Happy Holidays from Michigan Lawyers Weekly

We’re taking a blogging vacation for the remainder of 2010. Happy holidays from the staff of Michigan Lawyers Weekly. See you next year!

Casual Friday says Fore? Nah!

So you’re on the fourth hole and BAM! Your playing partner duffs a shot across the fairway and implanted his Titleist into your head, causing you to lose sight in one eye. [Sorry. John Madden wrote that last sentence.] But wait? You don’t remember hearing anyone yell “Fore!” So you sue the guy who hit the ball because certainly, he had an obligation to warn you of his errant shot.

Not so, at least in New York, where the Court of Appeals has found no such duty of care exists.

The court found that the injured party assumed the being hit by a golf ball is an assumed risk of playing golf, thus had to show intent or recklessness.

Here, Kapoor’s failure to warn of his intent to strike the ball did not amount to intentional or reckless conduct, and did not unreasonably increase the risks inherent in golf to which Anand consented. Rather, the manner in which Anand was injured – – being hit without warning by a “shanked” shot while one searches for one’s own ball — reflects a commonly appreciated risk of golf ….

That’s it for us this year. See you in 2011.

MSC proposes MCR amendments, appoints new chief for 48th Circuit

In a series of orders released late yesterday, the Michigan Supreme Court has proposed amending several court rules dealing with class certification, appointed counsel in criminal cases, decedents’ estates and Headlee amendment proceedings.

The MSC also proposed rule changes concerning the recertification of attorneys who have voluntarily resigned from the State Bar of Michigan.

The Court also named Judge Margaret Bakker as the new chief judge of the 48th (Allegan County) Circuit Court.

The following summaries of the Court’s proposals are the staff comments accompanying each order. As always, the staff comments are not the Court’s authoritative constructions of the proposals. Information for submitting comments about the proposals is contained in the Court’s orders.

  • 2008-18 Proposed Amendment of MCR 3.501: The proposed amendment of MCR 3.501(B) in Alternative A would require a change in circumstances to have occurred that would allow a party to file a supplemental motion for certification of a class within 21 days of the party’s knowledge of the changed circumstances. The proposed amendment also would allow a party to file a motion for revocation or amendment of the certification. The court as well would be allowed to consider supplemental motions to recertify and revoke or amend the certification. The proposed amendment of MCR 3.501(B) in Alternative B would clarify that only one motion for certification may be brought, and that once granted, the certification may be amended or revoked. ADM File No. 2008-18.
  • Proposed Amendment of MCR 6.005: The proposed amendment would revise MCR 6.005(H) to clarify that appointed defense counsel in a criminal proceeding either must file a substantive response to a prosecutor’s application for interlocutory appeal or notify the Court of Appeals that the lawyer intends not to submit a pleading. ADM File No. 2008-28.
  • Proposed Amendment of MCR 5.208 of the Michigan Court Rules: This proposed amendment of MCR 5.208(A) would remove the requirement to list a decedent’s last known address on the Notice to Creditors form. The proposed revision has been published for comment because of a concern that providing such information and publishing it in a newspaper might identify a location where a surviving spouse may be living and may unnecessarily place such a person at risk of harm. ADM File No. 2009-29.
  • Proposed Amendment of MCR 2.112, 7.206, and 7.213: The proposed amendments of MCR 2.112 and MCR 7.206 were submitted by the Legislative Commission on Statutory Mandates as a way to increase the efficiency with which Headlee actions are considered and disposed in Michigan courts, and to regularize the procedures that relate to Headlee proceedings. The proposed amendment of MCR 7.213 was added to the proposal as a corollary to proposed MCR 7.206 to clarify the prioritization of cases. ADM File No. 2010-05.
  • Proposed Amendment of Rule 3 of the Rules Concerning the State Bar of Michigan and Rule 8 of the Rules for the Board of Law Examiners: The proposed amendment of SBR 3(E), submitted by the State Bar of Michigan, would clarify that an out-of-state attorney who voluntarily resigned from the Michigan bar would not be required to retake the Michigan Bar Examination if the person meets the criteria for admission without examination under Rule 5 of the Rules for the Board of Law Examiners. A similar change also would be made in SBR 3(F) regarding emeritus members. Finally, Rule 8 of the Rules for the Board of Law Examiners would be amended to reflect that resigned or emeritus members who seek readmission are covered under Rule 8, which allows for recertification. ADM File No. 2009-20.
  • Appointment of Chief Judge of the 48th Circuit Court: Effective January 1, 2011, the Honorable Margaret Bakker is appointed chief judge of the 48th Circuit Court for a term ending December 31, 2011. ADM File No. 2010-01.

Hugh Clarke Jr. named to Lansing district court bench

The Lansing State Journal reports that Hugh Clarke Jr. has been appointed judge of the 54A District Court.

Said Clarke of his appointment by Gov. Jennifer Granholm:

“I’m certainly pleased and humbled. I want to thank the Governor for this opportunity she has bestowed on me. I’m looking forward to serving the citizens of Lansing in this position.”

