MSC: Justice Kelly fires cannon at majority's disapproval of canon

The continuing underlying tension among justices of the Michigan Supreme Court concerning how to best interpret statutes bubbled to the surface again late last week.

All seven justices agreed that the Court of Appeals reached the right result in reinstating a whistleblower case involving Katherine M. Ernsting, who worked as the special assistant to the president of Ave Maria College in Ann Arbor. But four justices felt that the COA took an unnecessary detour.

Ernsting began talking to the U.S. Department of Education, which was investigating the school's administration of federal student financial aid programs. To reward her cooperation with the DOE, the school fired her, according to her whistleblower complaint.

Washtenaw County Circuit Court Judge Timothy P. Connors tossed the suit. He ruled that under MCL 15.361(d)(v), the DOE was not a "law enforcement agency" and therefore could not be a "public body."

The Court of Appeals reversed in a 2-1 decision. Writing for the majority, Judge Kurtis T. Wilder, joined by Judge Alton Davis, parsed the statute to first provide that a federal agency, as opposed to a state or local agency, is a public body under the statute. Judge Wilder then determined that because the DOE is vested with investigatory power, it qualifies as a law enforcement agency for whistleblower purposes.

Judge Brian Zahra disagreed with this last point. Judge Wilder replied:

We respectfully disagree with the dissent's view that the term "law enforcement agency" as more narrowly construed by this Court in In re Faketty, 121 Mich App 266, 271; 328 NW2d 551 (1982), is applicable here. ...
Whereas there was a narrow context in which this Court in Faketty considered whether the Department of Corrections was a law enforcement agency under JCR 1969, 13, here, because remedial statutes like the WPA are liberally construed in favor of the persons intended to be benefited, Brown v Mayor of Detroit, 271 Mich App 692, 706; 723 NW2d 464 (2006), we conclude that the DOE, with its power to conduct civil and criminal investigations in order to enforce the laws under its purview, constitutes a law enforcement agency within the meaning of the WPA.

Up in the Michigan Supreme Court, none of the justices quibbled with the outcome, but Chief Justice Clifford Taylor, and Justices Maura Corrigan, Robert Young and Stephen Markman added an asterisk to the court's denial of leave to appeal.

We take this opportunity to note that, although we generally agree with the approach in the Court of Appeals majority opinion, it was unnecessary for that opinion to state, 274 Mich App 506, 518 (2007), that "remedial statutes like the WPA are liberally construed in favor of the persons intended to be benefited, Brown v Mayor of Detroit, 271 Mich App 692, 706; 723 NW2d 464 (2006)." Rather, as this Court later stated in its own opinion in Brown, 478 Mich 589, 593-594, when addressing the same statutory provision that is at issue in this case, MCL 15.361(d), "[t]he statutory language in this case is unambiguous," and "[i]f the statutory language is unambiguous, the Legislature is presumed to have intended the meaning expressed in the statute and judicial construction is not permissible."

Both Justices Michael Cavanagh and Elizabeth Weaver, in separate statements, indicated that they would deny leave and leave it at that.

But the majority's statement caused Justice Marilyn Kelly to take a "canon shot" at the majority:

I dissent from that part of the order admonishing the Court of Appeals majority for utilizing the canon of construction that calls for remedial statutes to be construed liberally. I disagree with including that statement for two reasons. First, because it is completely unnecessary to the resolution of the case, it has no force and, therefore, adds nothing to the order. Second, the canon that remedial statutes must be liberally construed is one of the oldest and most respected tools of construction in all the law. ...
Given this canon's long history and wide acceptance, and because the Whistleblowers' Protection Act is remedial in nature, it was entirely appropriate for the Court of Appeals majority to apply the canon in this case. And although the members of the majority can reject the tool for themselves, they should not scold other judges for choosing not to do the same.

The full text of the order is here.

Business, bankruptcy, litigation and evidence: FBA plans Feb. 6 seminar

The Eastern District of Michigan Chapter of the Federal Bar Association is accepting on-line pre-registrations for a Feb. 6 seminar, "Trial Advocacy: Financial Issues In Commercial Litigation and Business Bankruptcies."

The 8:30 a.m. event at the Theodore Levin U.S. Courthouse in Detroit features two demonstrations: "Financial Issues In Commercial Litigation & Business Bankruptcies" and "Presenting Evidence And Expert Witnesses In Business And Bankruptcy Proceedings."

More information here.

Law firm's ice sculpture destroyed

Traverse City artist Steven Berkshire spent a lot of time creating nice-looking ice sculpture, which was commissioned by the local law office of Grand Rapids-based Smith, Haughey, Rice & Rogge.

Meant to be enjoyed by the Traverse City community, the artwork was installed last Friday in front of the firm's downtown office. It was supposed to last as long as there was freezing weather, but by Sunday afternoon, thanks to a thoughtless vandal, it was turned into a forlorn pile of chunks.

The Traverse City Record-Eagle quotes firm partner Robert Tubbs as saying, "[W]e tried to do something nice for the holidays ... obviously it was disappointing someone decided to do that."

A cold-hearted someone, at that.

Another side of immunizing med-tech companies from suit

There has been a renewed clamor in Michigan to repeal the state's drug-manufacturer immunity law in the wake of Merck's agreement to a multi-billion dollar settlement of claims that one of its drugs, Vioxx, may have had the troublesome side effect of causing often-fatal heart attacks or strokes.

Michigan's immunity law, conceived and enacted in the hubris resulting from Republican domination of all three branches of the state government in the mid-1990s, gave pharmaceutical manufacturers a free pass on civil liability claims in Michigan courts if the federal Food and Drug Administration approved the complained-of drug.

Legislation to repeal this much-criticized special-interest law - a Detroit Free Press editorial recently labeled it as "easily one of the worst legacies of former Gov. John Engler" - has been stalled in the Michigan Senate for most of this year. And it may stay there longer still.

Today, the U.S. Supreme Court heard oral arguments in Riegel v. Medtronic, (click here for a Dow Jones Newswire report), in which the medical equipment manufacturer proposes a slightly less draconian but nationwide version of legal immunity for med-tech companies.

Medtronic, the world's largest med-tech company, is defending a product liability case filed after the balloon on one of its catheters burst during an angioplasty, which required emergency bypass surgery to save the patient's life. Medtronic is arguing that federal regulation of sophisticated medical equipment pre-empts claims under state law by patients who say such equipment injured them. Both lower courts have agreed with Medtronic's position.

The Dow Jones report suggests that Medtronic's argument got a friendly reception in the Supreme Court as well. But the tenor of oral arguments is not always a reliable predictor of how a case turns out.

Keep your eye on the Medtronic case. It will be powerful medicine, no matter which way the Court goes.

Michigan Lawyers Weekly names Up & Coming Lawyers

Congratulations to Michigan Lawyers Weekly's 2007 Class of Up & Coming Lawyers!

• Rachel Bissett: Fresh out of law school, this attorney helped Gordie Howe, "Mr. Hockey," resolve a civil stalking suit against his neighbors.
  
  
• Marla A. Linderman: If there's a wrong, no obstacle can stop this crusading young lawyer from making it right.
  
  
• Rolf E. Lowe: This Royal Oak attorney is bridging the gap between health care and labor law, forging a path in a newly emerging practice area.
  
  
• Mark C. Rossman: The challenge of complex litigation plus total client dedication equals a winning combination for this partner of a Troy firm.
  
  
• Michael J. Willis and Shaun P. Willis: Steadfast faith in Jesus Christ is the heart of the young brothers' livelihood - a growing business law practice, loving families and the need to give back.
  

Read their profiles in the Nov. 19 issue.

COA tackles a flawed presidential primary law

The Michigan Court of Appeals today will try to straighten out the legislatively created mess of Michigan's perhaps-Jan. 15 presidential primary.

Ingham County Circuit Court Judge William Collette struck down the primary law last week, ruling that it gives the Michigan Democratic and Republican parties an unconstitutional freebee. The political operatives get exclusive access to information about those who would participate in the primary, and, don't have to pay one red cent for it.

In an order released yesterday, the COA has ordered all interested parties to file briefs by 10:00 a.m. this morning. Oral arguments are scheduled for 1:30 p.m. before Chief Judge William Whitbeck, and Judges Patrick Meter and Donald Owens in the Hall of Justice in Lansing.

The court also has ordered Secretary of State Terry Lynn Land to file and serve affidavits by 5 p.m. today on participating party organizations - Democratic Chair Mark Brewer and Michigan Republican Chair Saul Anuzis - that describe whether their respective parties will use some other method than the primary results to select delegates for their national conventions.

