Justice from Israel’s high court makes metro Detroit appearance

As part of a one-and-a-half-week U.S. tour, Justice Salim Joubran of the Supreme Court of Israel will be visiting Auburn Hills campus of the Thomas M. Cooley Law School.

At his 1 p.m. May 3 appearance, he’ll be speaking on “The Israeli Judicial System and the Role of the Supreme Court.” The event is open to the public, and is being held in conjunction with the American Association of Jewish Lawyers and Jurists, which is sponsoring Joubran’s U.S. visit.

The tour and presentation, according to the AAJLJ, is meant to have judges, lawyers, legal academics and law students learn more about the important role of the rule of law in Israel; the strength and diversity of its judiciary; and the challenges facing the legal system — as seen from the viewpoint of the first permanent member of the Supreme Court from the Israeli Arab community.

Seating is limited, and reservations are recommended. To learn more, contact Julie Tiffany at tiffanyj@cooley.edu or (248) 751-7873, Ext. 7784.

MSC amends attorney discipline rules

The Michigan Supreme Court, in an April 19 order, revised court rules governing Michigan’s attorney discipline system. The amendments affect practice and procedure before the Attorney Grievance Commission and the Attorney Discipline Board. ADM File No. 2006-38.

The court also appointed Nancy A. Kida as chief judge, and Thomas N. Brunner as chief judge pro tempore of the 85th District Court in Benzie County. ADM File No. 2011-01.

Sorry no longer seems to be the hardest word

LANSING, Mich. – It’s a standard scene of the prime-time medical drama: after something goes wrong in the operating room, a doctor comes out to explain what happened and say “I’m sorry.”

In real life, doctors and other health care providers are often prohibited from saying “I’m sorry” because that can count as an admission of liability in court. As a result, patients and their family members often lack closure, leading to medical malpractice lawsuits based on feelings of anger and suspicion rather than evidence of actual fault.

Today, Gov. Rick Snyder signed legislation sponsored by state Sen. Jim Marleau that allows health care providers to offer patients and their family members expressions of sympathy without fear it will be held against them in court. Statements related to fault or negligence on the part of the health care provider are not exempt under this bill.

“Sometimes a doctor can do everything right and still lose a patient, or not be able to save a limb or prevent a stroke. But hearing the simple words, ‘I’m sorry’ can still mean a great deal to patients and their families,” Snyder said. “This legislation will help improve the quality of patient care. We’ve also got good evidence this common-sense change will help reduce the number of medical malpractice lawsuits, which will help keep health care costs down.”

Studies by the University of Michigan show that when health care providers are allowed to say “I’m sorry,” patients and their families are able to let go of their anger and move on sooner. In fact, the University of Michigan Health System estimates the average cost of lawsuits has been cut in half since it adopted an “I’m Sorry” policy nearly a decade ago. At the same time, patient satisfaction has increased.

The bill, which passed with strong bipartisan support, only applies to new civil actions and is not retroactive to cover ongoing lawsuits. Thirty-five other states have already approved similar legislation.

Senate Bill 53 is now Public Act 21 of 2011.

Source: State of Michigan

In their opinions

“Democracies need political debate more than they do topless bars in order to function.”

– Sixth Circuit Judge Raymond Kethledge, explaining in Big Dipper Entertainment v. City of Warren, that its fairly tough to uphold content-based restrictions on speech, but zoning regulations that limit the secondary effects of adult businesses — and thus limit the speech “conveyed by a topless bar” — will usually pass muster.

In a 2-1 decision, Kethledge, joined by Judge Alan Norris, rejected a topless bar operator’s claim that he had been unconstitutionally denied a permit to open a club inside the city of Warren’s Downtown Development Authority.

Kethledge said the city carried its burden to show that the zoning ordinance was designed to limit the secondary effects of adult businesses. The city did so by referring to 49 reports and studies on the matter.

The topless bar operator said that the city’s exclusionary zoning left too few other sites available for adult entertainment. But Kethledge noted that supply far outstripped demand: there were 27 conforming sites available and only one other topless bar application filed in the last five years.

