Battle over four-year welfare cap goes to court

A group of people scheduled to be cut off from welfare benefits under the new 48 month lifetime limit have filed a federal suit to block the law from taking effect. [The Detroit News].

The lawsuit, filed against Human Services Director Maura Corrigan, said immediate intervention is needed to prevent more than 25,000 parents and children from losing benefits. The welfare recipients from Saginaw, Genesee and Macomb counties asked a federal judge to issue a temporary restraining order and preliminary injunction, according to the complaint filed in U.S. District Court in Detroit.

According to the lawsuit, Corrigan is violating the recipients’ rights under the due process clause of the 14th Amendment to the U.S. Constitution. The recipients claim Corrigan sent them pre-termination notices that cite a “secret policy” that hasn’t been made publicly available and which provides a vague, generic explanation for why benefits are being terminated.

MSC announces appointments to jury instruction committee, AGC and ADB

Former Michigan Supreme Court Justice Patricia J. Boyle has been appointed to serve on the Committee on Model Civil Jury Instructions.

Boyle’s appointment, announced yesterday by the Michigan Supreme Court, will end Dec. 31, 2012.

Boyle, who served on the Supreme Court from 1983 through 1998, is of counsel to the law firm of Kienbaum, Opperwall, Hardy & Pelton, PLC, in its Birmingham office.

From 1978 to 1983, she served as a judge of the U.S. District Court for the Eastern District of Michigan. She was a judge of Detroit Recorder?s Court from 1976 to 1978.

The Committee on Model Civil Jury Instructions is comprised of attorneys and judges appointed by the Michigan Supreme Court. The committee is charged with ensuring that the Model Civil Jury Instructions are concise, understandable, conversational, unslanted, and not argumentative.

In other appointments:

• The MSC appointed Jeffrey T. Neilson and Charles S. Kennedy III as attorney members of the Attorney Grievance Commission for terms ending October 1, 2014. Pastor R.B. Ouelette was appointed as a layperson member of the Attorney Grievance Commission for a term ending October 1, 2014. Martha D. Moore was appointed chairperson of the commission and David L. Porteous was appointed vice-chairperson of the commission for terms ending October 1, 2012.

• Lawrence G. Campbell was appointed as an attorney member and Dulce M. Fuller was appointed as a layperson member of the Attorney Discipline Board for terms expiring October 1, 2014. Carl E. Ver Beek and Craig H. Lubben were reappointed as attorney members of the Attorney Discipline Board for second full terms expiring October 1, 2014. Thomas G. Kienbaum was appointed chairperson of the board and James M. Cameron was appointed vice-chairperson of the board for terms ending October 1, 2012.

Information from the Michigan Supreme Court.

MSC grants leave for two real estate cases

The Michigan Supreme Court granted leave to hear two controversial real estate cases on Wednesday.

The first is Residential Funding Co. v. Saurman, a case in which the Court of Appeals said the Mortgage Electronic Registration Systems (MERS) didn’t have authority to foreclose or evict the residents whose homes are in foreclosure. (See “COA rules mortgage processor has no authority to forecloseon or evict homeowners” and  “Will MSC sour on ‘Saurman’?”).

In Saurman, MERS, “a mechanism to provide for the faster and lower cost buying and selling of mortgage debt,” began non-judicial foreclosures by advertisement on several homes. The COA said it couldn’t do that because it was not the owner of the debt, someone with an interest in the debt, or a servicing agent of the mortgager.

The other case involved the property taxation of land in development, Toll Northville v. Twp of Northville. (See “Sorry, no refund”).

In Toll Northville, some home developers sought to get a refund of overpaid property taxes. The overpayment was the result of the developers being assessed based on improvements made to the land in development. The assessment was based on a statute that the Michigan Supreme Court later declared unconstitutional.

The developers were originally granted their refunds by the Michigan Tax Tribunal, but the COA reversed, finding the tribunal didn’t have jurisdiction to hear the appeals because they weren’t timely filed in the year of the assessment, even if the assessment may have been correct under the stricken law, which was in effect at that time.

Hearings for both cases have not yet been scheduled.

