MSC sends indigent defense case back to trial court

Today, the Michigan Supreme Court unanimously affirmed the Michigan Court of Appeals ruling in Duncan et. al. v. State of Michigan and sent the case back to the Ingham County Circuit Court for further hearings.

In 2009, the Michigan Court of Appeals rejected the State of Michigan’s request to dismiss Duncan et. al. v. State of Michigan.  In the Duncan case, plaintiffs in a class action lawsuit from three counties asked the court to declare that failures in Michigan’s public defense system violated their right to counsel under the U.S. and Michigan Constitutions.

Said Laura Sager, executive director of the Michigan Campaign for Justice, the nonpartisan coalition working with lawmakers to reform Michigan’s system of providing defense counsel to people unable to afford an attorney:

“As the nonpartisan coalition working with state lawmakers to reform Michigan’s failing public defense system, we are very pleased that the Supreme Court acted quickly in the Duncan case and ruled unanimously in allowing the case to move forward.   This ruling is good news and it is a clarion call to state legislators that reform is needed and that their action on this important constitutional problem is required.”

MSC decides not to deal with sidewalk notice to cities after all

In the April 12 issue of Michigan Lawyers Weekly, I previewed oral arguments in Mawri v City of Dearborn, a case which dealt with requirements of a claimant’s notice to a city of an injury caused by a sidewalk defect.

In the case, the plaintiff sent a letter to the city in which he gave the wrong address (using the address next door) and did not describe the defect in the sidewalk.

The court heard arguments on April 13, and were apparently unmoved by Mawri’s case, vacating its order for leave affirming the Court of Appeals’ decision.

Justices Diane M. Hathaway and Chief Justice Marilyn Kelly dissented, citing the court’s 2009 decision in Bush v Shabahang:

The primary purpose of any notice statute is to provide timely notice to a defendant prior to suit. That objective was met in this case. The opinion of the Court of Appeals focuses on form rather than on the meaningful substantive requirements of MCL
691.1404(1). We recently addressed a similar pre-suit notice requirement in Bush v Shabahang, 484 Mich 156 (2009), and held that defects in a statutorily mandated pre-suit notice of intent in medical malpractice cases can be disregarded or cured by amendment under MCL 600.2301 as long as the plaintiff makes a good-faith attempt to comply with the notice provision.

MCL 600.2301 provides:

The court in which any action or proceeding is pending, has power
to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the
proceedings which do not affect the substantial rights of the parties.
[Emphasis added.]

I see no reason why MCL 600.2301 should not apply to the notice requirement in the present case for the same reasons expressed in Bush. Here the plaintiff made a good faith attempt to notify the defendant in a timely manner but the notice contained an ostensible defect. The defendant, however, had actual notice of the defect on a timely basis and accordingly no substantial right of any party was affected. Because § 2301 mandates that the court “shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties,” the Court of Appeals was required to disregard this minor technical defect.

Granholm to sign texting bill on Oprah

DETROIT (AP) — Michigan Gov. Jennifer Granholm will sign legislation with a little more pomp and promotion than usual.

Granholm signs into law the state’s texting-while-driving ban Friday during a broadcast of "The Oprah Winfrey Show." Her appearance will be aired via satellite from Detroit’s Renaissance Center.

Granholm’s signing is one of many events at "No Phone Zone" rallies in Detroit, Los Angeles, Boston, Atlanta and Washington, D.C., that are part of the broadcast.

Winfrey launched the campaign against distracted driving in January. She has sponsored a pledge on her website asking motorists to commit to not text or talk on phones while driving.

Texting will be a primary offense under Michigan’s law, meaning police can pull over motorists solely for using phones to send text messages.

Michigan Senate passes fix for homeless sex offender registry

In February, the Michigan Court of Appeals’ said homeless people couldn’t register under the Sex Offender Registry Act (see People v Dowdy, analysis here). The Michigan Senate has passed a bill to rectify the situation:

LANSING (AP) — Homeless sex offenders would be required to notify police when they change where they are staying under legislation approved by the Michigan Senate.

