People of Michigan v. David Kircher ( 2013 )

Order Michigan Supreme Court
Lansing, Michigan
April 5, 2013 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Stephen J. Markman
144740 Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano,
PEOPLE OF THE STATE OF MICHIGAN, Justices
Plaintiff-Appellee,
v SC: 144740
COA: 306579
Washtenaw CC: 05-001189-FH
DAVID KIRCHER,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the December 16, 2011
order of the Court of Appeals is considered, and it is DENIED, because the defendant has
failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
MARKMAN, J. (concurring).
A five-year prison sentence was imposed on this 66-year-old defendant, an
apartment building owner, who when the bottom floor of his building flooded with
sewage, and under what he viewed as emergency circumstances, pumped that sewage
into a catch basin that ultimately led to the Huron River. Although what defendant did
was clearly wrong and in violation of the law, I continue to question (as did two other
justices when this case was originally before the Court) whether the Legislature in
enacting MCL 324.3115(4) imposed what the lower courts viewed as a mandatory five-
year prison sentence. See People v Kircher, 483 Mich 986 (2009) (MARKMAN, J.,
dissenting). However, because this is a motion for relief from judgment and this issue
has already been decided against defendant and he has not established “good cause” for
previously failing to raise his new issues, I concur that he is not entitled to relief under
MCR 6.508(D).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 5, 2013 _________________________________________
s0402 Clerk