‘None of the above’ leads Dem. governor race

According to a recent poll, Democrats are less than excited about the three horse Democratic governor race featuring Reps. Andy Dillon, Alma Wheeler-Smith and Lansing mayor Virg Bernero. [The Detroit News].

While ‘Undecided’ is far and away the leader of 53 percent, 17 percent of the people polled said ‘None Of The Above,’ while only 13 percent favored Dillon over Wheeler Smith (10 percent) and Bernero (8 percent).

A Rasmussen phone survey released Tuesday showed 53 percent of likely Democratic primary voters are undecided, while House Speaker Andy Dillon of Redford Township gets 12 percent, state Rep. Alma Wheeler Smith of Salem Township 10 percent and Lansing Mayor Virg Bernero 8 percent.

Seventeen percent said they preferred someone other than the three announced candidates.

I can’t imagine what the numbers look like vs. Cox, Snyder or Hoekstra.

Sixth Circuit: Wheels come off bicyclist’s case against postal service

whipsaw (hwip‘sô’) vt. … 2. to defeat or get the best of (a person) two ways at once …
Webster’s New World College Dictionary (4th Ed. 2007)

Joelle Premo was riding her bike in Royal Oak when a U.S. Postal Service truck hit her while she was in a crosswalk. Premo suffered a badly broken leg.

Premo did not have a no-fault insurance policy. She didn’t need one because she didn’t own a car. So, her attorney got in touch with the USPS to file a claim.

The USPS responded with a polite letter explaining that it was self-insured and that, thanks to the Supremacy Clause of the United States Constitution, Michigan’s no-fault act didn’t apply to the USPS. Included was helpful information about how to file a claim under the Federal Tort Claims Act, which, said the USPS, is the only possible way to get any money.

An FTCA claim was filed, and a fairly large one at that — $197,569.80 for personal injury and the property damage to Premo’s bicycle. The USPS responded with another polite letter. The USPS said, in so many words, we’ve looked into this, we’re terribly sorry you were hurt but our driver didn’t do anything wrong, good luck to you.

Premo decided against applying for insurance benefits from the state’s Assigned Claims Facility and instead sued in federal district court.

In Judge Avern Cohn’s courtroom, the USPS did a 180 and argued mightly that the FTCA required application of the no-fault act and that Premo was not entitled to either economic or noneconomic damages.

Cohn turned aside Premo’s argument that the USPS should be estopped from using the no-fault act first as a shield and later as a sword. He accepted the USPS’s arguments, in part, and awarded Premo $34,768.62 in economic damages.

Nobody was happy with Cohn’s ruling. But Premo was even less happy when the Sixth Circuit was through with the case.

Indeed, Michigan’s no-fault act applies to Premo’s situation, the appeals court ruled. The FTCA requires application of state law.

Then, as far as Premo was concerned, it got worse.

Under the FTCA, wrote Judge Eric Clay,

the government may be liable “for … personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government.” 28 U.S.C.A. § 1346(b)(1) (emphasis added). …

Pursuant to the No-Fault Act, a person injured can collect PIP benefits “without regard to fault.” M.C.L.A. § 500.3105(2). Given this language, “[a]bsolute liability … arises irrespective of how the tortfeasor conducts himself … . The degree of care used in performing the activity is irrelevant … .” Dalehite v. United States, 346 U.S. 15, 44-45 (1953). Thus, Michigan law imposes strict liability for economic damages in motor vehicle accident cases.

Bottom line: No-fault liability for PIP benefits is established without a finding of fault. Recovery under the FTCA is not possible without a finding of fault. Premo gets nothing, the Sixth Circuit ruled, and that’s her fault:

Plaintiff’s source of relief for economic damages was Michigan’s assigned claims plan, a remedy which she failed to pursue.

Whipsaw.

The case is Premo v. United States, et al.

SCOTUS backs state in Kent County jury case

From Lawyers USA:

In a ruling that could make it tougher for minority defendants to challenge convictions by all-white juries, the Supreme Court today in Berghuis v. Smith reversed a 6th Circuit ruling that a Michigan jury selection system — which the defendant claimed drained black jurors from the pool before criminal juries could be selected — did not violate the Sixth Amendment.