The legislation unanimously approved Thursday next goes to the House. It would establish registry reporting and notification requirements for homeless people who are convicted sex offenders. They would have to report their address as a homeless shelter or the nearest intersection where they regularly sleep.

The bills come in response to a recent Michigan Court of Appeals ruling that a homeless sex offender shouldn’t be punished for not registering an address or giving his whereabouts to law enforcement. The court’s reasoning was that a homeless person doesn’t have what is considered a residence.

Local firm negotiates $75M settlement in Topamax® false claims lawsuit

Troy-based law firm Frank, Haron, Weiner and Navarro, in conjunction with the United States Department of Justice, today announced a settlement in the amount of $75,370,000 for a lawsuit filed in 2003 against Raritan, N.J.-based pharmaceutical firm Ortho-McNeil-Janssen Pharmaceuticals, Inc. (“OMJPI”).  The announcement was made by the Chair of the firm’s False Claims Act practice David Haron and co-lead counsel Monica Navarro.

Filed in August of 2003 under the qui tam provisions of the federal False Claims Act (Title 31 United States Code, Section 3729) on behalf of Angela Maher and Anastasia (Stacey) Savka-Klovski — each of whom reside in metropolitan Detroit — the lawsuit alleged that OMJPI acted improperly concerning the marketing, promotion and sale of the anticonvulsant drug Topamax®. In December of 2003, Dr. Gary R Spivack, represented by the Washington, D.C.-based law firm Phillips & Cohen, filed a similar lawsuit.  The cases were consolidated and the settlement referenced here resolves both cases.

The settlement refers to government claims that OMJPI “illegally marketed Topamax® by, among other things, promoting the sale and use of Topamax® for a variety of psychiatric conditions other than those for which its use was approved by the Food and Drug Administration, (i.e. “off-label” uses).”

It also states that “certain of these uses were not medically-accepted indications for which State Medicaid programs provided coverage” and that as a result “OMJPI knowingly caused false or fraudulent claims for Topamax® to be submitted to, or caused purchase by, Medicaid, the TRICARE Program (formerly known as the Civilian Health and Medical Program of the Uniformed Services), the Federal Employees Health Benefits Program (“FEHBP”), and the Department of Veterans Affairs (“DVA”).

OMJPI neither admitted nor denied liability, but OMJPI agreed to enter into a plea agreement with the government and has agreed to plead guilty to specific conduct described in the plea agreement to be filed in US vs. Ortho-McNeil Pharmaceutical, LLC, a criminal action in the District of Massachusetts.

Commenting on the settlement, Haron said, “We feel this is a fair settlement and thank Angela and Stacey for identifying the fraudulent activity, bringing it to our attention, and allowing us to work with them to stop it. My co-lead counsel, Monica Navarro, and our Associate, Maro Bush, would like to thank Colin M. Huntley, Trial Attorney, Commercial Litigation Branch, Civil Division, US Department of Justice and Zachary A. Cunha, Assistant US Attorney, US Attorney’s Office, District of Massachusetts for bringing this nearly decade-long litigation to a successful conclusion.”

“The government’s annual healthcare expenses total nearly $1 trillion. It is estimated that nearly $100 billion of that money is lost each year to fraud, waste and abuse,” continued Haron.  “Only when those aware of fraud bring it to the attention of lawyers who have the resources to investigate and verify the allegations can that money be retrieved. This case is an example of how the system is supposed to work and how it will work given the increased resources and enhanced anti-fraud provisions in the health reform legislation recently signed by President Obama.”

The False Claims Act and similar state acts, such as the Michigan Medicaid False Claims Act, provides incentives to private citizens, called Relators, who discover fraud against the federal or state governments and who bring their information to the government and help pursue the defrauding entities. The qui tam provisions allow Relators to represent the interests of the government to seek damages and civil penalties for a violation of law and, if the action is successful, to receive a portion of the awarded damages.

Under the terms of this agreement, the Relators will be awarded an 18% share of the recovery by the states. In addition, the Relators and the defendant have entered into a settlement regarding attorney’s fees and costs. 

Was the Michigan GOP’s attorney behind anti-Hoekstra ads?