SBM executive director gets Lawyers Weekly’s top honor as 2011 Woman of the Year

Janet K. Welch, executive director of the State Bar of Michigan, was named Woman of the Year at Michigan Lawyers Weekly’s 2011 Women in the Law event. (See her blog post here)

At the Sept. 26 luncheon at the Detroit Marriott in Troy, Lawyers Weekly Publisher Don Stemmermann remarked that Welch “is the proverbial ‘lawyer’s lawyer,’ an attorney whose judgment and opinions are sought after — and respected — by her colleagues. And she is a leader of her colleagues as well — more than 41,000 of them.

“I believe each of you will see a little of yourself in her.”

In her acceptance speech, which followed personal recognition of 19 other honorees (see below), Welch said “that description is accurate, in that every one of my amazing colleagues in the group of lawyers who were honored today does share so many characteristics with me.

“They are amazing lawyers, and they are women, which means that all the achievements you heard about … we had to sort of do a lot of what we did in high heels and backwards,” referencing Ginger Rogers dancing with Fred Astaire. “So I think it’s more impressive to be in a group of women lawyers than in just a group of 20 lawyers being honored.”

At the event, it was noted that Welch worked as a legislative analyst in both the Michigan House and Senate. This led her to law school, then a distinguished career of government service, first with the Michigan Supreme Court, then the State Bar.

Recently, Welch was hands-on with State Bar’s Judicial Crossroads Task Force, which generated a much-needed blueprint for court-system reform. The judiciary is solidly behind it, and favorable legislative action is anticipated.

In closing, Welch said, “Thank you to Lawyers Weekly, and to the lawyers in Michigan who are working to make the profession better. We’ve still got work to do, and we’re going to do it.”

The other 19 honorees recognized at the event are:

• Natalie Alane, Alane & Chartier, PLC

• Hon. Dorene S. Allen, Midland County Probate Court

• D. Jennifer Andreou, Plunkett Cooney

• Mary V. Bauman, Miller, Johnson, Snell & Cummiskey, PLC

• Elizabeth K. Bransdorfer, Mika Meyers Beckett & Jones PLC

• Hon. Diane M. Druzinski, Macomb Circuit Court

• Elizabeth J. Fossel, Varnum LLP

• Lisa Sommers Gretchko, Howard & Howard Attorneys, PLLC

• Jennifer M. Grieco, Neuman Anderson, P.C.

• Eileen K. Husband, Cummings, McClorey, Davis & Acho, P.L.C.

• Nancy L. Little, Bernick, Radner & Ouellette, P.C.

• Andrea L. Moody, Bowman and Brooke LLP

• Kary L. Moss, American Civil Liberties Union

• Kathryn L. Ossian, Miller, Canfield, Paddock and Stone, P.L.C.

• Linda Paullin-Hebden, Warner Norcross & Judd LLP

• Abby L. Pendleton, The Health Law Partners

• Tonya Schuitmaker, Schuitmaker Cooper Schuitmaker Cypher & Knotek, P.C.

• Tricia A. Sherick, Honigman Miller Schwartz and Cohn LLP

• Zena D. Zumeta, Mediation Training & Consultation Institute

She’s not fat. She’s pregnant.

A successful member of Weight Watchers is suing The WW Group, Inc. d/b/a Weight Watchers for refusing to hire her as a group leader because she was pregnant.

The U.S. Equal Employment Opportunity Commission charged in a lawsuit filed today that Weight Watchers violated federal law when it refused to hire the woman.

According to an EEOC statement, the job seeker had been a long-term client of Weight Watchers. She had successfully met her weight loss goals, and had maintained the weight loss. She had done so well that her own group leader encouraged her to apply for a group leader position.

But Weight Watchers discovered she was pregnant, and according to the EEOC, the woman was told that Weight Watchers does not hire pregnant women and the company refused to consider her further for the job.

From the EEOC:

Refusing to consider a woman for a job because she is pregnant violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit against Weight Watchers in U.S. District Court, Eastern District of Michigan, (EEOC v. The WW Group, Inc., d/b/a Weight Watchers International, Inc., Case No. 2:11-cv-14220) after first attempting to settle the matter. The EEOC’s suit seeks back pay, compensatory and punitive damages on behalf of the applicant along with injunctive relief intended to prevent further instances of pregnancy discrimination.