Delivering the unanimous opinion for the Court, Justice Ruth Bader Ginsburg wrote that the 6th Circuit should not have disturbed a Michigan Supreme Court ruling that the defendant failed to show a constitutional violation.

“Warranting heavy weight, the Michigan Supreme Court, in a cogent decision, had held that Smith’s evidence failed to prove ‘systematic exclusion’” of black jurors, Ginsburg said today from the bench in announcing the decision. “[A]s that determination was not at all unreasonable, the 6th Circuit had no warrant to disturb it.”

MSC denies leave in child-abuse reporting case

On a 4-3 vote, the Michigan Supreme Court has upheld a Court of Appeals decision that held a hospital could be held vicariously liable for two doctors who may have breached a statutory duty to report suspected child abuse.

The MSC denied leave in Lee v. Detroit Medical Center (majority opinion) (dissenting opinion).

The key holdings by COA Judge Donald Owens, joined by Judge William Whitbeck: a failure-to-report claim does not sound in medical malpractice and a hospital may be held vicariously liable if staff doctors do not comply with MCL 722.623, which triggers a duty to report when there is “reasonable cause to suspect child abuse or neglect.”

Judge Peter O’Connell, dissenting in Lee, said doctors will be quick to report anytime a child under their care has a bump or a bruise to avoid litigation based on an alleged breach of the reporting duty.

Michigan Lawyers Weekly had a full report of the COA’s decision.

In the MSC, Chief Justice Marilyn Kelly and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway denied leave. Justices Maura Corrigan, Robert Young and Stephen Markman filed vocal dissents.

From Corrigan:

Because MCL 722.623 created a new statutory duty to report suspected abuse or neglect, defendants make a good argument that the Child Protection Law provides exclusive remedies for violation of the duty. …

Under the Child Protection Law, only individuals, not institutions, are required to report. MCL 722.623(1). And only a “person who is required … to report an instance of suspected child abuse or neglect and who fails to do so” is liable for resulting civil damages, MCL 722.633(1). Accordingly, I question whether an institution may be held liable for a reporting violation. …

[T]he Court of Appeals held that a complaint against physicians for alleged failure to report abuse sounds in ordinary negligence rather than medical malpractice. But, as the dissenting Court of Appeals judge aptly explained, doctors use medical judgment to determine whether a child has been abused and, therefore, whether abuse should be reported.

Accordingly, a doctor often will have “reasonable cause to suspect child abuse” that triggers the reporting requirement, MCL 722.623(1)(a), on the basis of different facts and knowledge than would a layperson who is required to report abuse pursuant to the statute. Thus, although laypersons may be held to ordinary negligence standards when they fail to report potential abuse, when a doctor fails to report his medical expertise is called directly into question.

Young joined Corrigan’s dissenting statement.

Markman echoed Corrigan’s statement that the issues are “jurisprudentially significant.”

Specifically at issue here is: (a) whether a claim against a physician based on a violation of the statute sounds in medical malpractice or ordinary negligence; and (b) whether a hospital may be subject to vicarious liability under the statute. In what are clearly thoughtful majority and dissenting opinions, the Court of Appeals held that a claim based on the Child Protection Law sounds in ordinary negligence and that vicarious liability is applicable.

Hutaree militia charged with conspiracy to kill police officers

The mystery surrounding the raid on the Midwest Christian extremist militias is over.

DETROIT (AP) — Nine suspects tied to a Midwest Christian militia that was preparing for the Antichrist were charged with conspiring to kill police officers, then attack a funeral using homemade bombs in the hopes of killing more law enforcement personnel, federal prosecutors said Monday.

The Michigan-based group, called Hutaree, planned to use the attack on police as a catalyst for a larger uprising against the government, according to newly unsealed court papers. U.S. Attorney Barbara McQuade said agents moved on the group because its members were planning a violent mission sometime in April.

Members of the group, including its leader, David Brian Stone, also known as "Captain Hutaree," were charged following FBI raids over the weekend on locations in Michigan, Ohio and Indiana.

The idea of attacking a police funeral was one of numerous scenarios discussed as ways to go after law enforcement officers, the indictment said. Other scenarios included a fake emergency call to lure an officer to his or her death, or an attack on the family of a police officer.

Once other officers gathered for a slain officer’s funeral, the group planned to detonate homemade bombs at the funeral, killing more, according to the indictment.

