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8.18.08: Top of the Weekly

Here's what we have going in the Aug. 18 issue of Michigan Lawyers Weekly. Subscribers can click any of the links below for the full details. For the rest of you, here's how you can
get on board.

Farewell
Ingram leaves MILW publisher post for Wayne County position
Click here to read the full story.

'Reform Michigan Government Now' - Analysis (Correction)
Dems will take over on COA: MILW's mistaken identification of COA Judge Jansen as Republican skewed earlier coverage
Click here to read the full story.

Verdicts & Settlements Plus
Family feud costs daughter of auto entrepreneur millions
Click here to read the full story.

Civil Rights Action
Indecent exposure: Unruly detainees allege constitutional rights violations, receive combined $145K in damages
Click here to read the full story.

Technology Update
Litigators integrate cutting edge courtroom technology into everyday practice
Click here to read the full story.

Built For Speed
Into the wild blue yonder
Click here to read the full story.

Practice Profile
Bodman's labor, employment law practice expands with addition of veteran attorney
Click here to read the full story.

Practice Profile
Second time around: Childhood friends reunite unexpectedly, create formidable litigation firm
Click here to read the full story.

Practice Profile
Seasoned personal injury attorney thrives, even in the decade following tort reform
Click here to read the full story.

8.15.08: What they're saying ...

"Most certainly, legislators will come to hear about the impacts of this decision from constituents and interest groups of every competing philosophy and occupation."

- Michigan Court of Appeals Judge Bill Schuette, concurring in Woodman v. Kera, LLC.

Schuette, along with COA Judges Michael Talbot (lead opinion) and William Bandstra (concurring opinion), earlier this week ruled that because the common law provides that parents can't waive their children's rights, pre-injury liability waivers that parents sign on behalf of their children can't be enforced absent a legislative abrogation of the common law.

"The decision in this case is bound to have enormous consequence and profound impact throughout Michigan," Schuette wrote. To emphasize his point, Schuette included exemplars of a variety of pre-injury parental waivers for marathons, field trips, athletic camps and summer camps.

***
"I expected a punch line to a bad joke. He was dead serious."

- Frank Sila, quoted in The Kalamazoo Gazette.

Sila, a volunteer who conducts Bible studies at the county jail, was reacting to a participant who saw himself as a responsible man because he didn't beat his wife in front of his children. The statement prompted Sila and others to round up the funding and equipment to replace some of the regular network television programming the inmates watch with educational shows about parenting, resume writing, sexually transmitted diseases, jail rules, addiction, drugs and depression.

***
"They suck. They're loud. And it keeps me up all day."

- Kalamazoo County Jail inmate Anthony Hood, quoted in The Kalamazoo Gazette.

Hood was reacting to the new television programs at the jail.

***
"Whenever I come across a business that has a step or two to get in, the owner usually says, 'No one in a wheelchair ever shops here.' I think it's pretty obvious why they don't."

- William Milzarski, a rights representative for the Michigan Commission on Disability Concerns, quoted in The Detroit Free Press.

Milzarski noted that handicap access is still a problem at many public places. Erica Nader, who works to highlight access issues, took a wheelchair tour of Ferndale in commemoration of the 18th anniversary of the Americans with Disabilities Act. At one business, the door met regulations and was 32 inches wide. The bathroom was also up to ADA snuff but a 6-inch step prevented Nader from gaining access to the business without assistance. The owner was receptive to upgrade suggestions.

The joke's on the 'Joker'

I'm not making this up. Honest. From the Associated Press:

"A Three Rivers man accused of trying to steal a large Batman movie poster from a cinema lobby while dressed up as the Joker has pleaded guilty to a misdemeanor charge of malicious destruction of property.

"Twenty-year-old Spencer Taylor entered the plea Wednesday in St. Joseph County District Court.

"A judge ordered him to serve one day in jail, perform 16 hours of community service and pay $685 in fines.

"Charges of attempted larceny in a building and using a mask to conceal his identity during the commission of a crime were dismissed as part of Taylor's plea agreement.

"Three Rivers police say he was wearing a purple suit, green wig and face paint when they arrested him on July 27."

Foolish prank. Nifty disguise.

Sound off on proposed federal court rule changes

Proposed amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, and Federal Rules of Evidence have been posted here and are open for your comments through Feb. 17, 2009.

A brochure prepared by the Administrative Office of the U.S. Courts summarizes the proposed amendments. For more detailed committee reports, scroll to the bottom of the page here.

Bone up on Michigan bankruptcy practice

Nov. 11 is a court holiday, so it's the perfect time for bankruptcy practitioners to get the latest at the American Bankruptcy Institute Detroit Consumer Bankruptcy Conference.

Things get underway at the Troy Marriott beginning at 7 a.m. with a breakfast and registration period sponsored by Trott & Trott. There's a full day of informational sessions by leading practitioners and bankruptcy judges.

The luncheon keynote speaker is Amy Crews Cutts, Deputy Chief Economist, Freddie Mac; Washington, D.C. Her topic: "The Economic and Housing Market Outlook - When Might We See Bottom?"

Complete information and registration form here.

21 for the 21st Century

There are many law firms out there doing some amazing 21st Century things.

Michigan Lawyers Weekly and the Women Lawyers Association of Michigan have selected 21 of them for special recognition.

What are these firms up to? They're offering long-term retention programs for associates that encourage growth within the law firm. They have flex-time programs that recognize the importance of work/life balance without compromising momentum for the partnership track. Their offices are technology-driven, allowing associates and partners to work as efficiently outside the building as inside. And, they recruit the cream of the crop from Michigan law schools and encourage them to stay and practice law in Michigan.

On Sept. 10, 2008 at The Birmingham Community House, these 21 firms and their managing partners will be welcomed into the Century Club.

One special firm will be crowned the 2008 21st Century Innovator.

More information here or call Julie Sherwood at 248.865.3110.

Hats off and kudos to:

Brooks Kushman P.C.
James A. Kushman, Mark A. Cantor

Collins Einhorn Farrell & Ulanoff, PC
Clayton F. Farrell

Dickinson Wright PLLC
James A. Samborn

Dilley & Haney P.C.
Troy W. Haney

Dykema
Rex E. Schlaybaugh Jr.

Foley & Mansfield PLLP
Gary D. Sharp

Honigman Miller Schwartz & Cohn LLP
David Foltyn

Jaffe, Raitt, Heuer & Weiss, P.C.
Richard A. Zussman

Kienbaum Opperwall Hardy & Pelton, P.L.C.
Eric J. Pelton

Maddin, Hauser, Wartell, Roth & Heller, P.C.
Michael W. Maddin, Mark R. Hauser, Steven D. Sallen

Michael Morse, P.C.
Michael J. Morse

Miller Johnson
Jeffrey S. Ammon

Nacht & Associates, PC
David A. Nacht

Nemeth Burwell, P.C.
Patricia Nemeth, Linda G. Burwell

Nichols, Sacks, Slank, Sendelbach & Buiteweg, PC
Monika Holzer

Sacks Pear Sperling Eggan & Daniels, P.C.
Edwin Pear

Plunkett Cooney, PC
Henry B. Cooney

Rader, Fishman & Grauer PLLC
Michael B. Stewart, Glenn E. Forbis

Varnum, Riddering, Schmidt & Howlett LLP
Larry Murphy

Vercruysse Murray & Calzone, P.C.
Robert Vercruysse, Gregory V. Murray, David B. Calzone

Warner Norcross & Judd LLP
Douglas E. Wagner

Thanks to all of the firms who participated in the nomination process.

8.8.08: What they're saying ...

"He's got so much legal weight on his shoulders that he can't stay afloat."

- Oakland County Executive L. Brooks Patterson, quoted in an Associated Press report.

Patterson is part of the thundering chorus of politicians, officials and John Six-Packs who have had more than enough of Detroit Mayor Kwame Kilpatrick. Kilpatrick faces a raft of charges arising from allegedly false testimony in court. He was sent to the slammer yesterday for violating the terms of his bond, and likely will be charged today with assault by Michigan Attorney General Mike Cox for allegedly pushing a Wayne County Sheriff detective who was trying to deliver a subpoena to one of the mayor's buddies.

***
"I didn't believe in the death (penalty) until Thursday."

- Sarah McDarment, quoted in The Detroit News.

McDarment's brother, Mort, was shot and killed a week ago Thursday, along with two friends near the Menominee River, which is part of the boundary between the Upper Peninsula and Wisconsin. The bodies of Mort's two friends were recovered in Wisconsin; Mort's body was found in Michigan. A 38-year-old Upper Peninsula man has been accused of the slayings and is being held on a $3 million cash bond. Federal prosecutors are determining whether they have jurisdiction over the case and, if they do, have not ruled out seeking the death penalty.

***
"To the extent of the criminal proceedings, his nightmare is over, and he doesn't have to worry anymore."

- Defense attorney Hugh Clarke, Jr., quoted in The Lansing State Journal.

Clarke's client, Claude McCollum, spent over two years in prison after a jury convicted him of raping and murdering a Lansing Community College professor. He was freed when a video recording surfaced that showed McCollum was somewhere else when the professor was killed. Clarke and Ingham County Prosecutor Stuart Dunnings III have been jousting in court for months over whether the charges against McCollum should be dismissed with or without prejudice. Yesterday, on McCollum's 31st birthday, Dunnings relented and filed a dismissal with prejudice.