If neither party will use the primary results, under MCL 168.613a, the primary must be canceled. Interestingly, under the statute, the Secretary of State, by 4 p.m. Nov. 15

shall determine, based upon the information provided by the participating political parties under this subsection, whether the participating political parties in this state will be using a method other than the results of the January 15, 2008 presidential primary to select delegates to their respective national conventions to nominate a candidate for president of the United States in 2008.

The Michigan Information & Research Service is reporting that Democratic Chair Mark Brewer yesterday, as the statute requires, told the Secretary of State his party will use the primary results if Judge Collette's ruling is overturned and the Republicans agree to use the primary results.

This is a sorry state of affairs, for which the blame should fall squarely on the shoulders of the partisan and elected nincompoops who brought the flawed primary law into being with a built-in political boondoggle.

Time to target lawmakers' hunting break

There's a lot of important work that won't be accomplished in Lansing for the next couple of weeks.

And you can thank the Legislature's annual November hunting/Thanksgiving break for that.

As Laura Berman so puckishly points out in her Detroit News column, the break doesn't have very much to do with legislators heading for the woods and bringing home the venison. Very few have even acquired a hunting license. Some of the non-hunters justify the break as an opportunity for some grassroots work with constituents, or to spend time with families.

Well and good, but this year in particular, the lawmakers' extended break from sessions in the Capitol should give us all plenty to be steamed about.

Unfinished business on an important business tax remains unfinished.

There will be no work on a legislative remedy for the much-battered Jan. 15 primary election. The battle instead moves to the Michigan Court of Appeals in the wake of an Ingham County Circuit Court ruling that declared the primary law unconstitutional in its current form.

The Kreiner fix bill will continue to bob around in the backwaters of the Senate Judiciary Committee. A measure to repeal Michigan's drug immunity law will languish on the Republican side of the aisle.

Some would say these two measures would continue to be ignored even if the lawmakers were actually earning their keep between now and the end of the month. Those who say this would be right. Those who say it's high time to get going on this legislation would be especially right.

In the meantime, a citizens' group is planning organizational meetings in Clarkston this week to push for a petition drive to make official what seems to be the current state of affairs - a part-time Legislature. They need 300,000 signatures to put a proposal on the November 2008 ballot. Plans call for a 90-day limit on session days, dropping the number of lawmakers from 148 to 100, no life-time health benefits, frozen salaries and an extension of term limits for some elected officials.

Throw in a ban on the hunting break and I'll be the first to sign.

A Pakistani strongman thumps the legal system: a courageous response

"The first thing we do, let's kill all the lawyers."
- Dick the Butcher
Henry VI, Part II, Act IV, scene ii

A laugh line with which Shakespeare shares with his audience his supposed contempt for attorneys?

The Bard's recognition that the path to tyranny is best paved with rubble from a wrecked legal system?

There's room for debate about Shakespeare's motivation for penning this line for a script written over 400 years ago.

But it's beyond debate that when you have the raw power to muscle aside judges and lawyers, you have the stage to yourself and the only script that need be followed is the one you write.

That's how it's being played out in Pakistan, where President Pervez Musharraf declared a state of emergency a week ago to "curb extremism." This included placing the country's Supreme Court chief justice under what amounts to house arrest. Critics say this was done to thwart a ruling on the legality of Musharraf's re-election last month while he was (and still is) the chief of the Pakistani Army.

Hundreds of normally staid Pakistani lawyers took to the streets. Police beat them, gassed them into submission and hauled them away.

A half a world away in the United States, attitudes about the legal system are frequently shaped by a "whose-ox-is-being-gored" mentality. Whether lawyers are loved or loathed is often dependent on the result produced, and for whom.

But what if everyone's oxen are being gored by a government strongman?

And a nation's lawyers risk life and limb to tell him he's wrong.

Their courageous stand for the rule of law commands respect and admiration.

Update 11/13/07: State Bar of Michigan President Ron Keefe has issued a statement supporting Pakistani lawyers who have protested against the shutdown of that nation's legal system.

Mail or e-mail? Ingham judge will decide union contract vote issue

A labor pact between Michigan State University and over 1,700 members of the Administrative Professionals Association is on hold until Ingham County Circuit Court Judge Paula Manderfield decides whether APA officials were authorized to conduct a ratification vote by e-mail.

Judge Manderfield enjoined enforcement of the union-approved contract last week after some members complained that APA bylaws require voting by mail, not e-mail.

A hearing is scheduled for Nov. 15. The Lansing State Journal has the story.

Bankruptcy filings soar, conference will cover client issues

From the American Bankruptcy Institute comes word that October consumer bankruptcy filings were the most ever since the Bankruptcy Code was revised two years ago.

Filings increased to 75,975, up 10 percent from the previous month. Chapter 13 filings accounted for almost 40 percent of the total and could go higher if Congress passes legislation that would let consumers use bankruptcy to write down their mortgages to avoid foreclosure, says the ABI.

It's a good time to bone up on the new code, and the ABI and the Detroit Consumer Bankruptcy Association have just the thing: a Nov. 12 conference at the Detroit Marriott Troy designed especially for Michigan-area bankruptcy practitioners.

Program sessions will include: Means Test Calculating; Litigating the Presumption of Abuse under Section 707; Secured Claims in Chapter 7 and 13; Mock Appellate Argument: "Projected" Disposable Income Issue; New Options When Facing Foreclosure; Consumer Case Management for Debtors' and Creditors' Attorneys and a Judges Panel.

Click here for more information and a link to register.

Shocking evidence: Oakland County program helps jurors with trial trauma

Television police dramas routinely feature gruesome crime scenes and postmortems performed in the clinical hush of the autopsy lab.

The small-screen version of violent crime and its gory aftermath is portrayed with a graphic frankness that most of us absorb without blinking. We remind ourselves that it's just actors playing corpses, assisted by skilled makeup artists and remarkably realistic special effects. We sometimes wish they weren't quite so good at their craft.

But the storyline and the actors playing the detectives, scientists and suspects are intriguing. We get frequent breaks to focus on other things, like the newest cars, fashions and personal care products, or to make two-minute runs to the bathroom and the fridge.

All of this helps us overcome our natural aversion to blood and gore and to instead accept it as entertainment. And if we can't handle it, there's always something else to watch.

In the harsh reality of a criminal courtroom, however, the blood and gore are not illusions. The crime-scene and autopsy photos are real. The testimony is real. The dead, the survivors and the horrific details, are real.

And the everyday citizens drafted to be jurors can't change the channel.

In Oakland County this week, reports the Detroit Free Press, a jury will hear a case in which the defendant is accused of shooting his ex-girlfriend in the head while she was sleeping with their baby. He then allegedly returned to scene, soaked the bed with gasoline where the dead woman and the still-alive child lay and set it on fire, killing the child.

Jurors in that case, however, will have the benefit of Oakland County's Juror Debriefing Program. Run by the Common Ground Sanctuary in Royal Oak, trained counselors will be available to help jurors who want help coping with the stress and trauma of dealing with disturbing evidence.

For years, Common Ground has provided assistance to individuals and families in crisis. Program coordinator Margo Eby, writes the Free Press's L.L. Braiser, felt that "[h]elping jurors seemed like the next logical step."

Juror debriefing programs are becoming a national trend as more and more jurors report stress and trauma associated with hearing emotionally grinding cases. The National Center for State Courts has been researching the problem and has a reading list available.

Voter photo ID law gets first test next Tuesday

Michigan's not-so-new law requiring voters to show photo identification gets its first test this Tuesday, Nov. 6, in local elections around the state.

The long, conflicting road to a photo ID law The law was one of several 1996 amendments to the Michigan Election Law. Before the law took effect, then-Attorney General Frank Kelly issued an opinion, in which he said the photo ID requirement violated the Equal Protection Clause. The law lay dormant for eight years. In 2005, it was revived, unchanged, by other election law amendments, effective Jan. 1, 2007. With Frank Kelly's opinion lurking in the background, the House asked the Michigan Supreme Court to answer this question in an advisory opinion: "Do the photo identification requirements contained in 2005 PA 71 violate either the Michigan Constitution or the United States Constitution?" In an order issued in April 2006, on a 5-2 vote, the question the court chose to answer was, "Do the photo identification requirements of Section 523 of 2005 PA 71, MCL 168.523, on their face, violate either the Michigan Constitution or the United States Constitution?" Justice Marilyn Kelly dissented for two reasons. First, the House framed the question too broadly. Second, the question the majority agreed to answer was not the question asked. Justice Michael Cavanagh also dissented. The court issued a 5-2 opinion, which held "that the photo identification requirement contained in the statute is facially constitutional under the balancing test articulated by the United States Supreme Court in Burdick v Takushi." Information from "Michigan's Photo ID Requirement for Voters"

If you don't have such ID, or you do and you left it at home, you can still get a ballot but you must sign an affidavit to that effect.

