The Lord and the land

Daniel Dalton had never really fancied himself a writer, and certainly not a blogger. But a few weeks ago, he took to the keyboard, entered the blogosphere and launched, a web site which focuses on his area of expertise, religious land use.

It’s for lawyers who have an idea that RLUIPA is looming out there, but who don’t fully understand the Religious Land Use and Institutional Persons Act, said Dalton, co-founder of Royal Oak, Mich.-based Tomkiw Dalton plc, where he leads a team of expert land use attorneys.

Dalton also hopes the site will be a resource for church leaders.

“There’s just a lot of interest in this area of the law,” Dalton said. “For example, lawyers have asked me if  RLUIPA protect a church from eminent domain. Or does RLUIPA provide immunity for the variance process?”

The new site is, as far as Dalton knows, the only one to focus specifically as a resource for leaders of religious institutions and others affected by church property disputes and other cases pertaining to church law. It features a history of RLUIPA, an archive of religious land use cases and a blog that will offer Dalton’s unique insights and perspectives. Blog entries, which he posts a couple of times a week, will address such issues as eminent domain, property laws, religious freedom, church zoning and other topics pertaining to zoning appeals and land use.

So far, because the site only went live a few weeks ago, Dalton has received little feedback, except from people who already knew him and his work (and they say they like it). He has no set idea regarding what he’s hoping to accomplish, in terms of page views or new clients.

But he does have a vague idea about the site helping him to establish his brand, and set him apart as an expert in religious land use issues.

In 2009, while representing the House Where Jesus Shines in a case against the city of Bellmead, Texas, Dalton secured a $550,000 settlement on the day of trial, the largest RLUIPA settlement in Texas to date. Previously, Dalton won a landmark case in Carlinville, Ill., securing the rights to a former Wal-Mart building Carlinville Southern Baptist Church had purchased and also secured a cash settlement. He has done the same for several houses of worship in Michigan and many other states.  All of the cases centered around the municipalities’ desire to drive religious entities out of a community with the hope of having tax-paying entities take over existing buildings, a clear violation of RLUIPA.

Teabaggers ‘take aim’ at Census

The Teabaggers are “takin’ aim” at a new target: the Census. [The Detroit News].

With 10 questions, it’s one of the shortest U.S. census forms in history. But Joan Fabiano thinks it’s not short enough, saying the government is entitled to ask only one question: How many people live at a residence?

Across Michigan, people are flexing their political muscle by picking and choosing which questions they complete for the U.S. census, which was mailed to homes March 15.

"There are people who are only going to fill out what is required by the Constitution," said Fabiano, a Holt resident and organizer of Grassroots in Michigan, which seeks to promote individual liberty and limited government. "It’s a privacy issue and the federal government does not need to know anything they don’t have a right to."

On one hand, it’s kinda ingenious. They (supposedly) hate governmental spending. Any sabotage of the U.S. Census would ultimately result in less governmental spending. Somehow I doubt this is about more than civil obedience for the sake of it.

Who’s the boss?

Gov. Jennifer GranholmGov. Jennifer Granholm, in a sternly worded, hand-delivered letter, has told Attorney General Mike Cox to back off on participating in a Florida lawsuit challenging the federal health care reform bill signed into law earlier this week.

[I]t appears that you have intervened in this lawsuit not merely in your capacity as the Attorney General of Michigan, but have presented yourself as speaking for the state of Michigan. If that is the case, this position appears to have been taken by you unilaterally, without consultation with my office and, so far as I can determine, without consultation with the executive branch agencies specifically charged with regulating health insurance and protecting the public health.

The governor reminded Cox that he’s the attorney, she’s the client and, by the way, the constitutional boss, and he’s taking a position contrary to her interests.

Your position … is directly contrary to the position of this administration. Specifically, it is my view that this long-overdue federal legislation is constitutional and will bring much needed protections to our citizens and businesses. …

Under our Constitution, the duty of the Governor to enforce the Constitution and the laws of the state of Michigan is explicit and is superior to that of the Attorney General. This view is not only consistent with the position and actions taken by your predecessors, but with your own public statements over the past several years.