Judge jails Detroit mayor for bond violation, invokes 'John Six-Pack' standard

"[I]f it was John Six-Pack sitting in the seat, what would I do?"

That's a mighty good question 36th District Court Judge Robert Giles asked this morning as Detroit Mayor Kwame Kilpatrick begged forgiveness for violating the terms of his bond by taking a trip to Windsor last month without first getting the court's permission.

As a matter of fact, it's a mighty good standard for any judge to apply when dealing with a high-profile defendant who has screwed up by flaunting a court order.

And it's the standard Giles used to revoke Kilpatrick's bond and order him to jail, according to a report in The Detroit News.

The Detroit Free Press reports that:

"Court officials said Kilpatrick would remain in jail until he either posts the full $75,000 bond or until his lawyers can persuade a Wayne County Circuit Court judge to overturn the decision. But first, Kilpatrick would be taken to the 36th District Court detention area."

Kilpatrick's lawyer said the mayor will spend the night in jail, and a circuit-court appeal of Giles' order will be heard tomorrow, reports The Associated Press.

The Free Press reports that Kilpatrick told Giles: "'Last week was a tremendous wake-up call to me,' he said, referring to Giles' rebuke last month after he allegedly assaulted law enforcement officials trying to serve a subpoena."

If Giles' scolding of the mayor last week was a "tremendous wake-up call," I wonder what Kilpatrick will think about the one Giles made this morning: a night in jail, just like any other John Six-Pack.

8.1.08: What they're saying ...

"This is not the proverbial file in the birthday cake."

- Attorney Jon Muth, quoted in the Grand Rapids Press.

Muth was responding to speculation that lots of criminals would have a shot at freedom if the Judicial Tenure Commission decides, and the Michigan Supreme Court concurs, that his client, 63rd District Court Judge Steven Servaas, vacated his office by moving out of his elected district and later moving back into it. The theory is that any case Servaas heard while he allegedly vacated his office would be invalid. JTC Executive Director Paul Fischer, apparently wanting to have it both ways, suggested that the MSC could name Servaas as a visiting judge for the cases in question even if he is removed from the bench.

***
"I believe that this is one of the dirtiest of political tricks I've ever seen. It's a dirty election-eve tactic, especially one that has no merit, no substance."

- 38th District Court Judge Norene Redmond, quoted in The Detroit News.

With a hotly contested primary election just a few days away (five challengers seek to replace Redmond), news surfaced earlier this week that Eastpointe Police Chief Michael Lauretti and Macomb Prosecutor Eric Smith complained to the Judicial Tenure Commission about the judge's courtroom behavior. Lauretti and Smith say they filed their paperwork "months ago." The Michigan Supreme Court censured Redmond in February for several instances of unprofessional conduct. Lauretti and Smith allege that Redmond allegedly "humiliated" an assistant prosecutor and a police detective during a March 4 hearing.

***
"I was the only judicial candidate with permission to have signs there, and I was acting on orders from the property owner."

- 52-2 District Court Judge Dana Fortinberry, quoted in The Detroit Free Press.

Fortinberry was explaining why she was captured on camera yanking up campaign signs for her opponent, Joseph Fabrizio, on some property near the courthouse. As it turns out, they both may have been in the wrong. According to the Free Press, the signs for Fortinberry and Fabrizio appeared to be in the public easement alongside the road, which would violate an Independence Township ordinance.

MSC appoints Griffin to ADB

Farmington Hills forensic psychiatrist Rosalind E. Griffin has been appointed to the Attorney Discipline Board by the Michigan Supreme Court.

The nine-member commission consists of six attorneys and three non-attorneys appointed by the MSC to serve on a volunteer basis.

Griffin's appointment expires Oct. 1, 2010.

She was a member of the Attorney Grievance Commission from 1990-94 and served on the Board of Regents of Eastern Michigan University from 1997-2004.

Censured 38th District Court judge faces five challengers

In the Detroit suburb of Eastpointe, 38th District Court Judge Norene Redmond, censured by the Michigan Supreme Court in February to the dismay of some and the delight of others (blog post and comments here), faces five challengers in the August primary.

The Detroit News has profiles of Redmond and the five candidates who would love to have her job. The attorney-contenders are:

• Mark Cardellio, a former assistant prosecutor in Macomb and Oakland counties
  
  
• Colleen Cohan, a former Eastpointe councilwoman who is the director of corporate ethics and compliance for Blue Care Network of Michigan
  
  
• Andrea Ferrara, a former Wayne County circuit judge who was removed from the bench by the Michigan Supreme Court for misconduct in 1998; her private practice focuses on immigration and criminal cases
  
  
• Kathleen G. Galen, who has practiced law for almost 20 years
  
  
• Carl Gerds III, a former two-term Eastpointe city councilman who has practiced for about 30 years
  

The first- and second-place finishers in the Aug. 5 primary will square off for the district court seat in the November general election.

How to make the best of it when the press presses you

When a case involves a high profile client, or significant or controversial matters, lawyers need to put their best foot forward when its comes to dealing with the media, according to Susan Maynor and John Remsen, Jr., writing in "A Practical Tip Sheet for Lawyers and Law Firms."

Bone up on ethics and law regarding media relations in the relevant jurisdiction, they say, and designate an official spokesperson. Don't let anyone else talk to the press and make it clear that all media requests should go to the person you've chosen.

Maynor and Remsen have some excellent pointers on body language, what to say and how to say it, staying "on message," and the importance of having an exit strategy to end the media blitz outside the courthouse.

Learn why "no comment" is the worst comment.

Once past the hurly-burly on the courthouse steps, there are a number of things to think about when deciding whether to grant an interview. Maynor and Remsen guide you through the thicket.

Robinson won't run for MSC

Scratch Marietta Robinson as the Democrats' Michigan Supreme Court candidate.

That's the word from veteran government and politics reporter Tim Skubick on his blog and in a bylined report for the Michigan Information Research Service.

Robinson cited vote-siphoning concerns, now that the Libertarian Party has named Robert W. Roddis as its supreme court candidate. Skubick says "Robinson believes a chunk of her would-be support went to a minority party candidate" in the last election, which she lost to Justice Clifford Taylor, and feared a repeat this time around.

She's not a fan of the Reform Michigan Government Now ballot proposal, which was long-speculated to be the brainchild of the Michigan Democratic Party. That notion was confirmed last week when the Mackinac Center for Public Policy posted on its website a Democratic battle plan for the proposal. The Mackinac Center says the power point presentation was found on a union website.

Skubick reports that Robinson was worried, and rightly so, than any head-to-head campaigning with Taylor will be little noticed in the din that's about to be created by a Michigan Chamber of Commerce about-to-be-filed legal challenge to the proposal.

All well and good, but it strikes me that there may be another reason why Robinson has bowed out and others may think twice about throwing in: some of the groundwork Democratic Party Chair Mark Brewer has laid for the supreme court contest borders on a 21st Century version of the theater of the absurd.

Last year, when the Detroit Free Press reported that most of the appellate judiciary was driving around in state-issued vehicles, Taylor, along with the other judges, turned in the vehicles. Brewer snagged Taylor's car at a state auction. Since then, he's tried to turn it into an icon of Taylor's supposed self-interested feeding at the public trough.

Last week, Brewer called a press conference to celebrate the one-year anniversary of buying the car!

Brewer's anniversary "gift" to Taylor? This letter:

"Dear Cliff,

"Since I've been driving your former taxpayer-funded car for a year now, I thought it was only appropriate that we celebrate our first anniversary. I'm sure you are missing it, so I wanted to let you know I am taking good care of the car as I travel the state sharing your pro-insurance company record with the voters. In fact, I have more than doubled the mileage on the car since you reluctantly turned it in after the scandalous press stories about your abuses. The car has been a big hit at press events, and our local activists love to have their picture taken with the symbol of your abuse of the perks of your office!

"Since I'm not in the habit of giving my car presents, I think you should receive this gift celebrating our first year together. A first anniversary is traditionally celebrated with paper - a letter, a book, or some fancy stationary. For you, I have packaged up some of my favorite news articles that chronicle your corrupt attempts to protect your own pay and perks while Michigan citizens have struggled to pay their bills.

"I have to tell you, the car is great. I am sure you miss it, but with your $164,000 annual paycheck and Lucille's high paying job with Mike Cox, I am sure you have purchased something even more luxurious by now.

"Sincerely,

"Mark

"P.S. Please let the voters decide the RMGN ballot proposal - don't abuse your power yet again! Hope you enjoy our TV ad - it is running in your hometown!"

The TV ad Brewer refers to makes the stretchy argument that Taylor should decline to rule on any challenge of the ballot proposal because it contains a judicial pay-cut provision. See The Michigan Lawyer: MSC's Taylor target of new Democratic TV ad

None of this gives a Democratic high court candidate, whoever that might be, much to build on.

Brewer has said he's prepared to spend $20 million on this year's supreme court campaign.

Now he may have big trouble finding someone to spend it on.

Western District proposes amended court conduct rule

The U.S. District Court for the Western District of Michigan is considering changes to its local court conduct rules that would, among other things, specify who can use cell phones, PDAs and laptop computers, where the devices can be used and under what circumstances, and the consequences of violating the rule.

