ACLU to honor local law firm, union prez, media at annual dinner

From the ACLU of Michigan:

DETROIT – The American Civil Liberties Union of Michigan will host its 2010 Annual Dinner on Saturday, Dec. 4, 2010 at The Henry Ford Museum, 20900 Oakwood Blvd. in Dearborn featuring special guest Baratunde Thurston, a comedian, author and vigilante pundit who is the web and politics editor at “The Onion.” The evening’s theme is “Building Michigan: The Next Generation for Social Justice.”

The event begins at 6:30 p.m. with a cocktail reception. Dinner and program follow at 7:15 p.m. There will be a V.I.P. reception at 6 p.m. This year, four honorees will be recognized including UAW President Bob King, the law firm of Bodman LLP, Michigan Voice and journalist Darrell Dawsey.

“Every year, the ACLU of Michigan honors individuals and organizations that have advanced the cause of civil liberties and civil rights in Michigan,” said Kary L. Moss, ACLU of Michigan executive director. “This year, we honor two individuals and two organizations that represent our historical foundation and our future engineers. With the recent mid-term election, we are very likely to face, at both the state and federal levels, serious assaults on fundamental freedoms, including vigorous attempts to roll-back past victories. Our annual dinner is a great opportunity for those who are concerned to come together for inspiration.”

Thurston combines politics, technology and comedy. He co-founded “Jack & Jill Politics” in 2006 and hosts “Popular Science’s Future Of” on the Science Channel. He has contributed articles to Vanity Fair, the U.K. Independent and WNYC. He’s currently writing “How To Be Black,” to be released in 2011 by Harper Collins and has self-published three other books, including “Keep Jerry Falwell Away From My Oreo Cookies.” Thurston often employs satire as an expression of his activism and technology as a medium for that expression.

Since 1959, the ACLU of Michigan has worked to protect and defend civil liberties of Michigan residents in the courts, through legislation and in communities across the state. The Annual Dinner will highlight the ACLU’s work over the year and will focus on the areas of voting rights, workplace discrimination, debtor’s prisons and educational equity.

Eric Jirgens of Eric Charles Designs of Birmingham will serve as the event chair for the third year.

The honorees are:

Bob King, President, United Automobile Workers
The United Automobile Workers (UAW) and other labor unions have played a vital role throughout the ACLU’s rich history, helping to blaze trails on the right to associate and free speech, elimination of the worst forms of child labor, nondiscrimination in employment, and equal pay for equal work. Although King is new to his UAW position, the ACLU of Michigan encourages him to continue the longtime commitment and partnership.

Bodman LLP
The law firm of Bodman LLP has donated more time developing cases and preparing memos on behalf of the ACLU of Michigan than any other Michigan firm in recent history. From religious freedom and free speech to debtors’ prisons and judicial abuse of power, Bodman LLP’s commitment to pro bono representation on behalf of the ACLU is palpable.

Michigan Voice
With its nonpartisan mission to engage underrepresented voters in the democratic process and to establish collective action around a common issue agenda, Michigan Voice brings together close to 100 Michigan-based non-profits. It has facilitated collective work between organizations dedicated to civil rights, environmental, education, labor, and faith-based groups to conduct voter registration drives and voter protection and reform projects. The collaborative also functions as a central communications and media hub, providing polling, modeling and research.

Darrell Dawsey
Darrell Dawsey is an author and local journalist. He has written extensively about civil liberties issues including medical marijuana, educational equity and affirmative action. In 2009, when the ACLU challenged Detroit Public Schools’ mass student searches, Dawsey was a voice of reason defending the ACLU. Currently a freelance writer, Dawsey was a contributor to TIME Magazine’s Assignment Detroit Project and a reporter for the Los Angeles Times, Philadelphia Inquirer and Detroit News. His work has appeared in Essence, Vibe, and USA Today and he has penned two books, including the best-selling I Ain’t Scared of You: Bernie Mac On How Life Is, co-written with comic Bernie Mac.