After such attacks, the group allegedly planned to retreat to "rally points" protected by trip-wired improvised explosive devices, or IEDs, for what they expected would become a violent standoff with law enforcement personnel.

"It is believed by the Hutaree that this engagement would then serve as a catalyst for a more wide-spread uprising against the government," the indictment charges.

According to investigators, the Hutaree view local, state, and federal law enforcement personnel as a "brotherhood" and an enemy, and planned to attack them as part of an armed struggle against the U.S. government.

The indictment charges members of the group conspired "to levy war against the United States, (and) to oppose by force the authority of the government of the United States."

Eight suspects have been arrested by the FBI, and one more is being sought. Of the eight captured, seven were arraigned Monday in Detroit and ordered held pending a bond hearing Wednesday.

The charges against the eight include seditious conspiracy, possessing a firearm during a crime of violence, teaching the use of explosives, and attempting to use a weapon of mass destruction — homemade bombs.

All seven defendants in court on Monday requested to be represented by the federal defender’s office.

The arrests have dealt "a severe blow to a dangerous organization that today stands accused of conspiring to levy war against the United States," U.S. Attorney General Eric Holder said Monday.

The case "is an example of radical and extremist fringe groups which can be found throughout our society. The FBI takes such extremist groups seriously, especially those who would target innocent citizens and the law enforcement officers who protect the citizens of the United States," said Andrew Arena, head of the FBI’s field office in Detroit.

Stone’s ex-wife, Donna Stone, told The Associated Press before the arraignments that her former husband was to blame for pulling her son into the Hutaree movement. She said David Brian Stone legally adopted her son, David Brian Stone Jr., who is among those indicted. She said the marriage lasted about 10 years.

"It started out as a Christian thing," said Donna Stone, 44. "You go to church. You pray. You take care of your family. I think David started to take it a little too far. He dragged a lot of people with him."

Another son of David Brian Stone, Joshua Matthew Stone, is also indicted and currently a fugitive, said Detroit FBI spokeswoman Sandra Berchtold.

On its Web site, Hutaree quotes several Bible passages and states: "We believe that one day, as prophecy says, there will be an Anti-Christ. … Jesus wanted us to be ready to defend ourselves using the sword and stay alive using equipment." There’s also a picture on the site of 17 camouflaged men, all holding large guns.

The group didn’t return an e-mail sent by The Associated Press, and attempts by telephone to reach the Stones went unanswered.

FBI agents in Michigan swarmed a rural, wooded property Saturday evening in Adrian, about 70 miles (115 kilometers) southwest of Detroit. That same night in Hammond, Indiana, law enforcement agents flooded a neighborhood, startling workers at a nearby pizzeria. And in Ohio authorities blocked off streets and raided two homes.

Outside Adrian, two ramshackle trailers sat side-by-side on Stone’s property. A long gun leaned against a washing machine that sat in the yard, and on top of a nearby canister was another long gun.

Heidi Wood, who lives near the property, said Monday morning she hears gunshots "all the time."

Her mother, Phyllis Brugger, who has lived in the area for more than 30 years, said Stone and his family were known as having ties to militia. They would shoot guns and often wore camouflage, the women said.

"Everybody knew they were militia," Brugger said. "You don’t mess with them."

Is SCOTUS seat in Granholm’s future?

As discussed here a few weeks back, much speculation will occur over the remained of this year about the future of Gov. Jennifer Granholm. Since the implosion of the American economy and the election of Barack Obama, she’s been rumored to be a candidate for several positions within his organization or for the U.S. Surpeme Court.

Then Justice John Paul Stevens hinted in the New Yorker that he may retire after this term. If a spot opened up, would Granholm have a shot? Not really, says Lawyers USA:

Long shots

Gov. Jennifer Granholm

Obama has often stated that he’d like to look for Supreme Court candidates from places outside of the federal judiciary (all the current justices are former federal appellate judges).

The Michigan governor, who previously served as attorney general of the state would satisfy that criteria. And like Stevens, Granholm, 51, hails from the Midwest, which would help keep the Court’s geographic balance. But having never faced a Senate confirmation hearing, her odds aren’t as good as those of Kagan, Wood or Garland.

“Kagen” is former Harvard Law dean and current Solicitor General Elena Kagan; “Wood” is U.S. 7th Cir. Court of Appeals judge Diane Wood. Garland; and “Garland” is D.C. Circuit judge Merrick Garland.

