Belaboring the obvious

Last week, the Michigan Supreme Court released for comment a proposed amendment to Rule 7.3 of the Michigan Rules of Professional Conduct.

If adopted, it would affect lawyers who solicit employment from prospective clients via print, recorded and electronic advertising.

You might need to become well-acquainted with the phrase “Advertising Materials.” The proposed amendment would require those words to appear on any self-mailing brochure, pamphlet or postcard. It would also be required at the beginning and end of every written, recorded or electronic communication.

Now, I can understand why that might be a good idea for something sent through the mail. A written communication in your mailbox from a lawyer you’re not familiar might be important. Labeling a solicitation letter as “Advertising Materials” helps you make a quick decision about whether it goes into the stuff-to-be-opened pile, or directly to the trash or recycling bin.

Too bad someone isn’t thinking about a similar regulation for mailbox solicitations from insurers, credit card comanies and the like.

But commercials on the television? Come on. Anyone who’s watched the tube for more than an hour can figure out when there’s a pause in the show, and that it’s time to hit the mute button, the bathroom or the kitchen.

The alternative is to be bombarded with ads selling everything under the sun, including earnest lawyers eager to help you with your difficulties, some of which you may have never thought you had.

Requiring lawyers to label their television ads as “Advertising Materials” needlessly belabors the obvious.

Couple convicted of extortion attempt on star

A host of top-name celebrities are calling Michigan their temporary home these days as they shoot movies, but at least one actor is relieved to be leaving the Wolverine State.

The Associated Press reports that a Marquette jury convicted a couple in the attempted extortion of John Stamos, “after a trial full of allegations about cocaine, strippers and unflattering photos.”

Federal prosecutors say Allison Coss and Scott Sippola demanded $680,000 from the “ER” and “Full House” star or they would sell six-year-old embarrassing pictures to the tabloids. The FBI says there were no bad photos.

Coss and Sippola were found guilty [Thursday] of conspiracy and using e-mail to threaten a person’s reputation. Coss met Stamos in Florida in 2004 when she was 17. Stamos denied using drugs.

Keeping Up With The Candidates, July 16

As the primary is only three weeks away, the candidates are fighting for an advantage against the other men seeking their respective party’s nomination. Peter Luke of MLive suggests that the thing they are fighting more than their opponents is voter frustration and apathy.

We start off this week with the Democrats. Andy Dillon picked up the endorsement of former Detroit mayor and Dickinson Wright chairman emeritus Dennis Archer. [The Detroit News].

In the meanwhile, Virg Bernero, appearing at a visit to Siena Heights University in Adrian, said that he’s a bulletproof candidate: [The Daily Telegram/Adrian].

“The two main candidates are largely unknown, Speaker of the House Andy Dillon and myself,” Bernero said, but he added that a new poll conducted for his campaign sampling 600 likely primary voters showed Dillon to be the more vulnerable candidate.
“The two Achilles’ heels that my opponent had — and I have no Achilles’ heels, really, we tried to test some — but he has two that are deadly,” Bernero said. “One is that he’s anti-choice (on abortion) and anti-stem cell research, and that is deadly in a Democratic primary, come to find out. And, two, his corporate raider, corporate boardroom experience of running people off and shipping jobs overseas. They’re almost equally negative and very toxic.”

I want to think that was a joke. Yeah, it had to be a joke, right?

About those Achilles’ heels, Laura Berman of The Detroit News agrees with Bernero that Dillon’s pro-life/anti-embryonic stem cell research stances will matter.

But when they will matter may be another issue. A poll released Tuesday has Dillon ahead of Bernero 35 percent to 15 percent, with 50 percent undecided. Of course, wait a day or two and those numbers will likely be closer. [Detroit Free Press].

