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.”

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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.

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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.

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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.

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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.

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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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