MSC removes Justin from office

In a unanimous decision, the Michigan Supreme Court has removed 12th District Court Judge James Justin.

In this case, respondent’s fixing of traffic tickets issued to himself, his family, and staff alone warrants the most severe of sanctions. However, respondent’s substantiated misconduct is much more extensive. The duration, scope, and sheer number of respondent’s substantiated acts of misconduct are without precedent in Michigan judicial disciplinary cases. Respondent’s long-term pattern of judicial misconduct constitutes a negation of the proper exercise of judicial authority that more than justifies the sanction imposed.

We order respondent’s removal from office.

Chief Justice Robert P. Young Jr. wrote.

6th Circuit: EMU student can sue for religious discrimination

Julea Ward, who was expelled from an Eastern Michigan University counseling program because she refused to counsel gays and lesbians about their lifestyles, can file a religious discrimination suit against the university, the Detroit Free Press reported.

In Ward v. Polite, et al., 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, joined by judges Julia Gibbons and John Adams, wrote that “Ward’s free speech claim deserves to go to a jury.”

“Although the university submits it dismissed Ward from the program because her request for a referral violated the [American Counseling Association] code of ethics, a reasonable jury could find otherwise — that the code of ethics contains no such bar and that the university deployed it as a pretext for punishing Ward’s religious views and speech.”

Judge George Steeh of U.S. District Court for the Eastern District of Michigan had ruled in favor of the university in 2010. The remanded case now goes back to him.

Extremely open and obvious

When Wayne Bailey’s teen-aged son ran away from home, Bailey called the Oakland County sheriff.

The sheriff’s department sent Deputy Dominick Spadafore to the scene. It was a cold December night. A narrow path shoveled through the snow led from Bailey’s driveway, up a step to the porch and then to Bailey’s front door.

Spadafore followed the path, went inside and talked things over with Bailey for a half-hour or so.

Okay, you can see this one coming from a mile away: Spadafore finished his conversation with Bailey and headed back to his patrol car. As Spadafore stepped from the porch to the step leading down from it, he slipped, fell and was injured.

The circuit court said the conditions were open and obvious and dismissed Spadafore’s premises liability claim.

The Michigan Court of Appeals affirmed for all the usual reasons: Spadafore saw the conditions as he made his way into Bailey’s home. The same conditions were present when he left. Spadafore admitted the weather conditions were such that snow would melt in sunlight and then freeze after sunset.

“Under these circumstances, a reasonable person in Spadafore’s position would have been able to discover the condition and take self-preserving precautions,” the COA panel ruled.

And there was one other circumstance that put the — ahem — icing — on the cake as far as dismissing the case based on Spadafore’s awareness of the conditions outside Bailey’s house.

During their half-hour talk, Bailey told Spadafore that his son ran away after being asked to shovel the driveway, step and porch, and to spread some salt.

The case is Spadafore v. Bailey.

Innocence Clinic lawyer considering Supreme Court run

The Detroit News is reporting that Michigan Innocence Clinic co-director Bridget McCormack is seeking the Democratic nomination to run in the Michigan Supreme Court election in November.

Justices Marilyn Kelly’s and Stephen Markman’s terms expire Jan. 1, 2013. Justice Brian K. Zahra, who was appointed to the court in January 2011 to fill a vacancy on the court, will have to run for re-election this year if he wants to serve the remainder of the term, which expires Jan. 1, 2014.

Will fracking be banned?

The following post was written by John Stodder, The Dolan Company National Affairs Correspondent. Dolan is the parent company of Michigan Lawyers Weekly.

The spectacle of protesters descending on New York’s capitol to pressure Gov. Andrew Cuomo to support a ban on fracking earlier this week has prompted various interested parties to revisit the question of what lies ahead for the controversial natural gas drilling technique.

The stakes are high. If fracking – the process of injecting a mixture of water, sand and chemicals to fracture deep deposits of shale, allowing trapped gases to be released and drilled – is an acceptable way to extract natural gas, then the U.S. and much of the world will have a bounty of fuel for generating electricity, heating and perhaps transportation, for generations.

But environmentalists fear that precious groundwater aquifers could be destroyed by fracking fluids and collateral releases of methane. In response, industry leaders say such fears are based on misinformation.

New York Times environmental blogger Andrew Revkin sees the “quieter corners” of what the environmental community is seeking. Instead of a ban on fracking, they say they are looking for regulations that will “give the greatest social and economic benefits with the least risk of environmental regrets.”  However, rhetoric at the rally suggests that people at the grassroots don’t want compromise.

Fracking has significance far beyond the borders of New YorkState. According to the U.S. Energy Information Administration, there are 5,760 trillion cubic feet of “technically recoverable” shale gas resources in 32 foreign countries, about 15 percent of which is in the U.S. There are immense deposits in a Northeastern belt running fromOhio throughPennsylvania to upstateNew York, inTexas,Oklahoma,Arkansas andLouisiana, inMichigan and in theRocky Mountains.