The news was heavier on the GOP side this week. (That’s been the case more often lately. More candidates, closer race). The party is certainly confident that whomever wins its primary will be the next governor. Said State Republican Party chairman Ron Weiser:

“People are going to want a change. We saw that in 2008, and Obama took advantage of it,” Weiser told reporters in a conference call. “And certainly as Republicans we’re going to take advantage of the same thing.”

He added “I know there’s always the possibility that something strange can happen, but we certainly are overwhelming favorites now to take the governorship.”

The same poll mentioned earlier shows Pete Hoekstra, Rick Snyder and Mike Cox in a dead heat, all with 18 percent, while Mike Bouchard is a distant 9 percent and Dr. Tom George at one percent.

It should be said that polling numbers have been all over the place in this election, so, for both races, take them for what they are worth. It’s the score at the end of the third quarter. Might be the result, might not.

Bouchard’s people say the numbers are way off. His Minister of Information campaign manager Ted Prill said the campaigns internal polling shows Bouchard tied for the lead with 19 percent, with Cox and Snyder polling at 16 and 12 percent, respectively.

Bouchard has been more active in advocating the GOP dogma, coming out in support of both a Michigan equivalent to the controversial Arizona immigration law (again) and making Michigan a right-to-work state.

He will speak to a Tea Party forum next week about the Arizona immigration law. He wrote a newspaper op-ed and released a commercial about the right-to-work issue. Jeff Cranson of The Grand Rapids Press asks whether this is Bouchard’s Hail Mary pass.

Speaking of the Tea Party, the Livingston Daily says they have the GOP’s attention.

Michigan’s “tea party” groups could affect dozens of local races, as well as those for the state Legislature. Making an impact in Michigan’s gubernatorial race will be harder, but the enthusiasm of newly minted political activists could help pick a Republican nominee, and the field knows it.

Attorney General Mike Cox, U.S. Rep. Pete Hoekstra of Holland and Oakland County Sheriff Mike Bouchard all have courted the “tea party” vote. Although Ann Arbor businessman Rick Snyder is seen by some as the most moderate of the group, his business success and his status as the only nonpolitician helps him, Ballenger said.

Pete Hoekstra was in Holland with President Barack Obama and Gov. Jennifer Granholm for the groundbreaking of a new battery plant.  He used the opportunity to criticize Obama and the stimulus bill, which at least in part will fund the the new LG Chem plant.

“If you take a look around, you will see companies that were built by individuals and families,” Hoekstra said in a YouTube video he posted on his campaign website. “They have never received a government stimulus package.”

Of course, the companies he’s speaking of weren’t offered one and who knows what they would have done if the money was on the table. (I’d like to see the company that says “We’d like to build a new plant in your state/district/city, but please, do not offer us any tax breaks or other economic incentives! Give that money back to the people!”)

Of course, Hoekstra has been attacked in ads from unnamed entities for supporting the stimulus bill, which he did not vote for. When he was criticized in the Democratic debate for not supporting the bill, he responded via Twitter:

Democrats blasting me for voting against stimulus package last year. At least THEY got the facts right that I voted no!

Except for his appearance in the GOP debate earlier this week, Mike Cox stayed out of the news, but for his official duties, in which he again slammed the Obama Administration for filing suit to block the aforementioned Arizona immigration bill. His office will file an amicus brief in support of the bill.

At a campaign appearance in Owosso, Rick Snyder said simply fixing Michigan isn’t enough. To compete, Michigan needs to reinvent itself. He also talked about the troubling trend of college graduates leaving the state to find work.

Finally, yes, four of the five GOP candidates debated yet again this week, with Snyder opting to hold a town meeting in Grand Rapids instead. [WOOD-TV Video].

The candidates that were there didn’t inspire confidence, said the Detroit Free Press:

Tuesday night, in the last debate before the August primary, voters got a better look at the distinctions among the candidates than they had before. But it’s also clear that some of the candidates still cling to unrealistic schemes for navigating Michigan’s way to long-term solvency.