According to Lawyers USA, Kagan would likely have the advantage because of her age (49), history (nothing objectionable) and she has already been confirmed for her current position by the Senate.

The article said her lack of federal judiciary experience would be a plus for Granholm, but she’d be less attractive of a candidate because she’s never been through the confirmation process.

Perhaps there was an ulterior motive for the recent written smackdown letter she sent to Michigan attorney general Mike Cox in support of the new health care law. Did she attach her resume?

Teamsters and Chamber: ‘Strange bedfellows’

As the old saying goes, “the enemy of my enemy is my friend.” The Traverse City Record-Eagle noted that the Teamsters and the Michigan Chamber of Commerce have both filed briefs in the Acme Township v Meijer, Inc. case currently before the Michigan Supreme Court – both in support of Meijer.

The odd coupling consists of the Michigan Chamber of Commerce, Michigan Education Association, and Michigan Teamsters, who’ve spent millions to influence statewide elections. The Chamber and union groups mostly are bitter adversaries who spend campaign loot to crush the other side’s candidates.

But business and labor recently embraced like old frat brothers back on campus for homecoming. Why? Some noble mind-meld designed to pull salvageable bits of Michigan’s economy from the scrap heap?

Nope.

The Chamber and unions found common ground for one reason — self-protection.

Long story short: After being refused a zoning change to allow a new Meijer in Acme, the company allegedly created and funneled money into “bogus” citizens’ groups and a recall drive to remove politicians that opposed the new store. (Click here for the full blow-by-blow account).

Is this the End of Days?

No, says the TCRE, which opined that each side is trying to send a message to their respective justices:

The Michigan Chamber has pumped millions into campaigns to aid three current members of the state Supreme Court; the unions have significantly boosted Court Democrats, as well.

Might they be sending a not-so-subtle message to their high court beneficiaries? And might they be concerned some prosecutor will poke around their campaign practices?

The appeals court ruled conciliation deals do not negate potential criminal prosecutions. In short, those who break the law should be prepared to pay the consequences and not buy their way off the hook.

Acme residents deserve to know who’s responsible for the attempted coups in their community, and the Supreme Court should ignore big-dollar special interests who are best-served by secrecy and murk.

In their opinions

“[T]o the extent that plaintiff elected to do business with a lawyer, plaintiff thereby exposed herself to the machinations of the rules that govern that profession.”

– Court of Appeals Judges Deborah A. Servitto, Richard A. Bandstra and Karen M. Fort Hood, explaining why a nonlawyer plaintiff who said she was drumming up business for a lawyer could not enforce an alleged contract to split the resulting attorney fees.

Shalaan D. Fisher thought she had a good deal going with attorney Patrick Carron.

Look how wrong you can be.

Fisher’s complaint alleged that since 1995, Carron had been assuring her that it was completely above-board for an attorney, such as himself, to share legal fees with a nonlawyer, such as herself, in exchange for case referrals.

From the COA’s opinion in Fisher v. Carron:

Plaintiff alleged that she referred several clients to defendant under those terms, including the victim of a serious automobile accident. The complaint asserts that defendant subsequently informed plaintiff the latter’s case was settled for a certain amount and tendered payment to plaintiff of an amount allegedly reflecting her share of his contingency fee. Plaintiff subsequently learned that the settlement and defendant’s fee was actually much higher.

Fisher sued, claiming that Carron stiffed her. Fisher wanted contract damages and equitable relief.

Nothing doing. “I cannot make a lawyer pay a non-lawyer legal fees,” said Wayne County Circuit Court Judge Wendy M. Baxter.

Absolutely correct, said Servitto, Bandstra and Fort Hood.

MRPC 5.4(a) states that, but for exceptions not here at issue, “A lawyer or law firm shall not share legal fees with a nonlawyer.’ …

Because MRPC 5.4(a) prevents defendant from making payments in accord with an agreement to share a fee with a nonlawyer, that rule prevents plaintiff from collecting that share by way of an enforcement action.

But what about equitable estoppel? Fisher argued that:

because defendant had earlier assured her that their fee sharing arrangements were legal, he should be estopped from changing positions now in defense of her claim for proceeds due from such an agreement.”

