Derror Has Died - Will Stare Decisis Survive?
A split Supreme Court rendered its opinion in People v Feezel last week with Justice Cavanagh writing the majority opinion joined by Justices Kelly and Hathaway. Justice Weaver concurred in the result, presumably on both issues, but refused to agree that People v Crawford was correctly decided (she dissented there), and would not agree to using that case to justify reversing the defendant's conviction here. Interesting.
Feezel was convicted of Leaving the Scene of Accident where Death has Resulted, OWI 2d Offense and Operating with any Amount of a Schedule 1 Controlled Substance Causing Death. On the night of the incident, Feezel was driving on Packard Road in Ypsilanti Township. It was dark and raining extremely hard. The victim, whose BAC was a .29, was walking down the middle of the five-lane road with his back to on-coming traffic. The accident reconstructionists agreed that Feezel would have had to have been traveling 15 MPH under those conditions in order to avoid hitting the victim.
The trial court refused to allow the defense to present the jury with evidence of the victim's BAC, holding that it was irrelevant to the issue of proximate cause. In reversing, Justice Cavanagh ruled that, because proximate cause is an element that must be proven beyond a reasonable doubt, denying the defendant the opportunity to present evidence of the victim's intoxication undermined the reliability of the verdict. The Court cautioned, however, a number of times, that their decision should not be construed as allowing the admission of a victim's BAC every time it comes up. The defense would still have to demonstrate a reliable theory that the victim engaged in gross negligence or intentional conduct in order to make the intoxication of the victim relevant. Here, with the victim walking down the middle of a busy roadway on a dark and stormy night when a sidewalk is nearby, it was arguable that the victim's conduct was grossly negligent.
So the Court remanded the case to Washtenaw County for a new trial. That should have been it, one would think. But we need to remember Justice Cavanagh's impassioned dissent in People v Derror, decided almost 4 years to the day in 2006. Because the defendant was likely to be tried again on the same three charges, the majority decided to address again whether 11-carboxy-THC was a schedule 1 controlled substance as defined under the Public Health Code. This time, switching Justice Hathaway for former Justice Taylor, the Court took an about face and held that a defendant cannot be prosecuted for operating with any schedule 1 controlled substance in their blood if the prosecution's only proof is the presence of 11-carboxy-THC in a sample of blood taken from the defendant.
All of the same reasons posited by Justice Taylor four years ago in his dissent in Derror now formed the basis for overturning Feezel's conviction for operating with any schedule 1 controlled substance in his body causing death. 11-carboxy-THC is a metabolite, not an active ingredient in marijuana that causes a euphoric effect. In denouncing the Derror decision as wrongly decided, Justice Cavanagh held the following: that our drug laws are to be interpreted so that they closely match the federal system, "specifically, the majority failed to interpret MCL 333.7212 in a manner consistent with federal law, ignored the factors the Legislature indicated should be used to determine whether a substance should be classified as a schedule 1 controlled substance, and ignored the Legislature’s definition of “marijuana” and the Legislature’s list of schedule 1 controlled substances, which do not contain the term “metabolite” or the full or any abbreviated name of 11-carboxy-THC. When MCL 333.7212 is interpreted in the context of the statutory scheme, it does not appear that the Legislature intended for 11-carboxy-THC to be classified as a schedule 1 controlled substance."
As right as the conclusion is, (the discovery of a THC metabolite in someone's blood says nothing about their ability to operate a motor vehicle safely) I think the court's abandonment of the Derror decision so quickly really calls into question the very validity of stare decisis. Justice Young's partial dissent rails against the majority for its apparent infidelity to stare decisis and I think he brings up a good point. "The justices in the majority can say what they will about their commitment to stare decisis, but the fact that they reach the issue raised in Derror when the facts of this case do not require this Court to address it puts to rest any semblance of principle in their positions." He cited a 2002 opinion, Pohutsky v City of Allen Park: “[I]f each successive Court, believing its reading is correct and past readings wrong, rejects precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously unstable.” I agree, and we will have to wait and see how the new Court handles these issues in the future.
Feezel was convicted of Leaving the Scene of Accident where Death has Resulted, OWI 2d Offense and Operating with any Amount of a Schedule 1 Controlled Substance Causing Death. On the night of the incident, Feezel was driving on Packard Road in Ypsilanti Township. It was dark and raining extremely hard. The victim, whose BAC was a .29, was walking down the middle of the five-lane road with his back to on-coming traffic. The accident reconstructionists agreed that Feezel would have had to have been traveling 15 MPH under those conditions in order to avoid hitting the victim.
The trial court refused to allow the defense to present the jury with evidence of the victim's BAC, holding that it was irrelevant to the issue of proximate cause. In reversing, Justice Cavanagh ruled that, because proximate cause is an element that must be proven beyond a reasonable doubt, denying the defendant the opportunity to present evidence of the victim's intoxication undermined the reliability of the verdict. The Court cautioned, however, a number of times, that their decision should not be construed as allowing the admission of a victim's BAC every time it comes up. The defense would still have to demonstrate a reliable theory that the victim engaged in gross negligence or intentional conduct in order to make the intoxication of the victim relevant. Here, with the victim walking down the middle of a busy roadway on a dark and stormy night when a sidewalk is nearby, it was arguable that the victim's conduct was grossly negligent.
So the Court remanded the case to Washtenaw County for a new trial. That should have been it, one would think. But we need to remember Justice Cavanagh's impassioned dissent in People v Derror, decided almost 4 years to the day in 2006. Because the defendant was likely to be tried again on the same three charges, the majority decided to address again whether 11-carboxy-THC was a schedule 1 controlled substance as defined under the Public Health Code. This time, switching Justice Hathaway for former Justice Taylor, the Court took an about face and held that a defendant cannot be prosecuted for operating with any schedule 1 controlled substance in their blood if the prosecution's only proof is the presence of 11-carboxy-THC in a sample of blood taken from the defendant.
All of the same reasons posited by Justice Taylor four years ago in his dissent in Derror now formed the basis for overturning Feezel's conviction for operating with any schedule 1 controlled substance in his body causing death. 11-carboxy-THC is a metabolite, not an active ingredient in marijuana that causes a euphoric effect. In denouncing the Derror decision as wrongly decided, Justice Cavanagh held the following: that our drug laws are to be interpreted so that they closely match the federal system, "specifically, the majority failed to interpret MCL 333.7212 in a manner consistent with federal law, ignored the factors the Legislature indicated should be used to determine whether a substance should be classified as a schedule 1 controlled substance, and ignored the Legislature’s definition of “marijuana” and the Legislature’s list of schedule 1 controlled substances, which do not contain the term “metabolite” or the full or any abbreviated name of 11-carboxy-THC. When MCL 333.7212 is interpreted in the context of the statutory scheme, it does not appear that the Legislature intended for 11-carboxy-THC to be classified as a schedule 1 controlled substance."
As right as the conclusion is, (the discovery of a THC metabolite in someone's blood says nothing about their ability to operate a motor vehicle safely) I think the court's abandonment of the Derror decision so quickly really calls into question the very validity of stare decisis. Justice Young's partial dissent rails against the majority for its apparent infidelity to stare decisis and I think he brings up a good point. "The justices in the majority can say what they will about their commitment to stare decisis, but the fact that they reach the issue raised in Derror when the facts of this case do not require this Court to address it puts to rest any semblance of principle in their positions." He cited a 2002 opinion, Pohutsky v City of Allen Park: “[I]f each successive Court, believing its reading is correct and past readings wrong, rejects precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously unstable.” I agree, and we will have to wait and see how the new Court handles these issues in the future.
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