The reason many environmental organizations stop short of calling for a fracking ban is the nature of the end product, natural gas. Per BTU, the Environmental Protection Agency says natural gas has just over half the carbon dioxide emissions of coal, which it is increasingly displacing to produce electricity. With the stubbornly high costs of renewable power, some environmental leaders embrace natural gas as a transitional fuel to reduce CO2 emissions and slow the effects on climate.

But such concessions tend to be abandoned in the immediate vicinity of proposed fracking projects, as demonstrated by Monday’s rally, during which New York State Sen. Tony Avella, author of the fracking ban, shouted “Shame on you!” to environment groups that didn’t support him on the issue.

In the U.S., there are temporary fracking bans in New Jerseyand New York, but no permanent prohibitions. Bulgariahas voted to ban fracking and revoked a fracking permit it had granted to Chevron.France has also banned fracking despite its wealth of shale gas deposits.

In his account of a recent Duke University workshop on fracking, “the Green Grok,” a.k.a. Bill Chameides, dean of Duke’sNicholasSchool of the Environment, posed the key question for environmentalists: “Does fracking undermine drinking water?” His answer: “This is a huge question with only a tiny bit of data – enough to raise some questions, but not enough to provide definitive answers.”  

Meanwhile, the EPA began a study of the impact of fracking on drinking water in 2010. That study is still underway. The agency’s final word won’t necessarily be definitive and certainly won’t persuade everyone, but the matter will likely remain in a holding pattern until the study is finished.

Look only at respondent behavior in PPO dispute

In a contempt proceeding, a court should only consider the behavior of the respondent of a personal protection order (PPO), the Michigan Court of Appeals ruled.

The decision clarifies the analysis in such situations, Judge Kirsten Frank Kelly wrote. The respondent in the case, Dawn Kabanuk, had argued that she was provoked into violating PPO against her.

In In re: Kabanuk, Kabanuk’s sister-in-law, Mary Nordstrom, had obtained the PPO against her and her husband, Kenneth. All three were at the Oakland Circuit Court for a show cause hearing in which Kabanuk’s brother (and Nordstrom’s husband) Ronald violated a visitation order. During the event, Kabanuk was accused of confronting Nordstrom in front of a hallway full of witnesses and court personnel and saying, “I have one thing to say to you. You’re a f***ing bitch and I hate you.”

Kabanuk denied the incident happened that way, claiming that Nordstrom provoked her, and alleged that Nordstrom was wrongly using the PPO “as a sword rather than a shield” under People v. Freeman.

The court determined the Freeman language was dicta, and clarified that it only referred to poorly written PPOs, and not PPOs in general, and that the PPO holder “is under no obligation to act in a certain way.”

Instead, a court must look only to the behavior of the individual against whom the PPO is held. Here, Dawn does not argue that the PPO was carelessly worded or incorrectly entered; rather, she argues that by placing herself in the courthouse when Dawn and Kenneth were bound to be there, Mary was inviting a confrontation.

We do not find Mary’s conduct to be relevant in evaluating whether Dawn was in violation of the PPO. When evaluating whether there has been a violation of a PPO, the proper focus is on the behavior of the individual against whom the PPO is held (Dawn), not the behavior of the one who holds the PPO (Mary).

EEOC: Auburn Hills company laid off workers, based on age

The Equal Employment Opportunity Commission filed a lawsuit Jan. 20, claiming that Auburn Hills-based Hutchinson Sealing Systems Inc. selected project engineers for lay-off based on age.

Hutchinson manufactures automotive, aerospace, defense and marine industry parts.

According to the EEOC’s suit (Case No. 2:12-cv-10264, filed in U.S. District Court for the Eastern District of Michigan), the company “manipulated its criteria for selecting project engineers for layoff based on age.

“In the first round of layoffs, William Galas was the only engineer selected for layoff. At the age of 62 at the time, he was the oldest project engineer. A mere month later, Hutchinson laid off two more project engineers. This time, Hutchinson added one new layoff criterion that led to the second- and third-oldest project engineers at the time, ages 51 and 48 respectively, to be selected for layoff.”

The company couldn’t explain the new criteria. The EEOC claims that if the company had used the same criteria for the later layoffs as it did for the first one, the second and third engineers would not have lost their jobs. Instead, younger engineers would have been let go.

The EEOC released a statement saying that it had tried to reach a pre-litigation settlement through its conciliation process.

“The agency seeks to recover monetary compensation for Galas and the two other project engineers in the form of back pay other relief, including reinstatement, front pay and anti-discrimination training for the company,” according to the EEOC.

2012 Leaders in the Law honorees announced

Michigan Lawyers Weekly’s 25 “Leaders in the Law” for 2012 have been selected.

The honorees will be recognized in a special section to be published Feb. 27, and at the fourth annual Leaders in the Law luncheon, taking place March 15 at the Detroit Marriott in Troy. At the awards ceremony, Lawyers Weekly will reveal the 2012 Lawyer of the Year.

