COA: Tea Party will not appear on ballot

The Michigan Court of Appeals said yesterday in a unanimous opinion that Tea Party candidates will not appear on the Nov. 2 ballot.

Tea party members have said that the “Tea Party” that attempted ballot certification is bogus; some of the 23 candidates and petition signers could not be properly identified as legitimate.

“The court, in a cryptic order released Monday afternoon, said the Tea Party failed to ‘strictly comply with the requirements of’ state election law in submitting 60,000 petition signatures to qualify its candidates for the ballot.

“As a result, the Board of State Canvassers had no “clear legal duty” to certify the candidates as the Tea Party had requested, the court said.

“The appeals panel was made up of Judges Michael Kelly, Patrick Meter and Donald Owens,” reports the Detroit Free Press.

The Tea Party on Aug. 31 filed an appeal with the Michigan Supreme Court in The Tea Party v Board of State Canvassers, COA case no. 299805; MSC case no. 141694.

‘Big Law model … is rife with upheaval’

They want “more autonomy, less bureaucracy, and a better quality of life.” But in Jill Priluck’s interesting perspective on why big firm partners are hanging their own shingles, there’s more to it than just being able to do things their way. Check out for more.

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Parties select MSC candidates

Over the weekend, Democrats and Republicans selected their candidates for the “nonpartisan” November judicial ballot.

Republicans picked Justice Robert P. Young, Jr. and Wayne County Circuit Court Judge Mary Beth Kelly, who Young touted on his Facebook page as the “perfect choice” for the job.

Democrats nominated newly minted Justice Alton T. Davis and Oakland County Circuit Court Judge Denise Langford Morris.

We’ve got a straw poll on the Michigan Lawyers Weekly home page. Weigh in on which two of the four candidates should be taking seats on the high court bench come Jan. 1.

Young endorses Kelly for Weaver’s spot

Michigan Supreme Court justice Robert P. Young Jr. officially endorsed Wayne County Circuit Judge Mary Beth Kelly to be the GOP nominee to run against newly appointed justice Alton T. Davis.

On Facebook, Young posted:

After careful consideration, I have decided to formally endorse JUDGE MARY BETH KELLY for the Republican nomination for Michigan Supreme Court.

With the resignation of Justice Weaver yesterday, the people of Michigan have an even starker choice in November: continue with a solid liberal majority of judges or restore the Court by elec…ting two conservative Rule of Law judges. I believe that it is imperative to change the Court’s liberal majority and I believe that Judge Mary Beth Kelly is the perfect choice to run with me to take back the Court.

Prior to Davis’ appointment, Young had urged his Facebook followers to support Court of Appeals Judge Jane Markey.

Correction: Novi Lawyer pointed out in the comments that Young had mentioned both Markey and Mary Beth Kelly in prior Facebook posts. I had only seen Markey mentioned.

Update: Young also appeared on Frank Beckman’s radio show on WJR-AM in Detroit. You can listen to the interview here.

Davis appointed to MSC; a political windfall for Dems

Justice Alton T. Davis

Michigan Supreme Court Justice Alton T. Davis

There’s a lot to be said about Gov. Jennifer Granholm’s appointment of Alton T. Davis to the Michigan Supreme Court following yesterday’s surprise resignation of Justice Elizabeth A. Weaver.

He’s an experienced jurist with a 26-year career under his belt, the last five on the Michigan Court of Appeals. A list of his professional associations is long and impressive.

His opinions, in my view, are fair, open-minded and well-written. He knows how to turn a phrase, when needed, to make his point.

He looks judicial, and, it’s being said, he may have a calming influence on a sometimes braying and brawling Michigan Supreme Court.

The bench, bar and Michigan citizens should be well-served.

On the political side, if you’re a Democrat, you’re probably weeping with joy over this turn of events.

If you’re a Republican, no amount of rubbing will ease the pain in your eye caused by the sharp stick Weaver just poked into it.

With Davis’ appointment, Democrats have, at least for the moment, a 4-3 majority on the MSC.

Davis will serve the remainder of Weaver’s term, which expires at the end of the year. It’s a cinch that he’ll emerge from the Democratic Party’s nominating convention this weekend as a candidate for his own, eight-year term.

If so, he’ll have that all-important “Justice of the Michigan Supreme Court” designation on the November ballot. The incumbency designation is huge: historically, very few sitting judges lose at the polls.

The Republicans, still smarting from a notable exception to this truism — Cliff Taylor’s defeat in 2008 — will do their best to blunt Davis’ advantage. They lost no time yesterday labeling Davis as a “politician in a robe” and a “partisan hack.”

The Democrats, hoping to go two-for-two in knocking off sitting MSC justices, have been flinging mud at Justice Robert P. Young, Jr. since April, on the well-founded assumption that he’ll be selected at the Republican Party nominating convention, also being held this weekend.

Both parties’ judicial slates for the “non-partisan” judicial ballot will be in place soon.

Get ready for another ugly campaign season.

Weaver to resign, Gov. will name replacement today

Michigan Supreme Court Justice Elizabeth Weaver has made many headlines in her career.

Her biggest one, however, is today’s news that she’s had enough, she’s calling it quits and Gov. Jennifer Granholm will name her replacement, most likely Court of Appeals Judge Alton T. Davis, says Detroit Free Press scribe Dawson Bell, at a noon press conference today.

The Traverse City Record Eagle broke the story in this morning’s edition.

The Record-Eagle quotes Weaver as saying she’s secured Granholm’s promise “to appoint a northern Michigan jurist to replace her on the state’s highest court.”

That would be Davis.

Weaver’s retirement announcement come two days before state Democrats and Republicans huddle to select their picks for the “non-partisan” November judicial ballot.

Stay tuned.