The COA panel had a quick response:

[P]laintiff identifies no prejudice from having been misled to believe that the fee-sharing agreement was enforceable, other than her assertion that she has been underpaid according to that agreement.

However, not receiving the balance of a share of a lawyer’s contingency fee where she was not legally entitled to receive anything in the first place hardly qualifies as prejudice.

Further, the doctrine that an unethical contract is unenforceable would mean little if such a contract could be rendered enforceable upon a showing that one contract partner misled the other.

Raided supsects due in court today

Suspects arrested in yesterday’s FBI raids in Michigan, Ohio, Illinois and Indiana are expected to be charged today.

The suspects, said to be connected to the Hutaree militia group, could be in U.S. District Court in Detroit later today.
Says  The Detroit News:

At least seven people were taken into custody in raids by an FBI-led Joint Terrorism Task Force as part of an investigation into an Adrian-based unit of the Hutaree, a group that professes it is training in modern armed combat techniques for a prophesized coming battle with the Antichrist. …

“Jesus wanted us to be ready to defend ourselves using the sword and stay alive using equipment …,” one of the group’s purported leaders wrote on its Web site. “We, the Hutaree, are prepared to defend all those who belong to Christ and save those who aren’t. We will still spread the word, and fight to keep it, up to the time of the great coming.”

The group’s insignia, worn as a patch on military camouflage uniforms, is a cross-shaped sword and the letters CCR for Colonial Christian Republic. The Hutaree Web site features links to conservative Christian news outlets along with photos and videos of combat training sessions under the banner, “Preparing for the end time battles to keep the testimony of Jesus Christ alive.”

U.S. Attorney Barbara McQuade said in Detroit on Sunday, “There is law enforcement activity in progress, but I decline further comment because I don’t want to adversely affect its effectiveness.”

Texting-while-driving ban passes Mich Senate

LANSING, Mich. (AP) — The state Senate on Thursday passed a new, tougher version of legislation that would make it illegal to send text messages from cell phones while driving in Michigan.

The main bill in the package passed the Republican-led chamber by a 28-10 vote, with only Republicans in opposition. It now advances to the Democrat-led House, which isn’t expected to take up the new measure until returning from a scheduled two-week break that ends in mid-April.

The new Senate version would make texting while driving a primary offense starting July 1, meaning police could pull over and cite motorists just for texting. Fines would be $100 for a first offense and $200 for each offense after that.

Previous versions of the bill had made texting a secondary offense. That meant police would need some other reason to stop a vehicle.

Police have told lawmakers that making the violation a secondary offense would hinder their ability to cite motorists in time to prevent accidents. But some lawmakers doubt a tougher policy making texting a primary offense will pass the Legislature.

The texting ban has picked up momentum in Michigan recently because of publicity surrounding accidents caused by distracted driving. Police say a teenage driver killed in a January traffic accident in Ottawa County was exchanging text messages with his girlfriend, got distracted and crashed.

"People are becoming more aware about this issue," said Rep. Lee Gonzales, a Democrat from Flint and a supporter of a texting ban. "There’s a lot of attention placed on it."

The federal government has sought to crack down on distracted driving, urging states to adopt stringent laws against sending text messages from behind the wheel. More than half the states already have adopted measures that ban at least some drivers from texting. Several more are in the process of passing new laws addressing it.

Texting while driving is classified as a primary offense in at least 15 states.

According to the U.S. Transportation Department’s distraction.gov Web site, using a cell phone has the same affect on a driver’s reaction time as a blood alcohol concentration of .08 percent.

Obviously, texting while driving is a problem and needs to be curbed. But I think making it a primary violation instead of a secondary violation is bad policy for two reasons:

• 1) Unless a person is dumb enough to hold his phone high enough so that the police can see that he is texting, police are going to be pulling over people for the act of peeking down, which could be for any number of reasons. Let’s face it, when you get a ticket, the real burden of proof won’t be on the officer to prove you were texting, but rather on you to prove you weren’t.  At least with speeding tickets, you had to actually, you know, speed. It will essentially become another way for municipalities to raise money, and without any real proof of a violation.
• 2) If police can pull people over for peeking down, I can see TWD becoming the new “broken taillight” for pretextual traffic stops, sometimes referred to as “driving while black.” 

Feel free to disagree with me in the comments.