For example, on March 12, 2003, you told The Detroit Free Press: And any case where the state of Michigan is being sued or a state agency is being sued, she’s the boss, she’s the client. Unless it is clearly unconstitutional, I am obligated to do what she [Governor Granholm] says.

In a letter to me dated July 12, 2005, you declared that “[a]s our client, your wishes and the policy goals of your executive branch agencies are paramount.”

Two important changes since 2005, at least as the Florida lawsuit is concerned: Cox is running for governor and a significant number of Michigan voters don’t like the new health care law.

Granholm told Cox to do an about face.

I am directing you to intervene in the Florida litigation on behalf of the Governor, the state of Michigan, and the Michigan Department of Community Health to uphold the recently enacted federal health care legislation and to protect and preserve the important provisions afforded to our state and its citizens by the new law.

Attorney General Mike CoxMeanwhile, the reaction from the Cox camp was apparently one of studied indifference. The Michigan Information & Research Service’s Capitol Capsule reports

Cox Spokesman John Sellek said the AG’s office didn’t receive it until around 5 p.m. Once Cox had it in his possession, he apparently didn’t think much of it.

“It’s arrived, it’s somewhere here in a file folder,” Sellek said.

In short, Cox has no plans to stop his suit against the federal government, Sellek said. The Attorney General is empowered to intervene on the behalf of the citizens of Michigan and that’s what he’s doing in this case, which is something — as a former attorney general — she should be aware of.

The suit, according to most legal experts, has about as much of a chance as a snowball in, let’s say, Florida. See, The Michigan LawyerCox says he’ll challenge health care law.”

Update March 25, 2010: Here’s a fun fact about the Florida lawsuit, courtesy of the SBM Blog. See, “What’s NOT in the Attorney Generals’ Complaint Challenging the Constitutionality of Health Care Legislation?

Innocence Clinic chalks up win

The Wayne County Prosecutor’s Office dropped a murder charge against 36-year-old Dwayne Provience.

The Innocence Clinic at the University of Michigan had won a new trial for Provience after it had proved that evidence had been withheld in his 2001 conviction, reports the Detroit Free Press.

The prosecutor’s office had granted a new trial, but today dropped the charge because the only eyewitness has since recanted his testimony.

Farm worker report: workers, families live in “offensive conditions”

The Michigan Department of Civil Rights last reported on migrant and seasonal farm workers 45 years ago. The newest report, released yesterday by the Michigan Civil Rights Commission, points to living and working conditions which four decades ago were deplorable, and have only grown worse.

The report shines a light on often substandard living conditions, discrimination, unfair wage and hour issues, and unsafe work environments, with few state resources to investigate and enforce state and federal laws.

The commission also reported that there are many Michigan growers who treat workers and their families fairly, who are humane and responsible. There are growers who exceed state and federal requirements for housing and working conditions.

But the bad actors need to be addressed, according to the commission.

The commission’s report, careful to make clear that the report is not an attack on the agencies which are in charge of inspecting work sites and enforcing the law, focuses on how to make necessary changes in Michigan’s agricultural industry.

The department will work with Department of Health Services Interagency Migrant Services Committee and other state agencies to implement more than a dozen recommendations, including:

  • Identify ways to improve migrant labor housing inspections.
  • Ensure swift, certain, systemic and sufficient fines for housing, health and other violations.
  • Ensure migrant seasonal farm workers are  not paid less than minimum wage.
  • Coordination of state agencies that provide services, in order to avoid duplication.
  • Educate workers, growers and crew leaders on worker rights.
  • Educate law enforcement agencies and the public about immigration laws.

Changes to caseflow management guidelines proposed

Cattle Drive
Rollin’ rollin’ rollin’ …
Keep movin’, movin’, movin’,
Though they’re disapprovin’,
Keep them judges movin’ Rawhide!

Rollin’, rollin’, rollin’
Though the files are swollen
Keep them dockets rollin’ Rawhide!

– Apologies to Ned Washington, lyricist of “Rawhide,” the theme song for the same-named 1959 hit television western series starring 29-year-old Clint Eastwood.

