a critical issue in this case. While it is true that AAA’s independent medical examination by a doctor with expertise in physical medicine and rehabilitation provided defendants with some ability to obtain relevant information produced for another case, in the ordinary course defendants should be able to retain their own experts to assist in the defense of their own case, and should not normally be required to rely on experts retained by other parties in another case. Just as importantly, the trial court’s reasoning—that allowing the examinations would be overly burdensome and place plaintiff at an unfair disadvantage at trial—does not support its conclusion. Plaintiff’s concern about restricting the evidence presented to the jury can be addressed through motions in limine, objections, and by limiting the presentation of cumulative evidence at trial, without deterring discovery. There is also a ceiling on the number of expert witnesses that a party can call at trial. See MCL 600.2164(2). Hence, precluding defendants from obtaining IMEs of plaintiff by their own expert medical physicians was not supported by the trial court’s reasoning. For these reasons we hold that the trial court abused its discretion in denying defendants’ motion to compel an independent medical examination.

A defendant, through no fault of his/her own, who has made a good faith effort but is unable to comply with a court order.

Obviously, I do not speak for other judges, but

It is not my intention, goal or desire to ‘sanction’ a defendant if, through no fault of his/her own, (s)he is not able to comply with a bond condition or term of probation or other court order.  What is required is a good faith effort by the defendant to comply with all required terms.  Many times the issue is financial.  When that happens, if a defendant, through no fault of his/her own, has made a good faith effort but is unable to comply with a court order, it is my intention, goal and desire to look at other alternatives.  This, however, requires attorneys/defendants to be pro-active and bring it to the court, sooner rather than later.

Obviously, one is encouraged to try and work with probation or other supervising entity and/or the prosecutor’s office, but if you are not satisfied with their response and you believe you have a defendant who is legitimately unable to comply with a court order, you should  be requesting a hearing before me, and sooner rather than later.  Waiting until after the bench warrant is issued or unexcusable non-compliance minimizes and may negate the possibility of actually doing something about it.  Especially, with the effect this may have on one’s freedom and any sentencing agreement.

The determination of expert witness fees/attorney fees, and the same as taxable costs.

The prevailing party in a civil suit is generally entitled to have the opposing party pay its costs. MCR 2.625(A)(1). Whether and to what extent a particular expense may be taxed as a cost is purely statutory. MCL 600.2401. See Leahy v Orion Twp, 269 Mich App 527, 530 (2006).

Expert witnesses may be paid a fee in excess of the fee paid to an ordinary witness with the trial court’s permission and that the fee paid to the expert witness may be taxed as part of the taxable costs. MCL 600.2164(1). An expert is not, however, entitled to compensation—as a witness—for every service that the expert may have provided. Mich Citizens for Water Conservation v Nestlé Waters North America, Inc, 269 Mich App 25 (2005).  An expert is entitled to compensation as a witness only for the time that the expert actually spent in court and for the time that the expert spent to prepare for his or her testimony as an expert. Id.; see also State Hwy Comm’r v Rowe, 372 Mich 341 (1964). 

The question whether a person participated in the litigation as an expert witness is a question of law that must be determined from the totality of the circumstances.  A witness can be an expert witness and be entitled to excess compensation even if the expert witness never actually testifies. See Jones v Antrim Circuit Judge, 223 Mich 141 (1923) holding that fees for expert witnesses who attended trial, but who were never called to testify, could be taxed as a cost because the witnesses were “in good faith made to attend” and would have testified as to matters of opinion had they been called.  See also Herrera v Levine, 176 Mich App 350 (1989). Whether the witness was ultimately called to testify or admitted as an expert is not dispositive; an expert may be entitled to compensation for preparation related to his or her testimony as an expert in addition to compensation for his or her time spent actually attending court. State Hwy Comm’r, supra. However, the prevailing party may not tax as a cost those fees paid to the expert for services other than time spent at trial or preparing for trial. Michigan Citizens for Water Conservation, supra.  

An expert witness is one who has “scientific, technical, or other specialized knowledge” that will “assist the trier of fact to understand the evidence or to determine a fact in issue” and who testifies “thereto in the form of an opinion or otherwise.” MRE 702. The key to qualifying for compensation as an expert is that the witness offers or will offer opinion testimony in his or her area of expertise: “The provisions of MCL 600.2164 allowing for the taxation of costs shall not be applicable to witnesses testifying to the established facts, or deductions of science, nor to any other specific facts, but only to witnesses testifying to matters of opinion.” MCL 600.2164(3).  Nothing in MRE 702 or MCL 600.2164, however, precludes an expert witness from offering both fact testimony and expert opinion testimony. See United States v Lopez-Medina, 461 F3d 724, 743 (CA 6, 2006) stating that police officers may testify as both experts and fact witnesses.