“Maintaining a blanket policy against hiring pregnant women is a clear violation of the law,” said EEOC Trial Attorney Nedra Campbell. “The EEOC will vigorously enforce a pregnant woman’s right to be considered for a job.”

The WW Group, Inc. owns and operates Weight Watchers International, Inc. (NYSE: WTW) franchisees. The WW Group, Inc. was founded in 1968 and is based in Farmington Hills, Mich. It operates outlets in Michigan and in Canada.

The EEOC is the federal agency that enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at http://www.eeoc.gov.

MSC discussing pro bono (non)rules again

At its administrative conference this morning, the Michigan Supreme Court is discussing proposed changes to the Michigan Rules of Professional Ethics regarding pro bono work and what’s expected, but not required, from Michigan attorneys.

Two alternatives have been proposed, one of which would establish the “aspirational goal” of 30 hours or three cases per year, or a donation of $300 or $500 to an organization that provides pro bono services. The other, a State Bar proposal, would  be a restatement of the current rule, adding that providing pro bono services is “voluntary and  shall not be enforced through disciplinary process or any other means.”

In other words, it’s not a rule, it’s a mission statement. (“Finally! Somebody said it!”) There’s certainly nothing wrong with the court issuing something restating a preference that attorneys give something back to their communities, particularly to those in need. But a making a rule that doesn’t require anything seems a bit pointless.

At the same time, creating an “aspirational goal” of giving 30 hours, three cases or $300 to an organization that “provides free legal services to the poor or to traditionally underrepresented groups” seems over the top, even if it also specifically states that it won’t be enforced.¹

So tell us what you think: Should the MSC be wasting its time passing rules that specifically state that they won’t be enforced? And should the court be dictating exactly how much a lawyer should be donating, both in time and money and what type of organizations should receive these donations?

¹ For the textualists out there, this isn’t really a rule:

rule – noun \ˈrül\ – a : a prescribed guide for conduct or action; b : the laws or regulations prescribed by the founder of a religious order for observance by its members; c : an accepted procedure, custom, or habit; d: (1) : a usually written order or direction made by a court regulating court practice or the action of parties (2) : a legal precept or doctrinee : a regulation or bylaw governing procedure or controlling conduct.

MSC will hear no-fault case in Caro

The Michigan Supreme Court will take to the road next month to hear a no-fault case involving the parked vehicle exception.

The MSC will hear oral argument on the application for leave to appeal the Court of Appeals decision in Frazier v. Allstate Ins. Co. (lead opinion) (concurrence) (concurring in result only), at the Tuscola Technology Center, 1401 Cleaver Rd., Caro, Mich. The Court will convene on Oct. 27 at 12:45 p.m.

The session in Caro is part of the MSC’s continuing effort to provide the public a better understanding of the justice system and its role in their lives.

E-filing project ordered for Ottawa County courts

The move toward statewide electronic document filing in the court system continues.

The Michigan Supreme Court announced yesterday that Ottawa County courts will participate in a five-year e-filing pilot project beginning Oct. 1.

The purpose of the pilot program is to study the effectiveness of electronically filing court documents in connection with the just, speedy, and economical determination of the actions involved in the pilot program. …

Participation may be initiated with new case filings or existing case files. At the discretion of the judge, participation may also include postdisposition proceedings in qualifying case types.

This is a voluntary e-filing project; however, once a case is designated as part of the e-filing project, it is presumed that all further documents will be filed electronically. Ottawa County recognizes that circumstances may arise preventing one from e-filing.

To ensure all parties retain access to the participating courts, parties that demonstrate good cause will be permitted to file documents with the clerk, who will then file the documents electronically.

The MSC’s directive, Administrative Order No. 2011-4, covers the 20th Circuit Court, the Ottawa County Probate Court and the 58th District Court.

The project will remain effective until Dec. 31, 2016 or until further order of the court.

Bowling alley immunity bill rolls on

When Michigan’s smoking ban was enacted, bowling alley patrons who smoked, like all other smokers who frequent bars, restaurants and other public places, had to start trooping outside to have a cigarette.

Now, it’s a hassle to take off your bowling shoes and put on your street shoes for a quick puff. Bowling alley operators say most bowlers leave their bowling shoes on when they go outside and light up.