Only state Sen. Tom George, for example, seems to understand that the tax cuts proposed by Attorney General Mike Cox and Oakland County Sheriff Mike Bouchard will bankrupt the state. That won’t attract jobs any better than the current onerous business tax environment.

Cox also continues to indulge overly pollyannaish solutions to the gridlock in Lansing.

Cox — and nearly everyone else — fails to explain how [bipartisanship] could now be accomplished with term-limited, politically entrenched legislators who so far haven’t budged toward compromise.

In Supreme Court election news … there isn’t any. Today is the deadline for non-party affiliated (i.e. independent) candidates to submit their paperwork to be put on the ballot. As of 2pm, no one has, according to the Board of Elections. The remaining candidates will be nominated by parties at their political conventions in late August.

Add to FacebookAdd to DiggAdd to Del.icio.usAdd to StumbleuponAdd to RedditAdd to BlinklistAdd to TwitterAdd to TechnoratiAdd to Yahoo BuzzAdd to Newsvine

MSC: You can, at least, try to blame the horse

In our May 3, 2010 edition, Carol Lundberg detailed a case before the Michigan Supreme Court involving equine liability. (See “A horse with no blame”). In the case, Trina Beattie was asking the court to grant leave to appeal the Court of Appeals decision dismissing her negligence case against the owner of a horse that had bit her.

At issue was the Equine Activity Liability Act (EALA), which immunizes a horse owner from liability unless the owner was negligent.

The Michigan Supreme Court reversed the Court of Appeals decision and remanded the case back to the trial court:

A plaintiff is not required to plead a claim in avoidance of the limitations on liability provided in the Equine Activity Liability Act (EALA), MCL 691.1661 et seq. Cf. Mack v Detroit, 467 Mich 186, 198 (2002). In addition, although EALA abolished strict liability for horse owners, Amburgey v Sauder, 238 Mich App 228, 245 (1999), it did not abolish negligence actions against horse owners. Indeed, EALA expressly states that “[s]ection 3 does not prevent or limit the liability . . . if the . . . person . . . [c]ommits a negligent act or omission that constitutes a proximate cause of the injury.” MCL 691.1665. …

Justice Robert P. Young, Jr. wrote a partial dissent arguing that the COA properly dismissed Beattie’s claim under the EALA:

MCL 691.1663 limits the liability of “an equine activity sponsor, an equine professional, or another person” (a “horse owner”) when the alleged injury or damage “result[s] from an inherent risk of an equine activity.” …

I agree with the Court of Appeals that MCL 691.1665(d) cannot be construed as broadly allowing general negligence claims without completely eviscerating the entire concept of limited liability under the EALA. MCL 691.1665 must be read in conjunction with MCL 691.1663 to give effect to the act as a whole.4 Giving effect to both provisions, the Court of Appeals correctly interpreted the exception of MCL 691.1665(d) as involving “human error” “not within the gamut of ‘inherent[ly] risk[y] . . . equine activity.’”

MCL 691.1665 provides such “a general term follow[ing] a series of specific terms.” Subsections (a) – (c) provide specific exceptions in specific situations: where the horse owner has provided faulty tack, failed to match the rider’s ability to the horse’s personality, or failed to warn of a known latent dangerous condition on the land. Each of
these exceptions obviously involves an equine activity and a danger that could potentially arise in the course of that activity. However, each also involves an affirmative act or omission on the part of the horse owner, above and beyond the “inherent” or essential risks of an equine activity, which makes the equine activity even more dangerous. Therefore, we must interpret the more general negligence exception of subsection (d) “to include only things of the same kind, class, character, or nature” as the more specific, preceding subsections. Accordingly, a negligence claim pursuant to subsection (d) must also involve a negligent act or omission beyond the “inherent” risk of the equine activity, making the activity even more dangerous.