If the amendment is adopted, the court will not be fooling around, folks.

The enforcement mechanism is noteworthy: any device being used outside of the rules "shall" be immediately confiscated either by judicial order or by court security personnel.

Even more noteworthy: violators could face disbarment and criminal contempt of court.

What about getting your equipment back if it's been seized? From the proposed amendment:

"An individual whose device has been confiscated may apply in writing not less than seven (7) days after confiscation for its return. The application shall be made to the judicial officer whose proceedings were disturbed by the violation, or, if there is no such judicial officer, to the chief judge. The judicial officer may grant or refuse the request. Confiscated devices that are not returned, either because no request has been made within the time provided or the request for return has been denied, shall be disposed of in a manner directed by the chief judge."

It's not completely draconian. There's an innocent screw-up exception:

"Nothing in this paragraph shall prohibit the judicial officer or his designee to return a device after the conclusion of a court matter if the violation was totally inadvertent."

The proposed amendment is open for comment through Aug. 1. Full text of the proposed amendment and instructions on how to comment here.

Free wi-fi available at Eastern District Bankruptcy Court

The Eastern District of Michigan's bankruptcy court bar is tipping its collective hat to three chapter 13 trustees, Krispen Carroll, David Ruskin and Tammy Terry, and technology wizard Rich Collins, for making free wireless internet access available at the court's West Fort Street location in Detroit.

The trustees are footing the bill, and Collins arranged and supervised the installation, says Chief Judge Steven Rhodes.

The wi-fi covers courtrooms and conference rooms on 18th and 19th floors of the courthouse.

Rhodes says the court okayed "this service to provide the bar and the public with access to internet sites that may be needed while attending court, such as office networks and servers, ECF, the Court's order processing program, the chapter 13 trustee's websites and legal research websites."

Log on and other information here.

MSC's Taylor target of new Democratic TV ad

Michigan Democratic Party Chair Mark Brewer, unfazed by his party's lack of a declared Michigan Supreme Court candidate for the November election, has rolled out a television ad aimed at achieving one of his stated goals for this election cycle: defeating Chief Justice Clifford Taylor.

The 30-second spot, "What Will Cliff Taylor Do?", urges Taylor not to block a ballot proposal that, among other things, cuts salaries, limits retirement benefits and requires financial disclosures for elected officials of all three branches of government, including the presumably self-interested chief justice.

"Special interests are willing to go all the way to the Michigan Supreme Court to block your right to vote for change," warns the ad's voice-over announcer.

"Justice Taylor should let the voters decide," she concludes.

Brewer is correctly anticipating legal challenges to the proposal, which amends the state constitution in dozens of ways and is being pushed by Reform Michigan Government Now! He's hoping to hit a public relations home run every time a judge rules against letting the proposal on the ballot.

He's touting the notion that there's an ethics problem for any judge who tries to block the proposal, which, it's been widely reported, Brewer has had a heavy hand in crafting.

But Brewer has a lot more on his mind than the situational ethics of those who might pass judgment on a plan that would let voters cut their pay.

The proposal contains the means for Brewer to accomplish his not-so-hidden agenda of shifting the high court's balance of power. As Detroit Free Press Deputy Editorial Page Editor Stephen Henderson astutely observed in last Sunday's editions, the proposal has "a kind of court-packing by reduction" feature.

If passed, the supreme court's bench would shrink from seven justices to five. The court's two most junior justices, Republican appointees Robert P. Young and Stephen J. Markman, would have to step down. That would leave the court with Taylor and Justice Maura Corrigan, who usually champion the Republican viewpoint. Justice Elizabeth A. Weaver has been in the Republicans' corner in the past. But, to their great annoyance, she has been a vocal maverick ever since the other court Republicans refused to back her for a second two-year term as chief justice. The Democrats would have two justices they can usually count on, Michael F. Cavanagh and Marilyn Kelly.

If the proposal reaches the high court, if Taylor votes with a majority to keep the proposal off the ballot, and if Brewer successfully pins the blame on Taylor (the television ad lays the groundwork for that), then, the thinking goes, the Democrats can cast Taylor as the villain and capture his seat on the court in November. This would leave Weaver as a swing vote to be wooed by both sides of a seven-justice court. It wouldn't be exactly the situation Brewer was looking for, but he'd be able to live with it.

And if the court unanimously rules against the proposal? This is not a good result for Brewer. Any criticism of Taylor can be applied with equal force to everyone on the court. But in similar situations in the past, Brewer has plowed right ahead. See, Case selection is important: Democratic Party chair slams chief justice for decisions joined by Dems, detractor", Michigan Lawyers Weekly, June 16, 2008.

If Taylor votes with a minority to keep the proposal off the ballot, Brewer gets a chance at a five-justice court and a solid three-Democrat majority. If the voters approve the proposal and reject Taylor in favor of a yet-to-be-named Democratic player, then Brewer will accomplish something he and his team have been dreaming about for years - a major philosophical change in the high court's makeup.

And he'll have done it by convincing voters to downsize the court with a designer amendment to the Michigan Constitution.

Despite what the ad might lead voters to believe, this is about a lot more than just pay cuts.

23rd Circuit judicial ballot jousting continues

The on-the-ballot, off-the-ballot, back-on-the-ballot saga of Christopher Martin, a Tawas attorney who wants to bump either Judge Ronald M. Bergeron or Judge William F. Myles from the 23rd Circuit bench in November, has moved to the appellate arena.

The judges have been busy trying to bump Martin from the ballot.

Yesterday, the Michigan Supreme Court told the incumbent judges that the Michigan Court of Appeals gets first crack at deciding whether they can even complain about Ingham County Circuit Judge William Collette's decision to put Martin back on the ballot. The Secretary of State had removed Martin because his nominating petition was short on signatures.

The judges had sought a bypass appeal directly to the supreme court. Full text of the court's order here.

It's an unseemly situation.

According to some fine reporting by Holly Nelson in The Oscoda Press, when Martin decided to run, he checked with elections officials and was told, orally and in writing, that he needed between 100 and 200 signatures to get on the ballot. Martin says he was also told that if he submitted more than 200, it would be a criminal violation of state election laws.

Martin took the middling ground and submitted 158 signatures. Two days after the filing deadline, the incumbent judges claimed that wasn't enough. From the Oscoda Press:

"Bergeron's challenge noted that, in 2003, the counties of Alcona and Arenac were added to the 23rd Circuit, expanding it from Iosco and Oscoda counties and increasing the circuit's population from 36,757 to 65,745. State law sets the signature requirement for non partisan petitions at 200 to 400 for districts with a population between 50,000-74,999."

The elections officials confessed error, told Martin they were awfully sorry, and removed him from the ballot.

Martin didn't take this lying down. After the state refused to take an additional 208 signatures from him, he sued to get back on the ballot.

The case landed in Collette's courtroom. First, Collette denied Bergeron and Myles' motion to intervene. One argument the two judges advanced was that they "have an obvious interest in whether an otherwise uncontested election becomes a contested election" and that they "have their own interests to protect that are not necessarily protected by the named defendants."

The state's attorneys, says Martin, argued that the law is the law, there weren't enough signatures, and that Martin, as an attorney, should have been sophisticated enough not to rely upon the filing information the state provided to him.

Collette gave Martin everything he wanted. The Secretary of State was ordered to accept the late-submitted signatures, verify them, and if valid, to put Martin back on the ballot. And, from the Belt-and-Suspenders Department, Collette enjoined state officials from taking Martin off the ballot.

Up at the Court of Appeals, Bergeron and Myles weighed in with a 200-page brief arguing that they belonged in the case, and that Collette had it all wrong.

And what about the elections officials and the Secretary of State's office? They declined to appeal Collette's decision.

The Michigan Supreme Court, in yesterday's order, instructed the Court of Appeals to issue a decision by Aug. 21. Court of Appeals Judges Patrick M. Meter, William C. Whitbeck and Stephen L. Borrello have asked Myles and Bergeron to address whether they are "aggrieved parties" within the meaning of MCR 7.203(A). The panel wants to know the judges' thoughts about "whether unsuccessful intervenors can be considered aggrieved parties for purposes of an appeal, and if so, under what circumstances."

So, there you have it. An attorney wants to make a judicial election competitive. The incumbents he's running against have forthrightly stated they have an "obvious" interest in not having to bother with an actual campaign to keep their jobs. A circuit judge from another county has hit that notion broadside with a blunderbuss. The Secretary of State and the elections officials, who provided the misinformation that helped spawn the whole affair, have checked out and are standing on the sidelines.

And a Court of Appeals panel will decide whether two incumbent judges who thought they were shoo-ins can even bellyache about the fact that now they are not.

Kallman named to State Bar's Board of Commissioners

David A. Kallman, a family law practitioner in Lansing, has been appointed to the State Bar of Michigan's Board of Commissioners.

The Michigan Supreme Court announced the appointment today.

Kallman, who is a home schooling champion, will serve a three-year term as a commissioner-at-large. He takes office Sept. 17.

Troops get bar dues break

A snappy salute to the State Bar of Michigan's brass for this one: full-time active-duty service personnel may apply for a bar dues waiver under a rule the Michigan Supreme Court recently amended at the state bar's request.

