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.

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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.

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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.

Diane M. HathawayThe 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.

Stephen J. MarkmanMarkman 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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MSC authorizes pilot e-filing project for 13th Circuit, seeks comment on prescreening court filings

In orders released yesterday, the Michigan Supreme Court:

  • authorized the 13th Circuit Court (Antrim, Grand Traverse and Leelanau counties) to implement an Electronic Document Filing Pilot Project. The four-year pilot project will begin on July 1, 2010. Administrative Order No. 2010-4.
  • proposed amendments of MCR 2.101, 2.102, 2.113, 2.603, 3.101 and 8.119. This proposal, recommended by a workgroup authorized by the Supreme Court, would establish specific rules for court clerks to screen documents that are submitted to a court for filing and return those documents that do not conform to certain minimum filing requirements. ADM File No. 2005-32.
  • appointed Janis M. Burgess as chief judge of the Ontonagon County Probate Court. ADM File No. 2010-01.

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WDBC splits on state exemption statute

Bankruptcy practice in the Western District of Michigan will be a bit more tricky now.

Bankruptcy judges in the Western District have issued conflicting opinions on the constitutionality of MCL 600.5451, which specifies property exemptions available to bankruptcy debtors.

Judge Scott W. Dales, in In re: Jones, says the statute passes constitutional muster. Judges James D. Gregg, in In re: Pontius and Jeffrey R. Hughes, in In re Wallace, 347 B.R. 626 (Bankr. W.D. Mich. 2006), say it doesn’t.

In his opinion, Dales provided an overview of bankruptcy exemptions:

In 11 U.S.C. § 522(b), Congress provided that a state may choose the exemption scheme available to any debtor filing for bankruptcy relief within its borders. For example, debtors filing bankruptcy petitions in Ohio and Tennessee are not eligible to claim the federal exemptions enumerated in § 522(d) because the state law applicable to those debtors specifically “does not so authorize.” See 11 U.S.C. § 522(b)(2); Ohio R.C. § 2329.662; T.C.A. § 26-2-112. In other words, those states and many others have “opted out” of the federal exemption scheme.

Michigan, on the other hand, has not opted out. When Michigan debtors file bankruptcy petitions they can choose to exempt property under the federal exemption scheme found in 11 U.S.C. § 522(b)(2) and (d), or under the state exemption scheme of 11 U.S.C. § 522(b)(3). Should Michigan debtors choose the so-called “state exemptions,” they then have a choice to select exemptions under M.C.L. § 600.6023, which are generally applicable to all judgment debtors, or exemptions under M.C.L. § 600.5451, which are available only to debtors in bankruptcy.

The sticking point is the options Michigan provides. By allowing debtors to choose between exemptions available to judgment debtors and so-called “bankruptcy specific” exemptions, Gregg maintains Congress unconstitutionally delegated its authority to enact a portion of the Bankruptcy Code:

The Constitution grants Congress the power to “establish … uniform Laws on the subject of Bankruptcies.” The Bankruptcy Clause, U.S. Const. art. I, § 8l. 4. Court opinions which uphold state “bankruptcy specific” exemptions reason that, in enacting 11 U.S.C. § 522, Congress made an “express delegation” to the states to enact laws which operate solely in bankruptcy proceedings. The downfall of this “express delegation” rationale is that it is unconstitutional.

The Supreme Court has consistently held that Congress may not constitutionally delegate its legislative power. “It does not admit of argument that [C]ongress can neither delegate its own powers, nor enlarge those of a state.” Wilkerson v. Rahrer, 140 U.S. 545, 560, 11 S.Ct. 865, 869 (1891).

Gregg also observed that Congress is required to establish uniform bankruptcy laws. And, under Hanover Nat’l Bank v. Moyses, 186 U.S. 181, 188, 22 S. Ct. 857, 860-61 (1902), Gregg noted, “uniformity” in the bankruptcy context is geographic uniformity.

[T]he Supreme Court has given a precise holding of the interpretation of constitutional uniformity: We concur in this view, and hold that the system is, in the constitutional sense, uniform throughout the United States, when the trustee takes in each state whatever would have been available to the creditor if the bankrupt[cy] law had not been passed. Hanover, 186 U.S. at 190, 22 S.Ct. at 861 (emphasis added).

The Michigan statute, § 600.5451, and all other “bankruptcy specific” state exemption schemes, accomplishes the opposite result. Their very purpose is to ensure that the bankruptcy trustee does not take whatever property “would have been available to the creditor” outside of bankruptcy.

Dales sees things very differently.

The Wallace and Pontius opinions construed the Bankruptcy Clause, and its uniformity requirement, as an express delegation of exclusive legislative power from the states to the federal legislature — a constitutional delegation divesting the states of their own legislative authority in this area.

