Taylor City Attorney Wars IV: The Revenge!*

[See Part 1, Part 2, Part 3]

Just when you thought it was safe to go back to your city council meeting…

When we last left the story, the Taylor City Council had overridden Mayor Jeffery Lamarand’s veto of its early vote to appoint James Tamm of O’Connor, DeGrazia, Tamm and O’Connor, P.C. as its City Attorney (at least for the time being).

[Mr. Tamm’s appointment comes with an hourly fee of $185 an hour, which, if my math is correct, is $35 an hour more than the former city attorney was charging and $95 an hour more than the mayor’s choice to replace him. All of this started with the mayor’s plan to save the city money by appointing a city attorney at a lower rate. I’d say that measure has failed. Astonishing.]

Of course, the final vote took place over the dead body obstruction of city council president, Cheryl Burke, who repeatedly refused to allow the vote over the course of one and a half meetings and one special meeting. To quote Gerald Ford, our national nightmare was over.

But like Rasputin, the story won’t die.

Today, the city council filed a motion in Wayne County asking Judge Virgil Clark Smith to order Lamarand and Burke to stop breaking the city charter and obstructing votes. The motion details all of the sordid details alleged charter breaches, from Lamarand firing the council’s “confidential” secretary without notice or discussion with the council just four days after taking office, blocking the secretary from entering her office when she was rehired, and of course, the much documented city attorney fiasco.

The motion specifically asks that the judge order, among other things, that Burke allow votes to properly proposed resolutions, and Lamarand cease and desist from “usurping” the council’s power.

And here I thought I was going to have to find something new to write about.

* When ranking the stupidest sequels of all time, as much as one may want to focus on Caddyshack II, at least consider Jaws 4: The Revenge should not be overlooked. You think you’ve seen movies based on stupid logic? Try this: After another shark attack in Amity, the Brody family (sans the late, great Roy Schneider, who knew better than to get involved) from the first two movies packs up and moves down to the Bahamas, fearing the shark wanted revenge for killing the sharks in the first two movies. What happens? The shark follows them down to the Bahamas, chaos ensues, brain cells go unused, shark dies.

Granholm floats early retirement plan to help budget crisis

From the AP:

LANSING, Mich. (AP) — Gov. Jennifer Granholm is proposing a plan to entice eligible state government workers and public school employees to retire. It’s part of an effort to save money for the cash-strapped state.

Granholm spoke about her plan Friday during a speech to the Lansing Rotary Club. It’s one of several priorities for the Democratic governor during her final year in office. She says it could save around $450 million in its first year.

Other changes include a consolidated health care plan open to all public employees.

Granholm will detail more proposals during her State of the State speech and her final budget proposal in early February.

Michigan faces a budget deficit of at least $1.6 billion for the fiscal year starting Oct. 1.

Disqualification motion denied

Fears that “the appearance of impropriety” standard may be too low and too subjective might be put to rest, with the release of the first ruling in a Michigan Supreme Court disqualification motion.

Southfield-based attorney Geoffrey Fieger had moved to disqualify justices Stephen J. Markman, Robert P. Young and Maura D. Corrigan in Anthony PELLEGRINO v. AMPCO Systems Parking (No. 137111). Fieger claimed those justices are biased against him and his firm, based on past political campaign speech.

But Markman cited staleness, having said during his 2000 reelection campaign only that Fieger had made campaign contributions to his opponents; and once during a speech to a medical society, Markman had made a statement about “trial lawyers” but did not mention Fieger nor his firm by name.

And the statements are just so old, Markman wrote: “He mistakenly attributes to 2002 several matters that are supported by exhibits having occurred during 2000. While, properly, there may be no statute of limitations to claims of bias or prejudice, the staleness of a complaint must at least constitute one factor in assessing the ‘appearance of propriety’ …”

In deciding some 40,000 cases, Markman said,  “Counsel has prevailed in those cases in which, in my judgment, the law was on his side, and he has not prevailed in those cases in which, in my judgment the law was not on his side.”