The amendment, which takes effect Oct. 1, also permits waivers of the client security fund assessment and the attorney discipline system fee, although service personnel will remain subject to the attorney discipline system. Waivers may be granted up to four times.

The court adopted the amendment without taking comments or holding a public hearing. However, the court is soliciting comments through Nov. 1. A public administrative hearing will be scheduled after that date.

Instructions for submitting comments and the full text of amended Rule 4 of the Rules Concerning the State Bar of Michigan are available here.

Grand Rapids lawyers go to bat for embattled district judge

The Grand Rapids Press and WOOD-TV reported over the weekend that some of the legal elite in the Grand Rapids area have asked the Attorney Grievance Commission to open an investigation against Judicial Tenure Commission Director Paul Fischer, accusing him of trying to extort the resignation of Rockford District Court Judge Steven Servaas.

A dozen former presidents of the Grand Rapids Bar Association, according to WOOD, and "prominent local attorneys," according to the Grand Rapids Press, signed a 26-page letter sent to the Attorney Grievance Commission, in which they claim that Fischer insisted that Servaas resign immediately or face criminal charges.

They point to a secret recording made in the judge's chambers that features Fischer explaining to Servaas how the JTC intended to proceed in the matter. The recording can be accessed by following the Grand Rapids Press link in the first paragraph of this post.

Servaas' supporters ask that Fischer be disbarred and that he shoulder the judge's estimated $200,000 in legal fees that have been racked up in the JTC proceedings against him.

According to the Grand Rapids Press:

"The latest salvo continues a dispute between Fischer and Servaas, who allegedly lived outside his judicial district, drew two sexually suggestive doodles and made a lewd comment to a co-worker at a retirement party."

Servaas' JTC hearing is scheduled for July 14.

An interesting wrinkle is that Servaas is running unopposed for re-election in November. If a misconduct finding against Servaas is made, Fischer wants the Michigan Supreme Court to remove him from the ballot, or to wait to remove him from office until his new term begins next year. See The Michigan Lawyer: Trial court elections: Whole lotta shakin' goin' on.

All-star cast at Western District bankruptcy seminar

The Bankruptcy Section of the Federal Bar Association for the Western District of Michigan has an impressive roster of judges and practitioners lined up for its 20th annual seminar at Boyne Highlands in Harbor Springs later this month.

The seminar opens July 24 and runs through the 26th. Educational sessions on Chapters 7, 11 and 13 are available, along with a session on ethics and a review of Michigan bankruptcy case law by judges from other jurisdictions.

On the lighter side, bring your clubs and a hearty appetite: there is a golf outing, a reception and plenty of opportunities for some good eats.

Complete information here.

AGC and ADB appointments announced

The Michigan Supreme Court has reappointed several members of the Attorney Grievance Commission and has made chair and vice-chair designations.

Named in the court's press release:

"Jan A. Brandon of Ann Arbor, volunteer and past member of the Eastern Michigan University Board of Regents.

"Kent J. Vana of Grand Rapids, partner in the law firm of Varnum, Riddering, Schmidt & Howlett, LLP.

"Karen Woodside of Detroit, assistant prosecuting attorney, Wayne County.

"Brandon, Vana, and Woodside, all current members of the AGC, are reappointed to terms ending on Oct. 1, 2011. Vana is also appointed vice-chairperson for a term ending Oct. 1, 2009.

"Richard B. Poling, Jr. of Troy, attorney and shareholder in the law firm of Poling, McGaw & Poling, P.C. Already a member of the AGC, Poling is appointed chairperson for a term ending Oct. 1, 2009."

The court has also made leadership designations and has announced appointments and reappointments to the Attorney Discipline Board:

Craig H. Lubben of Kalamazoo, attorney and member of the law firm of Miller, Johnson, Snell & Cummiskey, PLC. He is appointed to a term ending Oct. 1, 2011.

"William L. Matthews, CPA of West Bloomfield, former managing partner, Plante & Moran Financial Advisors. Already a member of the ADB, Matthews is reappointed for a term ending Oct. 1, 2011.

"Carl E. Ver Beek of Grand Rapids, attorney and of counsel to the law firm of Varnum, Riddering, Schmidt & Howlett LLP. He is appointed to a term ending Oct. 1, 2011.

"William J. Danhof of Lansing, attorney and principal in the law firm of Miller, Canfield, Paddock and Stone, PLC. Already a member of the ADB, Danhof is reappointed for a term ending Oct. 1, 2011. He is also appointed chairperson for a term ending Oct. 1, 2009.

"ADB member Thomas G. Kienbaum of Birmingham, attorney and member of the law firm of Kienbaum, Opperwall, Hardy & Pelton, PLC. Kienbaum is appointed vice-chairperson for a term ending Oct. 1, 2009."

COA denies Wayne prosecutor's bid to disqualify 36th District Court bench

The Michigan Court of Appeals has turned down Wayne County Prosecutor Kym Worthy's application to disqualify the entire 36th District Court bench from conducting the preliminary examination of Detroit Mayor Kwame Kilpatrick.

Kilpatrick is accused of perjury, obstruction of justice and other charges.

The three-page order notes that in two prior cases where an entire judicial bench was disqualified, there was no analysis of the facts or any articulated analysis and, therefore, were of no help in this case.

Analyzing this case under MCR 2.003(B), the COA observed that even if some of the judges may be called as witnesses during the preliminary exam, "MCR 2.003(b)(6) requires the recusal of a judge only when 'the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person ... is to the judge's knowledge likely to be a material witness in the proceeding.' None of the judges who are proposed witnesses fall within this rule."

Click here for the full text of the order.

Trial court elections: Whole lotta shakin' goin' on

Ann Arbor attorney Doug Shapiro is all dressed up for the November circuit court election in Washtenaw County but says he doesn't want to go anywhere, at least not to the bench.

Earlier this year, it looked to be a no-challenger contest for incumbent judges David S. Swartz and Donald E. Shelton. Then, word got out that Shelton was on the short list of candidates for the vacant presidency of Eastern Michigan University. At the time, Shapiro said, according to an Ann Arbor News report, that "he would not enter the race until and unless Shelton got the EMU job."

But shortly thereafter, he filed candidacy petitions with almost double the signatures needed to get on the ballot. Time went by, along with the May 2 deadline for withdrawing from the race. Several days later, EMU chose Susan Martin as its new president.

So, now it's a three-way race for two seats on the Washtenaw circuit bench. But Shapiro hasn't raised any cash for his campaign. He says he's not asking people to vote for him because there's no opening "and we have two good judges."

Despite that statement, the Ann Arbor News says Shapiro is interested "in appearing in voters' guides and making himself available for other pre-election news-gathering efforts."

Shapiro says it's all a dress rehearsal for when there is an opening on the bench.

Over in Ingham County, there's a decidedly different situation in November. Voters will choose among six contenders to fill three seats on the circuit bench: incumbent judges William Edward Collette and Janelle A. Lawless; Rosemarie Elizabeth Aquilina, who's looking to step up from her job as chief judge of the 55th District Court; Hugh B. Clarke, Jr.; Frank Harrison Reynolds and Beverley Nettles-Nickerson.

Nettles-Nickerson would have been running as an incumbent judge but the Michigan Supreme Court removed her from office last month for several instances of misconduct. At the time, Nettles-Nickerson, who remains on the ballot, said that the voters would have the final word on the matter.

The Judicial Tenure Commission, acutely aware of that possibility, asked that she be removed from office and conditionally suspended without pay for six years in the event that she is re-elected in November. The supreme court removed her from office and made it clear that she was not an "incumbent" in the November election, but declined to impose the conditional suspension.

In Kent County, the Grand Rapids Press is reporting that the JTC is taking a similar stance in the case of Rockford District Court Judge Steven Servaas, who is running unopposed for re-election in November. The JTC has charged Servaas with living outside of his district, drawing two sexually related doodles and making a comment to a court worker that she said was sexual harassment. The JTC wants the Michigan Supreme Court to strike Servaas from the ballot. If that's not possible, the JTC wants Servaas removed from office at the beginning of his new term, Jan. 1, 2009.

A JTC hearing on the charges against Servaas is scheduled for July 14.

Meanwhile, over in the 23rd Circuit Court, which covers Arenac, Iosco, Alcona and Oscoda counties, incumbent judges Ronald Bergeron and William Myles are in a heated court battle with Tawas attorney Christopher Martin to again get him removed from the judicial ballot.

The Bay City Times reports that the Secretary of State removed Martin after reviewing Bergeron's and Myles' claims that Martin filed too few signatures to appear on the ballot. An Ingham County Circuit Court judge overruled the SOS and put Martin back on. The incumbents have filled a 200-page brief with the Michigan Court of Appeals, seeking to once again bounce him from the ballot.

No word on when the COA might issue a ruling.

On-line lawyer rating service says Michigan Lawyer's test drive 'wasn't typical'

By purest coincidence, last Tuesday, the day after I posted The Michigan Lawyer: On-line lawyer rating service hits Michigan, Rebecca Green, who handles public relations for Avvo, the subject of the post, called my editor, Todd Berg, to ask about possible press coverage.

She had not seen the post. Berg referred her to it.

On Wednesday and Thursday, Berg and Green traded e-mails, culminating in the following "Letter to the Editor" by Avvo's CEO Mark Britton, which was e-mailed to Berg. Berg passed it on to me. The letter is reproduced in full below.