Remember Eagle Strategies, the double secret group that purchased negative campaign ads against Michigan GOP gubernatorial hopeful Pete Hoekstra, saying he’s not conservative enough?

At long last, we may have an answer as to who was behind the group: GOP attorney Eric Doster. [Associated Press]

LANSING, Mich. (AP) — A policy committee for the Michigan Republican Party has asked the party’s legal counsel to step down until a complaint over a radio ad targeting GOP gubernatorial candidate Pete Hoekstra is resolved.

At issue is whether attorney Eric Doster had any ties to the group that ran the ads, Eagle Strategies, and whether he should have disclosed any possible ties to party Chairman Ron Weiser.

A message left at Doster’s law office in Lansing seeking comment was not returned Wednesday.

"It is unfortunate that the resolution passed by the policy committee contains factual errors that unfairly characterize Mr. Doster," Weiser said in a statement Wednesday. "Eric Doster is a widely respected Republican Party activist."

The matter will be discussed by the full Michigan Republican State Committee on Saturday, Weiser said.

After the anti-Hoekstra ad aired in February in southeast Michigan, the congressman’s campaign sent a letter asking Attorney General Mike Cox, also a GOP gubernatorial candidate, to investigate the legality of a group called Eagle Strategies.

Hoekstra campaign lawyer Charles Spies complained that no public information was available on Eagle Strategies or who was behind it. The attorney for GOP gubernatorial candidate Rick Snyder then asked the secretary of state’s office to determine if Eagle Strategies broke campaign finance laws.

The organization appeared tied to a group called Peace and Prosperity, which had filed an assumed name certificate for the name "Eagle Strategies" a week after the anti-Hoekstra ad aired, Snyder attorney Daniel Carlson wrote in his complaint letter.

Doster was listed as the resident agent for Peace and Prosperity.

Neither the secretary of state nor the attorney general has issued any findings regarding the complaints.

The Republican gubernatorial contest has already seen several spates of negative ads this year. Along with the anti-Hoekstra ads, there have been automated calls, a billboard, radio ads and negative websites launched against Snyder and another GOP candidate, Oakland County Sheriff Mike Bouchard. An independent group called the Michigan Civic Educational Fund was behind those efforts.

The infighting apparently is starting to be noted by party leaders.

In asking Doster to temporarily recuse himself, the GOP policy committee said it was Doster’s responsibility as legal counsel "to keep the party chairman informed of potential conflicts of interest in representing multiple clients."

Its resolution urged Doster to step down "until the Michigan Secretary of State’s Election Division has concluded their investigation into his involvement as resident agent for Eagle Strategies Project."

Snyder’s campaign spokesman, Jake Suski, said the policy committee took the right step.

"The party should do everything within its power to protect its impartiality, which includes asking the legal counsel to step aside when he’s the registered agent for an organization that’s under investigation for an attack against a Republican gubernatorial candidate," Suski said.

MSC makes appointments to court reporting, child support groups

The Michigan Supreme Court has made three appointments to the Michigan Court Reporting and Recording Board of Review:

• Diane C. Pelts of Alger, Freelance Court Reporter, was appointed to serve the remainder of a term beginning April 1, 2010 to March 31, 2013.
• Sylvia Stratton of Caledonia, Official Court Recorder, 17th Circuit Court, Kent County, was appointed to serve the remainder of a term from April 1, 2010 to March 31, 2011.
• Hon. Michael Talbot, Michigan Court of Appeals, Detroit, was reappointed to serve a first full term from April 1, 2010 to March 31, 2014.

The Board of Review tests and certifies court reporters and recorders, and also publishes guidelines for their work. In addition, the board handles complaints against court reporters and recorders.

The MSC has also announced two reappointments to the Child Support Leadership Council:

• Jeffrey S. Albaugh, past president of the Friend of the Court Association of Michigan, was reappointed to a term expiring on April 11, 2012. Albaugh, who is the Calhoun County Friend of the Court, is also reappointed to serve as the council’s co-chair until January 31, 2011.
• John Lazet of Mason, chief of staff for state Senator Alan Cropsey, was reappointed to a term expiring on April 11, 2012.