Clarke has unsuccessfully campaigned four times for a seat on the bench: twice for Ingham County Circuit Court and twice for district court seats.

He’s a Cooley Law School grad and has an undergraduate degree from Wayne State University.

Among Clarke’s notable cases: a $2 million settlement for Claude McCollum, who was wrongful convicted of murder and served several years in prison before being freed.

MSC affirms continuing child support obligation if parental rights terminated

Justice Robert P. Young Jr.

In March, the Michigan Court of Appeals ruled that a father whose parental rights were terminated still had an obligation to continue paying child support for his two children. (See In re Beck Minors)

On Monday, in its first opinion of the 2010-2011 term, the Michigan Supreme Court affirmed that decision, but with a different analysis.

The court found the father had no constitutional due process claim, and the legislative clearly intended to keep “parental rights” separate from “parental duties.” (“The sole parental obligation identified in MCL 722.3 is the duty to provide a child with support …)

The plain language of the termination statute, MCL 712A.19b, only implicates “parental rights.” Thus, when parental rights are terminated, what is lost are those interests identified by the Legislature as parental rights. In other words, the terminated
parent loses any entitlement to the “custody, control, services and earnings of the minor . . . .” Because nothing in the language of MCL 712A.19b affects the duty of support articulated in MCL 722.3, the obligation remains intact.

Thus, even after a parent’s rights have been terminated, the obligation to support continues “unless a court of competent jurisdiction modifies or terminates the obligation . . . .” This provision of MCL 722.3 indicates that a court has the discretion to terminate or modify a parent’s obligation to provide support, but is not compelled to do so.

Six of the justices signed the opinion, which was penned by Justice Robert P. Young Jr.  Justice Alton T. Davis recused himself because he was on the Court of Appeals panel that decided the case in March.

Two Michigan cases among 29 Innocence Network exonerations

Two Michigan cases are featured in the 2010 Innocence Network’s exoneration report.

The Innocence Network, with 54 member organizations in the United States and nine others in four foreign countries, reports on 29 people who were exonerated of crimes for which they had been convicted and were serving prison terms.

From the network’s report:

Dwayne Provience
Michigan Innocence Clinic

The Wayne County Prosecutor’s Office dropped all charges against Dwayne Provience for a 2000 killing after it was revealed that crucial evidence in the case had been withheld during trial.

Provience spent nine years in prison.

The prosecution’s only evidence against Provience was the testimony of a substance abuser facing burglary charges. The witness claimed that Provience and his brother killed the victim in a drive-by shooting from Provience’s brother’s beige Buick Regal.

However, seven motorists, including an off-duty police officer, gave eyewitness accounts that the shooter was in a grey Chevy Caprice Classic. Provience’s attorney, who was disbarred shortly after the trial, never called any of these eyewitnesses who would have contradicted the prosecution’s theory. Provience was convicted and sentenced to 30 to 60 years in prison.

After taking the case, Provience’s attorneys at the Michigan Innocence Clinic at the University of Michigan Law School discovered that another witness to the killing had himself been murdered.

A hit man confessed to a government agent that he had killed the witness to stop him from revealing the true identities of the perpetrators in the drive-by shooting.

Provience’s attorneys subsequently discovered a trove of suppressed police documents showing that at least three witnesses had seen two men in the grey Chevy Caprice Classic, as well as documents proving one of those men owned such a car.

Finally, the substance abuser who identified Provience recanted his testimony.

Provience was released on bond in 2009 and officially exonerated on March 24, 2010.


Julie Baumer
Michigan Innocence Clinic

Julie Baumer served four years of a 10- to 15-year sentence for allegedly causing serious brain injury to her infant nephew.

She was convicted of first-degree child abuse in September 2005 based on the prosecution’s assertion that she had violently shaken the six year old, leaving him blind and impaired.

At Baumer’s trial, one doctor testified that the child had suffered blunt force trauma.

Another doctor attributed the child’s skull fracture to birth complications, but hypothesized that he had been violently shaken.

Despite the lack of external signs of abuse, Baumer was found guilty. Her trial attorney never hired an expert who could read the scans of the baby’s brain.

Baumer was granted a new trial and released from prison in 2009 after the scans were sent to outside radiologists who confirmed to a medical certainty that the baby suffered from venous sinus thrombosis, a form of childhood stroke, and not from child abuse.

Six defense experts testified pro bono at Baumer’s retrial. She was finally cleared on October 15, 2010, when a Michigan jury acquitted her of all charges.

The Michigan Innocence Clinic successfully defended the trial judge’s decision to grant a new trial on appeal to the Michigan appellate courts and served as co-counsel at the retrial.

MSC, COA announce holiday hours

The Michigan Supreme Court, the Court of Appeals, and the State Court Administrative Office will be closed for the holidays on Thursday, Dec. 23, Friday, Dec. 24, Thursday, Dec. 30 and Friday, Dec. 31.

The Supreme Court, Court of Appeals, and SCAO will be open on Monday, Dec. 27, Tuesday, Dec. 28 and Wednesday, December 29.