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