The council advises the Court and the governor on child support issues.

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Text ban sent to Granholm for signature

LANSING, Mich. (AP) — Legislation to ban the use of cell phones to send text messages or e-mail while driving in Michigan should soon be on the way to Gov. Jennifer Granholm for her signature.

The Michigan House passed the third and final bill in a texting ban package by a 82-22 vote Wednesday. The Senate already has passed the bill so it should be sent to Granholm this week.

The main bills in the package were passed by the Legislature earlier this month. Granholm is expected to sign the legislation. The ban would start July 1.

A first offense would cost $100 and repeat offenses would cost $200. No points would be added to a driver’s record. Texting would be a primary offense, meaning police could pull over motorists for texting alone.

Hutaree defense picks away at gov’t case during bond hearing

DETROIT (AP) — An FBI agent who led the investigation of nine Michigan militia members charged with trying to launch war against the U.S. couldn’t recall many details of the two-year probe Tuesday during a grilling by defense lawyers.

Even the judge who must decide whether to release the nine until trial was puzzled.

"I share the frustrations of the defense team … that she doesn’t know anything," U.S. District Judge Victoria Roberts said after agent Leslie Larsen confessed she hadn’t reviewed her notes recently and couldn’t remember specific details of the case.

Roberts is hearing an appeal of another judge’s order that has kept members of Hutaree in jail since their arrest in late March.

The indictment says the nine planned to kill police officers as a steppingstone to a widespread uprising against the government. Defense lawyers, however, say their clients are being punished for being outspoken.

Prosecutors fought to keep Larsen off the witness stand, saying the defendants had no legal right to question her. But the judge said the agent’s appearance was appropriate because the burden is on defense lawyers to show their clients won’t be a threat to the public if released.

The nine lawyers asked specific questions about each defendant. Larsen said she had not listened entirely to certain recordings made by an undercover agent who infiltrated the group.

She said she didn’t know if weapons seized by investigators last month were illegal because they were still being examined. At other times, Larsen couldn’t answer questions because she said she hadn’t reviewed investigative reports.

Defense lawyer William Swor asked if the No. 1 defendant, Hutaree leader David Stone, had ever instructed anyone to make a bomb. The agent replied: "I can’t fully answer that question."

Assistant U.S. Attorney Jonathan Tukel defended Larsen, telling the judge it wasn’t clear until Monday that she would testify. Roberts, however, said she told the government to be prepared last week.

Assistant U.S. Attorney Ronald Waterstreet played an audiotape of what he said were several militia members talking freely about killing police. The participants talked over each other, often laughed and made goofy noises and disparaging remarks about law enforcement.

Defense lawyer James Thomas said some exchanges sounded "like a 6-year-old watching a cartoon." Larsen disagreed.

"They’re talking about killing police officers. I don’t think you can joke about that," the agent replied.

Prosecutors objected to questions about interpreting the secretly recorded conversations, but the judge said they were fair game.

"A lot of this case is going to be about the spoken word," Roberts said.

The judge will resume the court hearing Wednesday. Prosecutors will have a chance to question people who are willing to be responsible for some of the nine if they are released from jail.

Hathaway won’t step away from Aceval case, Markman complains of delay

The wheels of justice almost never spin quickly, and in People v. Aceval (majority opinion) (concurring opinion), the pace may now be especially slow, according to Michigan Supreme Court Justice Stephen J. Markman.

Aceval, you’ll recall, was charged with a major drug offense. The jury deadlocked. Later, Aceval alleged that the trial judge and the prosecutor knew some of the prosecution’s witnesses were lying under oath and did nothing about it.

His second trial got underway but ended abruptly with his guilty plea in the face of allegations that he persuaded a prosecution witness to lie on his behalf. See, The Michigan Lawyer, “MSC to consider COA’s conflict ruling in Waterstone case“, for more background on Aceval’s case and the messy business of trying to get a perjury prosecution going against the judge who presided over Aceval’s first trial.

