Michigan bar exam: grading changed, fees increased

Beginning with the February 2009 Michigan bar exam, you won’t be able to pass on the strength of a red-hot Multistate Bar Examination score alone.

Graders hired by the Board of Law Examiners will read your bluebook essay answers no matter how well you did on the multiple choice portion of the exam.

Why the change? According to the BLE’s policy statement:

“In order to assure consistency in the level of difficulty of Michigan bar examination essay questions from one examination to another, and thereby to more accurately assess whether applicants have attained the level of competence in the law necessary for the protection of the public, the Board of Law Examiners has determined to scale the essay examination scores to the scoring of the Multistate Bar Examination. To do this, the Board has determined that it is necessary to eliminate the practice of not grading the essay answers of applicants obtaining a threshold score on the MBE.”

More bluebooks to read means more work for the graders and a modest hike in the bar examination fee to cover those costs. First-time takers will pay $340. Re-examinations will cost $240.

The fee increases are the result of the Michigan Supreme Court’s amendment of Rule 6 of the Rules for the Board of Law Examiners.

The BLE’s policy statement on the grading change is available here.

Pro se foreclosure plaintiffs hitting federal courts

“The foreclosure crisis has made its way into federal court in the form of pro se cases filed by plaintiffs seeking to set aside a sheriff’s sale and have title restored, and we need your help.”

So begins an e-mailed letter signed by Eastern District Judges Denise Page Hood, Thomas L. Ludington, Victoria A. Roberts and Arthur J. Tarnow, who belong to the court’s Pro Bono Committee, and members of the Federal Bar Association‘s Pro Bono Committee: Patrice Arend, Jaffe Raitt Heuer & Weiss PC; Richard Haberman, Dickinson Wright PLLC and John Nussbaumer Cooley Law School – Auburn Hills.

What’s involved? According to the e-mail, Judge Roberts surveyed the pro se foreclosure cases on her docket. Cases are being filed

“as diversity actions and as original jurisdiction actions. Federal statutes sometimes cited are the Fair Debt Collections Practices Act, the Truth in Lending Act, Racketeering and Influenced Corrupt Organizations Act, and the Real Estate Settlement Procedures Act. Plaintiffs also rely on the Fifth and Fourteenth Amendments.

“Michigan statutes cited include Foreclosure by Advertisement, the Michigan Consumer Mortgage Protection Act, and the Michigan Mortgage Brokers Lenders and Servicing Lending Act. Common law actions cited include fraud, fraudulent inducement, quiet title, and breach of contract. Plaintiffs sometimes challenge the notice provisions that allow foreclosure by advertisement and make a due process argument from that.”

Not familiar with foreclosure actions? No problem. The group is putting together a training program that they hope to present in late October.

Eastern District Deputy Court Administrator Libby Smith told me that her office is determining the exact extent of the need.

“There will be no shortage of work,” she said, for those choosing to get involved.

More information is available from Sabrina Wescott at Cooley Law School’s Auburn Hills campus. She can be reached at wescotts@cooley.edu or at 248.751.7800 x-7778. There’s no obligation incurred by calling, and you’ll be able to review the case file before deciding whether to take the case.

Poll could be sign of trouble for Taylor’s MSC re-election bid

A Marketing Resource Group-Inside Michigan Politics poll shows that if the Michigan Supreme Court election were held right now, it would be a tight race between Wayne County Circuit Court Judge Diane Hathaway, the Democratic candidate, and incumbent Chief Justice Clifford Taylor, the Republicans’ choice.

The MRG-IMP poll shows 15 percent of those surveyed would either vote for, or are leaning toward, Hathaway. Taylor polled 14 percent. The poll’s margin of error is +/- 4.1 percent. There’s a big chunk of undecided voters, 68 percent.

So, is it a meaningless pre-election poll?

Far from it, says MRG’s Director of Research Services Paul King and IMP’s Bill Ballenger.

King said he was not surprised by the large percentage of undecided voters at this stage of the game. What did surprise him is that Taylor didn’t get a bigger pop from the poll. King explained that the question asked those responding to choose between “Incumbent Justice Cliff Taylor” and “Diane Hathaway.” The incumbency designation should have translated into a better percentage for Taylor.

How come it didn’t?

