Lansing district judge sends heavyweights to fight AG’s ouster attempt

Over the weekend, The Lansing State Journal reported that former Michigan Supreme Court Justice Thomas Brennan and attorney Lawrence Nolan are going up against Michigan Attorney General Bill Schuette, who is seeking to oust Lansing District Court Judge Hugh Clarke Jr.

Schuette, you’ll recall, says Clarke is illegally occupying his judicial office: “Schuette seeks to unseat Lansing district judge.”

Former Gov. Jennifer Granholm appointed Clarke in December to fill a vacancy created by Lansing District Court Judge Amy Krause’s appointment to the Michigan Court of Appeals.

According to Schuette, Clarke’s appointment could only last until the end of Krause’s term of office, which ended at noon, Jan. 1.

Krause had been re-elected to the district court in November. Schuette’s position is that Clarke can’t serve the term to which Krause had been re-elected but had not begun serving when she was appointed to the COA.

Brennan and Nolan want the Michigan Supreme Court to bypass the COA, which has original jurisdiction of Schuette’s quo warranto motion to unseat Clarke.

From The LSJ:

Schuette, a Republican who took office Jan. 1, says Clarke’s appointment should have ended on Jan. 1. He further argues that Gov. Rick Snyder has the legal authority to fill the seat once held by Krause.

In their response, Clarke’s attorneys say that state law has an appointee to the District Court bench fill the seat until the “next general November election, at which time a successor is elected and qualified.”

Brennan also argues that the Michigan Supreme Court does not have the power to remove a judge without a recommendation from the Judicial Tenure Commission. Further, such removals can occur only in a specific set of circumstances, none of which apply to the dispute over Clarke.

“We stand by our position. It’s a matter of principle and precedent based on a previous case involving a Supreme Court justice,” said John Sellek, a spokesman for Schuette. Sellek added that due to the lateness of the filings Friday, the Attorney General’s Office had not had a chance to look them over.

In the meantime, Clarke continues to preside over his court.

“I have a parking place. I’m going to work every day, working for the people of Michigan,” Clarke told The LSJ.

In their opinions

“[N]o constitutional principle … allows a criminal defendant to defend one criminal charge by urging his lawyer or witness to commit another. Otherwise, an individual on trial for a murder-by-stabbing charge could try to prove that the knife was not long enough to kill someone by using it to stab someone else in the middle of the trial.”

– 6th U.S. Circuit Court of Appeals Judge Jeffrey Sutton, explaining in Doe v. Boland, et al., why an expert witness is not immune from the civil remedy provisions of federal child pornography laws.

The expert, Ohio attorney Dean Boland, created child pornography to demonstrate the difficulty of establishing “knowing” possession of child pornography. “The aim was to show it would be ‘impossible for a person who did not participate in the creation of the image to know [the child depicted is] an actual minor.'”

Boland created the images, forbidden by 18 U.S.C. § 2252A(a)(5)(B), by downloading pictures of children from a stock photo web site and then electronically “morphing” the pictures into images of adults engaged in very adult activities.

The children’s parents sued Boland “under 18 U.S.C. § 2252A(f) and § 2255, which respectively provide civil remedies to ‘any person aggrieved’ and to minor victims who have suffered ‘personal injury’ from a violation of 18 U.S.C. § 2252A(a).”

The federal district court dismissed the case but the Sixth Circuit reversed. Writing for a unanimous panel, Sutton noted that the federal civil remedy statute does not contain an expert witness exception. Moreover, wrote Sutton, Boland

could have illustrated the difficulty of discerning real from virtual images by combining two innocent pictures into another innocent picture.

Or, if Boland wished to use pornography to make the point, he could have morphed an image of an adult into that of a minor engaging in sexual activity. Boland indeed did the latter as part of his preparations, and had he stopped there we would not be here.

These images are not prohibited by federal law, see 18 U.S.C. § 2252A(c), and are protected by the First Amendment to the extent they are not obscene … .