Dinner tickets are $175 for ACLU members; $225 for non-members; $50 for students and those on fixed incomes. Reservations may be made on the web at http://www.aclumich.org. Premium table packages are available.

MSC appoints master in ticket-fixing charges against Jackson judge

The Michigan Supreme Court has appointed Judge Pamela J. McCabe as master to hear Judicial Tenure Commission charges against Jackson District Court Judge James M. Justin.

The JTC alleges that Justin fixed traffic citations for himself, his wife, his court reporter, his court officer and friends.

From the JTC’s Formal Complaint No. 87:

Respondent has engaged in a pattern of conduct in which he has dismissed cases, including misdemeanors and traffic citations, without hearings. Respondent has dismissed tickets cases that have been brought against his court reporter, his court officer, his wife, and even himself. Respondent has dismissed cases without authorization of the prosecuting authority. …

Respondent has engaged in a pattern of conduct in which he has entered beneficial judgments for certain defendants, often in multiple cases, by dismissing cases or by waiving or suspending fines and costs. Respondent stops Secretary of State (SOS) abstracts for defendants in violation of MCL 257.732, saving the defendants from paying driver responsibility fees under MCL 257.732a. …

Respondent has removed or set aside dispositions, including convictions by guilty plea and default judgments without the consent or authorization of the prosecutor. Respondent has dismissed and/or waived or suspended fines and costs on these cases without authority. Respondent has improperly removed or deleted Secretary of State (SOS) abstracts for many of these cases. …

Respondent has waived or suspended fines and costs, and improperly stopped, removed, or deleted Secretary of State abstracts for certain defendants, often for multiple cases for a defendant. …

Respondent has engaged in a pattern of dismissing traffic tickets and misdemeanor cases without following normal court procedures. Respondent has taken files, including files not assigned to him, and dismissed the cases without a hearing and without the authority of the prosecutor. …

Respondent has engaged in a pattern of conduct that allowed family, social, or other relationships to influence his judicial conduct or judgment, including dismissing tickets or waiving or suspending fines and costs for his friends, his court staff, his wife, and himself.

The above is a sampling of some of the JTC’s allegations.

All told, the JTC took 87 pages to detail the charges against Justin, and to explain how the charged conduct violates the Michigan Constitution, the Code of Judicial Conduct and the Michigan Court Rules.

Krause appointed to COA

Gov. Jennifer Granholm has appointed 54-A District Court Judge Amy Krause to the Michigan Court of Appeals.

Krause fills the open seat created when COA Judge Alton T. Davis was appointed to the Michigan Supreme Court following former MSC Justice Elizabeth Weaver’s resignation.

Krause’s appointment ends speculation that Granholm might reappoint Davis to the COA. Davis lost his re-election bid to the MSC earlier this month.

Krause is an adjunct faculty member at Thomas M. Cooley Law School and a former assistant attorney general. She is a recipient of the State Bar of Michigan Champion of Justice Award and is chairperson of the Michigan Domestic Violence Prevention & Treatment Board.

She’s a Notre Dame law grad with a bachelor’s degree from the University of Michigan.

MSC mulls MCR amendments

The Michigan Supreme Court is considering revisions to the Michigan Court Rules and judicial canons.

In orders released yesterday, the Court issued six proposals.

The explanations that follow are taken from the staff comments accompanying the orders. The staff comment is “not an authorative construction by the Court.”

