Friday, October 26, 2007

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.

Wednesday, October 24, 2007

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.

Tuesday, October 23, 2007

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."

Friday, October 19, 2007

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.

Thursday, October 18, 2007

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.

Tuesday, October 16, 2007

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.

Monday, October 15, 2007

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.

Friday, October 12, 2007

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.

Thursday, October 11, 2007

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.

Tuesday, October 9, 2007

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)."

Friday, October 5, 2007

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.

Wednesday, October 3, 2007

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.

Tuesday, October 2, 2007

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.

Monday, October 1, 2007

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.