To the Editor:

"We here at Avvo are sorry Ed Wesoloski had a negative experience using our service. However, his user experience wasn't typical of the thousands of consumers who visit our site daily looking for legal information and representation. It appears that Mr. Wesoloski has two main issues with Avvo's Michigan coverage: 1) He could not immediately find the attorney profiles he was looking for and 2) the majority of Michigan lawyers do not currently have a numerical rating. Allow me to address each of these issues in turn.

"First, we ran a search and quickly found the profiles of all attorneys Mr. Wesoloski searched for. It is possible that inputting the middle initial of each attorney's name into either the 'First name' or 'Last name' boxes caused Mr. Wesoloski's searches to fail. However, it is important to note that he was able to reach the attorney profiles he was seeking through Avvo's 'similar names' prompt.

"With respect to numerically-rated Michigan lawyers, Mr. Wesoloski should note that Avvo has numerical ratings for nearly four thousand Michigan attorneys - despite the fact that Avvo launched in Michigan only last week. Moreover, it is important for Mr. Wesoloski to put himself in a consumer's shoes. Avvo was built to help consumers, by providing more information and better guidance than they have ever had access to before. From a typical consumer's standpoint - say someone who was involved in an auto accident - we have a wealth of numerically rated Michigan attorneys for the consumer to choose from. For example, a search for a Michigan personal injury lawyer yields 923 numerically-rated lawyers: [search results here]. Before Avvo launched, the typical consumer looking for this type of representation was reduced to sorting through the yellow pages or online search results - basing their decision on who has the biggest ad or who paid the most for a keyword.

"Finally, it's not surprising that Mr. Wesoloski didn't find numerical ratings for Michigan Supreme Court justices or in-house counsel. Avvo concentrates its data entry and ratings efforts on lawyers practicing in areas of most interest to consumers. Let's face it - the typical consumer isn't looking to hire a state supreme court justice or in-house counsel for help with a divorce or business formation!

"Avvo"

Mr. Britton, you've made some fair points. But you have also answered issues I didn't raise while not addressing some that I did.

And when evaluating my previous post, it's equally important to put yourself in a lawyer's shoes.

You've characterized one of my "two main issues with Avvo's Michigan coverage" as being that I "could not immediately find the attorney profiles [I] was looking for." Actually, I was complaining about erratic search results, which included the message, "We did not find any lawyers named ..."

You've suggested that incorrect inputting of the search targets' names may have caused the problem.

Point well taken, to a point.

I used first names and middle initials in the "first name" search field for all three of my searches. Twice I was told lawyers with those names were not found, even though listings for the search targets appeared farther down the page. In one instance, incorrect input did take me directly to the intended search target's listing without the scary (to a lawyer) message, "We did not find any lawyers named ..."

Happily, when I inputted just the first and last names of all three of my test names, Avvo's search engine took me directly to their listings.

It is entirely possible that I am the only person on the planet who will ever attempt to use Avvo's search feature by putting two parts of a lawyer's name in a single search field, but I wouldn't bet the farm on that. Why? Because another lawyer lookup service, the one provided by the State Bar of Michigan, offers only a first and last name field and has a fairly detailed usage note designed to forestall exactly what I did:

"Spelling must be exact, no middle initials, extra spaces, or tabs. If unsure of or unsuccessful with first name search, please use last name field only."

I'm suggesting that similar information on your search page might be helpful. When I got the "not found" messages, I knew to keep looking because I knew the test names were indeed lawyers. But if consumers looking for a particular lawyer happen to goof up the input, they might not get past the "not found" message and draw an incorrect conclusion.

But having said all of this, we'll see, in just a bit, how using a middle initial sometimes produces better results than just sticking to the first and last name only. As I said, my complaint was erratic results.

You characterized my second of "two main issues" as being "the majority of Michigan lawyers do not currently have a numerical rating." This was actually a minor issue. I ran a search and calculated that roughly one in 10 Michigan attorneys had a numeric rating. You've noted that when you launched in Michigan, about two weeks ago, "nearly" 4,000 attorneys had a numeric rating. The State Bar of Michigan's Membership Services department tells me there are nearly 40,000 attorneys eligible to practice in Michigan - 37,600 to be exact. We're still talking roughly 10 percent.

I thought that Michigan's legal community, which is the primary intended audience of this blog, might be interested in how many of their colleagues have acquired a numeric rating at this early stage of the game.

Now, about those Michigan Supreme Court justices: I never complained, in my previous post, about the lack of numeric ratings for them.

And, while a typical consumer certainly wouldn't be looking at them to take their divorce, business or personal injury case, a typical lawyer might be curious to see what Avvo has to say about members of the state's top court.

Here's what they would have found on June 24, as of approximately 8 a.m. EDT (all searches were first and last name only except where noted):

Clifford Taylor - "We did not find any lawyers named Clifford Taylor. To help you, we have expanded your search to include lawyers with the last name Taylor." Seventy-nine names were provided, including Hon. Clifford W. Taylor. Viewing his profile revealed this information: "Hon. Clifford W. Taylor has not claimed this profile so information may not be current. Here are similar lawyers that may interest you. These lawyers have claimed profiles and provided up-to-date information." Immediately below this message was the name of Toni Jean Beatty, a Lansing lawyer with an Avvo numeric rating.

Michael Cavanagh - A solitary listing appeared: Southfield attorney Michael D. Cavanagh. A search for Michael F. Cavanagh (note the problematic middle initial, which I included in the first name field) returned the "did not find - we have expanded your search" message. Eight names were provided, including Hon. Michael F. Cavanagh. Justice Cavanagh hasn't claimed his profile, either. Toni Jean Beatty was listed as a similar lawyer.

Marilyn Kelly - Listings for two lawyers named Mary Kelly appeared. A search for Marilyn J. Kelly (note that middle initial) returned the "did not find - we have expanded your search" message. Fifty-eight names showed up on the expanded search, including Hon. Marilyn J. Kelly. She hasn't claimed her profile, and below that message, the name of Livonia attorney Shalini Nangia appeared as a "similar lawyer."

Elizabeth Weaver- The "did not find - we have expanded the search" message appeared. Eight names appeared as part of the expanded search, including Hon. Elizabeth A. Weaver. No "similar lawyers" were listed.

Maura Corrigan - This search took me directly to Hon. Maura D. Corrigan's profile. Like Justice Kelly, Justice Corrigan hasn't claimed her profile. Shalini Nangia is listed as a "similar lawyer."

Robert Young - Listings for three lawyers named Robert Young appeared. Searching for Robert P. Young (there's that middle initial, again) produced 51 listings, including Hon. Robert P. Young. He hasn't claimed his profile and Shalini Nangia is listed as a "similar lawyer."

Stephen Markman - The "did not find - we have expanded the search" message appeared. Four names appeared as part of the expanded search, including Hon. Stephen J. Markman. Toni Jean Beatty is listed as a "similar lawyer."

Six of the seven justices' profiles contained links to "similar lawyers." Let me be very clear: I'm not suggesting anything untoward by anyone, including Avvo, the "similar lawyers" or the justices.

But I'm having trouble understanding how a lawyer can be "similar" to a supreme court justice, particularly so when there is no apparent information on the justice's profile to justify the linkage. And you have to allow for the possibility that a consumer who happens upon this information might make an unwarranted, unsavory assumption.

Postscript: As I was putting the finishing touches on this post, I received a call from Mr. Britton. Some highlights:

I learned that I've been mispronouncing his company's name when he introduced himself. It's Ah-vo. There's no long "a" at the beginning.

Mr. Britton was able to replicate the search results I obtained for Michigan Supreme Court Justice Robert Young. He remarked that Avvo has been in operation in other states for more than a year and that I was the first person to detect this problem. It clearly concerned him, and his feeling was that something in the Michigan database - the "Hon." in front of the judges' names, perhaps? - was skewing the results. I'm confident that his tech team will be taking a look at this.

He was receptive to the idea of putting a note on the search page to educate visitors how to best use the system.

Mr. Britton also spent a long time talking about how Avvo can be a great marketing tool for lawyers, especially small-firm and solo practitioners who would like a presence on the web but don't have the resources to maintain a website.

And about those Avvo numeric ratings: he stressed that the numeric rating is merely one of several tools that consumers can use to evaluate lawyers, and that lawyers can use to distinguish themselves. Peer reviews and client reviews are also part of the package.

It's the truth, I swear (or affirm)

When Catherine Nicole Donkers refused to raise her right hand when affirming she would tell the truth, claiming this would violate her religious beliefs, Washtenaw County Circuit Court Judge Melinda Morris dismissed her claims against her former attorney with prejudice.