In his dissent, Judge R. Guy Cole said the ordinance, because it imposed a prior restraint on speech, is presumed to be unconstitutional. And, he said, it was in fact unconstitutional because it did not provide for prompt judicial review after a permit denial.

You strike, you lose

Fireworks could fly tomorrow a the House committee on Education meeting at 9 a.m. On the agenda is a bill that proposes stripping teachers of their license if they participate in a strike.

The bill, HB 4465, says: “within 10 days after the inception of the strike or after receiving information that the person has engaged or participated in a strike, notify the person that his or her teaching certificate may be suspended for a period of at least two years, or revoked …”

The teacher would have a right to a hearing. Within 120 days, “If the superintendent of public instruction determines as a result of the hearing that the person has engaged or participated in a strike in violation of Section 2 of the 1947 PA 336, MCL 423.202, the superintendent of public instruction shall suspend the person’s teaching certificate for at least 2 years and may permanently revoke the person’s teaching certificate, depending on his or her determination as to the severity of the offense.”

Employment lawyer Robert M. Vercruysse, of Bingham Farms-based Vercruysse, Murray & Calzone PC said that if the bill can get passed, it certainly would “give some teeth to the Public Employment Relations Act,” which prohibits public employees from striking.

But he has doubts that the bill is going anywhere, due to the teachers’ strong union lobby.

He said that the bill doesn’t go too far, proposing stripping a teacher of his or her license, at least not from the perspective of what’s allowed by law and the Constitution and by public employee contracts.

“One can debate the wisdom of it, but it would be nice from the employers’ perspective for the Act to have some real teeth,” he said.

But, determining whether someone has engaged in a strike is not always easy. Certainly, Vercruysse said, it’s pretty cut and dried when there are workers outside their workplace, carrying picket signs. But what about “sick-outs” or work slow-downs?

That’s quite another story.

“The ‘blue flu’ is a real burden to prove,” he said. And because that’s the mostly likely type of strike, at least if teachers went the way of the Detroit transportation workers’ sick-out last week, the bill’s usefulness might not be quite so clear.

Self-defense case returns for new trial

A Kent County man will get a new trial after being tried and convicted of shooting Keith “Killer Keith” Hoffman in 2006.

Sammie Ray Bailey’s counsel argued at his trial that Bailey feared for his life and shot Hoffman, in broad daylight and in front of witnesses, in self-defense.

However, the Michigan Court of Appeals agreed that trial the trial judge had improperly instructed the jury on self defense when he said a person can’t claim self-defense “if what they do is confront someone, intending, by their mere presence, to provoke that person into doing something, and then take advantage of it. … You have to be without fault.”

The Court of Appeals reversed Bailey’s convictions and sent the case back to trial court.

The Michigan Supreme Court heard oral arguments earlier this month (See story in today’s Michigan Lawyers Weekly, or click here) and on Friday released a one-page order denying leave to appeal, stating that “we are no longer persuaded that the questions presented should be reviewed by this court.”

Pew Center report lauds Michigan Prisoner Reentry Initiative

Michigan’s recidivism rate dropped 18.2% between 1999 and 2004 for parolees committing technical violations of their release, according to a recent Pew Center on the States/Association of State Correctional Administrators report.

But returns to prison for new crimes increased 21% during the same period, according to the report.

Although Michigan’s repeat offender rates are a mixed bag, the report says that post-study information shows that the Michigan Prisoner Reentry Initiative is having a positive effect on the state’s recidivism rates.

At the start of the millennium, Michigan did not look like a state on the cusp of inspiring correctional reform. Its myriad problems included high crime rates, a sharply rising inmate population, disappointing recidivism numbers and an economy deeply wounded by the ailing auto industry. By 2002, the state was sinking $1.6 billion a year into corrections, almost one-fifth of its general fund.

Less than a decade later, Michigan is riding a wave of policy changes that have allowed it to shrink its inmate population by 12 percent, close more than 20 correctional facilities and keep a growing number of parolees from returning to custody.