Here’s the scene where maybe I should be eating a slice of humble pie. In past posts, here, here, here and here, I’ve been less than supportive of Michigan Democratic Party Chair Mark Brewer’s handling of the MSC campaign.

But King speculated that Brewer’s shots at Taylor may be responsible for Taylor’s poorer-than-expected showing in the poll.

Ballenger echoed King’s speculation about Brewer’s campaign efforts. He added that Justice Elizabeth Weaver’s constant sniping at Taylor and the rest of the “majority of four” (Justices Maura Corrigan, Robert Young and Stephen Markman), has prompted “internecine squabbling,” which has “given the court a black eye.” This also presumably works to Taylor’s disadvantage, said Ballenger.

When Ballenger made his comments, he mentioned he was en route to Washington, D.C.

What’s going on in Washington, Bill?

“The secretary of the treasury has asked for my help.”

Ever the jokester, that Bill Ballenger.

Okay, so what’s Taylor’s next move?

“He’s got over a million in campaign funds. I suggest he start spending like a drunken sailor.”

Not so sure he was joking that time.

New Federal Rule of Evidence 502 enacted

Attorneys conducting exhaustive reviews of documents subject to a discovery request, to ensure that privileged material is not produced, are welcoming the enactment of new Federal Rule of Evidence, FRE 502.

FRE 502 limits waivers of attorney-client privilege and work-product protection to facilitate discovery and reduce discovery costs, according to a memo issued yesterday by the Administrative Office of the United States Courts.

The new rule was enacted last Friday, takes immediate effect and

applies in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date.

U.S. District Court Judge Lee H. Rosenthal, the chair of the Judicial Conference Committee on Rules of Practice and Procedure, discusses the new rule here.

Anatomy of a fishing lesson

News item from The Detroit Free Press: The 50th anniversary of the publication of “Anatomy of a Murder” by former Michigan Supreme Court Justice John D. Voelker, under the pen name Robert Traver, is being celebrated with a series of events in Marquette, Ishpeming and Lansing.

My family discovered the Upper Peninsula in the late 1980s when we rented a little cabin (a “camp” in Yooper vernacular) on Lake Superior near Shot Point, about 15 miles east of Marquette. On our first visit, we unpacked, explored the immediate area and decided we had stumbled upon heaven on earth. Then we took stock of what we forgot to pack, got in the car and headed west on Highway 28 toward Harvey for groceries, sundries and gasoline.

Just before Highway 28 runs into U.S. 41, at the heart of downtown Harvey, the Chocolay River bends out toward the road. There’s a small parking lot, a platform for handicapper fishing and an open bank leading down to the river.

It was right around there that we first saw the old, beat-up, blue Jeep Cherokee, driving slowly, mostly on the shoulder, with the driver-side door open a couple of feet. The driver appeared to be staring intently at the white fog line separating the road from the shoulder.

“What the heck,” or something close to that, I said to my family.

During our two-week stay, we saw the same scene several times, always right around the river. Things are different in the U.P., we decided.

One day, I caved in to my young son’s wishes and took him to fish at the Chocolay access point. I didn’t really care for fishing at the time. No patience for it. Patience is something that came with age for me. I could still use more of it.

We baited some hooks, threw the lines in and waited. From behind me, I heard car tires on gravel. I pulled my line out and hoped that it wasn’t a DNR officer because I was completely unlicensed.

It was the blue Jeep Cherokee.

An old man, crumpled hat, craggy face, nose shaped like a small potato, slightly unsteady on his feet, got out and started toward us. He definitely wasn’t a DNR officer.

“Hi,” I called out.

“Hello. Why’d you pull your line out?”

“Thought you were the law and I don’t have a license.”

“We don’t pay much attention to that around here. How’s he doing?” he asked, gesturing toward my son.

“Not so well. I don’t know much about this,” which drew a look that was a mixture of bewilderment and slight disapproval, perhaps, but he finished with a grin when I added, “but he enjoys it.”

“Mind if I help out?”

“How about it, son? The gentleman knows something about fishing.”

For the next 10 or 15 minutes, he talked to my son about the river, the fish, the weeds, the current, the rocks, where the big ones were. At one point, he went back to the Jeep and returned with something called a “spawn sac,” which he guaranteed would bring a fish to my son’s hook.