After reviewing nominations from peers, colleagues and associates, a Lawyers Weekly editorial panel considered such details as:

• Exemplifying the noble tradition of the legal profession, coupled with commitment to practicing law in Michigan.

• A record of winning cases, solving problems or coming to judicial conclusions that reflect the utmost integrity.

• Possessing the ability to achieve success in his or her respective practice, while also displaying the strength of character that transcends results.

• Being passionate and aggressive on behalf of both clients and the legal community.

The 2012 roster reflects a diverse array of practice areas, from business startups, civil rights and toxic tort, to intellectual property, eminent domain and medical malpractice. In addition, two prosecutors and two judges — including the chief justice of the Michigan Supreme Court — were selected.

This year’s honorees are:

• John W. Allen, Varnum LLP

• Andrew R. Basile Jr., Young Basile Hanlon & MacFarlane PC

• Mark J. Bernstein, The Sam Bernstein Law Firm

• Thomas P. Branigan, Bowman and Brooke LLP

• John V. Byl, Warner Norcross & Judd LLP

• John G. Cameron Jr., Dickinson Wright PLLC

• David E. Christensen, Michigan Auto Law

• Jerry Dorsey IV, Wayne County Prosecutor’s Office

• Darius W. Dynkowski, Ackerman, Ackerman & Dynkowski P.C.

• Brian D. Einhorn, Collins, Einhorn, Farrell & Ulanoff, P.C.

• Geoffrey N. Fieger, Fieger Law PC

• Hon. Nanci J. Grant, Oakland County Circuit Court

• Craig E. Hilborn, Hilborn & Hilborn, P.C.

• Maurice G. Jenkins, Jackson Lewis LLP

• Craig H. Lubben, Miller, Johnson, Snell & Cummiskey, P.L.C.

• Barbara J. Morrison, Oakland County Prosecutor’s Office

• Steven L. Oberholtzer, Brinks Hofer Gilson & Lione

• Jesse M. Reiter, Reiter & Walsh, P.C.

• Rebecca Simkins, Barris, Sott, Denn & Driker, P.L.L.C.

• Phillip D. Torrence, Honigman Miller Schwartz and Cohn LLP

• Jonathan Tukel, U.S. Attorney’s Office for the Eastern District of Michigan

• Jerome R. Watson, Miller, Canfield, Paddock and Stone, P.L.C.

• Anne Widlak, Nemeth Burwell, P.C.

• Hon. Robert P. Young Jr., Michigan Supreme Court

• Rodger D. Young, Young & Susser, P.C.

CPAN sues MCCA

The Coalition to Protect Auto No-Fault (CPAN) filed suit in Ingham County today to get accident and health information from the Michigan Catastrophic Claims Association (MCCA).

From The Detroit News:

On the receiving end of the lawsuit is the Michigan Catastrophic Claims Association, a nonprofit association created by the state Legislature more than three decades ago. The association collects an annual assessment from auto policy holders — $145 per vehicle in 2011-12 — to help fund the lifetime payments.

Since Michigan drivers are required to pay that fee, CPAN officials believe the data kept by MCCA is in the public domain.

CPAN said in a statement that the group wants the information so that it can inform lawmakers who are considering proposed bills that would drastically reduce benefits to people injured in automobile accidents. Specifically, House Bill 4936 and Senate Bill 649 would end lifetime medical benefits.

According to CPAN, the organization tried to use the Freedom of Information Act to get records from the MCCA, which reimburses Michigan auto insurance companies for personal injury claims that exceed $500,000. But MCCA said it is not required to provide that information because it’s exempt from FOIA.

From CPAN:

CPAN’s lawsuit claims this 1988 “secrecy bill” is unlawful because the state Constitution prohibits lawmakers from amending laws by reference. Article 4, Section 25 of the Michigan Constitution states that laws “altered or amended shall be re-enacted and published at length.” …

During House Insurance Committee hearings, several legislators asked for more data to help inform their opinion about the proposed auto insurance changes. State Insurance Commissioner Kevin Clinton testified in defense of the MCCA’s secrecy and said that even if the data was available, legislators and the public “wouldn’t understand.”

CPAN is holding a press roundtable this afternoon at 1:30 in Lansing at the Boji Tower.

Couple of moms file lawsuit to adopt

An Oakland County couple, April DeBoer and Jayne Rowse, filed today in U.S. District Court a suit to overturn the Michigan law that prevents them from jointly adopting children.

DeBoer and Rowse, according to a story in the Detroit Free Press, have been together for more than a decade, and are certified foster parents. Though DeBoer adopted their daughter, and Rowse adopted the couple’s two sons, DeBoer is prohibited from adopting the boys and Rowse is prohibited from adopting the girl because unmarried couples cannot adopt in Michigan.

That violates the Equal Protection Clause, they say.

The case has been assigned to Judge Bernard Friedman.