Moreover, the majority order, as well as Justice MARKMAN’s concurring statement, base their interpretation of the negligence exception to the EALA on an overly narrow and faulty linchpin: that the exception was intended simply to eliminate strict liability for horse owners. However, this interpretation fails to consider that, if the Legislature’s goal were merely to eliminate strict liability, it could have accomplished that goal in a much simpler and more direct fashion. Instead, the Legislature drafted a complex limitation on liability for injuries arising from an inherent risk of an equine activity and accompanied that limitation with numerous specific exceptions. …

Here, plaintiff was injured while assisting defendant to saddle a horse. Saddling a horse in preparation of riding is clearly an equine activity and a horse’s unexpected and negative reaction to being saddled is clearly an inherent risk of such activity. Further, both plaintiff and defendant were aware of the particular horse’s personality and of plaintiff’s level of experience with horses.

Young concurred with the majority’s holding that the trial court improperly shifted the burden of proof onto the plaintiff to “state her claim in avoidance of the EALA limitation on liability.” He was joined in his concurrence/dissent by Justices Elizabeth A. Weaver and Maura D. Corrigan.

Justice Stephen J. Markman concurred in the order to rebut the Young’s dissent:

Both the Court of Appeals and the dissent conclude that the Equine Activity Liability Act (EALA), MCL 691.1661 et seq., only permits a negligence claim when it involves something other than inherently risky equine activity. I respectfully disagree. …

It is uncontested that plaintiff was a “participant” “engage[d] in an equine activity” when she was injured. The issue is whether plaintiff’s claim fits within the “negligent act or omission that is a proximate cause of the injury” exception of EALA. The Court of Appeals correctly held that EALA does not provide blanket immunity to a horse owner. However, I believe that it read the immunity that EALA does provide too broadly. …

Here, defendant admitted that he knew that the horse was “green broke,” and thus that only the most experienced riders should handle the horse. That is, defendant had knowledge of the horse’s abnormally dangerous propensities. Indeed, that is why, according to his own testimony, he refused to let plaintiff ride the horse. Therefore, if, as plaintiff alleges, defendant did give plaintiff permission to ride the horse, and did instruct plaintiff to hold onto the lead rope while he placed the saddle on the horse, defendant under the common law would have been strictly liable for plaintiff’s injuries. Because EALA abolished strict liability for horse owners, Amburgey v Sauder, 238 Mich App 228, 245 (1999), defendant is not strictly liable for plaintiff’s injuries.

However, EALA did not abolish negligence actions against horse owners. …

Contrary to the dissent’s contention, nowhere in this statement do I suggest that the Legislature’s only goal was to eliminate strict liability. Given that the Legislature enacted a general limitation on liability and four exceptions to this limitation, eliminating strict liability was obviously not the Legislature’s only goal. The dissent also criticizes me for violating the principle of ejusdem generis by failing to read the negligence exception in accord with the other three exceptions. Again, I respectfully disagree, and believe that our disagreement stems from the fact that I also disagree with the dissent’s premise that the other three exceptions pertain to risks that are “above and beyond” the “inherent risk[s] of an equine activity.” Instead, I believe that faulty tack, the rider’s ability not matching the horse’s personality, and dangerous latent conditions of the land are all “inherent risk[s] of an equine activity.” Again, if they were not, there would be no need for the Legislature to exempt them from the general limitation on liability because such limitation only applies in the first place to injuries “resulting from an inherent risk of an equine activity.”

Markman was joined by Chief Justice Marilyn Kelly in his concurrence.

Kwame pleads poverty

Well, we know he can’t use the Kilpatrick Civic Fund to pay for his defense of charges that he used the Kilpatrick Civic Fund to pay for, eh, things like that.

But who needs the Kilpatrick Civic Fund when you have the American Taxpayer? [The Detroit News].

Clad in an inmate’s uniform and leg irons, a noticeably thinner Kwame Kilpatrick pleaded poverty Tuesday when charged in federal court with 19 counts of fraud and income tax violations.