This view, however, is at odds with the Sixth Circuit’s earlier analysis in Rhodes v. Stewart, 705 F.2d 159 (6th Cir.), cert. denied, 464 U.S. 983 (1983), which recognized concurrent state legislative authority to adopt exemptions applicable in bankruptcy. …

By permitting the states to prescribe exemptions applicable in bankruptcy proceedings, and permitting them to opt-out of the federal bankruptcy exemptions, Congress “purposely omitted to provide” a federal rule of decision, and constitutionally deferred to the states on these issues. …

Indeed, in Hanover National Bank v. Moyses, 186 U.S. 181 (1902), the United States Supreme Court specifically upheld the decision of Congress to adopt state exemption laws as the rule of decision in bankruptcy cases under the former Bankruptcy Act, and rejected the challenge that doing so somehow constituted an improper delegation of authority. By accepting Congress’s invitation to regulate exemptions, the states are exercising their own legislative authority, authority that they retained notwithstanding the Bankruptcy Clause.

So, for now, take your pick, Dales or Gregg / Hughes.

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SCOTUS makes Michigan’s Asian carp case sleep with the fishes … again

The U.S. Supreme Court again killed Michigan AG Mike Cox’s action to close the canal between the Illinois and Chicago Rivers in hopes of stopping the Asian carp from infiltrating Lake Michigan. This time, it’s dead dead. [SCOTUSblog].

UPDATE: Here’s the AP story:

WASHINGTON (AP) — The U.S. Supreme Court has decided not to get involved in a dispute over how to prevent Asian carp from making their way into the Great Lakes.

The justices turned down a new request from Michigan on Monday to consider ordering permanent closure of Chicago-area shipping locks to prevent the invasive fish from threatening the Great Lakes.

The court had declined previously to order the locks closed on an emergency basis while it considered whether to hear the case. Michigan has led the legal fight to close the locks, arguing that the ravenous carp, which weighs up to 100 pounds (45 kilograms), could devastate the lakes’ $7 billion fishing industry by starving out competitors such as salmon and walleye.

UPDATE II: Again from the AP, Sen. Charles Schumer (D-NY) is requesting a study of the potential effects of Asian carp on the lakes. Sounds like a good idea for six months ago:

A New York senator said a full federal study is needed to determine how big a bite Asian carp would take from the regional economy if they invade the Great Lakes.

Democratic Sen. Charles Schumer said he will request a comprehensive study in a letter he plans to send Monday to the Environmental Protection Agency, Coast Guard, Army Corps of Engineers and Fish and Wildlife Service.

Two species of Asian carp are threatening to enter Lake Michigan from Chicago-area waterways.

State officials and scientists say if the carp spread across the lakes, they could threaten the $7 billion fishing industry by starving out competing species.

Schumer says a broader analysis is needed that would consider potential damage to other industries such as tourism and shipping — and costs to governments from monitoring and control programs.

"No studies have been conducted to assess the true economic impacts of allowing Asian carp to establish a breeding population in the Great Lakes," Schumer said in the letter, which was provided to The Associated Press. "The lack of this crucial information makes it impossible to weigh the options before us and determine the best course of action to fight the spread of Asian carp."

An economic analysis released this month by the Illinois Chamber of Commerce found that closing the shipping locks in Chicago waterways would cost the area economy about $4.7 billion over two decades.

That report envisions a far greater economic ripple than a February study commissioned by the state of Michigan.

Transportation specialist John Taylor of Wayne State University in Detroit and James Roach, a consultant, said Illinois was overstating the economic damage closing the locks could cause. They estimated it would boost the costs of transporting and hauling cargo by about $70 million annually — a fraction of Chicago’s $521 billion economy.

The U.S. Supreme Court twice has rejected Michigan’s request to order the locks closed.


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Granholm talks to CNN about Obama SCOTUS pick

Governor Jennifer GranholmGovernor Jennifer Granholm appeared on CNN’s State of the Union Sunday to file a demurrer concerning her chances for a U.S. Supreme Court nomination.

But she was quick to advise the Obama Administration, according to CNN’s politicalticker…, that it “would be ‘wise’ to consider someone outside the usual suspects on the federal appellate courts.”

Granholm told CNN Chief Political Correspondent Candy Crowley, “I think it’s a very wise move to consider experience that is not just from the judicial monastery.”

Who could she possibly be talking about?

The Michigan governor, whose final term ends this year, pointed to herself and Janet Napolitano, a former Arizona governor and current Homeland Security Secretary, as “people that have applied the laws that Congress enacts, that have seen their impact on people.”

“And, you know, for somebody to experience and see what everyday people are feeling and experiencing out there, I think is an important thing to consider,” she said.

“Now, whether that’s something that would trump judicial experience, etc. That’s obviously the president’s call. It’s safe to say that someone like me would be an unconventional nominee, at least in – in the recent appointments that have been made.”

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