The Michigan Supreme Court is considering whether to scrap the current trial court caseflow management guidelines in Administrative Order 2003-7. The guidelines would be replaced with a new set, Proposed Administrative Order No. 2010-X, which gives trial courts more time to decide certain categories of cases and less time for others.

In AO 2003-7, the Court directed the State Court Administrator to come up with caseflow plans within the guidelines, gather information from the trial courts and assess whether the plans were effective. The order required the trial courts to follow along.

In the proposed order, the MSC has included this language to coax cooperation:

Trial courts are directed to report caseflow management statistics and data to enable the State Court administrative Office to assist trial courts in improving caseflow management. The State Court Administrative Office does not intend to use these data in a punitive fashion or to publish these data for public review.

And no dismissals, please, just to make the numbers look better but take your time if you must:

The Court does not encourage or condone the practice of trial courts dismissing cases for the sole reason that the case is likely to exceed the guideline. In addition, these guidelines do not supplant judicial discretion if, for good cause shown, a specific case of any type requires a time line that extends beyond the maximum permitted under these guidelines.

Apparently AO 2003-7 set the bar a little too high. Under the proposal, most of the guidelines are more generous that the existing ones. Some have been eliminated. From the proposed order’s staff comment:

The following list summarizes the changes that would be made by the proposed order.

  • 1. Add to the beginning of the order language about good cause for delays and remove related language from specific case categories.
  • 2. Move to the beginning of the order language about matters submitted to judge (this language currently exists at the end of the order).
  • 3. Eliminate all interim guidelines, leaving only initial and final guidelines.
  • 4. Decrease time for adjudicating 90% of mental illness petitions from 14 to 7 days. This time frame would apply to probate and circuit courts.
  • 5. Eliminate guidelines for miscellaneous cases in probate court.
  • 6. Decrease the percentage for preliminary examinations within 14 days from 100% to 80%. Add a 100% guideline for conclusion within 28 days. Extend the goals to include both commencement and conclusion of the examination.
  • 7. Increase the time for adjudicating 90% of divorce cases without children from 91 to 182 days.
  • 8. Increase the time for adjudicating 90% of divorce cases with children from 245 to 301 days.
  • 9. Eliminate guidelines for responding interstate registration cases.
  • 10. Increase the time for adjudicating name change from 91 to 126 days.
  • 11. Increase the time for adjudicating 90% of felony cases from 91 to 154 days.

Update March 24, 2010: Our friends at the State Bar of Michigan’s SBM Blog have posted some detailed information about the prep work done before the new caseflow management guidelines were proposed.

See, “Go With the Flow? Check Out the Michigan Supreme Court’s Proposed New Caseflow Management Guidelines.”

SCOTUS says Bankruptcy Court can discharge student loan debt without undue hardship claim

The U.S. Supreme Court held that the Bankruptcy Court has the power to discharge student loan debt without an undue hardship claim. Justice Clarence Thomas wrote the opinion for the unanimous decision. [SCOTUSblog]

The facts:

The debtor in this case filed a plan with the Bankruptcy Court that proposed to discharge a portion of his student loan debt, but he failed to initiate the adversary proceeding as required for such discharge. The creditor received notice of, but did not object to, the plan, and failed to file an appeal after the Bankruptcy Court  subsequently confirmed the plan. Years later, the creditor filed a motion under Federal Rule of Civil Procedure 60(b)(4) asking the Bankruptcy Court to rule that its order confirming the plan was void because the order was issued in violation of the Code and Rules.

This was in 1993. The lender did not challenge the discharge until 2000.

The holding:

Rule 60(b)(4) strikes a balance between the need for finality of judgments and the importance of ensuring that litigants have a full and fair opportunity to litigate a dispute. Where, as here, a party is notified of a plan’s contents and fails to object to confirmation of the plan before the time for appeal expires, that party has been afforded a full and fair opportunity to litigate, and the party’s failure to avail itself of that opportunity will not justify Rule 60(b)(4) relief. We thus agree with the Court of Appeals that the Bankruptcy Court’s confirmation order is not void.