Once a witness testifies as an expert by offering opinion testimony, the witness is entitled to seek compensation “in excess of the ordinary witness fees provided by law” without regard to whether the witness also offered testimony on facts. MCL 600.2164(1). Nevertheless, when exercising its discretion to award a fee in excess of the ordinary witness fee, the trial court must consider the nature and complexity of the expert’s opinion testimony in relation to his or her lay testimony when determining whether the witness’ expert fee was reasonable.  When considering the reasonableness of the expert witness’ fee, the trial court should consider the total fee in light of the time actually spent in court and the complexity of the expert’s testimony. The trial court should also have assessed the reasonableness in the light of the typical fee charged by similar experts for a similar period of trial preparation and time spent in court. Finally, the trial court must address whether and to what extent the expert’s pretrial fees were actually and reasonably incurred for preparing to testify as an expert at trial. Michigan Citizens for Water Conservation, supra.

If after examining whether and to what extent the expert’s fee is taxable as a cost under MCL 600.2164, the trial court determines that expert is entitled to his actual costs under MCR 2.403(O)(3), the trial court must also examine the reasonableness of the prevailing party’s attorney fee consistent with Smith v Khouri, 481 Mich 519 (2008). The trial court should provide sufficient information for appellate review of the award; in particular, it should identify the “fee customarily charged in the locality for similar services” and the source for that determination. Smith, supra.  See also Augustine v Allstate Ins Co, 292 Mich App 408 (2011) stating that it was insufficient for the trial court to simply find that the fee was reasonable; it must first determine the fee customarily charged in the locality for similar legal services and then adjust from there. It should also state the number of hours that it believes were reasonably spent on the litigation and should briefly address its view of the remaining factors identified in Smith, supra and how the overall fee should be adjusted considering those factors.

The requirement of a 'lawful' command/request by a police officer for Resisting & Obstructing.

In People v Nyilas, Unpub Per Curiam Opinion, (#311721, 8/13/2013) the Court of Appeals affirmed the defendant’s conviction for interfering with electronic communications, but reversed his conviction for resisting or obstructing a police officer. 

In Nyilas to the extent that police officers requested defendant to answer the phone or come to the door and talk with them, such requests were not “lawful” because defendant had no obligation to do so. “[W]hen it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’” Florida v Jardines, __ US __; 133 S Ct 1409, 1415; 185 L Ed 2d 495 (2013) quoting Silverman v United States, 365 US 505, 511, 81 S Ct 679 (1961). In fact, The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home—a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their . . . houses . . . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v United States, 365 US 505, 511; 81 S Ct 679, 683; 5 L Ed 2d 734. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. [Payton v New York, 445 US 573, 589-590; 100 S Ct 1371; 63 L Ed 2d 639 (1980).] While an police officer, like any other private citizen, may knock at the door without a warrant and request entry, Jardines, 133 S Ct 1409 at 1415-1416, “[w]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.” Kentucky v King, ___ US ___; 131 S Ct 1849, 1862; 179 L Ed 2d 865 (2011). “And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.” Id. (emphasis added). 

In People v Moreno, 491 Mich 38 (2012), the defendant informed two police officers that he would not allow them to enter his residence without a warrant, and then he attempted to close the front door. Id. at 42. One of the police officers put his shoulder against the door to prevent the defendant from closing the door. Id. at 42-43. The defendant struggled with the police officers, and he was eventually charged with assaulting, resisting, or obstructing a police officer under MCL 750.81d(1). Id. at 43. The issue before the Court was whether MCL 750.81d abrogated “the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas.” Id. at 41. After an analysis of the statutory language, the Court concluded that MCL 750.81d did not abrogate “the common law right to resist unlawful arrests or other unlawful invasions of private rights.” Id. at 58. Thus, “the prosecution must establish that the officers’ actions were lawful.” Id. at 52.2

The Court of Appeals thereby concluded that the police, in requesting defendant Nyilas to come to the door (before the officers obtained valid arrest and search warrants) were not making a lawful request.  The trial court thereby abused its discretion in failing to grant defendant’s motion for directed verdict. Defendant was under no legal obligation to leave the home or allow the officers to enter the home absent valid warrants to do so.