There's a stiff penalty for lying about the status of your ID, or the lack of one: you could be convicted of perjury, pay a fine of up to $1,000 or spend up to five years in prison, or both.

They're not fooling around.

What's acceptable photo ID? The Secretary of State's office has provided a helpful list.

There's been much speculation about what effect the law will have on voter participation and whether it prevent the evil it was designed to cure - election fraud.

Here's the take of Suzanne Lowe, Michigan Senate Bill Analysis Coordinator, in her article, "Michigan's Photo ID Requirement for Voters." It's in the latest issue of "State Notes: Topics of Legislative Interest."

According to the Secretary of State's office, approximately 370,000 registered voters in Michigan (or about 5.0 percent of all registered voters in the State) do not have either a driver license or an official State identification card. There are no data on the number of voters who also do not have any of the other types of photo ID that the Secretary of State considers acceptable. Of the voters who do have photo ID, there is no way of knowing how many will not bring it to the polls because they forget to or do not know about the law's requirement. It also is not possible to predict how many voters who do not have photo ID, or have it but do not bring it to the polls, will be unable to sign an affidavit because they cannot read or understand the document, or will be unwilling to sign one because they feel intimidated or embarrassed or simply do not want to take the time.

Whether the photo ID requirement actually represents a "barrier to the ballot box," as critics contend, may be known only after the requirement is implemented, and perhaps only after it is enforced during the November 2008 general election. Whether the requirement serves to prevent voter fraud may never be know. Although there have been convictions in Michigan for illegal activity during voter registration drives, there does not appear to be any evidence of the type of in-person polling place voter impersonation that the photo ID requirement might deter. As some contend, this may be because of the difficulty of detecting such activity and catching the offenders. On the other hand, to the extent that such fraud does occur, it is questionable whether the penalty for signing a false affidavit will deter someone who is willing to commit a felony by voting under a false name or impersonating another elector.

Ohio Supreme Court pans Fieger client's $30M verdict

It was the Ohio Supreme Court's turn last week to do what Michigan appellate courts have done several times over the past few years - wipe out a multi-million dollar verdict for one of Geoffrey Fieger's clients.

This time, it was a $30 million jury award for a 20-year-old man who was born with a damaged brain and other serious problems.

The reason the OSC brought the curtain down on the verdict? In part, it was Fieger's "theatrics" in the courtroom.

Now, the trial judge wasn't exactly blame-free either. As recounted by the OSC, the trial judge let Fieger's expert testify, over defense counsel's objection, about medical-care costs far in excess of the figure the expert provided in a written report. And then there was the judge's in-the-hallway off-the-record instruction to jurors, some of whom admitted they saw a newspaper article about the trial. The judge's on-the-spot attempt to unring the bell: he told the jury to disregard what they had read.

When the defense team demanded a new trial, the judge readily agreed. The OSC noted the trial judge's acknowledgement that his miscue with the expert allowed the jury to think about, and award, $15 million in economic damages. And the newspaper article? The judge said he had read it, too, and he could easily see how some of the jurors may have been itching to give Fieger's client a record-breaking award.

Another big influence on the jury, the trial court and the OSC agreed, was the man from Oakland County, Michigan and the way he conducted himself in court.

Some Michigan judges have seen it, said it before Michigan's appellate courts, on occasion, have been extremely critical of Geoffrey Fieger's trial tactics, and have taken him to task for many of the same things discussed in the Ohio courts' opinions. See, Powell v. St. John Hosp., Badalamenti v. William Beaumont Hosp., and Gilbert v. DaimlerChrysler.

The OSC echoed the trial judge's observations that: Fieger was discourteous; there were plenty of theatrics; he interrupted defense counsel; he put his own words into the witnesses' mouths; he mischaracterized evidence to mislead the jury and he brought the forbidden issue of attorney fees into play.

In closing argument, the OSC said, Fieger dwelled on a spoliation-of-evidence claim, even though the trial judge had earlier thrown it out. And he cast the case as an epic struggle between a poor black guy and rich, powerful corporate interests.

In the end, the OSC said the jury did pretty much what Fieger asked: it looked at its $15 million economic damages award on the verdict form and wrote another $15 million in the space for punitive damages.

After the trial judge entered the order for a new trial, the plaintiff's team moved to disqualify him. Apparently, the trial judge had had enough and voluntarily recused himself from further proceedings.

Up in the Court of Appeals of Ohio, Eighth District, the majority and dissenting opinions reveal that none of the judges were concerned about the trial judge's extracurricular handling of the newspaper article. The majority said Fieger hadn't objected and defense counsel apparently had a private chat with the trial judge about the article. They weren't about to reward a claimed error that defense counsel instigated.

The majority characterized Fieger's performance as zealous representation. "While we agree that plaintiff's attorney does not appear in the transcript to be the most likeable person, we do not find that his conduct rises to the level to justify the granting of a new trial." In contrast, the dissenting judge spent 27 pages detailing what she called Fieger's "manipulative trial technique" and "the extent of his outrageous melodrama" in his closing argument, which, she said, was enough by itself to warrant a new trial.

The majority said the defense team was not contesting liability on appeal, only the super-sized verdict. Because there was sufficient evidence to support the jury's liability finding, there was no need for a new trial. The majority conceded that there were problems with the expert testimony on damages. Remittitur would be the correct remedy. And, "the trial court is in the best position to determine whether a damages award is excessive."

The OSC said the appeals court was looking at the wrong thing. It's not about whether there was sufficient evidence to support the jury's verdict. It's all about the trial court being in the best position to determine whether the jury's verdict "was excessive and given under the influence of passion or prejudice" and whether counsel's misconduct "tainted the verdict." The OSC ruled that if there's competent, credible evidence to answer "yes" to these inquiries, as there was in this case, the trial court does not abuse its discretion by ordering a new trial, and that decision "should remain undisturbed."

A dissenting justice sided with the lower appeals court majority on the issue of remittitur.

He also had this to say:

To order a retrial because of the obnoxious behavior of an attorney does our system of justice no favors - such behavior must be dealt with as it occurs, not after a judge decides that a party may have benefited from it.

The verdict should be knocked down to $10 million, the dissenter said. That's a lot closer to the evidence of economic damages.

And he closed with this zinger:

Should the plaintiff refuse the remittitur, he would be entitled to a new trial. Before that trial, it would be wise for the trial judge to deny any motion for admission pro hac vice filed on behalf of Mr. Fieger.

The case is Harris v. Mt. Sinai Medical Center.

Antitrust claim treated as board game, says judge

From the late 1980s through 2001, if you did your own body work on your car and you needed automotive sandpaper, you had two choices, 3M or NicSand. Now the only choice is 3M.

Sixth Circuit Judge Boyce F. Martin, Jr. thinks that's abrasive.

Most folks with banged-up cars let the bump shop deal with the patching and painting, and the resulting dust and stink. So, there's not a huge do-it-yourself market for automotive sandpaper.

It doesn't make economic sense for retailers to stock both brands. That's why the retailers NicSand and 3M dealt with insisted on annual, exclusive-supplier agreements. The retailers were not adverse to switching suppliers. But to get in, you had to furnish a full line of products, provide all the display equipment, discount the first order and buy the retailer's current inventory of sandpaper.

This worked extremely well for NicSand until 1997, when 3M decided to get serious about improving its one-third market share. One-by-one, over a several-year period, 3M offered the retailers six- or seven-figure incentive payments to stock 3M products on an exclusive, multi-year basis. The retailers told NicSand to come back in a few years and maybe we can talk business then.

When 3M was done, NicSand was out of the automotive sandpaper business, into bankruptcy court seeking reorganization and on the phone to its lawyers to sue 3M for antitrust violations.

The issue in the Sixth Circuit was antitrust standing. Judge Jeffery S. Sutton, writing for an en banc majority, said NicSand didn't have it because 3M's pricing was not predatory and there was no illegal tying (being forced to buy one product to get another product that you really want). The incentive payments were price cuts offered in exchange for getting the retailer's business. And the multi-year contracts? This was no different than buying in bulk to get a discount. What about the exclusive nature of the contracts? This was the retailers' condition, and 3M couldn't be faulted for going along with that.