We are mindful that conserving assets is an important concern in a bankruptcy proceeding. We thus assume that, in some cases, a debtor and creditor may agree that payment of a student loan debt will cause the debtor an undue hardship sufficient to justify discharge. In such a case, there is no reason that compliance with the undue hardship requirement should impose significant costs on the parties or materially delay confirmation of the plan.Neither the Code nor the Rules prevent the parties from stipulating to the underlying facts of undue hardship, and neither prevents the creditor from waiving service of a summons and complaint. See Fed. Rule Bkrtcy. Proc.7004; Fed. Rule Civ. Proc. 4(k). But, to comply with §523(a)(8)’s directive, the bankruptcy court must make an independent determination of undue hardship before a plan is confirmed, even if the creditor fails to object or appear in the adversary proceeding.

Cox says he’ll challenge health care law

I’m not sure if you’ve heard yet, but Congress passed a health care reform bill on Sunday that President Obama is expected to sign today.

Michigan Attorney General, GOP gubernatorial candidate and The People’s Champion Mike Cox thinks it goes too far and says he’s filing a challenge to the soon-to-be law in federal court. It’s chances of success? About as good as the Lions’ chance to win the Super Bowl, says Orin Kerr at The Volokh Conspiracy.

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

The Volokh Conspiracy is a collection of mostly conservative law professors from around the country that blog about current themes in the law. None of them like the bill, natch, but all who have written about it on the blog seem to think it will survive court challenges.

[UPDATE: Not to be outdone, fellow GOP gubernatorial candidate Rep. Pete Hoekstra vows to do the same.]

So why do it? Why waste a broke state’s money challenging a law when other states are already planning the same thing? Probably for the same reason he keeps fighting, and losing, the Asian carp battle: because he’s running for governor.

A petition drive has also been started to try to exempt Michigan from the law, which Wake Forest law professor Mark Hall says is also futile:

Experts say none of it is likely to work, but it will keep the issue, and the outrage, alive until Election Day.

"I am surprised by the mobilization of the states. It does strike me as a kind of civil disobedience, a declaration that we’re not going to follow the law of the land," said Mark Hall, a professor of law and public health at Wake Forest University.

"It doesn’t make sense. The federal Constitution couldn’t be any clearer that federal law is supreme," Hall added.

Which is what the GOP wants: to turn the 2010 election into a referendum on health care with talk of repeal and such. Will that work? Conservative columnist David Frum says nuh-uh:

No illusions please: This bill will not be repealed. Even if Republicans scored a 1994 style landslide in November, how many votes could we muster to re-open the “doughnut hole” and charge seniors more for prescription drugs? How many votes to re-allow insurers to rescind policies when they discover a pre-existing condition? How many votes to banish 25 year olds from their parents’ insurance coverage? And even if the votes were there – would President Obama sign such a repeal?

We followed the most radical voices in the party and the movement, and they led us to abject and irreversible defeat.

Frum, a former Bush speechwriter, said the GOP should have taken Obama’s offer of bipartisanism to work more conservative elements into the bill. But cooperation and bipartisanism doesn’t win elections.

AP: State House seeks funding for indigent defense

DETROIT (AP) — Michigan was a 19th century pioneer in providing legal aid to poor criminal suspects.

Now, it has one of the nation’s stingiest and most fragmented systems for representing the 80 percent of defendants who can’t afford a lawyer, a wide range of critics say.

The system often leads to people’s convictions being reversed because of mistakes an adequate legal defense should have caught. And it adds millions of dollars to prison costs for sentences that exceed state guidelines.

"Michigan’s neglect of many years generates large downstream costs," said Dawn Van Hoek, chief deputy director of the State Appellate Defender Office. "We need to connect the dots and adequately fund the system."

The office estimates Michigan would save $132 million a year in prison costs if it eliminated the excessive penalties judges impose because of improper application of state sentencing guidelines.

Of all the filings the State Appellate Defender Office made in 2008, 48 percent cited ineffective assistance of counsel, up from 14 percent in 1981.

With a class-action challenge to the system set for oral arguments next month before the Michigan Supreme Court, the state House Judiciary Committee is drafting a bipartisan proposal to overhaul Michigan’s 153-year-old indigent defense system.

