Snyder says two open COA judgeships won’t be filled

If you were waiting by the phone in anticipation of Governor Rick Snyder’s call to congratulate you on being appointed to the Court of Appeals, you can go about your business.

According to the Detroit News, Snyder has decided not to fill court’s two open seats, which were created by Richard Bandstra’s retirement and Brian Zahra’s appointment to the Supreme Court.

Lansing — Gov. Rick Snyder will not fill two Michigan Court of Appeals vacancies and will ask for legislation to reduce the number of appeals judges to 26 from 28, a spokeswoman said Wednesday.

“This decision to not fill these two posts reflects the governor’s desire to match and align the number of judgeships with a significantly reduced caseload at the court,” said Sara Wurfel, Snyder’s press secretary.

The appeals court reductions account for two of the six judicial reductions Snyder announced in his Feb. 17 budget presentation. Having six fewer judges is projected to save close to $942,100 in the fiscal year that starts Oct. 1. Wurfel said cutting two appeals court judgeships will save about $343,000.

According to the story, four more judgeships are expected to be eliminated from the state’s circuit and district courts.

Another 6th Circuit judge wants en banc review of ADA standard

Judge Jane B. Stranch has joined the growing group of judges who are itching to have the entire Sixth Circuit revisit a disability law decision that goes against the bulk of authority in other circuits.

The Sixth Circuit is in the distinct minority of jurisdictions that require plaintiffs suing under the Americans with Disabilities Act (ADA) to show that their disability was the “sole reason” they were fired from their jobs. See “6th Circuit: Go ahead, take another crack at this

Most other circuits use a “motivating factor” standard.

Since 1996, when a 6th Circuit panel issued the “sole reason” standard in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), other panels have had to fall in line because one panel can’t overrule another.

Some judges have openly suggested that Monette was incorrectly decided. Judge Richard Allen Griffin, concurring in Lewis v. Humboldt Acquisition Corp., is one of them.

And Judge Gilbert Merritt, who wrote the majority opinion in Lewis, broadly hinted that plaintiff’s counsel should seek en banc rehearing of the case.

Indeed we should, said Stranch, concurring in Whitfield v. State of Tennessee, et al. Stranch said that the “sole reason” standard was borrowed from the federal Rehabilitation Act, which:

prohibits discrimination against an individual “solely by reason of his or her disability,” 29 U.S.C. § 794(a)[.]

[T]he ADA prohibits discrimination’on the basis of’ the individual’s disability, 42 U.S.C. § 12112(a). While the text of the RA mandates the sole motivation standard, no derivation of the word “sole” appears in any liability provision of the ADA. …

I take this opportunity to lend my voice to the others that have urged the en banc court to reconsider our initial importation of the sole motivation standard from the RA into the ADA. I do not find our position justifiable in light of the tenets of statutory construction.

Michael L. Weinman of Jackson, Tenn., the plaintiff’s attorney in Lewis, says he will pursue an en banc hearing.

Are parochial teachers ministerial employees? SCOTUS to decide

The U.S. Supreme Court granted certioriari to a pair of Michigan employment case dealing with the ministerial exception. Next term, the high court will hear EEOC et al v Hosanna-Tabor Evangelical Church & School and Weishuhn v Catholic Diocese of Lansing.

Both cases were decided within five weeks of each other. At issue was how much time the teacher spent on “ministerial duties.”

First, the Michigan Court of Appeals found in Weishuhn (see You’re Fired!, February 8, 2010), the Michigan Court of Appeals said the parochial math teacher was a ministerial employee because she taught a religion class. Most of the teacher’s duties were spent teaching math but the court found that her activities teaching one religion class and participating in the church’s religious services was sufficient to make her a ministerial employee.

Later, the Sixth Circuit found in Hosanna-Tabor (see Perich v the parish, March 22, 2010) in a similar scenario that the teacher was not a ministerial employee because she didn’t “generally [teach] primarily religious subjects or [have]a central role in the spiritual or pastoral mission of the church.” The job duties between the two teachers were quite similar.