• ADM File No. 2005-11. Proposed Amendments of Canon 4 and Canon 5 of the Michigan Code of Judicial Conduct: The proposal contained in this order seeks to clarify the role a judge may play in fundraising events for law-related and educational, religious, charitable, fraternal, or civic organizations. The proposal would specifically allow a judge to speak, appear, or be a guest or accept an award at a fundraising event of both law-related and educational, charitable, religious, and civic organizations, and must be shielded as much as possible from knowing who has contributed and the amount of contributions.
• ADM File No. 2007-18. Proposed Amendment of MCR 2.117: The proposed amendment would revise MCR 2.117 to provide that an attorney-client relationship continues until a final judgment is reached and the period allowed to appeal by right has expired unless the attorney discontinued the relationship before that time. Also the proposal would clarify that follow-up or ministerial actions performed by the attorney following notice of termination do not extend the attorney-client relationship.
• ADM File No. 2008-10. Proposed Amendments of MCR 6.425 and MCR 7.210: This proposal would require a sentencing judge to prepare and include with the case record a form in which the judge outlines the reason or reasons for departure from the sentencing guidelines. The duty to do so would be in addition to the obligation to state such reasons on the record. The proposal is designed to provide litigants and appellate courts a clear and unambiguous recitation of the reasons for departure by the sentencing court.
• ADM File No. 2008-11. Proposed Amendment of MCR 2.507: This proposed amendment of MCR 2.507 was submitted to the Court to clarify that oral agreements not made in open court to settle a case will not be enforceable. Like an agreement subject to the statute of frauds, agreements to settle a case would be required to be made in open court or in writing to be binding.
• ADM File No. 2008-32. Proposed Amendment MCR 2.203: This proposed amendment would clarify that summonses must be issued when a counterclaim or cross-claim is filed, and would establish an expiration date identical to the expiration date of summonses issued when a third party is added to an existing case.
• ADM File No. 2010-30. Proposed New MCR 2.412 and Proposed Amendments of MCR 2.403, 2.411, and 3.216: Proposed new MCR 2.412 and the proposed amendments of MCR 2.403, 2.411, and 3.216 would consolidate provisions related to mediation confidentiality into one rule and would expand the current exceptions to mediation confidentiality, as recommended by the Mediation Confidentiality and Standards of Conduct Committee convened by the State Court Administrative Office.

The Court is accepting comments on these proposals through March 1, 2011.

Send comments to Supreme Court Clerk Corbin R. Davis by mail or e-mail at Box 30052, Lansing MI 48909 or MSC_clerk@courts.mi.gov. Make sure to reference the appropriate ADM File number when submitting comments. Comments will be posted on the Court’s web site.

MSC censures former Justice Weaver for airing deliberations

From the Associated Press:

DETROIT (AP) — Five members of the Michigan Supreme Court have rebuked a former justice who secretly recorded internal discussions and released a transcript during the election season to show that a justice had used the N-word in 2006.

"It is truly a sad day when this Court is forced to censure a former colleague," the justices said in a Nov. 17 letter to Elizabeth Weaver.

"None of your fellow Justices was aware that you were tape recording our private deliberations on cases. Had you requested our consent to record, we would have refused it," the justices said. "We know of no instance in the past when a Justice has secretly recorded Court deliberations."

Weaver quit the court in August and campaigned against Justice Robert Young Jr. In October, she released a transcript to reveal that he had used the N-word while justices were discussing cases in May 2006.

Young, who is black, acknowledged using the racial slur but said he was simply quoting a disgraced former Detroit-area judge during a talk about judicial politics. Weaver recorded her fellow justices while participating that day by conference call. She insists it was legal.

"We as Justices owe a duty to the Court and to the public to make clear that we do not condone your behavior as outlined in this letter," the five justices said.

A message seeking comment was left Monday for Weaver, who was on the court for nearly 16 years.

The letter was signed by Chief Justice Marilyn Kelly and justices Young, Maura Corrigan, Stephen Markman and Michael Cavanagh. Justice Diane Hathaway declined to sign it, saying a censure first requires a formal hearing.

It was not immediately clear why Justice Alton Davis did not participate. He was appointed to replace Weaver and recently lost an election to keep the seat.