Boland did something else. He morphed images of minors into pornography, images that “implicate the interests of real children.” …

The law expressly covers such images, 18 U.S.C. § 2256(8)(C), and the reality that Boland himself did not “use” real children to produce the images makes no difference … .

On remand, the federal district court will consider Boland’s argument that the children have not suffered “personal injury” under § 2255.

The parties have stipulated that the children are, mercifully, unaware of the created images.

Judicial Crossroads Task Force recommends judge reductions, tech upgrades

The State Bar of Michigan’s Judicial Crossroads Task Force released its 24-page report Jan. 26 on how to fix an “outdated justice system” during a massive state budget crisis.

The collective’s recommendations include reducing judgeships where needed, create specialized dockets such as business, and putting in a standardized statewide computer case-management system.

The report was written for members of the Legislature, the governor and the Michigan Supreme Court to review with the intent that they will consider making changes.

One of the suggestions is eliminating and/or consolidating judge positions through retirement, death, and term limits where population and caseloads have declined.

Consolidating dockets also was mentioned, as well as

• Making trial court judge salaries and health care benefits uniform.

• Converting separate court information systems into an integrated whole along the lines of the federal court technology system, along with an e-filing surcharge.

• Creating a pilot business docket in Wayne and Oakland circuit courts.

• Shifting indigent defense funding responsibility from local government to the state — something that would involve large immediate cost but result in large potential net savings.

A full copy of the report can be found at www.michbar.org/judicialcrossroads.

U-M practice of banning citizens from campus faces scrutiny

When the hullabaloo erupted over Andrew Shirvell essentially stalked University of Michigan student president Chris Armstrong last year, one of the punishments Shirvell faced for his conduct was banishment from the campus.

Shirvell, a Michigan undergraduate alum, eventually was reinstated under the condition that he leave Armstrong alone after the American Civil Liberties Union (ACLU) threatened a lawsuit.

The banishment should have been more controversial in the news, and might have been if Shirvell’s conduct left any room for him to be even the slightest sympathetic figure. After all, aside from circumstantial evidence suggesting that he may have used his position at the Attorney General’s office to illegally review the criminal records of Armstrong and his associates, Shirvell didn’t do anything illegal. And last time I checked, U-M was a public university (Not for long if the Mackinac Center has anything to say about it!) banning citizens from public property without review.

The Detroit Free Press reported that over 2,000 people have been banned from Michigan’s Ann Arbor campus over the last 10 years – far more than any public university in the state. Apparently, all that is required to be banned is a “trespass notice” by Department of Public Safety i.e. campus police. The officers issue the bans before any review is taken, so it’s up to the discretion of the department, rather than a judge or impartial authority. The DPS director does say bans can be reviewed by “the department’s civilian oversight committee, or up to the university president.”

The conduct of what receives a trespass notice is pretty broad. According to the story, a ban can be issued for “committing or being suspected of committing a crime on campus, refusing or failing to comply with university rules, disrupting the operation of the university or demonstrating a risk of physical harm or injury.”

For example, the Freep story said, if you are the chief operating officer of a company that makes “bioengineered medical devices” looking to meet up with one of your researchers, you’d better make an appointment first:

It was after hours on Oct. 14 when Deborah Buffington tried to enter an off-campus building leased by the University of Michigan to speak with a technician her company was working with on a study. She banged on the locked door.

The technician let her in, but the director of the program didn’t know her or the work she was doing there, according to Buffington. He asked her to leave. The next day, a University of Michigan police officer came to her office to discuss the incident and give her a trespass warning.

That’s how Buffington, chief operating officer of Innovative Biotherapies, an Ann Arbor company that develops bioengineered medical devices, became one of about 2,000 people issued trespass warnings since 2001, effectively banning her from the campus.

Buffington said she has no quibbles with U-M. She said the university has to look out for the safety of its community, and she believes it was miscommunication that led to the warning. “I completely understand why they did what they did,” said Buffington, who immediately appealed and on Oct. 29, the ban was modified to allow her on campus as long as she’s invited.