Further, he pointed out that he had once before disqualified himself from participating in a Fieger case, Fieger v Cox, 480 Mich 874 (2007), because it pertained to Markman’s reelection campaign in 2004.

Young and Corrigan did not participate in the Markman disqualification motion, but justices Diane M. Hathaway, Michael F. Cavanagh, Elizabeth A. Weaver and Chief Justice Marilyn Kelly concurred.

Though certainly the newly adopted MCR 2.003 states that the appearance of impropriety is a ground for judicial disqualification, Weaver wrote in her concurring statement, “The statements made by Justice Markman were made before this Court adopted MCR 2.003 as amended. We will not apply the appearance-of-impropriety standard retroactively to statements made by a justice concerning a party or party’s attorney prior to the rule’s amendments. However, we will apply the standard prospectively to statements made by a justice concerning a party or a party’s attorney from the date that the order amending MCR 2.003 was entered.”

Kelly also noted the staleness of the complaints against Markman.

“It is not alleged that Justice Markman has made subsequent public comments about attorney Geoffrey Fieger,” she wrote. “Moreover Justice Markman’s voting pattern over the past decade does not reflect bias against Mr. Fieger or the appearance of bias …”

Judge throws out $4.3M verdict for war vet

DETROIT (AP) — A federal judge has thrown out a $4.3 million jury verdict in a case involving a U.S. Army veteran who says he quit a job because co-workers made fun of his disabilities.

James McKelvey lost his right hand and suffered other permanent injuries in a bombing in Iraq in 2004. He returned to Michigan and worked as an explosive specialist at the Army’s Warren Arsenal in suburban Detroit.

U.S. District Judge John Corbett O’Meara said Wednesday that reinstating McKelvey is a better remedy than awarding him millions of dollars. The Army has offered him a $71,000 job. At trial last fall, McKelvey said it made him “sick” to even think about returning.

His lawyer says the Macomb County man will appeal. McKelvey took a job with Oakland County in 2007.

The full text of of McKelvey v. Geren is available here.

Alger County judge suspended for DUI

Alger County Probate Court judge Charles C. Nebel has been suspended for 90 days by the Michigan Supreme Court after pleading guilty to driving while under the influence.

According to the order, Nebel was nabbed on July 24, 2009 for driving over 105 miles per hour on Interstate 75 between St. Ignace and Munising. After his arrest, breath tests taken at the jail revealed he had a blood-alcohol level of .09.

Bankruptcy court can’t order IRS to give trustees debtors’ refunds

It seemed like such a good idea.

A couple of years ago, the Bankruptcy Court for the Eastern District of Michigan approved a standardized confirmation order for Chapter 13 cases, which, in part, attempted to cut out the middleman by ordering the IRS to send debtors’ tax refunds directly to the bankruptcy trustees overseeing their cases.

Well, nobody, and we mean nobody, tells the IRS what to do.

The IRS sued to stop the tax refund redirects. It later withdrew the suit and the parties tried to mediate a solution. Those efforts failed.

As the IRS made plans to file another suit, the court’s six judges sent the IRS a letter insisting they had the authority to issue the redirect order.

The IRS responded by reinstituting its suit.

Last week, U.S. District Court Judge Denise Page Hood, in United States v. Carroll, delivered the bad news to the trustees and the Bankruptcy Court

The Court finds that sovereign immunity has not been waived as to proceedings against the IRS redirecting tax refunds to be paid to chapter 13 Trustees instead of to the debtors. The Bankruptcy Court, therefore, had no jurisdiction and authority to enter chapter 13 confirmation orders ordering the IRS to redirect tax refunds to be paid to chapter 13 Trustees instead of to the debtors.

Accordingly, IT IS ORDERED AND DECLARED that the chapter 13 Trustees for the Eastern District of Michigan may not seek to enforce any provisions of chapter 13 plan confirmation orders entered by the United States Bankruptcy Court for the Eastern District of Michigan that compel the IRS to pay future tax refunds claimed by chapter 13 debtors to the chapter 13 Trustees instead of to the debtors.