It did but it wasn’t a keeper.

After a while, he said he needed to be moving on. My son and I thanked him as he got back into the Jeep and slowed pulled out of the parking lot, straddling the shoulder with the driver’s door partly open.

As the Jeep disappeared, I realized I hadn’t caught his name. I never asked and he never volunteered it.

Several days later, back in the real world of work and Lawyers Weekly, I was thumbing through the issues that were published while I was gone. I turned a page and stopped cold.

Staring out from the page was a picture of the old gentleman who gave my son a fishing lesson.

His picture was coupled with a story about the
John D. Voelker Foundation’s republication of two of his fishing books. The paper was partnering with the Foundation at the up-coming State Bar of Michigan Annual Meeting, where the books would be sold to fund the Foundation’s activities.

My son had the privilege of a fishing lesson from the great man himself, John D. Voelker, former Michigan Supreme Court justice, author and outdoorsman, whose memory and literary achievements are being celebrated over the next several weeks.

I shared this story with Michigan Supreme Court Commissioner Fred Baker last week. He’s the secretary-treasurer of the Voelker Foundation.

“What about the way he drove the Jeep?” I asked. A driving performance like that anywhere else would have been worthy of a ticket or worse.

Baker told me that in Voelker’s final years, his eyesight was very bad. He would actually use the road’s fog line to make sure he was going in a straight path. He was so beloved in the Marquette area that when the police came upon him on the road, they’d leave him alone and just follow him to make sure he got where he was going.

Things are different in the U.P.

Harr, mateys! Let’s talk like a pirate, says MSC’s ‘Mad’ Marcia McBrien

Today is Talk Like A Pirate Day, and the normally somewhat reserved Marcia Mary McBrien, the Michigan Supreme Court’s Public Information Officer, says you should join the fun.

'Mad' Marcia McBrien, MSC Public Information Officer: Take yer ease by talkin' pirate, mateys

TLAPD, for the uninitiated, hit the scene in a big way seven years ago, when Dave Berry, the nationally syndicated columnist, did a piece on John Baur and Mark Summers, who began speaking like pirates during a heated racquetball game. The thing has snowballed into an international phenomena, complete with websites, newsletters, books, media interviews, lectures, parties galore with plenty of grog, and this year, an appearance by Baur and Summers (now known as Ol’ Chumbucket and Cap’n Slappy) at The Franklin in Philadelphia to promote the museum’s Real Pirates! exhibit.

But back to Marcia. She comes from a nice family, she lives in one of Pointes, she’s earned degrees from Notre Dame and the University of Michigan, she belongs to a garden club, she’s a stylish dresser, she goes to church on Sunday.

Every Sept. 19, she speaks Piratize.

What gives, Marcia? Why is a nice lady like you talking like a salty Caribbean swashbuckler?

“Well, ye see matey, ’twas like this: I be thinkin’ a few years ago that all of us have days where ye be feelin’ lower than a bilge rat’s belly. And everyone needs a bit of tomfoolery to be helpin’ ’em through t’ day. And I was a-thinkin’ of ways to amuse me shipmates and I hit upon International Talk Like A Pirate Day. I’ve been observin’ it ever since.”

Who else is playing along at the court?

“That would be me shipmates, Buccaneer Barb Brown and Cap’n Leslie Jenkins.”

How about the justices? Do any of them speak Piratize?

“Not yet, lad. But I’m workin’ on ’em. I want to see ‘avast’ in a Michigan Supreme Court opinion one of these days but it hasn’t happened yet.”

But you’ve written in Piratize on behalf of the court.

“Well, ’tis true, matey. Last year, we was a sendin’ out a press release for an administrative hearin’. I have a hard time for some reason gettin’ t’ general public and the media to pay attention – they seem to think it’s duller than last week’s bilge water – and I sent out a cover e-mail. ‘Twas all in pirate-speak, me lad. ‘Avast, ye swabs! Take heed!’ And some of ’em did. A few of ’em even responded in pirate-speak. It’s most gratifyin’, me lad.”

Are you doing anything else to get the judiciary and the legal community to embrace Talk Like A Pirate Day?