The cornerstone of the effort is the Michigan Prisoner Reentry Initiative (MPRI). Launched in 2003 and expanded statewide in 2008, the initiative’s mission is to equip every released offender with tools to succeed in the community. MPRI begins at intake, when a prisoner’s risk, needs and strengths are measured to develop individualized programming. Prior to parole, offenders are transferred to a reentry facility, and a transition plan, which addresses employment, housing, transportation, mentoring, counseling and any necessary treatment for mental illness or addictions, is finalized in close collaboration with community service providers. After release, officers use firm but flexible graduated sanctions- including short stays in a reentry center if needed-to manage rule breaking before it escalates to more serious transgressions.

The Pew/ASCA recidivism survey found a mixed picture in Michigan. Recidivism declined by 18 percent between 1999 and 2004 because of a dramatic drop in the reincarceration of technical violators, but returns to prison for new crimes jumped by almost 21 percent during the period. Those numbers, however, do not capture progress that has occurred under MPRI since Pew’s observation period ended in 2007.

Overall, post-2007 preliminary figures from the Michigan Department of Corrections show that parolees released through the MPRI are returning to prison 33 percent less frequently than similar offenders who do not participate in the program. A closer look at all offenders released from Michigan prisons reveals that parole revocations for both new crimes and technical violations are at their lowest level since record keeping began 23 years ago. In 2009, there were 195 revocations for every 1,000 parolees-101 were for technical violations and 94 were for new crimes. A decade earlier, that figure was 344 revocations per 1,000 parolees-246 for technical violations and 98 for new criminal convictions.

The trend is particularly significant because Michigan’s parole population has grown dramatically in recent years. As MPRI has produced positive results, members of the state’s Parole & Commutation Board have become increasingly confident about parolee success, leading to higher parole approval rates. As a result, the state paroled roughly 3,000 more prisoners in 2009 than it did in 2006.

Source: Pew Center on the States.

Case evaluation sanctions: More breathing room to file motion

You’ve prevailed on a motion for summary disposition and your opponent’s case is dismissed in its entirety.

Your opponent moves for reconsideration and the court denies the motion.

Pop quiz: Under MCR 2.403(O)(8), when does the 28-day period in which to seek case evaluation sanctions begin to run?

MCR 2.403(O)(8) provides:

A request for costs under this subrule must be filed and served within 28 days after the entry of the judgment or entry of an order denying a timely motion for a new trial or to set aside the judgment.

Well, now. The rule mentions motions for new trials and setting aside judgments. A motion for reconsideration isn’t either of those, so the 28-day period must begin to run when judgment on the summary disposition motion is entered.

A reasonable but wrong conclusion, according to the Michigan Court of Appeals.

The 28-day period begins to run when the motion for reconsideration is denied.

As the court in Peterson v Fertel, 283 Mich App 232, 235; 770 NW2d 47 (2009), indicated “a motion for reconsideration corresponds to a motion for a new trial or to set aside a judgment.

Although the three motions have different labels and are used at different procedural points in litigation, all three have the same purpose: to rescind a dispositive ruling or judgment issued by the trial court. See MCR 2.119(F) (motion for reconsideration); MCR 2.610(A) (motion to set aside); MCR 2.611 (motion for new trial).

All three motions must be filed within 21 days of the issuance of the ruling or judgment. MCR 2.119(F)(1); MCR 2.610(A)(1); MCR 2.611(B).

The 21-day limit on these motions will expire before the 28-day limit on motions for case evaluation sanctions, so a party seeking case evaluation sanctions may elect to hold the motion for sanctions until learning whether the opposing party has filed any dispositive motions. See Brown v Gainey Transp Servs, Inc, 256 Mich App 380, 384; 663 NW2d 519 (2003) (the logic of MCR 2.403(O)(8) is to enable a party to await pending dispositive motions after trial).

We hold that when a trial court has entered a summary disposition order that fully adjudicates the entire action, MCR 2.403(O)(8) requires a party to file and serve a motion for case evaluation sanctions within 28 days after entry of a ruling on a motion for reconsideration of the order.

The case is Meemic Ins. Co. v. DTE Energy Co., et al.

File this one under: Good Things to Know.