The U.S. Supreme Court established the right to a free public defense in 1963, when it ruled for Florida convict Clarence Gideon that the Sixth Amendment required states to appoint lawyers for felony defendants who can’t afford them.

Michigan was ahead of the game then, having created its own county-level indigent defense system in 1857. Michigan even filed a brief in support of Gideon’s successful plea to the U.S. Supreme Court.

Today, Michigan’s indigent defense system is "failing in nearly every way," former Michigan Supreme Court Justice Dennis Archer told a U.S. House Justice Committee hearing last year. Archer, a former president of the American Bar Association and two-term Detroit mayor, said the state now has "a patchwork of underfunded, unaccountable systems."

Michigan’s annual indigent defense spending of $74.4 million, or $7.35 per capita, is 38 percent below the national average and less than all but six states, the National Legal Aid & Defender Association said in "A Race to the Bottom," a report commissioned by Michigan lawmakers.

Courts in each of Michigan’s 83 counties set their own pay rates and hiring systems, deciding what portion of their state-set budgets to spend on indigent defense.

"The level of justice a poor person receives is dependent entirely on which side of a county line one’s crime is alleged to have been committed," the 115-page report said.

Lawmakers from both parties in the state Legislature recognize the need to act, said Kent County Republican state Rep. Justin Amash, a member of the House Judiciary Committee.

However, bill sponsor Bob Constan, D-Dearborn Heights, acknowledged the measure will be a tough sell at a time when Michigan faces hundreds of millions of dollars of cuts to K-12 schools, universities and health care.

"It’s just the lowest thing people want to fund," Constan said Thursday. He said implementation may have to be spread out over four years.

In place of the current system, House Bill 5675 would create a statewide public defense system to fund and supervise the work of lawyers who represent the poor.

An appointed Public Defense Commission would oversee separate offices for trial and appellate defenders. Appointments would have to be based on experience and skill, case loads would be limited and pay brought in line with that of prosecutors.

The bill also would create statewide standards for deciding who is poor enough to need legal aid and allow for some defendants to pay part of the cost. Regional offices would manage services, which would use a mix of private lawyers and salaried public defenders.

Speaking for the Michigan District Judges Association, Ingham County Judge Tom Boyd acknowledged problems with today’s system but told a Judiciary Committee hearing Tuesday he fears "unintended consequences" from a wasteful bureaucracy.

Should the Michigan Legislature fail to act on its own, the courts may force a change.

In 2007, the American Civil Liberties Union filed a class action lawsuit against the state on behalf of poor defendants in Berrien, Genesee and Muskegon counties. The complaint said court-appointed lawyers in those counties were either too rushed or fear they won’t get more work if they slow down the docket with motions or requests for expert assistance.

National ACLU staff lawyer Robin Dahlberg told the Michigan House committee the passage of House Bill 5676 would go a long way toward fixing the problems.

"Until and unless the state does act, Michigan’s citizens will continue to be wrongfully deprived of their liberty," she testified.

HB 5744: ‘open and obvious’ would be comparative negligence issue only

The Michigan House Judiciary Committee will take up the slippery issue of the open-and-obvious doctrine with a Wednesday hearing on HB 5744.

The bill would amend MCL 600.2959 to make the open and obvious doctrine an element an issue of comparative fault only.

Under the open and obvious doctrine, in its current case-law formulation, premises liability cases must be dismissed as a matter of law when “an average person of ordinary intelligence” would discover the complained-of condition “upon casual inspection” and the condition “does not create an unreasonable risk of harm.”

The Michigan Supreme Court, in Lugo v. Ameritech Corp. 464 Mich. 512 (2001), ruled that the doctrine determines whether a premises owner even owes a duty of care.

Under HB 5744, sponsored by Rep. Andrew Kandrevas (D-Southgate):

whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, and shall not be considered with respect to any other issue of law or fact, including duty.

For a many-a-truth-is-said-in-jest critique of the doctrine, see “Adventures in OpenandObvious Land,” by John A. Braden in the March 2007 Michigan Bar Journal.