The latest chapter in the protracted saga: Aceval’s attorney, David L. Moffitt, moved to disqualify Justice Diane M. Hathaway from participating in Moffitt’s motion to have the Court rehear its 3-3 denial of Aceval’s application for leave to appeal. See, The Michigan Lawyer, “MSC denies drug defendant’s appeal on 3-3 vote, Corrigan may testify for former judge in related case.”

Hathaway denied the motion and wasn’t shy about her reasons for doing so:

I have carefully reviewed this matter and I find that I have had no involvement in defendant’s case as a trial court judge or as a former member of the Wayne County Circuit Court bench. I did not have any actual knowledge of defendant during my time on the Wayne County bench. Further, I am not personally acquainted with defendant, or counsel for the defendant, and accordingly harbor no bias or prejudice against either of them …

Defendant essentially alleges that I cannot be impartial in this appeal because I was a member of the Wayne County bench at the time of his conviction and am acquainted with the other members of that bench. However, the mere fact that I was a member of the same trial bench clearly does not support recusal in and of itself. …

Defendant’s challenge to my ability to be impartial in this appeal is also based on the unsupportable and fictitious premise that there is widespread corruption and cronyism among Wayne County judges and prosecutors. This bold assertion is supported only by numerous disjointed and bizarre allegations and opinions of his counsel. …

He further challenges my ability to be impartial based on my former marriage to Richard Hathaway, (former Wayne County Circuit Judge) currently a Wayne County prosecutor. However, I have been divorced from Richard Hathaway for over 15 years, we do not share any common financial or business interests, and I do not harbor any bias or prejudice for or against him. Moreover, I am unaware of what specific role Richard Hathaway has played in this prosecution, or its relevance to any issue in this case, and defendant has failed to provide any details in this motion.

Markman also provided a statement regarding the motion to disqualify. Whatever thoughts he had about the motion’s merits, or Hathaway’s disposition of it, he appropriately kept to himself.

Under MCR 2.003(D)(3)(b), “the challenged justice [emphasis added] shall decide the issue and publish his or her reasons about whether to participate. If the challenged justice denies the motion for disqualification, a party may move for the motion to be decided by the entire Court.”

It’s the second sentence in the above quote that prompted Markman’s statement:

I write separately only to observe that this Court adheres to a different procedure in the present motion for disqualification than it did with regard to the recent motion for disqualification in Pellegrino v AMPCO, #137111, [see, The Michigan Lawyer, “Judicial disqualification: To participate or not participate? That is the question“] and that this change in procedure has significant consequences for the new disqualification process.

In Pellegrino, this Court allowed other justices an immediate opportunity to respond to my statement to deny the disqualification motion directed toward me. In the instant case, justices are not to be afforded a similar opportunity until after, and unless, the attorney who initially moved the disqualification motion against Justice Hathaway has requested that her decision be reviewed by the full court.

Thus, one procedure entitles justices to review the disqualification decisions of other justices, while the other procedure allows such review only if sought by the attorney.

What’s the harm in that? Plenty, according to Markman:

Relevant to the instant procedure is that the motion for disqualification here was filed on Oct. 16, 2009. Now, more than six months later, a denial and an accompanying statement have been issued, and yet the process may still not be close to an end.

Defense counsel will now be entitled to respond to the targeted justice, the targeted justice will then be allowed to respond to defense counsel, the other six justices will then assess these ongoing exchanges between the lawyer and the justice, these other justices are then obligated to respond with their own statements explaining their decisions as to whether the targeted justice can participate in the case, and then finally the targeted justice will be entitled to a responsive or dissenting statement if he or she disagrees with the court majority.

Thus, an entire term of this Court will likely have passed and there will have been no resolution of the dispute that has brought this criminal appeal to the Michigan Supreme Court in the first place.

Not only then does the instant procedure improperly confer a monopoly upon lawyers in triggering full Court review of disqualification decisions, but it extends the disqualification process to unreasonable lengths to the detriment of justice.

The tail now wags the dog where a disqualification motion has been made, and it is quite certain that some number of such motions will be incentivized in order to delay rather than to facilitate justice.

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