What crime Buffington was “being suspected of” is unclear. The employee let her in, the director said she couldn’t stay. She left. There’s no indication of misbehavior in the story.

This could simply be anecdotal. Later in the story, the Director of Public Safety said most bans are the result of criminal activity. But not all. In fact, in at least one instance, it was used against a former employee virtually moments after he was fired.

One of the more high-profile trespass warnings was issued in 2008 to Dr. Andrei Borisov, a 15-year employee of U-M who had been raising questions about how some grant money was being used in the pediatrics/cardiology department.

Following a meeting in which his superiors asked for his resignation, Borisov said he was escorted to his office by police officers who read a trespass warning to him and then arrested him when he attempted to take his briefcase. Borisov was acquitted of the charges he faced as a result of the incident, said his attorney, Deborah Gordon of Bloomfield Hills. He has subsequently filed a wrongful termination lawsuit against U-M, he said.

The ban from campus has since been modified, allowing Borisov back on campus, but not at the medical school.

Borisov described the trespass warning as “nonsense.”

“I was at my office legally as a faculty member and an employee of the University of Michigan,” Borisov said.

U-M officials declined to comment about Borisov’s case because of the lawsuit.

The story doesn’t say much about how the policy is being reviewed other than to say that is. Maybe the policy will change. Or maybe it’s the type of review that gets the ACLU off your case until it focuses on something else and nothing ever changes.

SCOTUS to hear another Michigan Miranda case

The U.S. Supreme Court has issued a writ of certiorari in yet another Michigan criminal case, this time Howes v Fields.

The case is another 5th Amendment question involving a prisoner that was removed from his cell and questioned by police about a crime unrelated to the charges for which he was incarcerated without being informed of his Miranda rights.

You can read the 6th Circuit’s opinion in the matter (holding that the defendant was entitled to re-notified of his Miranda rights) here. Summary here.

Here’s the AP summary:

WASHINGTON (AP) — The Supreme Court will consider whether investigators must give a jail inmate his Miranda rights before questioning him on matters unrelated to what landed him behind bars.

The justices on Monday said they will hear Michigan’s appeal of a court ruling in favor of Randall Fields, who acknowledged to sheriff’s deputies that he had sexual contact with a minor. The admission took place during an interview in the same building where Fields was jailed on unrelated charges.

The deputies never advised Fields he could be silent or have a lawyer, hallmarks of the Miranda warning for criminal suspects. They did tell him he could leave when he wanted.

Arguments will take place later this year.

The case is Howes v. Fields, 10-680.

DHS prevails in federal audit appeal

News about former Justice Maura Corrigan, getting busy in her new role as Department of Human Services director:

Michigan Department of Human Services Director Maura Corrigan today announced that the DHS prevailed in a federal appeal and, as a result, passed a 2010 audit of its performance of the
federal IV-E program in Michigan. Title IV-E of the federal Social Security Act covers federal
funding for Michigan’s foster care and adoption assistance programs.

In June 2010, the DHS underwent a federal review of the state’s program operation. The
weeklong review of 80 foster care cases determined whether DHS had correctly determined
eligibility for children under its care and custody. The state was allowed to have a 5 percent error
rate, or four cases.

The U.S. Department of Health and Human Services’ Administration for Children and Families
notified Michigan last August that the state did not pass the review because it identified six error
cases. Two of the error cases resulted in a total disallowance of $67,264 in federal funds.
The Michigan attorney general, on behalf of DHS, appealed this finding to the federal Department
Appeals Board in November 2010. The federal board issued a decision Jan. 14 finding for the
DHS. It reversed the disallowance and ruled Michigan is operating the Title IV-E program in
accordance with federal regulations.

“The Department of the Attorney General provided DHS with excellent legal representation in our
appeal of the federal review findings,” Corrigan said. “Moreover, the entire team for DHS and the
State Court Administrators Office deserves our praise for their fine work in conducting the
preparation for the review.”

The federal IV-E program provided about $224.2 million in funds for the Michigan foster care and
adoption programs during fiscal year 2009, the most recent year for which records are available.