No SORA registration for Romeo & Juliet offenders

In November 2009, the Michigan Court of Appeals held that so-called Romeo & Juliet offenders¹ who had their sentences expunged through the Holmes Youthful Training Act didn’t have to register for the sex offender list. (See “Court remands ‘Romeo and Juliet’ ruling.)

¹ A Romeo & Juliet offender is a person accused of statutory rape for having sex with a girlfriend or boyfriend under 16 years of age.

In that decision, the Court ruled that forcing “a person who engaged in [consensual] sexual activity with a teen” was cruel and unusual punishment, and thus, unconstitutional.

But the decision left some question as to whether it applied to just R&J offenders under the Holmes Act, or all such offenders.

Now, the Michigan Legislature has solved the problem, passing a bill that would remove the registration requirement in such a situation if the person is less than four years older than the person with whom they were charged for having consensual sex. [Detroit Free Press]

Governor Rick Snyder signed the bill Tuesday. The new law, which goes into effect on July 1, will only apply to cases in which the victim was 13-15 years old.

Federal judge speaks to Wayne grads; Stupak joins D.C. firm

Here’s a roundup of upcoming legal events and people of note:

• The Hon. Avern Cohn of the U.S. District Court for the Eastern District of Michigan will speak at Wayne State University Law School’s annual commencement ceremony.

Cohn also will receive an honorary doctor of laws degree at the ceremony, which takes place 5 p.m. May 16 at the Max M. Fisher Music Center in Detroit.

“I am deeply honored to join the past recipients of an honorary degree from the Law School, to wit: Eugene Driker, Dennis Archer, Maura D. Corrigan, Marilyn Kelly and Harold Koh,” Cohn said.

Admission to the commencement is by ticket only. For more information, contact the Law School’s Dean of Students Office at (313) 577-3997 or lawdso@wayne.edu.

• Former nine-term Congressman Bart Stupak, D-Michigan, who played a lead role in passage of the landmark health care legislation of 2010, has joined Venable LLP as a Legislative and Government Affairs partner in the firm’s Washington office.

Stupak was a senior member of the House Energy and Commerce Committee and Chairman of its subcommittee on Oversight and Investigations.

A former police officer and Michigan state trooper, Stupak became one of the leading congressional voices on law enforcement issues: in 1994 he created the first law enforcement caucus in Congress and went on to help write and pass substantial legislation to support law enforcement professionals.

Stupak also is serving as a Fellow at Harvard University’s Institute of Politics and will be leading a study group on government investigations at the Kennedy School of Government entitled “Investigate or Irritate: Changing Corporate and Government Behavior.”

• A ribbon-cutting ceremony to open the Crime Victims Rights Exhibit at the Michigan Supreme Court Learning Center in Lansing is this coming Wednesday, April 13, at 3 p.m.

Chief Justice Robert P. Young Jr., Sen. Tonya Schuitmaker, former state legislator Senator Bill Van Regenmorter (author and proponent of Michigan’s Crime Victims Rights Act), and Attorney General Bill Schuette are scheduled to speak.

The Prosecuting Attorneys Association of Michigan is co-sponsoring the event.

The educational exhibit is a tribute to crime victims and those who advocate for them. It will feature four panels, the exhibit educates the viewer about the act, and its meaning for crime victims, through interactive educational games.

• Know a great young attorney who has made great strides in his or her career? Then the Young Lawyers Section of the State Bar of Michigan wants to know more.

The section is now accepting nominations for the 2011 Regeana Myrick Outstanding Young Lawyer Award.

All nominations must be received by May 6. The recipient of the award will be chosen by the SBM-YLS Outstanding Young Lawyer Award Subcommittee, and will notified by May 13. The award will be presented during the Fourth Annual YLS Summit on Saturday, May 21, at the Amway Grand Plaza Hotel in Grand Rapids.

In 1997, the Young Lawyers Section renamed its Outstanding Young Lawyer Award in honor of Regeana Myrick, an executive council member of the section who passed away in August of that year.

For more information, contact Brandy Y. Robinson at byrobinson@gmail.com.