IT IS FURTHER ORDERED that a writ of mandamus is issued prohibiting the United States Bankruptcy Court for the Eastern District of Michigan from entering any further orders containing redirection provisions of chapter 13 confirmation orders that compel the IRS to pay future tax refunds claimed by chapter 13 debtors to the chapter 13 Trustees instead of to the debtors.

Yesterday, Bankruptcy Court Chief Judge Phillip J. Shefferly issued a Notice Regarding Tax Refunds In Chapter 13 Cases. The notice recapitulates the relief ordered in Carroll and contains a stern reminder.

It is important to note that if a Chapter 13 plan or an order confirming a plan require the payment of tax refunds by a debtor to the Chapter 13 trustee, the debtor remains fully responsible to comply with such provision.

The District Court Order only addresses whether the Internal Revenue Service can be ordered to send tax refunds to the Chapter 13 trustees, not whether the debtors must send tax refunds to the Chapter 13 trustees.

Charlevoix to appeal COA decision that prevented reassessment of property taxes after joint owner died

Earlier this month, we posted a story about Charlevoix trying to raise the property taxes on a jointly owned tract of land after one of the joint owners died. The Court of Appeals held that there was no conveyance of the land after James Klooster’s death because of the joint ownership.

Charlevoix now wants to appeal to the decision to the Michigan Supreme Court. From the AP:

CHARLEVOIX, Mich. (AP) — A northern Michigan city is asking the state Supreme Court to take a property tax case that is getting the attention of many other communities.

In December, the Michigan Court of Appeals said it was illegal for Charlevoix to raise the taxable value of a house after the death of a co-owner.

The court said the value could not be uncapped because there was no new transfer of ownership. Charlevoix’s lawyer, Bryan Graham, claims a loophole has been created. Assessors elsewhere are upset, too.

Charlevoix is appealing to the Michigan Supreme Court, and the State Tax Commission will help by paying $10,000 in legal fees.

Nathan Klooster’s (KLOW’-ster’s) mother and disabled sister live in the modest home. He was a joint tenant on the deed when his father died in 2005.

Leave the pot to Mom & Pop

The City of Grand Rapids gave the green thumbs-down to commercial medical marijuana dispensaries. City officials say caregivers (medical marijuana growers) can operate at home very nicely, thank you very much.

From The Grand Rapids Press:

Medical marijuana should be grown and distributed from the home, not commercial dispensaries or “compassion clubs,” the City Commission decided Tuesday.

Planning director Suzanne Schulz said the rules will allow medical marijuana growers, also known as caregivers, to operate as home-based businesses, similar to music teachers or tax preparers.

She said some are pushing for dispensaries and “compassion clubs,” where they can meet and seek treatment. The state law that stemmed from a 2008 voters initiative does not address dispensaries, she said.

Could a copyright suit be far behind?

Well, it’s been fun singing about “Pants on the Ground” but two Detroit artists feel like they’re “looking like a fool” with their song going viral.

From MLive.com:

As 62-year-old General Larry Platt and his “Pants on the Ground” video became the stuff of viral gold over the past two weeks, scores of people were probably sitting around kicking themselves for not thinking of it first.

Not the Green Brothers.

According to Gerald Green, one half of a hip-hop group from Highland Park, they did think of it first — and recorded it in 1996. And they want to make sure everyone knows it.

Hang up and drive, dummy

File this under D for “duh.” Can anyone believe it’s taken this long to get this far in the debate over whether or not texting while driving is dangerous?

This from The Detroit News:

Drivers will have to keep their thumbs on the wheel and off their BlackBerrys under a texting-while-driving ban that is nearing passage in the Legislature.

The Senate passed the ban on messaging at the wheel Tuesday that is nearly identical to legislation passed by the House in December. The two versions have to be reconciled and then sent to Gov. Jennifer Granholm for her signature. She said Tuesday she’d sign the legislation.