Because of the decision, Michigan will not be required to conduct a subsequent federal onsite
review until 2013. The 2010 review was Michigan’s third of the IV-E program since 2004.
Chief Justice Robert P. Young, Jr. of the Michigan Supreme Court commended both Corrigan
and the attorney general for their advocacy on behalf of Michigan’s children and on the proper
operation of the Title IV-E federal program.

“Former Justice Corrigan made the commitment to DHS several years ago that she would work to
assure courts operated in compliance with federal Title IV-E program regulations,” said Young.
“Her tireless commitment and advocacy resulted in outstanding news for Michigan with this
review. The Supreme Court will continue to work with former Justice Corrigan in her new role as
DHS director to continue the same high level of collaboration.”

Young also praised SCAO’s Child Welfare Services Division for its work on the audit and appeal:
“In particular, we should acknowledge CWS Management Analyst Jenifer Pettibone, who played
a leading role on this successful appeal,” Young said. “Pettibone’s work is a fine example of how
the judicial branch has supported DHS, not only in this appeal process, but also in child welfare
work in general.”

Source: State of Michigan

Granholm goes West while still staying put in Michigan

With ex-Senate Majority Leader Mike Bishop and former Attorney General Mike Cox announcing returns to private practice at Clark Hill and Dykema, respectively, an article in today’s edition of the Detroit Free Press reveals — by way of Politico.com — where former Gov. Jennifer M. Granholm is headed.

She and husband Dan Mulhern are going to teach this spring at the Goldman School of Public Policy at the University of California-Berkeley. (They won’t be moving to the Bay Area, though, as the couple will continue to live in Lansing.)

They’ll collaborate on a book about her experience leading Michigan during one of its worst economic episodes. It’s planned for publication in September.

You also may see Granholm occasionally on NBC’s “Meet the Press,” as well as a speaking engagement here and there, as she and the former first gentleman signed on with Keppler’s Speakers Bureau.

She said she was not approached for a job by President Barack Obama’s administration, and doesn’t plan to run for office again, adding, “I’m done with that,” she said. “I’m ready for a new thing.”

Leaders in the Law 2011 Announced

After a statewide call for nominees brought numerous worthy candidates, Michigan Lawyers Weekly has selected its 25 “Leaders in the Law” for 2011.

The honorees will be recognized in a special section to be published Feb. 28, and at the third annual Leaders in the Law luncheon, taking place March 15 at the Detroit Marriott in Troy. At the awards ceremony, Lawyers Weekly will reveal the 2011 Lawyer of the Year.

In selecting the 25 Leaders, a Lawyers Weekly editorial panel considered such details as:

• Possessing the ability to achieve success in his or her respective practice, while also displaying the strength of character that transcends results.

• Exemplifying the noble tradition of the legal profession, coupled with commitment to practicing law in Michigan.

• Being passionate and aggressive on behalf of both clients and the legal community.

• A record of winning cases, solving problems or coming to judicial conclusions that reflect the utmost integrity.

The 2011 roster reflects a diverse array of practice areas, from homeland security, consumer bankruptcy and asbestos litigation, to fire and explosion matters, Whistleblower Protection Act, and broker-dealer securities.

This year’s honorees are:

• Lawrence G. Almeda, Brinks Hofer Gilson & Lione, Ann Arbor

• George W. Ash, Foley & Lardner LLP, Detroit

• Gary August, Zausmer, Kaufman, August, Caldwell & Tayler, P.C., Farmington Hills

