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.