The colloquy went like this:

"Court: Are you going to raise your right or not?
"Plaintiff Donkers: No ma'am. It's writ -
"Court: Okay if not then I dismiss your case and you may take it up on appeal.
"Plaintiff Donkers: Ma'am -
"Court: Your case is dismissed.
"Defendant: Thank you, Your Honor.
"Plaintiff Donkers: Ma'am I haven't [had] an opportunity. The same thing . . . happened at the deposition.
"Court: That's right, your case is dismissed.
"Plaintiff Donkers: I didn't have an opportunity to state what my substitute oath would be.
"Court: If you'll - if you'll submit an order -
"Defendant: Your honor, could I have seven days to submit this order?
"Court: You may.
"Defendant: Thank you very much, Judge Morris.
"Plaintiff Donkers: Ma'am, I'm going to object. I haven't been given an opportunity to say what my sub -
"Court: You know what you do when you object, you appeal. You appeal to the Court of Appeals and explain to them why it is you will not affirm that you will tell the truth on a deposition. There is nothing religious about that. There is no basis for any religious objection. The case is dismissed.
"Plaintiff Donkers: I had offered to tell the truth . . . this [is] exactly what I offered to say at the deposition as a substitute for an oath. I've had no problem in any other court in Michigan. I've had no problem in Nevada.
"Court: The record is turned off, so you're talking to the wind here."

Today's pop quiz: Did Judge Morris make the right call?

Answer: It took a split decision in the Michigan Court of Appeals, and denial of leave to appeal on a 4-3 vote of the Michigan Supreme Court to provide the answer, and the answer is "no."

There's a clear statutory command that when swearing an oath to tell the truth, you need to raise your right hand. MCL 600.1432(1) provides, "The usual mode of administering oaths now practiced in this state, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law except as otherwise provided by law. The oath shall commence, 'You do solemnly swear or affirm.'"

But under MCL 600.1434, if you are "conscientiously opposed to taking an oath" you "may, instead of swearing, solemnly and sincerely affirm, under the pains and penalties of perjury[]" that you will testify truthfully.

Writing for the majority in Donkers v. Kovach, Court of Appeals Judge Kathleen Jansen, joined by Judge E. Thomas Fitzgerald, succinctly noted, "What is less clear is whether a witness who elects to affirm to testify truthfully must also raise his or her right hand when doing so."

Jansen had little trouble clearing things up.

"The Legislature included the requirement of an upraised right hand in the general rule of MCL 600.1432, but omitted any such requirement from the specific exception of MCL 600.1434. Looking to the more specific statute as we must, [People v Buehler, 477 Mich 18, 26; 727 NW2d 127 (2007)] and construing the omission of the upraised-hand requirement from MCL 600.1434 as intentional, [Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993)], we conclude that the act of raising the right hand is not required to effectuate a valid affirmation under MCL 600.1434. Because Donkers chose to affirm to tell the truth rather than to swear an oath, she was not required to raise her right hand when doing so."

In a nine-page dissent, Judge Jane Markey argued that "the plain text of MCL 600.1432 and MCL 600.1434 read in harmony requires a witness to raise his or her right hand to swear or affirm to tell the truth before testifying." Markey noted that MCL 8.3k "requires that 'in all cases where by law an affirmation may be substituted for an oath,' the 'word "oath" shall be construed to include the word "affirmation"' and 'the word "sworn" shall be construed to include the word "affirmed."'" So, Markey reasoned, the raised-right-hand requirement for taking an oath applies equally when affirming to tell the truth.

Up at the Michigan Supreme Court, a four-justice majority (Justices Michael Cavanagh, Marilyn Kelly, Elizabeth Weaver and Robert Young) apparently saw things Jansen's way and denied leave to appeal "because we are not persuaded that the questions presented should be reviewed by this Court."

In his dissent, Justice Stephen Markman, joined by Chief Justice Clifford Taylor and Justice Maura Corrigan, wrote that Donkers

"is not a law unto herself and cannot unilaterally determine the circumstances under which she will participate in the judicial process and communicate to the judge and the jury that she is a credible witness. Rather, there are rules and procedures - in this instance, having a pedigree of half a millennium or so - by which our system of law seeks to ensure that the truth of matters is discerned in legal disputes. ...
"Typically, witnesses must swear to tell the truth and outwardly communicate their commitment to do so by raising their right hand during the process of swearing. To accommodate those with conscientious objections to such swearing, Michigan law affords an alternative procedure by which witnesses may 'affirm' to tell the truth. MCL 600.1434. For the reasons set forth by Judge Markey, I do not believe that this alternative procedure vitiates the requirement of an upraised right hand. Because plaintiff refused to participate in the legal process by the rules and procedures established by law, I do not believe the trial court abused its discretion by dismissing plaintiff's lawsuit."

Markman complained that while Donkers cited religious reasons for not raising her right hand, and was given

"ample opportunity for plaintiff to explain her objections to affirming to tell the truth with her right hand raised, plaintiff offered no explanation for her refusal to act in accord with the law other than vaguely claiming that she holds contrary 'religious beliefs.' Yet, plaintiff entirely failed to specify the nature and source of these beliefs. Thus, it is not only impossible to know whether plaintiff's 'free exercise' of religion is truly implicated here, but it is impossible to know whether either plaintiff's insistence upon affirming, rather than swearing, or her refusal to raise her right hand, was truly a matter of 'conscientious opposition,' as is required by MCL 600.1434."

Apart from what the statutes may or may not require, the traditionalist in me likes to see that right hand in the air. But from an intellectual standpoint, as long the witness says something to acknowledge an understanding that truth must be told, it shouldn't matter whether the right hand goes up, or the left or neither - whether swearing or affirming.

As a practical matter, it might be more effective to have the judge remind each and every witness in open court that the truth is expected, the penalty for lying is incarceration, and have the witness acknowledge this information.

Then, we should demand that prosecutors actually enforce the perjury statute on a non-selective basis.

NLADA report paints ugly picture of state's public defender system

A year-long study of the public defender systems in 10 Michigan counties concludes that not one of them is providing constitutionally adequate services.

The title of a report prepared by the National Legal Aid & Defender Association (NLADA), A Race to the Bottom: Speed & Savings Over Due Process: A Constitutional Crisis, says it all. Executive summary here.

Attorney-client conferences taking place in unisex public restrooms. Arraignments moving so fast that the locals in one county refer to the sessions as "McJustice Day." Prosecutors offering plea deals for time already served before the accused even sees an attorney. Appointed counsel asking the cops to investigate clients' cases rather than doing the gumshoeing on their own. Lawyers groveling before judges to keep a steady stream of appointments coming their way. Flat fee contracts that set up conflicts of interest between zealous representation and the bottom line.

Welcome to the nightmare world of Michigan's public defender system, according to the NLADA report.

The report doesn't reveal anything that Michigan's criminal justice community doesn't already know: defendants who are broke get short shrift by an overwhelmed system that is short on cash and supervision.

It's the rest of the state that needs to get on board. And there are good reasons to do that. From an NLADA fact sheet:

"Every Resident Impacted - The ripple effect of this broken criminal justice system is far-reaching and extends to every Michigan resident. By failing to meet its responsibility for funding and overseeing a vital part of the justice system, the state is wasting taxpayer money and endangering public safety.

"Fiscally Irresponsible - Taxpayers shell out millions of dollars to foot the bill for delays, mistakes and lawsuits that result from the broken public defense system. One such lawsuit forced the state and Wayne County to pay out more than $4 million to a man who had been wrongfully convicted.

"Public Safety at Risk - In recent years, several wrongful convictions have come to light, exposing the state's failure to provide for a functioning justice system that keeps communities safe. The impact extends far beyond the defendant: when an innocent person is imprisoned, the real criminal remains on the streets."

There's reason to believe that we'll see some steps in the right direction. The Legislature asked for this report, presumably knowing full well what the conclusions and recommendations would be. And the NLADA's number one recommendation is to begin legislative hearings "to address current funding and oversight failures in order to begin to create a fair and efficient system that protects the welfare of all Michigan residents."

There are no easy, quick fixes.

But trying to sweep the public defender mess under the carpet will only leave a large, easy-to-see, completely unconstitutional lump.

On-line lawyer rating service hits Michigan

Avvo.com, an on-line lawyer rating service that premiered to mixed reviews (here, here and here) last June, and weathered a class-action lawsuit filed by attorneys who took issue with their ratings, now includes ratings for Michigan (and Wisconsin) lawyers.

From Avvo's press release last week:

"The new ratings and profiles are immediately available for consumers to view and for lawyers to claim and update for free. Avvo is now available in 15 states and the District of Columbia, and covers approximately 70 percent of licensed attorneys across the country.
"Avvo offers consumers more information and better guidance regarding lawyers and legal issues than has previously been available in one place. Avvo rates and profiles every lawyer, with Avvo Profiles including attorneys' practice areas, work experience, industry recognition, and disciplinary sanctions. Avvo also aggregates and displays client reviews submitted by consumers and peer reviews submitted by attorneys."

How does Avvo calculate its ratings for lawyers? From Avvo's website:

"The Avvo Rating is our effort to evaluate a lawyer's background, based on the information we know about the lawyer. The rating is calculated using a mathematical model that considers the information shown in a lawyer's profile, including a lawyer's years in practice, disciplinary history, professional achievements and industry recognition - all factors that, in our opinion, are relevant to assessing a lawyer's qualifications.
"For some lawyers, the only information we have been able to collect is the publicly available information from state bar associations or other organizations that license lawyers. If that is all we have, then we display an Avvo Rating for the lawyer of either 'Attention' or 'No Concern.' We display the 'Attention' rating if there is information in the licensing records that, in our opinion, you should pay attention to, such as a disciplinary action against a lawyer without offsetting positive information. Otherwise, we display the 'No Concern' rating."