Judge Martin, in dissent, said the case made him long for the good old days

when monopoly was an evil targeted by Congress and guarded against by the antitrust laws of the United States. Since their enactment, it has been the purpose of the federal antitrust laws to prevent the emergence of entrenched monopoly power and "to perpetuate and preserve, for its own sake and in spite of possible cost," the existence of competition in industry. ... Today, however, the majority treats monopoly more as a board game than as an economic harm to the public.

Judge Martin continued

The majority seeks to characterize this case as one in which one company that had long prospered in a particular niche market became lazy and fell victim to a more vigorous competitor that simply played the game of business more effectively. While NicSand may have once been the dominant competitor, that former status can neither legalize 3M's anticompetitive business practices nor make 3M immune from antitrust suit. Yes, NicSand was 3M's competitor, and yes, it obviously fell prey to 3M's tactics. However, 3M now holds a monopoly over the market, products have been eliminated and prices have correspondingly risen by seventy percent. The question here is whether the tactics 3M employed to attain that status were legal and whether NicSand is an adequate representative of the market's interests in this suit. Contrary to the majority's contentions, at this stage of the case [dismissal on a Rule 12(b)(6) motion with no discovery], it is impossible to conclude that NicSand has failed to meet its burden. The dangers of monopoly are well-recognized in our law ... and I believe the majority has improperly turned a blind eye to them in this case.

The case is NicSand v. 3M.

Bill to keep cars from judiciary motors along

Compensation for Michigan Supreme Court justices and Court of Appeals judges would not include the use of state-owned or state-leased vehicles under legislation that has cleared the Michigan House General Government Committee.

The committee has reported out (see pages 8 and 9 in the linked document) a pair of bills, HB 5005 (amends the Revised Judicature Act) and HB 5006 (same thing but amends the Management and Budget Act), that address the matter.

The legislation has a bit of the "Department of Redundancy Department" feel to it because, if enacted, it will accomplish by law what has already been put into practice by the MSC justices and COA judges themselves. The bills also include all the state's trial-court judges, who never had state-owned vehicles to begin with.

Responding to media reports last April about the costs associated with issuing judicial branch employees state cars, all of the justices and COA judges turned theirs in, amid some grousing and speculation that using their private vehicles for court business may be a false economy once they're reimbursed for mileage.

MSC recusal standards: constitutional amendment being drafted

A state constitutional amendment that would require Michigan Supreme Court justices to recuse themselves "in any proceeding in which the judge's impartiality might reasonably be questioned" is in the works at the request of Rep. Mark Meadows, (D-East Lansing).

This would include situations where campaign contributions to a justice from a party's lawyer or the lawyer's law firm exceed a specified amount over a given time period.

The amendment is being patterned after Rule 2.11(A)(4) of the American Bar Association's (ABA) Model Code of Judicial Conduct, according to a spokesperson from Meadows' office.

Meadows, a member of the House Judiciary Committee, asked the Legislative Service Bureau to prepare the amendment earlier this month, after the committee took testimony from Rich Robinson of the Michigan Campaign Finance Network (MCFN).

The MCFN has been making its case for the MSC to develop recusal standards when justices, litigants and money are intertwined. This is a suggestion the court is not likely to act on any time soon. See, Michigan Lawyer: Campaign cash and recusal: a lost cause in the MSC?

Public financing of MSC election campaigns has also been a long-standing priority for the MCFN. See, Michigan Lawyer: Justices, money, elections and recusal In his testimony, Robinson told the committee that public financing of MSC election campaigns would eliminate "much of the cause for concern about recusal."

Campaign cash and recusal: a lost cause in the MSC?

In an earlier post, Michigan Lawyer: Justices, money, elections and recusal, we took a look at two Michigan Campaign Finance Network proposals.

One recommended "voluntary full public funding" of Michigan Supreme Court elections.

The other urged the MSC to "develop standards for recusal for cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices."

Recusal: a heated debate in the MSC Over in the Hall of Justice, the topic of recusal has generated ferocious debate among the justices. The arguments have focused, for the most part, on the court's practice of letting justices who are the subject of a recusal motion decide the motion themselves and whether the justices are required to provide reasons for a decision to either remain on the case or to back off. Historically, the justices have remained silent about their reasons. But since 2003, Justice Elizabeth A. Weaver has become insistent that reasons be provided. See, e.g. "If it ain't broke... MSC declares procedures for handling recusal motions don't need fixing" and "Is it time for MSC to reform how it handles recusal motions? Experts weigh in on impact of high court's recent ruling". The latest salvos are in two of the high court's orders, Jordan v. Dep't of Labor & Economic Growth, and Fieger v. Cox.

The issue of recusal standards addressing justices and political financial matters is a subset of the larger issue of the high court's recusal procedures in general. See the sidebar on the right.

The Legislature will need to hash out any public funding proposal. Recusal standards based on campaign contributions are within the court's domain, but with the court's current makeup, this is not likely to happen anytime soon.

Here's why.

In Adair v. State of Mich., the plaintiffs asked Chief Justice Clifford W. Taylor and Justice Stephen J. Markman to recuse themselves because both justices' wives worked for the office of the Attorney General, who was defending the case.

The motion produced a memorable response, in which every justice weighed in on the topic of recusal. And, Justices Taylor and Markman, previously staunch defenders of the court's "no reasons" tradition, broke that tradition when they filed an 18-page statement explaining why they were denying the motion.

They responded to every argument the plaintiffs made, and then gratuitously addressed a topic the plaintiffs hadn't mentioned — campaign contributions.

They started with some undisputable givens: every “justice in Michigan in modern times” has received campaign contributions; under the state constitution, justices must compete in elections; it takes bushel baskets of money to run a campaign and the money has to come from somewhere. Then they said this:

Of considerable relevance to the subject of campaign contributions as a basis for recusal is the Legislature’s establishment of limits on individual and political action committee contributions to Michigan judicial candidates. MCL 169.252 and 169.269. Such limits must be understood as clearly reflecting the Legislature’s, and the people’s, understanding that contributions in these amounts will not supply a basis for disqualification. That is, lawful contributions made within these limits, lawfully reported and lawfully disclosed, cannot fairly constitute a basis for judicial disqualification. Otherwise, these statutes, just as MCR 2.003 and Canon 3(C), would be little more than cleverly devised snares to be exploited by those wishing to undermine individual judges. A judge who plays by the rules should not be required to recuse himself or herself on the basis of such conduct. Thus, we assume, as have all the justices before us, that the Legislature decided that lawful campaign contributions would not give rise to a basis for judicial recusal.

Those words were written Jan. 31, 2006.

In statements released the same day, both Justices Robert Young and Maura Corrigan indicated support for the joint statement of Justices Taylor and Markman.

Justice Young: "I support their joint statement and fully concur in the legal analysis of the ethical questions presented in it."

Justice Corrigan: "I agree with their legal analysis of the ethical issues raised."

There's no reason to think that any of them see things differently now.

On a seven-justice court, four votes are needed to make things happen.

And that’s why the MCFN’s suggestion that the court develop recusal standards addressing the issue of political money will remain just that, a suggestion, as far as the Michigan Supreme Court is concerned.

Attorneys barred from this bar: tavern owners say 'No Lawyers'

So, you want a back-yard swimming pool to come home to after a hot, busy day of running a tavern but your neighbor, an attorney, spoils your fun with a lawsuit.

One year and $10,000 later, you've got your pool. Now you want revenge.

You decide you'll use your business to let the whole world know just how you feel about meddlesome members of the legal profession.

The result is Butch and Jody Morrison's Crescent "No Lawyers" Bar & Grill in Boise, Idaho.

"They can't be serious," I thought, but an on-line search gave me some doubts. "No lawyers, no kids, no kiddin'," popped up on one result. "If you practice law ... keep your mouth shut," another warned.

Okay, I had to know more. I called the Crescent and said, "Hi! I'm an attorney and I write for a legal newspaper in Michigan. I have a few questions. Is someone there who could me help out?"

As I sat on hold, I began to think that maybe I hadn't said the right thing.

Pollsters say lawyers and reporters are among the most despised people on the planet. Two strikes against me. I took little comfort while scanning the Crescent's Lawyer Jokes page and ran across this one:

A group of headhunters sets up a small stand near a well-traveled road. The bill of fare is as follows:
Sauteed Tourist $10
Braised Reporter $12
Fried Diplomat $15
Barbecued Lawyer $110
A customer, noticing the great price differential, asked why lawyers cost so much.
The headhunter replied, "If you had ever tried to clean one of those devils, you would understand."