“It’s a process that will take some time, matey. It’s not like you can drop a belayin’ pin on someone’s head and say, ‘Celebrate it, now! Celebrate yer piratitude!’ We’re not talkin’ about bein’ real pirates, here. They were bloodthirsty, nasty people. We’re talkin’ about havin’ a bit o’ fun, a bit o’ tomfoolery and gettin’ away from pressures. Everyone’s worried about t’ economy, where their next pieces-o-eight are comin’ from. You do a little tomfoolery like this and it makes t’ barnacles fall off and your ship sail a little higher in t’ water.”

What’s next for you and Talk Like A Pirate Day?

“Where I’d like to see this be a goin’ some day: there’s a dearth of men walkin’ around sayin, ‘Avast, me proud beauty!’ to women passin’ by. It’s a serious oversight by t’ menfolk in these parts. Never once have I been addressed as ‘me proud beauty.’ So, we hope to rectify that.

Marcia, me proud beauty, some folks might think it should be easy for members of the legal profession to speak Piratize. What do you think?

“I’ll not be touchin’ that one with a 10-foot mizzenmast, matey.”

Well, shiver me timbers.

Now, t’ rest of ye swabees out there, it’s high time to let your inner pirate shine.

Update: Sept. 22, 2008

Ahoy, me hearties! Mad Marcia, Pirate Information Officer and t’ proud beauty of t’ MSC, scribed another o’ her celebrated press releases on Friday past. T’ cover e-mail, me swabees, ’twas in Piratize:

Take heed, ye bold lads and feisty wenches o’ the Fourth Estate!

Th’ Court be holdin’ a public hearin’ on administrative matters next week, Sept. 24, beginnin’ at three bells o’ the forenoon watch! So don’t just throw this press release o’er the starboard bow – it be full o’ treasure! (In the metaphorical sense.)

Me shipmates, Cap’n Leslie and Buccaneer Barb, and I bid ye a happy Talk Like a Pirate Day! A fair wind an’ good sailin’ to ye all!

Yo ho ho!

Mad Marcia
Pirate Information Officer

Upper Peninsula judge suspended for docket delay

The Michigan Supreme Court has suspended 41st Circuit Court Judge Mary B. Barglind for 30 days without pay for her self-admitted delays in deciding cases and failure to report the delayed cases to the State Court Administrative Office.

From the MSC’s order:

With no justifiable reason, respondent engaged in a pattern of delay in rendering decisions in matters submitted to her for review. In some instances, the delays exceeded two years. Respondent failed to respond over a several month period to numerous inquiries made by the State Court Administrative Office Regional Director regarding the status of various matters. On several occasions, respondent failed to report, as required by MCR 8.107, all matters which remained undecided for more than four months from the date submitted to respondent. After a January 2007 implementation plan was put in place, respondent failed to report all undecided matters to the State Court Administrative Office. Respondent’s failure to promptly dispatch her judicial duties constituted misconduct on the bench that was prejudicial to the administration of justice.

In ordering the suspension, the court referenced the Judicial Tenure Commission’s decision and recommendation of discipline, noting that Barglind consented to both the JTC’s fact-finding and recommended 30-day suspension without pay.

The JTC examined a dozen of Barglind’s cases and declared:

The standards of judicial conduct make clear that an important component of justice is the prompt dispatch of judicial duties. Through her unjustified delay and failure to cooperate with the SCAO, Respondent has failed in these responsibilities.

The commission concluded that Barglind committed judicial misconduct but the delays were not “premeditated or deliberate.” Barglind’s conduct was “more in the nature of neglect,” the JTC said.

The 41st Circuit includes Dickinson, Iron and Menominee counties in the Upper Peninsula.

Constitutional rights for all, including those who can’t afford them

Today is “Constitution Day,” a day that we take note of the 220th anniversary of this remarkable document, along with the rights it provides and responsibilities it imposes.

Richard McLellan: rights for everyone

Today is also the day that East Lansing attorney Richard McLellan, writing in The Lansing State Journal, has appropriately pointed out a sad truth: when it comes to discharging the constitutional duty to ensure that indigent criminal defendants receive effective assistance of counsel, the state government has failed spectacularly.

McLellan has the credentials to make this indictment. He’s the chair of the Michigan Law Revision Committee, a member of the State Bar’s Public Policy Committee, and a former co-chair of the bar’s Justice Initiatives Committee.

