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.

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.

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.

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."

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.

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.

MSC Historical Society marks 20th anniversary

Get a rich slice of Michigan Supreme Court history at the Annual Membership Luncheon of the Michigan Supreme Court Historical Society on Thursday, April 24, 2008, at the Detroit Athletic Club.

Things get underway with an 11:30 a.m. reception. There's entertainment by A (Habeas) Chorus Line, and the presentation of the society's Legal History Award to Professor John W. Reed.

If you're interested in Michigan's legal history, you're invited. Tickets are $35. For more information and reservations, contact Angela Bergman, the society's executive director, at (517) 373-7589.

Markman says MSC majority tripped up in pothole case

"Darkness at the break of noon ...
"Eclipses both the sun and moon ..."
- Bob Dylan, "It's Alright, Ma (I'm Only Bleeding)"

Pavement, potholes, injured plaintiffs and demands for damages have been a much tougher sell ever since the Michigan Supreme Court announced its open-and-obvious-special-aspects analysis in Lugo v. Ameritech Corp., 464 Mich. 512 (2001).

But throw in a debate about lighting and you just might have something.

In Galliher v. Trinity Health-Michigan, an unpublished per curiam decision by the Michigan Court of Appeals, the panel said a woman who fell in a large pothole could get to the jury on her personal injury claim.

The trial court noted that plaintiff provided photographs, which showed that the conditions were sunny but that a building's shadow was obscuring the pothole.

The Galliher panel framed the issue this way:

"[W]hether the absence of natural light and illumination from other lighting sources can cause an otherwise open and obvious condition to be hidden for purposes of premises liability."

The panel (Judges E. Thomas Fitzgerald, David H. Sawyer and Peter D. O'Connell) concluded:

"Plaintiff presented evidence that a rather large, deep pothole existed in defendant's parking lot, that plaintiff did not see the pothole even though she looked where she was walking, that the pothole could have been seen had there been adequate illumination, whether natural or artificial, and that at the time of the fall it was dark and there was no artificial light in the area. ... [W]e agree with the trial court that plaintiff established a question of fact regarding whether the pothole was open and obvious."

Last week, the Michigan Supreme Court denied leave to appeal on a 6-1 vote. There was no comment from the majority in its Feb. 8 order, but an obviously flabbergasted Justice Stephen Markman had plenty to say.

"Because I cannot imagine any more 'open and obvious' condition than a pothole in a driveway during daylight hours, I would reverse the Court of Appeals judgment and remand for entry of an order granting summary disposition to defendant. '[P]otholes in pavement are an "everyday occurrence" that ordinarily should be observed by a reasonably prudent person.' Lugo v Ameritech Corp, Inc, 464 Mich 512, 523 (2001)."

Markman scolded his colleagues and shined his own light on the record.

"It is hard to know whether the majority is more persuaded here by the argument: (a) that a shadow cast by a hospital on a pothole constitutes a 'special aspect,' thus removing the pothole from the realm of the 'open and obvious'; (b) that plaintiff's testimony that she fell during 'dark evening hours' should be accorded credit despite the fact that 4:00 pm to 5:00 pm on the afternoon of March 1, 2003, the time of the accident, was a daylight hour; (c) that plaintiff's simultaneous arguments that there were sunny conditions at the time of her accident, thereby creating a shadow over the pothole, and that there were 'overcast' conditions at the time of the accident with 'heavy, dense clouds and fog and scattered snow showers,' thereby obscuring the pothole, should be accepted as legitimate alternative arguments; or (d) that plaintiff's assertion that she 'did not discover the condition' is somehow relevant to this Court's analysis of premises liability cases."

Markman said that the majority was pushing Lugo into the shadows.

"That any of these arguments have been found to be persuasive by this Court evidences why Lugo has become an increasingly 'dead letter,' to be replaced by no coherent alternative rule of law."

So, should we light a candle for Lugo?

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)."

Judicial election reform buzz getting louder

Proponents of the notion that the way we select and elect our judges in Michigan is broken and needs fixing have been creating a lot of buzz recently.

Yesterday, State Rep. Lamar Lemmons, Jr. (D-2nd District) introduced a state constitutional amendment that would level the playing field by eliminating the now-constitutionally mandated incumbency designation on judicial ballots. Lemmons' proposal has been sent to the House Judiciary Committee.

The value of the incumbency designation should not be underestimated.

"In the last 20 years, at least 95 percent of all judges in Michigan seeking re-election have been returned to office," says Bill Ballenger, the venerable publisher of Inside Michigan Politics. Ballenger has kept tabs on such things in his newsletter since 1987.

Earlier this week, the Midwest Democracy Network rolled out an online book, "Democratic Renewal - A Call to Action from America's Heartland". The book assesses the scene in the Great Lakes states, and has plenty of observations about perceived wrongs and how to right them. Rich Johnson, the Executive Director of the Michigan Campaign Finance Network, wrote the book's Michigan section. Among Johnson's proposals:

• Ethics law should be extended to cover the legislative and judicial branches of government.
  