I checked the Crescent's bill of fare, entitled "Legal Brief." Appetizers included a "So-Su-Me Platter" and "Prosecution Prawns." Other choices: "Witness Stand Soups & Salads," "Jailhouse Sandwiches," "Law Firm Specials" and "Courthouse Burgers." There were only a couple of suspicious items. "Lawyer Limbs" are the Crescent's version of chicken wings with hot sauce. And there are "Lawyer Fries," but you'll need to look at the menu yourself for the lowdown on that one.

A bit more browsing on the website started to produce other evidence (an on-line store and a light-hearted history of the Crescent) that this whole "No Lawyers" thing might just be a big tongue-in-cheek joke. That's when the phone line clicked back to life.

The person on the other end apologized for the wait, explained I had called during the lunch hour rush and someone could be available later. A faux pas on my part, I insisted. I forgot about the two-hour time difference between Michigan and Idaho.

But I had to ask the pay-off question.

"So what happens if you actually find out someone is an attorney?"

"We charge 'em a lawyers fee," she deadpanned.

New trend: fewer business suits

This has nothing to do with casual Fridays or clothing shortages at your favorite tailor or department store.

This has everything to do with the declining involvement of U.S. businesses in litigation, both as defendants and plaintiffs, as reported in a survey released yesterday by the Houston-based, mega-international law firm of Fulbright & Jaworski.

For the first time since the firm began tracking such matters, major U.S. corporations have reported "a distinct drop in the number of lawsuits filed against them."

In the firm's "Fourth Annual Litigation Trends Survey Findings," 17% of in-house counsel at 250 major U.S. corporations say they haven't had to defend a new suit in the last year, compared with 11% in the 2005-06 reporting period.

They've also been a little less eager to sue. Sixty-five percent of the survey respondents reported filing at least one new suit, down from 70% in the prior reporting period and down more sharply still from 2004, when 88% said their company filed at least one new suit.

But there's plenty of unfinished business. One-third of the companies say they have more than 25 suits in process at any one time, and 18% have over 100.

Governmental action against corporations continues to be a significant source of litigation. Almost half reported some type of regulatory proceedings brought against them in the last 12 months.

The survey notes a dip in securities and bankruptcy disputes and an up-tick in product liability and patent cases.

The survey also includes information about average settlements, use of outside counsel and attorney billing (including alternative fee structures) and company attitudes toward their outside lawyers, to name a few.

Download a copy here.

Justices, money, elections and recusal

A pair of recent reports from the Michigan Campaign Finance Network touch on the touchy subjects of how election campaigns for the Michigan Supreme Court are financed, and standards for recusal when litigants and justices have "substantial financial ties," whether personal or political.

In "A Case for Political Reform in Michigan," the MCFN argues that the state "should provide voluntary full public funding for Michigan Supreme Court campaigns so voters have the opportunity to support candidates who demonstrably have no financial connection to interest groups that subsequently become litigants before the Court."

The MCFN's 2006 Citizen's Guide to Michigan Campaign Finance (caution: this is a big file; if you have a wimpy computer and/or internet connection, you'll need to be patient) details MSC candidate campaign spending in the last election. Check out Appendix M, which names, to borrow Justice Robert Young's phrase, some of "the usual suspects" who contributed to Justices Maura Corrigan and Michael Cavanagh's 2006 campaigns.

The Guide also bemoans Michigan's "weak campaign finance law," which allows special interest groups to run so-called "issue ads."

Issue advertising advocates particular positions or recommends courses of action that stop short of actually telling viewers to vote for or against a particular candidate. Such advertising does not fall within campaign expense reporting requirements.

We're not talking about trivial sums. From 2000, the first year for which the Guide provides issue advertising figures, through 2006, total spending on all MSC races was almost $23.2 million. Of that figure, issue advertising accounted for $10.5 million.

The problem with issue advertising, according to the MCFN's "Case for Political Reform," is that "with more than one-third of the spending coming from anonymous sources, there is no way to evaluate the nature or the scale of the financial connection between the justices and the judged."

The MCFN recommends that all "issue advertising" that mentions a candidate by name within 60 days of an election should be considered campaign expenditures subject to reporting requirements.

And, this report continues, "[a]s long as huge sums of private interests' money are involved in the judicial selection process, the Court should be attentive to the fact that political money compromises the appearance, if not the reality, of its judicial impartiality."

The MCFN urges the MSC to "develop standards for recusal for cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices."

Easier said than done.

We'll have more about this in a future post.

Shaperio Bankruptcy Symposium: all about Chapter 13

There's still time to register for the 3rd Annual Walter Shaperio Bankruptcy Symposium at the Westin Hotel in Southfield this Wednesday, Oct. 17.

Professor Scott Norberg, from the Florida International University College of Law, is all set to tell bankruptcy practitioners about "The Good, the Bad and the Ugly: What does Chapter 13 accomplish for debtors and creditors?"

Things get underway at 6 p.m. Chief Judge Steven Rhodes of the Bankruptcy Court for the Eastern District of Michigan would love to see you there.

Here's a registration form with all the details.

For more information, call Leslie Berg at (313) 226-7950 or David Lerner at (248) 901-4010.

It's not legit: jury duty calls are scam

You're fairly certain that you haven't received a jury duty summons, but the person on the phone, who claims to be a court official, says that you have, you didn't show up and now the judge is angry enough to issue an arrest warrant.

This can all be cleared up, the caller continues, if you'll just provide your date of birth, your Social Security number and some credit card information.

Hang up! Call the cops and the court the caller claimed to represent, warns State Court Administrator Carl Gromek, pictured on the left.

It's a scam.

The only way Michigan state courts contact prospective jurors is by mail, Gromek said. "Be aware: prospective jurors can call courts, but courts don't initiate those calls. And courts never call prospective jurors to get their financial information."

The Niles Daily Star reports that this scam is currently being run in Berrien County, in the southwest part of the state.

Gromek has these pointers to avoid have your pocket electronically picked:

• Courts do not contact citizens by phone regarding jury duty. Be suspicious if a person calls claiming to be a court official or staff person.
  
• Be skeptical if you are told, "In order to avoid prosecution for missing jury duty, you must provide your social security number now so we can verify your information."
  
• Be suspicious if the person pressures you for immediate action or refuses to send written information for you to review.
  
• Never give out your bank, credit card, or social security information over the phone to someone who calls you.
  
• If you are uncomfortable, hang up, even if the caller threatens prosecution.
  
• Report suspicious calls to local police.
  

We're pretty sure it won't be boring

Dictionary publishers looking to illustrate the word "outspoken" could do no better than by printing the photograph on the right.

That's not-so-instantly-recognizable attorney Geoff Fieger, the hands-down favorite for the title of "Michigan's Most Controversial Attorney Ever," behind the yellow tape. The image is part of "Fieger: Inside Out," a collection of work being displayed by artist Holly Flory at The Print Gallery & Everything Art in Southfield through Nov. 1.

The gallery is located near 12 Mile Rd. and Northwestern Highway. Call 248-356-5454 for more information.

Judges: Is there a better way to pick them?

The November 2008 election for the Michigan Supreme Court, pitting the presumed Republican candidate, incumbent Chief Justice Clifford Taylor, against a yet-to-be-named Democrat, is shaping up to be a spendfest that may rival the 2000 contest, in which three seats were open on the high court.

A couple of weeks ago, Michigan Supreme Court Justice Robert Young told the Republican faithful at a Mackinac Island conference that it might take $20 million to keep the chief in office. In response, Democratic State Party Chair Mark Brewer promised that his party will do whatever it takes to make sure that doesn't happen. See, Michigan Lawyer: The public should care

Whether the 2008 campaign ads will be just as silly and mind-numbing as in years past - "soft on crime," "anti-family," "lacks experience," "Markman and Taylor and Young, oh my!" (chanted to a Wizard-of-Oz cadence by dancing, animated trees) - remains to be seen.

Reform advocates say the way to end all of this nonsense, and to obtain a judiciary less beholden to special interests, is to switch to an appointment process. At the heart of all such plans is the idea that those seeking a seat on the bench would go through a vetting and winnowing process. Survivors then get the appointments.

This is not a new thought. After the 2000 election, then-Chief Justice Elizabeth Weaver championed an appointment plan featuring non-renewable 14-year terms. See, "CJ Weaver Calls For New Method To Pick Justices" Former State Sen. Ken Sikkema floated the Missouri Plan: appointments followed by retention elections. See, "Wanted: Judicial Selection Changes"

As far back as 1994, responding to news stories of judicial smear campaigns, the late Justice James H. Brickley called for adoption of the Missouri Plan. See, "Appointing judges: A solution to 'low road' campaign tactics"

Now comes a recent study from the University of Chicago Law School that tests the notion that appointed judges are "better" than elected judges and concludes that either way may not make much of a difference.