And he’s got the data to make his case. A study of 10 counties’ public defender systems released earlier this year by the National Legal Aid & Defender Association concluded that not one of them was providing constitutionally adequate representation to criminal defendants who couldn’t afford to hire an attorney. In some counties, the picture isn’t pretty at all.

McLellan comments:

NLADA’s extensive report, originally requested by the Legislature, provides the state with an opportunity to both protect the rights of citizens and use taxpayer dollars more efficiently. We currently spend $2 billion a year on prisons. By taking common sense steps to provide residents with an adequate legal defense we can not only keep innocent men and women out of jail, we can avoid wasting millions.

Let us use Constitution Day to commit ourselves and our state to fully embracing both the benefits and the obligations our law provides.

Hear, hear.

Martin removed from judicial ballot again: Down but not out

How’s Tawas attorney Christopher Martin doing since the Michigan Supreme Court halted his 23rd Judicial Circuit election campaign dead in its tracks?

“I’ve been better,” he told me a few days ago. “I guess the Michigan Supreme Court invoked the little-known incumbent judges’ re-election act.”

Well, not exactly, but who could blame Martin for being a little bitter about the whole affair? The order that ended his campaign exalted the exacting standards of Michigan election law over an application of equity.

Martin decided to make a three-way race for two seats on the 23rd Circuit bench by taking on the incumbents, Judges William Myles and Ronald Bergeron. He checked with the Secretary of State and was told he needed to submit between 100 and 200 signatures on his nominating petition. He was also told he could be prosecuted if he submitted more than 200.

This turned out to be bum advice because the 23rd Circuit was enlarged a while back. With more people living in the bigger circuit, the actual signature requirement jumped to between 200 and 400, which the incumbents dutifully noted after Martin submitted 158 signatures.

Since then:

• The Secretary of State removed him from the ballot;
• A trial court, invoking equity, ordered the SOS to give him a shot at making up the deficit with more valid signatures (which Martin had) and to put him back on the ballot;
• A split Michigan Court of Appeals panel let the trial court decision stand. The majority, Judge Stephen Borrello, joined by Judge Donald Owens, ruled that the incumbent judges were not “aggrieved parties” and therefore lacked standing just because they had to campaign harder. Judge Peter O’Connell, dissenting, opined that the aggravation and expense of running a contested campaign is aggrieving enough, and that the incumbents had a right to complain when equity is used to permit “an end run on election law statutes” and
• A divided Michigan Supreme Court adopted Judge O’Connell’s view on the standing and equity issues, and reinstated the SOS’s decision to keep Martin off the ballot.

Martin is understandably disappointed with the whole affair. He’s spent more in attorney fees to get on the ballot than he cares to talk about. And there are 800 not-so-inexpensive campaign yard signs, which, as of Monday, Martin told me “are still out there.”

He told the Oscoda Press that he’s thinking about a write-in campaign but admitted that would “be really tough to pull off.”

Martin is down but he’s not out. The top voter-getter in the 23rd Circuit election wins an eight-year term, the runner-up gets a six-year term.

“So, what about the next time around?” I asked him. “Will you go for it?”

His quick and emphatic reply: “Absolutely.”

Dems nominate Hathaway for MSC

Wayne County Circuit Court Judge Diane M. Hathaway: wins floor fight at state Democratic convention and ready to take on Michigan Supreme Court Chief Justice Clifford Taylor.

At its state convention in Lansing over the weekend, the Michigan Democratic Party nominated Wayne County Circuit Court Judge Diane Marie Hathaway as its candidate for the Michigan Supreme Court.

Despite a strong grassroots challenge from fellow Wayne County Circuit Court Judge Deborah Thomas – she came within 300 votes according to an Associated Press report – Hathaway prevailed with the backing of several unions, the AFL-CIO, the United Auto Workers, the Michigan Education Association, and an endorsement from the Michigan Association for Justice.

Hathaway took the expected swipes at the Michigan Republican Party and her November opponent, incumbent Michigan Supreme Court Chief Justice Clifford Taylor, the Republican nominee. From the Associated Press:

“I love the state of Michigan,” Hathaway told delegates. “I love her people and I love her environment. Our Republican-dominated Supreme Court is hurting you both.”

Hathaway and Taylor are seeking an eight-year term on the MSC.