So, how useful is Avvo? I tried popping in the names of a few Michigan attorneys, selected by the highly scientific method of flipping the pages of the Michigan Bar Directory with my eyes closed, stopping and pointing my finger.

I used the "Lawyer Name" search tab on Avvo's home page. There are fields for first and last name, plus a city, state or zip code field. In each case, I used first name and middle initial, if any, last name and "Michigan."

The results were erratic.

For instance, searching for Douglas J. Donaldson, of the Donaldson & Bieganowski firm, produced this from Avvo: "We did not find any lawyers named Douglas J. Donaldson. To help you, we have expanded your search to include lawyers with the last name Donaldson." But, curiously, under this "no find" advisory, his profile was listed nonetheless, with a "No concern" rating. Clicking his profile revealed this information: "23 years since Douglas J. Donaldson was first licensed to practice law in MI," no disciplinary actions, practice areas unknown.

Searching for Stacie R. Behler, listed in the bar directory as "Vice President Public Affairs Meijer Stores," produced the same "no find" advisory. But, like Donaldson, Behler's profile was listed below the advisory. Here's her information: "13 years since Stacie R. Behler was first licensed to practice law in MI," no disciplinary actions, practice areas unknown.

A search for Robert C. Ketola, Robert P. Ketola & Associates, did not produce a "no find" advisory (as should have Donaldson's and Behler's). Clicking Ketola's profile lets you know: "11 years since Robert C. Ketola was first licensed to practice law in MI," no disciplinary actions, practice areas unknown.

Hmmm.

None of the lawyers I searched had a numeric Avvo rating. In fact, it was not that easy to find a lawyer that had a numeric Avvo rating. I searched for every lawyer with the last name "Smith" in Michigan. Avvo returned 276 listings, and by my count, roughly ten percent had a numeric rating.

Hmmm. Hmmm.

Then, just for grins, I tried each of the Michigan Supreme Court justices. A search for Chief Justice Clifford W. Taylor produced the now-familiar "We did not find any lawyers named ..." But there was a profile listing for him. There were "no find" advisories but profile listings for Justices Elizabeth Weaver, Robert P. Young and Stephen J. Markman.
A listing appeared for Justice Michael F. Cavanagh. A search for Justice Marilyn Kelly took me straight to two lawyers named Mary Kelly but did not advise me there was no listing for Marilyn Kelly.

Hmmm. Hmmm. Hmmm.

Justice Maura D. Corrigan's search produced the most curious result. Avvo advised that "Hon. Maura D. Corrigan has not claimed this profile so information may not be current. Here are similar lawyers that may interest you. These lawyers have claimed profiles and provided up-to-date information." The "similar lawyers" (only one was listed) was Shalini Nangia, a Livonia attorney with 7.4/10 rating. I searched both Corrigan's and Nangia's Avvo profiles in vain for something that would justify Avvo's "similar lawyers" linkage.

Hmmm. Hmmm. Hmmm. Hmmm.

Looks like the Avvo folks have a little work to do.

Removal of Ingham judge from office caps busy week for the MSC

The top tier of our "One Court of Justice" has made a lot of waves in the last few days.

Moments ago, the Michigan Supreme Court removed suspended Ingham County Circuit Court Judge Beverley Nettles-Nickerson from office, effective immediately. Justice Weaver concurred in the removal but dissented from the majority's imposition of $12,000 in costs against the former judge. The following misconduct was the basis for the removal:

"(1) Respondent twice made false statements under oath in connection with her divorce proceeding (Count I);
"(2) Respondent made and solicited other false statements while not under oath, including the submission of fabricated evidence to the Judicial Tenure Commission (Count II);
"(3) Respondent improperly listed cases on the no-progress docket (Count III);
"(4) Respondent was absent excessively and engaged in belated commencement of proceedings, untimely adjournments, and improper docket management (Count IV);
"(5) Respondent allowed a social relationship to influence the release of a criminal defendant from probation (Count VI); and
"(6) Respondent recklessly flaunted her judicial office (Count IX)."

Full opinion here. Copy of the Judicial Tenure Commissions report and recommendation referred to in the opinion here.

Yesterday, in a major workers' comp case, Stokes v. Chrysler, Justice Stephen Markman, writing for a 4-3 majority, raised the bar for claimants to establish a disability.

On Wednesday, three opinions from the Michigan Supreme Court:

In People v. Ream, Markman wrote a 5-2 decision that approves, in felony murder cases, convictions and sentences for both felony murder and the predicate felony.

Justice Marilyn Kelly, writing for a rare unanimous court in Kuznar v. Raksha Corp., announced that a pharmacy, which dispensed an allegedly incorrect prescription through a clerk who wasn't being supervised by an on-site licensed pharmacist, cannot be sued for medical malpractice but can most definitely be sued for negligence. The ruling gave the plaintiff in the case a longer statute of limitations.

Justice Robert Young was heard from in Mich. Dep't of Transp. v. Tomkins. Young's 4-3 decision held that when computing just compensation for property taken for a road construction project, a statute that precludes compensation for the aggravation and inconvenience caused by the construction does not offend the Michigan constitution.

Also on Wednesday, the court removed Kathryn George as the chief judge of the Macomb County Probate Court. George remains on the probate bench. Former Macomb County circuit and probate court judge, the Hon. Kenneth Sanborn, was named acting chief judge. Part of his job will be to make peace between George and Judge Pamela O'Sullivan, who was the court's chief judge until the MSC replaced her with George.

The order removing George contains a long statement by Justice Elizabeth Weaver, which reiterates her view that George should never have been appointed as chief judge in the first place.

'Allez cuisine!' Judges swap robes for aprons at cooking contest

They dish out justice every day, but on June 10, select Michigan judges dished out something else.

The inaugural Culinary Challenge — a benefit for the Women Lawyers Association of Michigan Foundation (WLAM Foundation) scholarship fund, Alternatives for Girls and Crossroads for Youth — brought district, circuit and appellate court judges to the Oakland County home of Michigan Court of Appeals Judge Elizabeth Gleicher and attorney Mark Granzotto.

It was the successor to WLAM Foundation’s two-decades-old women-lawyers-vs.-women-judges charity softball game, which had waned in participation in recent years.

And Michigan Supreme Court Justice Marilyn Kelly called it a more ideal alternative to running the bases. “We [judges] always lost,” she said. “We even brought in ringers, and we still lost.”

Although she was there to support her fellow judges, Kelly did, however, have to forfeit directly competing. She was hoping to present her “Oatmeal Delight” to the crowd, but had to arrive empty-handed because the recent metro Detroit power outage put her kitchen out of order.

No matter, as there was more than enough bite-sized samples to go around, and there were no rules against “buying” votes. Quite the opposite, as attendees — including attorneys — could purchase as many voting tickets as they wished, then dispense them into the bags that corresponded to the dish of choice.

In the end, the “World’s Ugliest Brownies” were the winner. The soft, gooey, walnut-speckled treats came courtesy of the Hon. Denise Langford Morris of Oakland County Circuit Court.

To paraphrase a sports adage, they may have been ugly, but a win’s a win.

Thanks and a tip of the hat to Michigan Lawyers Weekly Associate Editor Douglas J. Levy, who authored this post.

Keeping clients happy: being a great lawyer is not enough

"Lousy service is the number one reason clients fire law firms, and there are dozens of surveys and reports concluding that most lawyers don't do a very good job in this area," says John Remsen, Jr., one of the nation's top legal marketing experts.

It's not enough to be the great lawyer that you are, you need to wow your clients with top-notch service, Remsen explains in the June 2008 issue of the Remsen Report.

Here are a few of Remsen's common-sense reminders, gleaned from a panel discussion with three general counsels:

Timely response to client inquiries - The use of cell phones, blackberries and the internet has raised client expectations about how soon you'll respond to them. A return phone call within 24 hours used to be acceptable. Now, four hours is more like it.

Follow through on commitments - Meet your deadlines. Deliver early, if possible. And if you're going to miss a deadline, it's better to blow the whistle on yourself rather than have the client come looking for you.

Prevent surprises - Lousy news from the court? Higher than average invoice? No one likes a bad surprise, so blunt the impact with some prompt, up-front communication.

Get on the good side of your client's staff - Kindness, courtesy and respect are the watchwords when dealing with a client's support staff. They wield considerable influence, and you never know when or where your paths may cross next.

There's more good stuff from Remsen here.

Hey, what's cookin'?

In court, judges dish it out and attorneys take it.

It'll be more of the same, but with a tasty and altruistic twist, on Tuesday, June 10 at 6 p.m., when Michigan Court of Appeals Judge Elizabeth Gleicher and Mark Granzotto host the 1st Annual Culinary Challenge at their Pleasant Ridge home.

An all-star line-up of trial and appellate judges will be vying for the title of "2008 Judicial Iron Chef" with a tempting array of appetizers and desserts. Here's part of that previously mentioned twist: members of the bar are being invited to sample and judge what the judges are dishing out.

Nicole Wilinski, treasurer of the Women's Bar Association-Oakland County Region of WLAM (Women Lawyers Association of Michigan) and one of the challenge's organizers, has the question of the day: "Now that the tables are turned and the attorneys get to be 'judge,' who will be crowned the 2008 Judicial Iron Chef?"