  
• Michigan should establish a commission to evaluate the merits of a system of voluntary full public funding for all State election campaigns.
  
  
• The Michigan Supreme Court should develop standards for recusal in cases involving individuals and interest groups who have substantial financial ties, whether personal or political, to any justices.
  

A previous blog noted Michigan Supreme Court Justice Elizabeth Weaver's reform plan, which she floated on her private web site over the year-end holidays. Weaver's proposals have received mixed reviews in the Kalamazoo Gazette and, more recently, in the Grand Rapids Press.

Heard it before: Battani boots another Fieger bias claim against MSC

Geoff Fieger's federal-court crusade -- that he can't get a fair shake in front of the Michigan Supreme Court because Chief Justice Clifford Taylor, and Justices Maura Corrigan, Robert Young and Stephen Markman are biased against him and won't step aside when his cases come up -- received another setback last Friday.

U.S. District Court Judge Marianne O. Battani ruled that Fieger's allegations in Fieger v. Taylor, et al., sounded suspiciously, no, make that exactly, like the ones advanced (and rejected) in Fieger v. Ferry, et al., and dismissed the suit after a hornbook application of res judicata principles.

From Battani's opinion: "Plaintiff's complaint in Ferry was wide-ranging. It stated, in relevant part, that Plaintiff had the constitutional right 'to have his cases ... decided by a fair, independent and impartial tribunal, following a fair hearing, as guaranteed by the Due Process Clause ... [and] the Defendants ... have deprived, and continue to deprive, the Plaintiff Fieger's civil rights by the expression of public, personal, political, and professional animus.' ...

"The current complaint states that '[h]aving publicly expressed their personal and professional animus toward Mr. Fieger while continuing to sit in judgment of his cases, Defendants ... are denying to Mr. Fieger ... a fair hearing before an impartial tribunal' and are thus violating Plaintiff's due process rights. ... The access to courts claim states that '[b]y failing to provide [Plaintiff] a fair hearing before an impartial tribunal, Defendants ... are depriving [Plaintiff] adequate, effective, and meaningful access to the courts.' ... The issues presented for litigation - the alleged ongoing constitutional violations caused by the absence of a fair hearing for recusal - are identical in both cases ...."

Although Fieger hasn't had much luck with his claims that Taylor, et al., shouldn't review his cases, the topic of formulating recusal standards for the MSC has been getting some legislative attention because it's fairly clear that this is a project the court won't take up on its own.

Weaver proposes reform for selection, election of MSC justices

With little fanfare, Michigan Supreme Court Justice Elizabeth Weaver last week floated a proposal on her privately funded website that calls for sweeping changes in the way MSC justices are selected and elected.

Weaver proposes a constitutional amendment that would limit appointments or elections to the high court to one eight-year term.

In addition, Weaver would end the practice of having political parties nominate candidates for a supposedly nonpartisan judicial ballot. Supreme Court candidates would have to scrounge for signatures to get on the ballot, just as all other judicial candidates must do. Weaver would take soft money out of play by requiring publicly funded campaigns.

Another of Weaver's proposed constitutional amendments would require the Governor to act with Michigan Senate's advice and consent when filling vacancies. The Governor would also be required to consider non-binding recommendations from a judicial qualifications committee.

Weaver, as evidenced by the introductory comments to her proposals, is frustrated with the way the "gang of four," her derisive label for Chief Justice Clifford Taylor and Justices Maura Corrigan, Robert Young and Stephen Markman, made it to the state's top court:

The problem with the Governor's unchecked appointment power to create power blocs on the Supreme Court cannot be overemphasized. Three of the seven justices now on the Michigan Supreme Court were appointed to fill vacancies on the Court by then-Governor Engler: Chief Justice Taylor, Justice Young, and Justice Markman. Those three Justices, plus Justice Corrigan, were first appointed to the Court of Appeals by then-Governor Engler to fill vacancies on that court. Justice Corrigan was openly and substantially supported by Governor Engler when she campaigned for a seat on the Supreme Court. It is significant, and troubling, that when Governor Engler appointed these 4 justices, not one of them had any prior trial judge experience.

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.

Voter photo ID law gets first test next Tuesday

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

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

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

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

They're not fooling around.

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

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

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

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

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

MSC recusal standards: constitutional amendment being drafted

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

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

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

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

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

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

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

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

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

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

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

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

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

Here's why.

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

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

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

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

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

Those words were written Jan. 31, 2006.

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

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

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

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

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

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

Justices, money, elections and recusal

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

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

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

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

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

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

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

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

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

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

Easier said than done.

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

Judges: Is there a better way to pick them?

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

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

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

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

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

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

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

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

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

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

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

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

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.

A wrong without a remedy

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

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

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

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

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

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

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

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

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

Hopeful signs for an empty-handed plaintiff.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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