Despite nothing going on in the world at all, 13th Circuit Court judge Kevin Elsenheimer has still managed to get himself overruled by the Court of Appeals. The issue was that he ruled in favor of Grand Traverse County when he shouldn’t have. Just so we’re clear, Grand Traverse County is his county. Details.
Here’s what happened, as far as I can tell.
- The county decides to audit the Commission on Aging.
- The Plaintiff is deputy director and later acting director of the Commission on Aging.
- The plaintiff says that her job description includes helping get a millage passed. This is a big no-no as government-paid employees can’t be doing election activities with taxpayer dollars.
- Plaintiff concludes that the county is essentially trying to take over.
- She might be right, since the county issues a memo about how she is not performing her job up to standards.
- Plaintiff speaks out at a county board meeting. It’s not as dramatic as the time Judges Phillips and Stepka marched down there to demand respect, but still pretty dramatic with finger-pointing and whatnot.
- Plaintiff gets fired.
- She files a lawsuit under the Whistleblower’s Protection Act. She claims that she was fired for blowing the whistle on planned, future violations of law.
- The county replies that the WPA doesn’t protect against alleged, future violations, only what has already happened.
- Plaintiff amends her complaint to allege violations in the past are part of it, too.
- Judge Elsenbeimer throws out the amended complaint and the case based on res judicata.
You need to understand what res judicata is. Res judicata is the legal concept that we don’t relitigate issues that have already been decided. You can’t file the same case over and over again.
That’s not what the plaintiff did, though. She filed an amended complaint for the exact same lawsuit. This is from the Court of Appeals opinion:
“The doctrine of res judicata is employed to prevent multiple suits litigating the same cause of action.” Adair v Michigan, 470 Mich 105, 121; 680 NW2d 386 (2004). The doctrine operates “to preclude similar claims in a subsequent lawsuit.” Vandenberg v Vandenberg, 253 Mich App 658, 663; 660 NW2d 341 (2002). The doctrine does not operate to preclude proceedings that are “part of a continuous action and not a separate lawsuit.” Id.
This is pretty basic stuff, and something Elsenheimer should have known. Was the incorrect ruling a reflection of incompetence, or trying to protect the county?
It’s too hard to take a side on the lawsuit itself. It sounds like there’s plenty of stink to go around on all sides. We’ll let the jury sort that one out.