I put that very question to Michigan Supreme Court Justice Marilyn Kelly, one of the contenders for the judicial cooking crown. Kelly's response: "I'm bringing 'Oat and Almond Delight' to the competition. It's a recipe from my 101-year old mother. How can I miss with that?"

I think we've identified the challenge's sentimental favorite.

Now, here's the rest of the twist: the culinary challenge is not just about winning the coveted Iron Chef award. Wilinski explains that "in addition to raising money for several deserving charities [WLAM Foundation Scholarship Fund, Alternatives for Girls, and Crossroads for Youth], this fun and casual event provides a relaxed venue for networking with members of the bench and bar."

Each participating judge has been advised to bring enough food for 125 people to taste. This is a fundraising event for some worthy charities, folks. Let's hope that number is a huge underestimation.

For tickets or information, contact Wilinski at (586) 563-3500 or nwilinski@kcmlaw.com

In the jungle, the mighty jungle ...

"A lion that waits near a watering hole hoping that a herd of antelope will come to drink is not engaging in conduct directed at a victim. However, a lion that sees antelope, determines which is the weakest, and stalks it until the opportunity arises to attack it engages in conduct directed at a victim. Contrast that with an individual who intends to shoplift and watches and waits for the opportunity to commit the act when no one is looking. The individual has not directed any action at a victim."

Michigan Supreme Court Justice Marilyn Kelly, explaining what constitutes "preoffense conduct directed at a victim" for the purpose of assessing points for predatory conduct under sentencing guideline offense variable 10.

Cannon and a couple of his buddies waited in a stolen pickup truck until all of the customers in a nearby Burger King cleared out. The trio went inside. Cannon acted as the lookout while the other two disguised themselves, brandished a gun and almost made off with cash from the store safe. An employee hiding in a walk-in freezer called the cops, who arrived quickly and captured all three a short time later.

The prosecutor argued that the three engaged in predatory conduct by scoping out the restaurant, waiting until the customers were gone, then going in and committing the robbery. This was conduct worthy of a 15-point assessment under OV 10 (exploitation of a vulnerable victim), the prosecutor urged. The trial court and Court of Appeals bought the argument.

But in doing so, wrote Kelly, the lower courts used the wrong test to determine whether the conduct was predatory. Here's what lower courts need to look at:

"(1) Did the offender engage in conduct before the commission of the offense?
"(2) Was this conduct directed at one or more specific victims who suffered from a readily apparent susceptibility to injury, physical restraint, persuasion, or temptation?
"(3) Was victimization the offender's primary purpose for engaging in the preoffense conduct? If the court can answer all these questions affirmatively, then it may properly assess 15 points for OV 10 because the offender engaged in predatory conduct under MCL 777.40."

Kelly announced the test on behalf of a 6-1 majority in People v. Cannon.

Justice Cavanagh, concurring in part and dissenting in part, quibbled with the majority's decision to remand the case so the trial court could apply the three-part test.

"Now that we have clarified the proper interpretation of OV 10, I would review the record in this case to determine whether there was evidence that defendant exploited a vulnerable victim. Our determination of this issue is not only authorized, but prudent. We have the same record evidence before us that the trial court will have on remand; moreover, our application of the proper interpretation would serve as useful guidance for the bench and bar."

A kernel of truth?

"I'll not have you repeat lawyer’s gossip. I'm a lawyer myself and I know what it's worth."
A Man for All Seasons
Act I
Robert Bolt

But sometimes a gossip item may have a kernel of truth, so read on.

The party invitations from freshly acquitted Geoffrey Fieger to the jurors who found him not guilty of federal campaign finance charges were barely out of his lips yesterday afternoon when the Lansing rumor mill went into overdrive.

Oddly enough, the renewed chatter was about who will oppose Michigan Supreme Court Justice Clifford Taylor in November.

Earlier speculation that Democrats are on the verge of naming Marietta Robinson as their Michigan Supreme Court candidate to run against Taylor was repeated.

Others wondered about Wayne County Circuit Court Judge Deborah Thomas and her efforts to build a groundswell of support for a spot on the MSC judicial ballot

But top honors go to this murmured flight-of-fancy: now that Fieger is off the hook, he can fire up dormant but ready-to-go machinery to take Taylor head on.

Quit laughing. Or crying, as the case may be.

A couple of weeks ago, while Fieger's case was still being tried, a friend of mine told me that he took a dinner-time call from a pollster. The topic was the upcoming Michigan Supreme Court election.

At one point, he was asked to choose between Taylor and several hypothetical candidates.

One of the match-ups was Fieger v. Taylor.

Someone out there has thought about this and is interested enough in the public's response to spend money to get the answer.

This could get interesting.

Weaver v. Taylor in November MSC contest? Nutty speculation points to painful truth

Picture this: Michigan Supreme Court Justice Elizabeth Weaver resigns from the court. Weaver then announces her candidacy to regain a seat on the court by butting heads with Chief Justice Clifford Taylor in the November election.

This "would have been one heck of a battle between two jurists who are not, shall we say, the best of friends," writes veteran Capitol newshound and pundit Tim Skubick in today's Lansing State Journal.

The unattributed scenario Skubick offers is, of course, punditry fever-dreaming at its best. And, Skubick says, when Weaver was asked about it, she said the thought never crossed her mind and labeled it as "laughable."

Meanwhile, Michigan Democratic Party Chair Mark Brewer and his minions continue the hunt for a Democratic candidate to face Taylor this fall.

A couple of weeks ago, Brewer appeared on Skubick's public television "Off the Record" program to face an all-star reporters' panel: Bill Ballenger of Inside Michigan Politics; Kathy Barks Hoffman of The Associated Press and Charlie Cain of The Detroit News. (Broadcast available here. Brewer's segment starts about 15 minutes into the program).

Ballenger put Brewer right on the hot seat by declaring that Brewer's biggest problem was that his party didn't have a candidate, that the only two folks who could beat Taylor, Governor Jennifer Granholm and former Governor Jim Blanchard, weren't running, and, as a result, Brewer was reduced to the strategy of painting Taylor as a villain.

It was almost painful to watch Brewer meekly respond that he was "very close" to naming a candidate. Since then, Brewer says a candidate has been selected, he's just not saying who, just yet.

Skubick says Brewer's candidate could be

"Marietta Robinson, a private lawyer from Oakland County who took on Taylor once before and lost. She has a long list of demands for her candidacy, but as one insider put it, 'She would give Cliff heartburn.' The governor's office would be comfortable with Robinson, too."

We'll see.

If this year's supreme court race were a sporting event, "Dandy" Don Meredith of Monday Night Football fame might describe it like this: "Time ticking away late in the fourth quarter. Democrats down by six with the ball on their own 20. Third down and a mile to go."

It's time to snap the ball, Mr. Brewer.

Why are we not surprised? Detroit mayor vetoes ouster resolution

Both of Detroit's major dailies, The Detroit Free Press and The Detroit News are reporting this morning that Mayor Kwame Kilpatrick has vetoed the city council's resolution asking Governor Jennifer Granholm to remove him from office.

The mayor's veto message warns that removing elected officials is "irresponsible" and thwarts the will of the voters. Kilpatrick claims the council can remove him only if he's convicted of a felony or lacks qualification to serve in office.

The initial responses from attorney William Goodman, retained by the city council to investigate the text-message scandal, to Kilpatrick's veto message arguments: "brainless" (Detroit News) and "lunacy" (Detroit Free Press).

"[I]t's an inherently preposterous concept that the mayor would have the power to veto the outcome of a City Council investigation (into him)," fumed Councilwoman Sheila Cockrel.

"The veto message speaks for itself," says Kilpatrick spokesman James Canning.

Today is 'Cliche Awards Day'

Let the ceremony begin!

The "Locking The Barn Door After The Horse Is Gone" trophy is awarded to Detroit Mayor Kwame Kilpatrick for his new policy directive, released yesterday, which decreed that the text messages and other communications on telephone, text devices and pagers issued to city employees are private.

An attractive "Wouldn't Touch It With A 10-Foot Pole" certificate is presented to the many county prosecutors who have declined the invitation of Kim Warren Eddie of the State Prosecuting Attorneys Coordinating Council to investigate allegations that the head of the Wayne County prosecutor's drug unit lied to jurors and allowed two cops to lie as well to obtain a conviction in a cocaine case. The situation is "complicated," says Eddie.

The "Comforts Of Indoor Plumbing" plaque goes to the 42-2 District Court in New Baltimore, which will open for business Monday in a new, $7.5 million courthouse, complete with its own restroom facilities. The old building didn't have any.

The "Mind Your Own Business" medallion is being presented by the state House of Representatives to Michigan employers who seek to control their employees' legal, off-premises activities. A package of bills has cleared the lower chamber that would prevent, among other things, employers from firing or refusing to hire smokers, skydivers and motorcycle racers.

The "Fear And Loathing" award is bestowed upon Republican Party Chairman Saul Anuzis, who is speculating that Kalamazoo-based billionaire Jon Stryker is preparing to spend some significant cash to oust Michigan Supreme Court Chief Justice Clifford Taylor in November.

And last, but not least, the "Fish Or Cut Bait" loving cup is awarded to Democratic Party Chair Mark Brewer, who is talking a mean game against Taylor but, so far, has not revealed his party's MSC candidate.