Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  January 17, 2020                                                                Bridget M. McCormack,
                                                                                                Chief Justice

                                                                                       David F. Viviano,
                                                                                       Chief Justice Pro Tem
  159715
                                                                                     Stephen J. Markman
                                                                                          Brian K. Zahra
                                                                                    Richard H. Bernstein
  DENNIS LEE TOMASIK,                                                               Elizabeth T. Clement
            Plaintiff-Appellant,                                                    Megan K. Cavanagh,
                                                                                                     Justices

  v                                                       SC: 159715
                                                          COA: 343453
                                                          Court of Claims: 17-000264-MZ
  STATE OF MICHIGAN,
            Defendant-Appellee.

  _________________________________________/

        On order of the Court, the application for leave to appeal the April 25, 2019
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

         MCCORMACK C.J. (concurring).

         I concur in the order denying leave to appeal but write separately to highlight the
  troubling—and perhaps unforeseen by the Legislature—outcome in this case. In 2015,
  this Court reversed the plaintiff’s convictions for first-degree criminal sexual conduct and
  remanded for a new trial because the trial court had committed an evidentiary error by
  admitting a video recording of the plaintiff’s police interview and that error rose to the
  level of plain error. People v Tomasik, 498 Mich 953 (2015). The plaintiff had also
  sought relief based on a claim of new evidence, but this Court did not address that claim
  because we granted relief on the evidentiary error. Id. (stating that “[i]n light of this
  disposition, we decline to address the other issues presented in our order granting leave to
  appeal”).

         After being acquitted by a jury following his new trial, the plaintiff sought
  compensation under the Wrongful Imprisonment Compensation Act (WICA), MCL
  691.1751 et seq. The Court of Claims granted summary disposition to the state, and the
  Court of Appeals affirmed on the ground that the plaintiff’s convictions had not been
  reversed on the basis of new evidence under MCL 691.1755(1)(c).
                                                                                                               2

        While I tend to agree with the Court of Appeals that the statutory language does
not entitle this plaintiff to compensation, I question whether this result is consistent with
the Legislature’s intent. In enacting the WICA, the Legislature intended wrongly
incarcerated individuals to seek compensation when their convictions are voided and they
are exonerated of all charges on the basis of new evidence. If the sole basis for the
plaintiff’s claim was that he is entitled to compensation because of the trial court’s
evidentiary error, I would agree that the Legislature did not intend to provide for
compensation under such circumstances.

        But here, there’s more: as noted, the plaintiff sought relief based on the
evidentiary error and new evidence. Had he brought only the new-evidence questions to
this Court, and not the other trial errors, he’d likely be eligible for WICA compensation.
Yet because his trial was unfair for reasons in addition to that it did not include the new
evidence, he’s out of luck? Under these unique circumstances, I encourage the
Legislature to consider whether it intended to exclude individuals such as the plaintiff—
call them “new evidence plus-ers”—from the WICA.

       CAVANAGH, J., joins the statement of MCCORMACK, C.J.




                         I, Larry S. Royster, 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.
                         January 17, 2020
       s0114
                                                                             Clerk
