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 Articles of Interest - Gongwer News Service

starMichigan House G.O.P. Commits to Fight Cut in Merit Scholarshipsstar

starMichigan Appeals Court OKs Electric Cycle Usestar

For Disabled Summer Resident on 'Motorless' Mackinac Island

starDiet Drug Makers Can't be Sued, Michigan Supreme Court Rulesstar


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Gongwer News Service, March 26, 2003

Gearing up for action on the 2003-04 budget, House Republicans agreed Wednesday to what several of them have been saying for weeks: to reject Democratic Governor Jennifer Granholm's proposal to gut the Merit Award college scholarship.

Ms. Granholm has called for reducing the scholarship from $2,500 to $500 and redirecting the tobacco settlement money that now funds the award into health care. The $500 award for middle school pupils would be eliminated. Pupils who score well on the Michigan Educational Assessment Program Award receive the scholarship.

Republicans huddled behind closed doors almost for about four hours Wednesday afternoon in their largest meeting yet on budget matters. Private caucus meetings, once a rarity, have been a daily ritual almost all year and especially since Ms. Granholm unveiled her recommended budget March 6.

GOP members have not yet coalesced around an alternative to make up the cuts that would be triggered in other programs by preserving the scholarship.

In meetings of the House Appropriations Subcommittee on Higher Education, Republican members have been chiding the Merit Award cut for weeks, saying it is the only state scholarship based on merit instead of need.

The Granholm administration has defended its proposal, saying the scholarship program is important, but not vital. It also says the state's $300 million annual share of the national tobacco settlement should be spent on health care.

Ms. Granholm said to reporters following her address to the Michigan Municipal League, "I'd love to salvage the Merit Award Scholarships. The question is where does the money come from." The same goes for softening the cuts to higher education, she said.

While she added she is open to any ideas, the governor said the budget is already carefully balanced and legislators adding in one area will have to be come with alternative cuts in other areas. Ms. Granholm said legislators who reject her proposals to gain $129.8 million for the general and school aid funds by closing tax loopholes will also have to identify other places to cut in the budget.

"This is the best budget we could put together, but I'm happy to listen to better ideas," Ms. Granholm said.

Republicans also are taking a dim view of the $128.9 million in tax loophole eliminations proposed by the administration as disguised tax increases.

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Gongwer News Service, March 26, 2003

Mackinac Island's ban on motorized vehicles cannot be enforced against persons with disabilities whose use of electric-assisted tricycle is protected by federal and state laws, a unanimous Court of Appeals has ruled. The city had already made exceptions for electric cart use for persons who cannot walk and the court said a summer resident with MS is also entitled to use a vehicle with a motor to enjoy the cycling aspect of the popular tourist destination.

The three-judge panel (in Bertrand v. City of Mackinac Island, COA docket No. 243923) also cited a federal court ruling involving Casey Martin's successful attempt to use a golf cart in PGA events (where rules require walking the course) in denying the city's argument that its rules should be protected.

The city has banned motorized vehicles in city areas since 1898 and the Mackinac Island State Park Commission, which controls most of the island, has specifically banned motorized bicycles since 1907.

The city contended use of the cycle by Donald Bertrand is a private activity not covered by the state or federal acts establishing rights for persons with disabilities, but the court said its regulation of all aspects of transportation constitutes a public service that is covered by the disabilities laws. The court said the small motor, which enables the cyclist to go about 12 miles per hour, is an adaptive aid to facilitate the use of the tricycle by a disabled person as protected under the state law.

Agreeing with the trial court, Judges Pat Donofrio, Henry Saad and Donald Owens said it is irrelevant that the city has allowed use of electric wheelchairs and Amigo carts for those who cannot walk, declaring the analogous activity that must be accommodated is the ability to cycle on the streets.

The court also rejected the city's argument that use of the electric-assisted cycle would constitute a fundamental change to the island's character, saying the Martin case indicates that "an entity subject to the ADA (Americans with Disabilities Act) may have to alter its rules rather significantly to accommodate the disabled without the alteration being considered to fundamentally alter the practices of the entity." It said use of the cycle would only pose a peripheral impact on the island.

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Gongwer News Service, March 26, 2003

Persons who were harmed as a result of taking diet drugs Fen-Phen and Redux are legitimately barred under state law from suing the pharmaceutical companies that made them because the products had been approved by the U.S. Food and Drug Administration, a 6-1 majority of the Michigan Supreme Court ruled March 26, 2003.

The decision (Taylor v. SmithKline Beecham, SC docket No. 120624) reversed the Court of Appeals, which had concluded that state law protecting the drug makers was unconstitutional because it delegated a legislative power to the FDA.

Justice Clifford Taylor, writing the majority opinion, said rather than delegating power to the federal agency, the law "uses independently significant decisions of the FDA as a measuring device to set the standard of care for manufacturers and sellers of prescription drugs in Michigan. It represents a legislative determination as a matter of law of when a manufacturer or seller of a prescription drug has acted sufficiently reasonably, solely for the purpose of defining the limits of a cognizable products liability claim under Michigan law."

The FDA-approved provision was added to the law in 1995 and before that, it had protected companies in products liability suits if they met governmental or industry standards.

"The Legislature has determined that a drug manufacturer or seller that has properly obtained FDA approval of a drug product has acted sufficiently prudently so that no tort liability may lie," the court said. Signing the opinion were Justices Michael Cavanagh, Stephen Markman, Robert Young Jr. and Chief Justice Maura Corrigan. Concurring separately was Justice Elizabeth Weaver.

The majority cited case law holding that while the Legislature may not delegate its power to make law, it can make a law to delegate a power to determine a fact or condition upon which the law's impact depends.

"To deny this would be to stop the wheels of government," the court added. "Michigan's referral statutes are apparently so uncontroversial as to be rarely challenged. This is not surprising when one considers that, for example, any statutory reference to time, weight, age, gender, birth, death, or even print size for legal documents is an exercise of the Legislature referring to findings made by someone other than itself."

The court said several statutes give similar delegation of power to that exercised here, such as authorizing boards of canvassers to determine if candidate nominating petitions meet state standards.

The court said the law does not make the FDA the final arbiter of whether a drug may form the basis of a products liability case, but rather simply establishes that the FDA determination measures whether a drug manufacturer exercised reasonable care.

Justice Marilyn Kelly would have upheld the appellate court, saying the majority "adopts, with little discussion, the 'independently significant standard' doctrine, while restricting the limitation that our lower courts and our precedent have placed on legislative delegations."

Ms. Kelly said the majority decision ignores that the standards used by the FDA change from time to time, a pattern that is at odds with the implicit determination of the Legislature that another agency's decisions are sufficiently reliable to be conclusive.

"A statute that enables a foreign body to make a policy determination not embraced by the Legislature perpetrates an unconstitutional delegation of the Legislature's power," she said.

In a reply, the majority said the law only presumes a drug maker acted with reasonable care if it followed FDA standards in effect at the time the drug was approved.

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