The problem is that when coming back in, bowlers might track in moisture and debris on the bottom of their bowling shoes. This can lead to hazardous footing conditions, which, in turn, can lead to serious slip-and-fall injuries while swinging a heavy bowling ball. Such injuries lead to personal-injury suits.

Bowling alley proprietors, like all business owners, are interested in limiting their liability exposure whenever possible.

SB 281 helps them do just that. From the Senate Fiscal Agency analysis of the bill:

The bill would create the “Bowling Center Act” to require a bowling center operator to post a specific notice about the danger of wearing bowling shoes outside, and provide the operator with immunity from civil liability for injuries to a bowler due to a slip and fall inside the bowling center that resulted from outside use of bowling shoes.

Specifically, the bill would require a bowling center operator to post a notice in a conspicuous place near each entrance to and exit from a bowling center. The notice would have to read:

“Bowling shoes are specialized footwear and are not intended to be worn outside a bowling center because the bowling shoes may be affected by substances or materials such as snow, ice, rain, moisture, food, or debris. Such substances or materials on bowling shoes that have been worn outside a bowling center may cause the person wearing the bowling shoes to slip, trip, stumble, or fall on the floor or alley surfaces in the bowling center.”

If an operator posted the required notice, the operator would not be civilly liable for injuries to a bowler resulting from a slip, trip, stumble, or fall inside the bowing center solely caused by a substance or material on the bowler’s bowling shoes that was acquired outside the bowling center immediately before the bowler entered or re-entered the bowling center.

The bill cleared the Senate on a 30-8 vote early this year. The House Judiciary Committee is holding a hearing on the bill today.

Is a non-party’s Facebook page fair game in lawsuits?

An issue of the use of a non-party’s Facebook page as evidence in a brief has developed in a case over the legality of Farmington Public Schools’s sale of the closed Eagle Elementary School to the Islamic Cultural Association.

In the suit, FPS sold the school to the Islamic Center for $1.1 million. The center initially offered much less than that, but raised the offer to meet the appraised value.

The plaintiffs sued the district to stop the sale, alleging that the district could have sold it for much more, and that the board didn’t follow procedure. The district filed a motion for summary disposition. In a reply to the plaintiffs’ response to that motion, the district challenged the plaintiffs’ standing to sue to block the sale, alleging that their claims “are mere cover for religious and cultural intolerance.” In support of the statement, the district’s attorney, Michael Weaver of Plunkett Cooney, attached the Facebook page of an opponent of the sale, which contained several anti-Islamic posts, including ones referring to the sale of Eagle Elementary. [See footnote 3, and Exhibit B]. The page belonged to Sue Burstein-Kahn, a resident who is not part of the lawsuit. Her husband, Murray, is running for a seat on Farmington’s Board of Education. Burstein-Kahn wrote a letter to the editor of the Observer & Eccentric in August accusing the board, its president and a district administrator, by name, of trying to deceive the public and violating the public trust. While she didn’t express any anti-Muslim animus in her letter, some of the posts on her Facebook page attached as Exhibit B certainly did.

[UPDATE: This morning, Oakland County Circuit Judge Rae Lee Chabot dismissed the plaintiffs’ case against the district for lack of standing. HT: WestBloomfield.Patch.com]

Plaintiffs’ lawyer Robert C. Davis of Mount Clemens-based Davis Listman Brennan ripped Weaver for including the Facebook page.

In a statement emailed Tuesday evening, the plaintiffs’ attorney Robert C. Davis of Davis Listman Brennan in Mt. Clemens criticized use of the personal Facebook page. “This is how people act when they become defensive. They resort to name calling and personal attacks to deflect the real issues,” he wrote. “It is corrupt and wrong. The cover is worse than the original violations.”

The issue here is simple: Is a non-party’s Facebook page being offered as evidence of public sentiment fair game? It’s fairly well-settled that social network users give up much of their rights to privacy for things they post, sometimes leading to bad things. While it may be unfair in some instances, such as when a Facebook “friend” tags someone in a photo the person wouldn’t want an employer to see, the fact is that no one should really have an expectation of privacy for things they put on Facebook. But should those posts wind up in a court filings? Let us know what you think in the comments.