Eastern District Bankruptcy Court: Hear it soon

In April 2011, the United States Bankruptcy Court for the Eastern District of Michigan will begin to make digital audio files of court proceedings available to the public over the internet through the PACER system.

Counsel of record who receive a notice of electronic filing will have one free review, just as they do with other electronically filed documents.

The PACER fee to access the digital audio is $2.40 per session.

The implementation schedule, which is subject to change if unforeseen technical issues arise, is as follows:

  • beginning April 11, 2011: audio files from all matters held before Judge Thomas Tucker will be uploaded to court dockets in CM/ECF, within 24 hours of the proceeding.
  • beginning April 18, 2011: audio files from all matters held before Chief Judge Phillip Shefferly and Judge Steven Rhodes will be uploaded to court dockets in CM/ECF, within 24 hours of the proceeding.
  • beginning April 25, 2011: audio files from all matters held before Judge Marci McIvor and Judge Walter Shapero will be uploaded to court dockets in CM/ECF, within 24 hours of the proceeding.
  • beginning May 2, 2011: audio files from all matters held before Judge Daniel Opperman will be uploaded to court dockets in CM/ECF, within 24 hours of the proceeding.

The court’s order includes instructions for downloading the MP3-format audio files.

Source: United States Bankruptcy Court for the Eastern District of Michigan.

Man pretends to be attorney, steals money from firm’s client trust account

From the Dept. of How Did That Happen?” [St. Louis Post-Dispatch via ABA Journal]:

A St. Louis man, Allen Dean Ritchie, 42, pleaded guilty Thursday to a federal identity theft charge and admitted using money from a law firm’s client trust accounts and Washington University for his personal use.

Ritchie also admitted “accessing and using the credit and financial accounts” of Washington University and alumni between 2007 and 2008, his plea agreement says.

Ritchie allegedly pretended to be a lawyer at this unnamed law firm (Why wouldn’t they report the name of the firm?) and gained access to the trust accounts.

Perhaps that’s the best way to get a law job these days. Just show up. It sounds so … familiar:

SADO names Van Hoek its director

Dawn Van Hoek has been named director of the State Appellate Defender Office. The Appellate Defender Commission made its decision at its March 16 meeting.

Van Hoek succeeds James R. Neuhard, who retired on Jan. 3, 2011.

SADO is Michigan’s only state-funded public defense agency, handling approximately 25 percent of the state’s indigent appellate assigned caseload.

A graduate of the University of Michigan, Van Hoek received her law degree from Wayne State University Law School in 1976. She has worked at SADO since that time, and served as its Chief Deputy Director

Bills would streamline adoption process for foster care children

LANSING, Mich. – Michigan Supreme Court Justice Mary Beth Kelly and Michigan Department of Human Services Director Maura D. Corrigan have urged legislators to approve bills before both chambers that will streamline the adoption process for children in foster care. The passage of these bills could pave the way for expedited placement in qualified, permanent homes for more than 1,100 children.

Currently, the only person authorized to approve adoptions for children in foster care is the Michigan Children’s Institute (MCI) superintendent. Since April 2010, the MCI superintendent has received 1,100 such cases for approval.

Under the bills, the MCI superintendent, the legal guardian for children committed to MCI when parental rights have been terminated, may authorize a designee to provide written consent to the adoption, marriage, guardianship or emancipation of MCI wards. The designee would be allowed to authorize adoption requests where the child is already living in the recommended adoption home and a review by a caseworker and supervisor has determined there are no concerns about the placement.

Kelly said her experience as a family court judge convinced her that the bills are needed.

“No matter how good a job the MCI superintendent does, he or she is only one person, and it is simply unrealistic to expect one person to perform in-depth reviews of hundreds of these cases each year,” Kelly told legislators.

While finding a permanent, loving home for children in foster care is a key mission for DHS, Corrigan was clear that the expedited process will not sacrifice due diligence in the examination of potential adoptive families. The department will be systematic, careful and considerate when determining who will be named as a designee, Corrigan told members of the Senate Families, Seniors and Human Services committee.