"That is correct," the former mayor of Detroit answered when asked by U.S. Magistrate Judge Donald A. Scheer if he was unable to hire an attorney. Scheer accepted an affidavit from Kilpatrick, 40, explaining his current financial straits.

Hours later, James C. Thomas, the same high-powered attorney paid by Kilpatrick to lead a legal team in fighting criminal charges stemming from the text message scandal, was appointed to represent Kilpatrick again — this time at taxpayer expense.

Yes, he is entitled to a court-appointed attorney if he can’t afford to hire his own, but this is like the NBA forcing the Cleveland Cavaliers to pay for Lebron James’s moving expenses.

ADB’s dismissal of alcohol-related reprimand upheld

The Michigan Supreme Court has refused to review the Attorney Discipline Board’s decision to vacate a hearing panel’s reprimand, with conditions, of Dianne L. Baker, who pleaded guilty to driving while visibly impaired and faced the discipline process as a result.

As reported in our Feb. 22 issue, the Attorney Grievance Commission wanted to put Baker through the wringer. The AGC offered to back off if Baker agreed to contractual probation, which required Baker to swear off alcohol, attend counseling or submit to alcohol monitoring, and to file quarterly progress reports.

The AGC wanted all of this because it perceived that Baker had a drinking problem and was not doing anything about it. Baker declined the offer and told the AGC to prove its case.

A hearing panel agreed with the AGC’s assessment and issued a reprimand that contained substantially the same conditions Baker rejected when she turned down the contractual probation offer.

On review, the Attorney Discipline Board said the evidence just didn’t add up against Baker and vacated the reprimand. The ADB pointed to Baker’s negative alcohol tests, the hearing panel’s adverse determination of Baker’s credibility without citing any supporting evidence and Baker’s voluntary counseling sessions.

What’s more, said the ADB in its opinion:

Even if the record indicates what could be deemed excessive alcohol consumption at certain points in [Baker’s] life, we must also consider the evidence of [her] voluntary cessation or reduction of alcohol use during most periods of her life, which include consistent employment in responsible positions, childbirth and child-rearing years, and graduation cum laude from law school while working.

There’s no justification for Baker to be involved with the discipline process, the ADB said.

[W]e find clear evidence that respondent drove while impaired by alcohol on one occasion. This criminal conduct was appropriately dealt with by the district court.

The other evidence marshaled fails to demonstrate the existence of a problem for the attorney discipline system to address.

Late last month, a four-justice majority denied the AGC’s application for leave to appeal. Justices Maura D. Corrigan and Robert P. Young Jr. would have granted leave.

Justice Elizabeth A. Weaver sat this one out, explaining:

I abstain from voting on any items dealing with the Judicial Tenure Commission (JTC) and/or the Attorney Grievance Commission (AGC) to avoid any appearance that I could be trying to affect the outcome of the referrals of me to the JTC and AGC by Justices Corrigan, Young and Markman.

See, The Michigan Lawyer, “Weaver, Corrigan, Young and Markman: Supreme Court potboiler,” for more about this topic.

Kwame returns to court again

In case anyone is still interested, former Detroit mayor/current ward of the state Kwame Kilpatrick will be in federal court in Detroit today to be arraigned on felony fraud and income tax charges.

Paul Egan of the Detroit News talked to several Detroit criminal attorneys about the potential of a plea deal that could put Kwame – and, let’s face it, the weary public – out of their collective misery. Kwame’s attorney in the also-pending-in-federal-court Tamara Green civil case, James C. Thomas, said such talk is premature.

"He’s just been charged," Thomas said, adding that prosecutors have not yet provided him with summaries of the evidence they have against Kilpatrick, known as discovery.

"I’m going to defend him vigorously," Thomas said. The possibility of any deals will hinge on "what is the evidence" and "what are the client’s wishes," he said.

According to the Detroit Free Press, Thomas will represent Kwame today, but is not his counsel for the federal prosecution.