In "Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather than Appointed Judiciary," by Stephen J. Choi, G. Mitu Gulati and Eric A. Posner, the authors measured judicial independence, productivity and "opinion-quality" to determine whether elected or appointed judges are "better."

The authors say that underlying all the clamor for doing away with judicial elections is "the conventional wisdom among lawyers and scholars that judges should be appointed by elected officials or independent commissions .... The conventional wisdom reflects a deeply rooted conviction that voters are too unsophisticated to evaluate judges and candidates for judicial office."

But the authors note that when "judges use campaign contributions to finance simple-minded television commercials, conflict of interest is layered on public confusion."

Yet, "[i]n a system that uses judicial appointments, nothing forces the appointing official to select judges on the basis of their legal ability; cronyism is very common."

The paper's abstract concludes that the "empirical results do not show appointed judges performing at a higher level than their elected counterparts. Appointed judges write higher quality opinions than elected judges do, but elected judges write many more opinions, and the evidence suggests that the large quantity difference makes up for the small quality difference. In addition, elected judges do not appear less independent than appointed judges. The results suggest that elected judges are more focused on providing service to the voters (that is, they behave like politicians), whereas appointed judges are more focused on their long-term legacy as creators of precedent (that is, they behave like professionals)."

Another form of bankruptcy

They pile up.

More and more keep coming every day.

You know you need to deal with them.

"But what I really need," you think to yourself, "is a fresh start."

We're not talking about a big stack of bills. We're talking about all of that stuff in your e-mail in-box.

We're talking about declaring "e-mail bankruptcy."

Michelle Kessler, in a USA Today article, says that some "prominent techies" are dealing with jam-packed in-boxes "by declaring 'e-mail bankruptcy' - deleting or archiving an entire in-box and starting over."

One guy wiped out a three-year backlog that way.

Drastic stuff, but sometimes desperate situations call for desperate measures.

Kessler writes that Intel, the giant chipmaker, is taking a more measured approach to email overload by declaring "Zero E-mail Fridays." Intel's engineers are being encouraged to pick up the phone instead, or even meet face-to-face with colleagues.

But if a zero e-mail day (or even two) each week doesn't solve your overload problem, the nuclear option of total e-mail bankruptcy may be the answer.

Unless, of course, you're getting this blog fed to you via e-mail. There is such a thing as being overzealous.

We'd prefer that you think of us as an exempt asset, instead.

Going broke? Join the crowd

One of the few places in Michigan where business is booming these days is the United States Bankruptcy Court for the Eastern District of Michigan.

The court led the nation in filings for six consecutive quarters since the beginning of 2006 through the end of June this year, Chief Judge Steven Rhodes reported in his "State of the Court" address yesterday.

In a 12-month period ending in June, the court had 31,744 filings.

And the court's judges are working harder than most. Rhodes said his court's judges have a weighted caseload of 3,169 each, compared with a national average of 946.

"Stated another way, in order for us to have the average judge's case load, we would need 16.4 bankruptcy judges in our district!" exclaimed Rhodes.

Help is on the way. Rhodes said he doesn't want to be greedy, so he's asked for three more judges. The Judicial Conference of the United States has signed off on the request, congressional support looks good, and federal administrators have told Rhodes to start looking for a place to put the new judges.

On a dour note, Rhodes said Chapter 7 debtors need to be more forthcoming about disclosing administered assets. Thirty-seven percent are not "fessing up" to all that they have.

Rhodes said proposed amendments to the court's local rules, if adopted, will give trustees and the U.S. Attorney's Office more muscle power to enforce asset disclosure rules.

"[O]ne of our new proposed local rules would require the trustee to file a report whenever the trustee discovers an undisclosed asset after the debtor testifies at the meeting of creditors that the schedules are accurate. Another ... would require the debtor to provide additional documents at the meeting of creditors," Rhodes explained.

Who will replace Whitbeck as COA chief?

True to his word, Michigan Court of Appeals (COA) Judge William C. Whitbeck is stepping down from his post as the court's chief judge at the end of the year, according to a Michigan Information & Research Service (MIRS) report.

Judge Whitbeck is on the last leg of a third, two-year term, and, MIRS reports, he announced a while back that he wasn't going to seek a fourth term as the COA's top administrator.

Last April, Michigan Supreme Court Chief Justice Clifford Taylor asserted that the COA had four too many judges. When the State Court Administrative Office (SCAO) released recommendations in August that backed Taylor's position, Whitbeck debunked the report in a sharply worded memo addressed to the rest of the COA judges.

The Michigan Supreme Court appoints chief judges for all of the lower courts, including the COA. Given Whitbeck's outspoken opposition to reducing the number of COA judges, even if he wanted a fourth term, Taylor, if he were of a mind to do it, could probably find three other votes on the high court to give the job to someone else.

MIRS says four COA judges have asked to be considered for the chief judge position. They are Pat M. Donofrio, Donald S. Owens, Henry William Saad and Michael J. Talbot.

Those of you interested in handicapping this horse race might consider this: when the COA released an initial position paper that urged the MSC to reject the SCAO's recommendation to cut four judges, Donofrio is the only one of the four chief judge candidates who signed a dissenting statement, which counseled that the COA should neither support nor oppose the SCAO recommendation.

We're not discretionary

What do cable or satellite television, sports and concert tickets, car repair, golf greens fees, marina fees, movies, and hair cuts have in common with legal fees?

These are among the services that won't be subject to Michigan's 6 percent sales tax.

The exemptions were part of some last-minute negotiations that helped push through a budget deal much earlier today to avoid a state shutdown.

But services such as bail bonding, bondspersons, consulting and lobbying, private investigators, couriers and messengers, and document preparation will get hit with the state sales tax.

According to an Associated Press report, state Treasurer Robert Kleine explained that "[e]xtending the sales tax to some services starting Dec. 1 would bring in an estimated $614 million for the 10 months remaining in the fiscal year at that point, or about $750 million annually."

So, why were some services hit with the sales tax and not others?

A quick look at a partial list of what's being taxed and what isn't might leave you scratching your head.

The AP offered this explanation, attributable to Kleine: "The tax is designed to apply to services that people don't have to use if they want to avoid the tax."

The Detroit News had this take from Kleine: "lawmakers took care to skip services that are deemed unavoidable, such as plumbing and car repairs. 'It's discretionary only,' he said."

So, a lawyer's services are considered just as essential as getting that leaky faucet fixed or that gummed-up carburetor overhauled.

Good news for law firms and their clients.

But having the untaxed services of an attorney, plumber or mechanic is apparently just as vital as being able to watch The Weather Channel or teeing one up and smacking it straight down the fairway without the state taking a cut of the action.

Governor Jennifer Granholm and state lawmakers are keeping mum about this for now.

But a lot of explaining will need to be done later.

Black-robe blues: less green next payday

As the politicians bicker, posture and finally begin to wheel-and-deal in the 11th hour to solve Michigan's lack-of-budget problem, the state's 621 judges can look forward to lighter paychecks next week.

It works like this: without a budget in place by Monday, Oct. 1, the state legally can't spend any money. Payroll deadline was Wednesday, Sept. 26. The judges' checks are for two weeks of work and include pay for work done through the end of payday. The next time the eagle flies for the judges is Thursday, Oct. 4.

In a decision that any reviewing jurist would undoubtedly find legally impeccable but perhaps personally distasteful, the state determined that the only way to stay within payroll policy and the law was to not pay the judges for work done Oct. 1 through the end of the current pay period.

Their checks will be about $2,000 short, on average, according to a report in the Grand Rapids Press.

There will be a make-good after a new budget is in place.

No canned laughter for the real thing

In a classic two-part "Seinfeld" episode from the mid 90s, Newman, the pudgy mail carrier, ensnares wild-haired Kramer in a madcap scheme to profit from Michigan's 10-cent beverage container deposit law by collecting 5-cent bottles and cans in New York and driving here to cash them in.

In the show about nothing but where improbable events happen continuously, Newman, Kramer and the containers never make it to Michigan. The cargo is jettisoned, along with Newman, somewhere in Ohio to make the truck go faster as Kramer chases a stolen car belonging to Jerry, the title character.

The stolen car's driver, the mechanic who was supposed to fix it, disables the pursuing truck by tossing golf clubs at it from a set he finds in the back seat. One of the clubs nails the truck's radiator. These clubs were once owned by President John F. Kennedy.