“The best place for a child is in a stable, permanent home. That is our goal for each of the 4,150 children in foster care available for adoption. Joining a family should not be delayed because only one person in the entire state can authorize a child’s adoption or guardianship,” Corrigan said.

Among the bills’ supporters is the Michigan Probate Judges Association. In a March 15 letter to Sen. Judith Emmons, Judge Dorene Allen, chief judge of the Midland County Probate Court and chair of the MPJA’s Juvenile and Adoption Issues Committee, wrote that the legislation “will facilitate the permanency of children in the abuse and neglect system, certainly a goal we can all agree upon.”

Source: Michigan Department of Human Services

The joy of the deposition zinger

If you feel stupid, it’s not because I’m making you feel that way.

The art of the deposition zinger is in its timing. It generally arises in the perfect storm of a deponent’s blissful ignorance or “standoffishness” and the attorney having a quick wit while being driven towards the end of it.

For instance, the above listed quote, taken from a recent deposition in Cleveland. [The Cleveland Plain Dealer via WSJ Law blog] The attorney was deposing an IT manager for the Cuyahoga County recorder’s office about the existence of copy machines in the recorder’s office.

The IT manager, clearly doing his best to obfuscate, played dumb. Reeeeal  dumb. (Edited for space)

Marburger: During your tenure in the computer  department at the Recorder’s office, has the Recorder’s office had photocopying machines?

Cavanagh: Objection.

Marburger: Any photocopying machine?

Patterson: When you say “photocopying machine,” what do you mean?


The situation devolved into this:

Patterson: I’m sorry. I didn’t know what that meant. I understand that there are photocopying machines, and there are different types of them just like —

Marburger: Are there any in the Recorder’s office?

Patterson: — there are different cars. Some of them run under gas power, some of them under electric power, and I’m asking if you could help me out by explaining what you mean by “photocopying machines” —

Marburger: That’s a great point.

Patterson: — instead of trying to make me feel stupid.

Marburger: If you feel stupid, it’s not because I’m making you feel that way.

Aaaaaand ZING!

Personally, I wish the guy would have latched on to that car analogy the witness pulled out of his butt used and asked him if he drove a car. Clearly, the answer would have been “What’s a car?”

The exchange went on for 10 pages. The attorney (Marburger) managed to ultimately get the guy to admit that there’s a fancy machine called the “Xerox” and people “Xerox” things all the time. Because “his generation” has never used the term “photocopying.”

Got any deposition zingers of your own? Post them in the comments.

MSC issues rules orders, board appointments

The Michigan Supreme Court issued the following orders on March 22, 2011:

  • ADM File No. 2011-01. Appointments to the Court Reporting and Recording Board of Review: Probate Judge Shana Lambourn, and Felicia Jordan, Sylvia Stratton and Rebecca Russo.
  • ADM File No. 2011-01. Appointments to the Committee on Model Civil Jury Instructions: Mark T. Boonstra, Thomas Van Dusen.
  • ADM File No. 2004-19. Rescission of LCR 4.202 of the 36th District Court: The rescinded rule provided “Rule: 4.202 Summary Proceedings; Land Contract Forfeiture (I) Joinder; Removal. (2) In the Thirty-Sixth District Court a money claim or counterclaim must be tried separately from a claim for possession unless joinder is allowed by leave of the court pursuant to MCR 4.202(I)(3).”
  • ADM File No. 2008-29, 2008-43. Amendments of MCR 3.807, 3.921, and 5.402: Technical amendments to clarify former language and to correct cross references.
  • ADM File No. 2011-04. Proposed Amendments of MCR 3.911 and 3.915: The proposed amendment of MCR 3.911 would eliminate the 14-day time frame during which a demand for jury must be made. The proposed revision of MCR 3.915 would clarify that counsel should be appointed for a parent even at the preliminary hearing of a child protective proceeding.
  • ADM File No. 2011-05. Proposed Amendments of the Michigan Rules of Professional Conduct: The proposed amendments of MRPC 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.9, 1.13, 1.14, 1.15, 1.16, 1.17, 3.2, 4.1, 4.3, 5.2, and 8.4 would incorporate language from the comments of these rules into the rule itself.