[UPDATE: You can read the letter here. (The Detroit News)]

Law students, recent grads can make COA appearance for legal aid clients

The Michigan Supreme Court has authorized law students and recent law school graduates who are legal aid clinic members to represent legal aid clients in the Court of Appeals.

The MSC’s amendment of MCR 8.120 takes effect Jan.1, 2011. According to the staff comment accompanying the amendment:

The appearance would require the same protections that now exist, i.e., supervision by a licensed attorney who signs all pleadings, and approval by a majority of the judges of the assigned panel. In addition, the amendments require that an indigent person indicate in writing that he or she consents to the representation by the student, and the student must certify that he or she is familiar with the Michigan Rules of Professional Conduct and the Michigan Court Rules.

The amendments further state that the supervising attorney shall assume personal professional liability for the student’s or graduate’s work, and require students and recent graduates to take an oath similar to the
one taken by licensed attorneys. The Court will review the effects of this rule in two years.

Justice Stephen J. Markman dissented.

Markman indicated that he was pleased that the court incorporated his suggested changes: students and grads must take an oath “reasonably equivalent” to the Michigan Lawyer’s Oath; the supervising attorney is personally on the professional responsibility hook for the student’s representation and the supervising attorney must be present at appellate arguments if there’s a possibility the client could be imprisoned.

But Markman still has some problems with the amendment.

By our supervision of the Michigan State Bar, the Attorney Grievance Commission, the Attorney Discipline Board, and the Board of Law Examiners, a significant responsibility of this Court is to enhance the quality of legal practice in this state.

I respectfully believe that extending authority to law students to argue before the second-highest court of our state does not fulfill this responsibility.

My opposition is not intended in any way to disparage the students who will engage in this new practice, the attorneys who will supervise these students, or the law schools that will train these students. Each is to be respected and commended for their efforts.

However, in the final analysis, I cannot ignore that such students have not yet completed their legal education, they have not yet been judged competent to practice law by the examination and “character and fitness” procedures of this state, and they have not garnered the experience, perspective and judgment that comes with the sustained practice of the law.

With few exceptions, these are all attributes and qualities that characterize those who engage in advocacy in our Court of Appeals.

While I have little doubt that those students who have demonstrated the energy and initiative to participate in clinical and training programs, and who have been selected by their schools to argue before the Court of Appeals, will come to be among the best of our appellate practitioners, I do not believe it is in the best interests of their clients, or of our legal system, that this occur prematurely.

I respectfully dissent.

Just in case you’re burning the midnight bankruptcy oil …

… and you want to use the Eastern District Bankruptcy Court’s Electronic Case Filing System (ECF) between 10 p.m. Tuesday, Nov. 30, 2010, through 12:30 a.m. on Wednesday, Dec. 1, 2010, don’t bother.

The system will be shut down to perform upgrades relating to bankruptcy rule and form changes, which take effect Dec. 1.

Enjoy the night off.

Michigan Supreme Court to hold off on hearing cases

The Michigan Supreme Court is adjourning its December docket, and will hear oral arguments in January 2011 instead.

On the list of cases scheduled for December arguments before the Court is a dispute between Acme Township and Meijer Inc. over campaign finance activities.

Attorney fees awarded in TheraMatrix lawsuit against Blues

There’s been another development in Pontiac-based TheraMatrix winning a $4.5 million lawsuit against Blue Cross Blue Shield of Michigan for breach of contract and tortious interference with economic and business relationships (“Their (Blue) Cross to bear,” Aug. 23, 2010).

Oakland County Circuit Court Judge Edward Avadenka awarded case evaluation sanctions, including attorney fees, against Blue Cross on Nov. 15.

But the way he came up the $625-per-hour rate is interesting.

According to Sara K. MacWilliams and Rodger D. Young, counsel for TheraMatrix:

[Avadenka] explained that the case was “most contentious” and that trial “was like a fencing match — thrust and parry by both sides, endlessly,” and therefore, substantial attorney hours were properly included in the fee award.