• Timothy A. Baughman, Wayne County Prosecutor’s Office, Detroit

• Mark R. Bendure, Bendure & Thomas, Detroit

• Michael Cavanaugh, Fraser Trebilcock Davis & Dunlap, P.C., Lansing

• Hon. Maura D. Corrigan, Michigan Department of Human Services, Lansing

• Stephen R. Drew, Drew, Cooper & Anding, P.C., Grand Rapids

• Michael Fabian, Fabian, Sklar & King PC, Farmington Hills

• Clayton F. Farrell, Collins, Einhorn, Farrell & Ulanoff, P.C., Southfield

• James P. Feeney, Dykema Gossett PLLC, Bloomfield Hills

• David H. Fink, Fink & Associates Law, Bloomfield Hills

• Kenneth Gross, Thav, Gross, Steinway & Bennett, P.C., Bingham Farms

• Hon. Milton L. Mack Jr., Wayne County Probate Court, Detroit

• Lawrence C. Mann, Bowman and Brooke LLP, Troy

• Paul A. McCarthy, Rhoades McKee PC, Grand Rapids

• Lawrence D. McLaughlin, Honigman Miller Schwartz and Cohn LLP, Detroit

• Jon R. Muth, Miller, Johnson, Snell & Cummiskey, P.L.C., Grand Rapids

• Megan P. Norris, Miller, Canfield, Paddock and Stone, P.L.C., Detroit

• Tom R. Pabst, Tom R. Pabst P.C., Flint

• Gregory J. Parry, Eagle Risk Management Law Firm PLC, Beverly Hills

• T. Joseph Seward, Cummings, McClorey, Davis & Acho, P.L.C., Livonia

• Patrick G. Seyferth, Bush Seyferth & Paige PLLC, Troy

• Norman D. Tucker, Sommers Schwartz, P.C., Southfield

• Douglas E. Wagner, Warner Norcross & Judd LLP, Grand Rapids

Weaver proposes fix for MSC partisanship

Responding to a recent Lansing State Journal editorial, see MSC: ‘throroughly politicized’, former MSC Justice Elizabeth Weaver took to the LSJ’s editorial page this morning, touting a six-point plan concerning MSC elections and appointments:

1. No political party nominations. Supreme Court candidates would earn a spot on the ballot by petition – the same as other Michigan judges.

2. Election (not appointments) by district. The state should be divided into seven Supreme Court election districts, one justice coming from each, to allow the geographic diversity now clearly absent.

3. Public funding. Using tax check-off money designated for gubernatorial campaigns for Supreme Court campaigns.

4. Transparency and accountability in campaign finance reporting requirements. No secret or unnamed contributors and 48-hour reporting.

5. Term limits to achieve rotation. Only one term of a maximum of 14 years, and a justice never would be eligible for reelection or appointment.

6. For appointments, establish a Qualifications Commission composed of all stakeholders in the justice system.

Weaver’s opinion piece then fleshes out some of the details.

Weaver also says more sun needs to shine on the high court:

[W]e could enact all the reforms I’ve suggested but they will have little effect unless and until we can open our Supreme Court inner workings to public scrutiny.

Unnecessary secrecy, another issue for another day.

‘Hot Coffee’ brings tort reform quandaries to big screen

Most of us remember Morgan Spurlock taking on McDonald’s in the 2004 documentary/human nutrition endurance test Super Size Me.

Well, get ready for another shot of Mickey D’s making it to the silver screen.

But this time around, the Golden Arches is examined as the catalyst for civil justice gown wrong. And if Hot Coffee is as successful as Super Size Me was among the masses when released into theaters, there’s gonna be trouble.

The film makes its premiere at next week’s Sundance Film Festival. Here’s the skinny from its Sundance site, where there’s also a trailer:

For many Americans, the famous McDonald’s coffee case has become emblematic of the frivolous lawsuits that clog our courts and stall our justice system. Or is that exactly what McDonald’s wants us to think?

Enter intrepid filmmaker Susan Saladoff. Using the now-infamous legal battle over a spilled cup of coffee as a springboard into investigating our civil-justice system, Saladoff exposes the way corporations have spent millions distorting this case to promote tort reform. Big business has brewed an insidious concoction of manipulation and lies to protect its interests, and media lapdogs have stirred the cup.

Following four people whose lives have been devastated by their inability to access the courts, this searing documentary unearths the sad truth that most of our beliefs about the civil-justice system have been shaped or bought by corporate America.

Informative, entertaining, and a stirring call to action, Hot Coffee will make your blood boil.