Very unappealing: MSC says missing deadlines is 'ineffective assistance'

There are deadlines and then there are DEADLINES.

Dinner reservations, parties, dates? Punctuality is appreciated but there's usually forgiveness for the fashionably late.

The stuff in the Michigan Court Rules, and, for purposes of today's blog, the stuff about when to file a criminal appeal? Now, those are DEADLINES.

A handful of recent Michigan Supreme Court orders make the point loud and clear.

The Court of Appeals had dismissed each of the appeals because of a blown filing deadline. When the criminal defendants tried their luck with leave applications at the Supreme Court, instead of getting a deaf ear, their attorneys were ordered to file supplemental briefs explaining the circumstances that led to the dismissals. Roe v. Flores-Ortega, 528 U.S. 470 (2000), provides a way out for those who miss a filing deadline: defendants can't complain if, obviously, they tell counsel not to bother with an appeal, or if the defendants share the blame for things not happening when they should.

Here's the punch line from the Michigan Supreme Court in People v. Means, People v. McCoy, and People v. Kipfer:

"[I]n lieu of granting leave to appeal, we REMAND this case to the Court of Appeals. That court shall treat the defendant's application as having been filed within the deadline set forth in MCR 7.205(F) and shall decide whether to grant, deny, or order other relief, in accordance with MCR 7.205(D)(2). The defendant's attorney acknowledges that the defendant did not contribute to the delay in filing and admits his sole responsibility for the error. Accordingly, the defendant was deprived of his appeal as a result of constitutionally ineffective assistance of counsel. See Roe v Flores-Ortega, 528 US 470, 477; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Peguero v United States, 526 US 23, 28; 119 S Ct 961; 143 L Ed 2d 18 (1999)."

Ouch!

In People v. Rodgers, the order reads this way:

"[I]n lieu of granting leave to appeal, we REMAND this case to the Court of Appeals. That court shall treat the defendant's delayed application for leave to appeal as having been timely filed and shall decide whether to grant, deny, or order other relief, in accordance with MCR 7.205(D)(2). The defendant was deprived of his direct appeal as a result of constitutionally ineffective assistance of counsel. See Roe v Flores-Ortega, 528 US 470, 477; 120 S Ct 1029; 145 L Ed 2d 985 (2000); Peguero v United States, 526 US 23, 28; 119 S Ct 961; 143 L Ed 2d 18 (1999)."

Still, ouch!

More ouch: the court told each of the attorneys to write a $250 check out of their own pocket, payable to the court, and hand it over to the court clerk.

In one case, People v. DeKubber, the attorney explained that the appeal was not pursued because her fees had not been paid. No excuse, said the majority, which noted that counsel let the deadline pass without withdrawing from the case. But Justice Maura Corrigan's dissenting statement suggested there may be more to the story:

"The defendant's retained appellate attorney missed the deadline for late appeal in the Court of Appeals. As a result, his appeal was dismissed for lack of jurisdiction. Under Roe v Flores-Ortega, 528 US 470, 486 (2000), a defendant alleging that ineffective assistance of counsel deprived him of his appeal must show that, 'but for counsel's deficient conduct, he would have appealed.' Thus, the defendant must establish, as a factual matter, that his appellate attorney caused him to forgo an appeal by rendering assistance that fell below professional norms. His attorney may not be the but-for cause of his lost appeal if the defendant contributed to the delay or indicated that he did not wish to appeal. Cf. Peguero v United States, 526 US 23, 25-26, 28 (1999). Here, the defendant replaced his appointed appellate attorney by retaining a second attorney almost 11 months after his convictions and sentences were entered. After the retained attorney filed an unsuccessful motion for resentencing in the trial court, the defendant's family did not pay his legal bills on time. His retained attorney asserts that, although the family's inability to pay was 'not Defendant's fault,' she waited to prepare and file his appeal until she received payment. She also claims that she informed the defendant and his family that she would not pursue an appeal until the defendant paid his outstanding legal bills and an additional retainer. Under these circumstances, questions of fact remain regarding whether the retained attorney caused the defendant to forgo his appeal by rendering assistance that fell below professional norms and whether the defendant contributed to the delay. Accordingly, I would remand for the trial court to address these questions at a Ginther hearing. People v Ginther, 390 Mich 436 (1973)."

COA's Bandstra announces re-election bid

Michigan Court of Appeals Judge Richard A. Bandstra says he'll be seeking re-election to another six-year term on the court in November.

Bandstra made his announcement a few minutes ago via a press release e-mailed from his g-mail account.

Bandstra was elected to the COA bench in 1994 and served as chief judge from 1998-2001. He's a former state representative with a law degree from the University of Chicago.

What's on Bandstra's mind heading into the election season? Money and productivity:

[O]ur Court faces large challenges in the years ahead as we have to maintain our productivity and the quality of our work in the face of budget cutbacks. As a former Chief Judge, I hope that I will be able to assist recently appointed Chief Judge Henry Saad in coming up with creative ways to meet those challenges.

Bandstra will be seeking re-election in the COA's Third District, which includes the following counties: Allegan, Barry, Berrien, Branch, Cass, Eaton, Ionia, Jackson, Kalamazoo, Kent, Muskegon, Newaygo, Ottawa, St.Joseph, Van Buren and Washtenaw.

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

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

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

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

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

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

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

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

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

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

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

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

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

The full text of the order is here.

COA tackles a flawed presidential primary law

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

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

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

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

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

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

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

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

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.