But, they continued:

Judge Avadenka’s opinion is of special note, because it examined what the proper source of evidence is to determine attorney fees in a Southeastern Michigan commercial litigation. Courts determining fee awards sometimes rely on the 2007 State Bar Survey of attorney rates.

However, as Michigan Lawyers Weekly recently reported, the survey is actually poor evidence of fees, both because it is now outdated, and because the survey has a very low response rate. Judge Avadenka recognized this, writing that the 2007 State Bar Survey is not “indicative of the true hourly rate in Southeastern Michigan for the attorneys who actually tried this case. There are over 35,000 attorneys in the State of Michigan, and the 2007 State Bar Survey reflects a questionnaire return rate of only 20-30 percent.”

Judge Avadenka, through his research, determined a more reasonable alternative, writing, “A truer representation of a reasonably hourly rate for the attorneys involved in the instant case is set forth in the National Law Survey (2008), which lists various rates by firm.”

Judge Avadenka also relied on “the Michigan Benchmark” as another source of evidence for determining fee awards. Using this evidence, Judge Avadenka set a reasonable billing rate of plaintiff’s lead counsel, Rodger Young, at $625 per hour during the applicable period, and adjusted at least one attorney’s billing rate up.

Judge Avadenka’s Nov. 15, 2010, Order and Opinion, which carefully sets forth the Smith v. Khouri guidelines for setting attorney fee awards, may prove to offer useful guidance for attorneys involved in fee award disputes, including fees owed under MCR 2.403.

As we wrote last week, a USA Today story that also appears in the Detroit Free Press (both papers are owned by Gannett) also covered the TheraMatrix case. The Freep also published a story that talks about a recently filed U.S. Justice Department lawsuit against the Blues.

Warren parent sues school district over slavery assignment

The father of a Warren Consolidated Schools student is suing the district alleging racial discrimination because of a teacher read aloud from a book about slavery. [The Macomb Daily].

Jamey Petree, representing Jala Petree, says that excerpts from “From Slave Ship to Freedom Road” were read last January by Jala’s fifth-grade teacher at Margaret Black Elementary School in Sterling Heights.

Two excerpts each two paragraphs long that were read include N-word references and compares African-Americans’ skin color to “Satan’s thoughts” and night darkness. The excerpts talk about the buying and selling of slaves.

Petree is suing under the Elliot Larson Act and for intentional infliction of emotional distress.

The book is widely used in schools to teach students “to come to terms with slavery’s legacy.” From Scholastic, a company that supplies books to schools:

An innovative picture book for older children, this unique collaboration addresses the history of slavery, while demanding the attention and interaction of readers of all races. Julius Lester, whose To Be a Slave was a Newbery Honor Book, uses eloquent text to interpret 24 of Rod Brown’s magnificent paintings — part of a series of 36 that the artist created over seven years. Together, images and words reenact the 250-year journey from the first slave ships taking Africans forcibly from their homes, to the Civil War and emancipation. Aching with emotion — occasionally hope, but predominantly pain, fear, and anger — Brown’s paintings depict such difficult truths as whippings and lynchings, the bodies of Africans floating near slave ships in the ocean, an angry slave tending white children, attempted escapes, and eventually, the final, joyful road to freedom . . . and a new uncertainty. Lester gives identities to the faces in the pictures, a reminder that even those people whose names have been lost to history were very real individuals whose lives were taken from them — both literally and figuratively.

What makes this book such a valuable learning tool, however, and such a unique response to a common subject of study, is Lester’s inclusion of personal commentary, direct questions and "imagination exercises" in his text. These exercises encourage African Americans to examine their own feelings about being descended from slaves, provide Caucasian students with an insight into the African-American experience, and challenge students of all backgrounds to understand what it was in human nature that allowed the terrible institution of slavery to survive for so long. From Slave Ship to Freedom Road insists that students think about history, rather than simply learn the facts.