Death penalty defendant gets life in prison

DETROIT (AP) — A man convicted in the murder of an armored-truck courier dodged the federal death penalty Wednesday and will serve life in prison after jurors failed to unanimously agree on the harsher punishment.

The jury of 10 women and two men was not unanimous on death or life in prison. But under federal law, the judge will automatically impose a life sentence without parole on Timothy O’Reilly.

Michigan’s Constitution forbids the death penalty in state court, but it’s an option for murders prosecuted by the U.S. Justice Department in federal court.

The government alleged that O’Reilly shot Norman "Anthony" Stephens in the back after he was already wounded and on the ground outside Dearborn Federal Credit Union in Dearborn in 2001. He and others got away with $204,000.

There was no dispute that O’Reilly, 37, was there, but his defense team argued that there was doubt over who did the shooting.

"The jury saved his life and we are humbled by the effort they put in," lead defense lawyer Richard Kammen told The Associated Press.

Jurors declined to comment at the courthouse. An alternate juror, Norio Stephens — no relation to the victim — said four were in favor of death. He spoke to reporters after meeting with jurors and U.S. District Judge Victoria Roberts.

Norman Stephens’ widow, Robyn Stephens, said she favored death for O’Reilly "but I’m not the jury."

Jurors deliberated for six hours, poring over a detailed, 29-page verdict form. They said they couldn’t unanimously find that O’Reilly intentionally killed Stephens or inflicted serious injury.

Kammen had repeatedly portrayed O’Reilly as a "clueless" individual who lived with his parents in Camarillo, Calif., until the late 1990s when he moved to Michigan at the urging of a fellow car buff and Detroit native, Norman Duncan.

He claimed that O’Reilly was easy to manipulate and fell under the spell of Duncan, who faces his own trial in the months ahead. Indeed, all jurors found that he was "particularly vulnerable" to Duncan.

"We all know that Norman Stephens’ life had value and his death caused enormous pain," Kammen told jurors Tuesday as he pleaded for prison. "But you don’t have to add to the pain, you don’t have to add to the grief … to do justice."

O’Reilly’s own words helped convict him on Aug. 3: He had boasted about the murder and even laughed in a secretly recorded conversation in 2004 with an inmate in state prison. Prosecutors called the tape the "most damning" piece of evidence.

Years later and while awaiting trial, O’Reilly showed no remorse and told his family that he would beat the charge, according to phone calls recorded in jail. He didn’t testify during the guilt or sentencing phases of the case.

In his closing argument this week, Assistant U.S. Attorney Ken Chadwell said O’Reilly "should pay the ultimate price."

U.S. Attorney Barbara McQuade issued a statement saying she respected the jury’s work.

"We hope that the Stephens family can take some comfort in knowing that the defendant will spend the rest of his life in prison with no possibility of release," she said.

O’Reilly’s father, Patrick O’Reilly, said jurors made the right decision.

"He was there. He shouldn’t have been and he’s going to pay the price," the elder O’Reilly told AP, referring to the robbery and a life sentence.

At the time of his death, Stephens, 30, was hoping to move his family to Philipp, Miss., where he grew up, to live in his late father’s house and escape the pressures of a major urban area. In 1997, he married a single mother of three young boys in Detroit and the couple had two girls of their own. He also has a son who lives in Mississippi.

The last federal death sentence in Michigan was in 2002, when Marvin Gabrion was convicted of killing a woman in a national forest. He is on U.S. death row in Terre Haute, Ind., and appealing the case.

‘Apex deposition rule’ adopted in Toyota product liability case

From Lawyers USA:

Top officials of Toyota aren’t subject to being deposed in a product liability case alleging that defects caused the sudden acceleration of one of the company’s vehicles, the Michigan Court of Appeals has ruled in vacating a discovery order.The plaintiff in Alberto v. Toyota filed a wrongful death suit against Toyota. She alleged that her husband was killed when his 2005 Toyota Camry suddenly accelerated to 80 mph and struck a tree.

During discovery, the plaintiff sought to depose Toyota’s chairman and president.

But the court adopted the “apex deposition rule” under which a plaintiff must demonstrate that the high-ranking corporate official in question has unique information relevant to the case that cannot be obtained through lower-ranking employees.

Applying the rule to this case, the court concluded that Toyota’s chairman and president lacked specific knowledge of sudden acceleration problems to justify their depositions.

“[The] plaintiff points to the fact that both [officials] have made public appearances to discuss Toyota’s safety difficulties and recall efforts. But no evidence before us demonstrates that, during those appearances, either officer demonstrated any actual knowledge, much less a unique or superior knowledge of design, engineering, manufacturing, or testing processes that went into the building of the subject vehicle, a 2005 Camry,” the court said.

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And the plot (or tea) thickens

Oakland County Clerk Ruth Johnson is asking for a criminal investigation into three suspicious filings for office, reports The Detroit News.

It seems there may have been three Tea Party candidates on the August primary ballot who had no desire to run for office at all. The clerk suspects foul play, that someone may have planted them on the ballot to sway the election.

Closing arguments today in Michigan death penalty case

DETROIT (AP) — For the first time in seven years, a Michigan jury is close to deciding whether a convicted killer gets the federal death penalty.

Closing arguments in the penalty phase of Timothy O’Reilly’s trial are set for Tuesday in federal court in Detroit. Lawyers were in court Monday to settle the ground rules and final jury instructions.

O’Reilly stands convicted of killing an armored-truck courier during a middle-of-the-night robbery at Dearborn Federal Credit Union in 2001. It’s up to jurors to decide whether he gets the death penalty or life in prison.

The death penalty isn’t available in Michigan courts but is an option for murders prosecuted in federal court. The FBI investigates bank robberies and built the case against O’Reilly.