Don't ask. Get the DVD if you can't remember or if you're even slightly curious.

And know this for certain: life does imitate art.

Michigan Attorney General Mike Cox has announced that 15 individuals from Michigan and Ohio are being charged with a complex scheme that allegedly involved collecting millions of non-deposit bottles and cans from outside Michigan, crushing and bagging them, and then selling them to Michigan stores at a discount. The storekeepers then allegedly took the crushed containers to bulk redemption centers and obtained payments from the Michigan Bottle Deposit Fund.

Thirteen people have been arrested so far. Over $500,000 has been seized. Twenty search warrants are being executed today. All of this caps an 18-month investigation.

"A half-million in cash is not 'Seinfeld' humor," said Cox spokesman Matt Frendewey.

The public should care

Oakland County Probate Judge Eugene Arthur Moore took to the pages of the Saginaw News a couple of weeks ago with a guest column entitled, "Change rules to raise confidence in court."

He wrote about the need to ensure the public's faith in the legal system. Two reforms, according to Judge Moore, will help accomplish this.

First, the Michigan Supreme Court needs to formally adopt rules "that give litigants and their attorneys a clear basis for knowing when a Supreme Court justice should be disqualified from hearing a case."

Second, "the Supreme Court must adopt a rule that does not restrict what justices may write in their opinions."

We've previously written about both issues. See, "If it ain't broke ... MSC declares procedures for handling recusal motions don't need fixing,"
and, "Supreme Court confidential ... MSC's codification of unwritten 'deliberative privilege' draws on historical practices, raises enforcement questions."

These are important issues, to be sure. But frankly, it was Judge Moore's opening observation that drew my attention.

"[W]e need to make sure we have fair and impartial judges. The public doesn't care if we were appointed by a Republican or Democratic governor, whether we are members of the Federalist Society or The American Constitution Society, whether we are a 'liberal' or 'conservative.'"

Yet, in the high-stakes game of selecting justices for the Michigan Supreme Court, either by gubernatorial appointment or election, it is precisely these considerations that come into play.

It's hard to ignore them, given that MSC candidates are nominated by political parties but later presented to the public on a nonpartisan ballot.

Some folks need to have the public to care very much, otherwise millions of campaign dollars are being ill-spent to influence choices.

Consider a recent report from our good friends at the Michigan Information & Research Service (MIRS).

"Keeping in place 'the nation's most conservative Supreme Court' after 2008 will be an expensive affair and it can be made easier if those attending the Mackinac Republican Leadership Conference open up their wallets and Lincoln Day dinners for incumbent Chief Justice Clifford TAYLOR, said Justice Robert YOUNG on Saturday morning [September 22]," according to the MIRS report.

"The Supreme Court is holding a 'razor-thin' 4-3 conservative majority on the state's high bench," Young said, conveniently roping in fellow Republican-nominated and independent-minded Elizabeth WEAVER with the rest of the 'liberal, law-writing judges.'

"Like the six prior Supreme Court elections before it, Taylor's 2008 re-election to the court 'Ronald REAGAN always wanted' will be hotly contested by 'the usual suspects' in an estimated $20 million campaign," MIRS reported.

Now consider Michigan Democratic Party Chair Mark Brewer's response to Young's remarks.

"Taylor will lose a $20 million race because we will do whatever it takes to beat him," Brewer said. "From abusing perks to controversial decisions to Supreme Court infighting, Cliff Taylor's term as Chief Justice has made the people of Michigan hold their heads in shame. Even $20 million won't dig him out of the hole he is in."

The Democrats are currently hunkered down, feverishly calculating who to spend their $20 million on in an effort to unseat Justice Taylor.

Both political parties are paying an awful lot of attention to something that, if Judge Moore is correct, the public doesn't care about.

What does the public really want?

"What they want," according to Judge Moore, "is for us, as judges, to listen to the facts and decide the case based on the law. Our bias, prejudice, judicial philosophy or political beliefs should be left at home."

But all of that is baggage that you're expected to pack and take with you on your way to the bench, especially when someone else has bought you a first-class ticket for the trip.

Maybe Judge Moore is right. Maybe the public doesn't care.

But if the public doesn't care, there are at least 20 million reasons why they should.

Pointless pleading

You may recall a case that got some national attention recently, in which a Nebraska state judge enjoined the use of words like "rape" and "victim" at a sexual assault trial. The complaining witness then sued the judge in federal district court on a First Amendment theory.

The federal suit, according to the Associated Press, angered Nebraska State Senator Ernie Chambers.

"This lawsuit having been filed and being of such questionable merit creates a circumstance where my lawsuit is appropriately filed," the Cornhusker lawmaker explained.

His suit, duly docketed in the District Court of Douglas County, Nebraska, is captioned, State Senator Ernie Chambers v. God.

You read it right.

The complaint blames God for every terrible wrong that has ever happened in the world, including "fearsome floods, egregious earthquakes, horrendous hurricanes, terrifying tornadoes, pestilential plagues, ferocious famines, devastating droughts, genocidal wars, birth defects, and the like."

No jurisdictional problems here, the complaint alleges, because God is everywhere, including Douglas County.

No problems with service of process, either. If the court won't waive personal service, the court should take judicial notice that God is all-knowing and thus has actual notice, according to paragraphs 15 through 17 of the pleading.

District Court Judge Marlon A. Polk, the unlucky jurist who was assigned the case, is being asked to slap the Almighty with an injunction to desist "from engaging in the types of deleterious actions and making of terrorist threats as identified and described herein."

It remains unclear how such an injunction would be enforced against a deity that many folks presume to be all-powerful.

All kidding aside, what is clear is that Judge Polk should drop-kick this one right out of his courtroom with all the frivolous-complaint sanctions he can issue under Nebraska's court rules and statutes.

"Chambers says he's trying to make the point that anybody can file a lawsuit against anybody," writes the AP's Nate Jenkins.

Sorry, Senator Chambers, with a suit like this, I'm not getting the point at all.

We've got it on video

In Wayne County Circuit Judge Leonard Townsend's courtroom, defense counsel was having a tough time at his client's bench trial.

He was cross-examining the complaining witness, a market clerk who claimed defendant stood at his side and lifted his shirt to reveal part of a gun while another guy pulled a gun, put it at his stomach and demanded cash.

The lack of an interpreter was apparently bogging things down. Defense counsel said the clerk was having difficulty answering his questions. Counsel wanted to know if the gun was held to the clerk's side, stomach or back but the clerk could not tell him. Judge Townsend acknowledged counsel's difficulty but said that where the gun was held "doesn't matter."

Counsel plowed on with his cross-examination. The clerk wasn't responding to questioning, said he was scared and suggested that everyone view the surveillance video, which presumably would clarify things.

Great idea.

Big problem: the defense hadn't seen the video yet. It apparently was in a format that needed a specialized gizmo or software to view it. The police gave counsel the tape but did not supply a way to view it.

A police officer who responded to the clerk's call for help after the incident testified that he was able to view portions of the video then and recognized defendant.

The proceedings continued the next day. Judge Townsend announced that a deputy had told him defendant wished to plead guilty. The judge accused defense counsel of not conveying the plea offer to his client. But when the judge spoke to defendant directly, he denied saying anything to the deputy.

Things starting going downhill from there.

Defense counsel moved to have Judge Townsend, who, you'll recall, was conducting a bench trial, recuse himself.

On the record, counsel noted that Judge Townsend denied an adjournment before trial even though counsel was unable to view the surveillance video. Counsel's effort to get the chief judge to review the matter had gone nowhere.

Still on the record, counsel said the judge's ex parte chat with the deputy was another ground for recusal, particularly so because counsel had been accused of not telling his client about a plea offer. Counsel demanded a mistrial. Judge Townsend was having none of it and denied the motion.

Counsel said he was going to the chief judge.

Judge Townsend told him he wasn't going anywhere.

"I am going to file a grievance against - no, no, no. You can't leave. You sit down. You're going to finish the trial. Sit down."

Counsel then said his client was "totally frightened. He wants to take the cop [sic]. He's going to take the offer."

Judge Townsend said he wouldn't accept the plea. Counsel said he couldn't finish the trial under the circumstances.

"[Y]ou're going to sit down and shut up. That's all you're going to do. Now put it [the video] on, and let me see it," Judge Townsend ordered.

The video screen warmed up and came to life.

Lo and behold.

Defendant and the other guy weren't standing close to the clerk. There was nothing that looked like defendant had lifted his shirt to show the clerk anything. What was being seen didn't match the clerk's testimony.

Defense counsel wanted to recall the clerk for more cross-examination.

The judge said the clerk had been excused. Defense counsel replied this was not so. The prosecutor agreed he could be recalled. Judge Townsend relented but the clerk was gone. Judge Townsend wouldn't delay the proceedings to get the clerk back on the witness stand.

Judge Townsend ultimately found defendant guilty of assault with intent to commit armed robbery, felony firearm and felon in possession of a firearm.

Wow.

The Court of Appeals was presented with a long list of things to review but only one of them mattered.

Defendant's due process rights had been pushed from a cliff.

Because the surveillance video wasn't available in a decipherable manner before trial, defense counsel was at a loss to advise his client about the feasibility of a plea, and was unable to challenge the clerk's version of the events, the appeals court said.

Judge Townsend should have granted an adjournment before trial so the defense could see the video. And, when the video was revealed at trial, the clerk should have been recalled and subjected to further cross-examination, the Court of Appeals ruled.

And so, the Court of Appeals said, defendant gets a new trial and the parties should think about getting the clerk an interpreter.

And, on remand, there will be someone else on the bench. Judge Leonard Townsend retired in 2005.

The case is People v. David. (Michigan Court of Appeals) (unpublished per curiam).

A wrong without a remedy

A minor was injured in a car crash. The parties agreed to settle. The child's attorney assured the trial judge that the probate court would appoint a conservator soon.

The judge entered a $55,000 judgment and dismissed the case, even though MCR 2.420(B)(4)(a) said at the time: appoint the conservator first, then enter the judgment and dismiss the case. The insurance company wrote the check to the child's mother and the attorney.

You could almost smell it coming. The attorney swindled the funds. When this was discovered several years later, the Court of Appeals wouldn't let the judgment be reopened.

This should have been an easy one for the Michigan Supreme Court to fix.

And that's why Justice Elizabeth A. Weaver was fit to be tied when Chief Justice Clifford A. Taylor and Justices Maura D. Corrigan, Robert P. Young, Jr. and Stephen J. Markman, booted Bierlein v. Schneider, from the court's docket.

"[T]he majority chooses to visit the 'tragic' injustice on the minor child, who suffered betrayal first at the hands of the attorney charged with protecting her interests; then at the hands of the defense and the trial court, which failed to follow our rule, despite being explicitly informed that it had been ignored; and now at the hands of this Court, which today refuses to enforce its own plainly worded rule. Our duty is clear. Just as clearly, the majority has abdicated that duty in favor of the insurer," Justice Weaver fumed.

The case had a bumpy ride to the top floor of the Hall of Justice. After two rounds of motions with two successor trial judges, and two trips to the Court of Appeals, the minor plaintiff still had an empty bag.

Plaintiff asked the Michigan Supreme Court for leave to appeal. The MSC ordered oral arguments to help it decide whether to take up the case.

Briefs were filed. Arguments were heard. A 7-0 vote put the case on the docket. More briefs and another round of arguments. If things followed the usual course, an opinion was due by the end of July 2007.

Hopeful signs for an empty-handed plaintiff.

But late last June, instead of an opinion, one more order from the court. This time, a four-justice majority decided that the case didn't belong on the docket after all.

The real issue had become crystal-clear: MCR 2.420(B)(4)(a) doesn't address who is liable for a violation, and the only sure-fire way the child was going to get her money was to make the insurer write another check.

Justice Markman, joined by Justice Corrigan, took on the task of explaining why that wasn't going to happen.

He called the case "tragic" and the plaintiff "sympathetic" but argued that under the court rule, it was the trial judge's job, not defendants', to make sure the child had a conservator.

But there's no recourse against the judge unless judicial immunity gets tossed out the window.

The child's former attorney caused the injustice, said Justice Markman. Nobody griped on the child's behalf when the judgment was entered without a conservator standing by to receive the funds. And, had a conservator been appointed, it would have been the child's mother, and there's nothing to suggest she would have done anything different in terms of managing the money.

In Justice Markman's view, defendants did no wrong when they paid the first time, so it was unfair to make them pay again.

Justice Markman said the child's former attorney was "the proper source of relief" but conceded that seeking relief from him was pointless.

The former attorney had no malpractice insurance. He had played fast and loose with other people's money in many cases. When the dust settled at the Attorney Discipline Board, he was disbarred. When the gavel stopped banging in circuit court, he was sent to prison.

Justice Markman suggested that another "proper source of relief" was the State Bar of Michigan's Client Protection Fund, which already helped out with a $10,221 award. He said the fund should dig deeper for plaintiff, a "deserving beneficiary."

As of now, the fund is still thinking things over.

Justice Michael F. Cavanagh, in a dissent joined by Justice Marilyn Kelly, saw the case as an opportunity for the court to exercise its inherent power to enforce its own rules. So did Justice Weaver in her own, super-heated dissent.

According to Justice Cavanagh, MCR 2.420(B)(4)(a) has two functions: safeguarding minor plaintiffs and protecting defendants from liability when dealing with them.

"All parties to a proceeding are responsible for following the court rules," he said.

He asserted that when "defendants pay settlements to someone other than a conservator, or pay when there has been no conservator appointed, they do so at their own peril."

Alright, then. Whose take do you like, Justice Markman's or Justice Cavanagh's? And what about Justice Weaver and her scolding of the majority?

One more thing: the Client Protection Fund has a $200,000 cap on what it will pay cheated clients for any one attorney's wrongdoing. That cap was reached with the multiple claims against the child's attorney. But the State Bar of Michigan's Board of Commissioners has the discretion to exceed that cap, so here's an extra credit question: Should they?

Be sure to see Two wrongs don't make a right: Plaintiff cannot require defendant to pay out settlement a second time to recoup funds stolen by her own lawyer in our Sept. 17 issue.

Bow-WOW! Dog’s surf-board rescue from lake makes judges proud

From the Associated Press comes a story about a Lake Michigan surfer, Matt Smolenski, who rescued a drowning dog after a large wave swept the poor pooch from the Grand Haven pier.

An off-duty cop saw the whole thing. He said Smolenski put the dog on his surfboard and braved big waves and a strong current to get him and the dog to shore.

The rescuer's last name should be a familiar one to the bench and bar. He's the second cousin of Michigan Court of Appeals Judge Michael R. Smolenski and the Hon. Sara J. Smolenski, chief judge of Kent County’s 63rd District Court, who the AP quotes as saying of Matt, “He’s a great kid and it certainly sounds like something he would do.”

No harm, no foul?

“No one was injured, no property was taken and nothing was damaged.”

This was Tracy R. Huff's losing argument to the Michigan Court of Appeals for resentencing after pleading guilty to a charge of solicitation of an assault with intent to do great bodily harm less than murder.

Lenawee County Circuit Court Judge Timothy P. Pickard exceeded the guidelines range of zero to 11 months and gave Huff 38 to 60 months for trying to hire a thug to beat her ex-husband's wife with a baseball bat.

Huff unwittingly offered the job to a cop.

The case is People v. Huff. (Michigan Court of Appeals) (unpublished per curiam).

What would Judge Andrews do? Here's what . . .

"If that had been my wife, I'd have beaten the hell out of you."

That's what Oakland County Circuit Court Judge Steven N. Andrews said a few days ago while sentencing a man who crashed a wedding reception and groped a female partygoer's breasts, according to a report in the Oakland Press.

It was quite a scene at the reception. Someone called the cops to break up the resulting fight. The guy's pants went down three times in front of a police dashboard camera's unblinking eye.

The tape, with a strategically placed blur, probably would be great stuff for one of those voyeuristic TV police-video shows.

The prosecutor said the man was "mumbling" and "extremely intoxicated." Defense counsel blamed the dropped trousers on a broken waistband button. He said his client doesn't remember any of it.

The man pleaded no contest to indecent exposure, aggravated assault and disorderly conduct. Judge Andrews ordered a two-month work-release jail term, 18 months of probation, no drinking, and $1,100 in costs and fines.

Perpetrator caught. Plea taken. Sentence imposed. A few chuckles, perhaps, for those who saw the tape. So far, so good.

But what about Judge Andrews' statement about how he would have reacted if his wife were the assault victim?

It's one thing when you're sitting around the dinner table with friends and family and say, "I'll tell you what, sweetheart of mine, if that guy would have touched you, I would've knocked him into next Tuesday."

But there is a big problem when judges say such things in open court.

There's a standard of conduct that's expected in Canon 3(A)(3) of the Michigan Code of Judicial Conduct.

The way I read that standard, it comes down to this: when you're wearing the robe, you should keep your cool on the outside and your anger to yourself.