Is this the solution to the indigent defense funding problem?

Let’s hope not. Over the last couple of years, we’ve devoted plenty of page inches to covering the sorry state of Michigan’s indigent defense system. And, needless to say, Michigan isn’t the only state having such problems.

In New Orleans, the public defender’s office cancelled the contracts of 33 lawyers last month, leaving 543 defendants without counsel. One judge, Arthur Hunter, came up with a solution, as far as the cases in his courtroom: he wrote letters to 33 high-profile lawyers asking them to handle the cases for free. [New Orleans Times-Picayune, via ABA Journal.]

“This is not a constitutional crisis. This is a constitutional emergency,” Hunter said.

Hunter said he would seek private lawyers to represent the 33 indigent defendants left without attorneys in his court section. He could end up ordering them to take the cases.

Hunter rejected a bid by private contract lawyers who asked to withdraw from a half-dozen cases because the public defender’s office is refusing to pay them. [Public Defender Derwyn] Bunton, who stopped the contract payments as of Jan. 16, said it’s not clear those lawyers will ever get paid for the work beyond that date. At last check, he said, his office owed about $200,000 in back pay for contract lawyers.

Hopefully we never get to this point.

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Are you a lawyer? Then get $5 off new Mamet play

If you’re into gritty playwright David Mamet’s work, or only call yourself a theatergoer when law-related content applies, then mark your calendar for this coming Sunday, Feb. 19.

That’s because it’s “Lawyer Day” at the Jewish Ensemble Theatre (JET) in West Bloomfield, when tickets for both the 2 and 6:30 p.m. performances of Mamet’s newest play, “Race,” are $5 off if you simply mention you are a practicing lawyer.

It’s described as a “dazzling, instant classic,” about “a would-be client accused of rape and his defense that is plotted by a very small law firm with its two lead lawyers and young associate.  And yes, it comes complete with the bad-faith twist and the sustained surge of words rushing toward collision that are guaranteed to let you know that this is a Mamet masterpiece.”

Of course, it being a Mamet play, it contains provocative language, and racial and sexual references.

Performances take place at the DeRoy Theatre, inside the Jewish Community Center, 6600 W. Maple, West Bloomfield. Call (248) 788-2900 or visit www.jettheatre.org.

Lab to test more than 1,000 rape kits. Finally.

The Associated Press is reporting that some 1,000 old and untested rape kits, which could have produced DNA evidence in unsolved rape cases, could finally be tested.

The kits have been shelved and forgotten in a Detroit Police Department storage facility, some since the 1980s.

The Michigan State Police has taken over Detroit Police Department crime lab duties since the Detroit lab was closed in 2008, following an audit which showed an alarmingly high error rate in the ballistics lab. After the closure, nearly 12,000 untested kits were discovered at the lab.

Lawmakers pass judicial reduction bills

Michigan Supreme Court Chief Justice Robert P. Young Jr. got a great big Valentine today, as the last of a package of bills to reduce the number of Michigan judges passed in the House today.

Young has focused much of his energy during his first year as chief, on right-sizing the state’s judiciary, something he has said needed to be done for years.

“The legislators are doing the right thing for the courts and for the taxpayers,” said Young in a statement issued today. “In politics, it’s easy to grow the size of government, but it takes political courage to reduce it. These legislators showed their courage and their common sense.”

He went on to say that the reductions represent the largest cut in judgeships ever accomplished in the United States.

When complete, the cuts will save the state $6 million per year. The cuts will be accomplished by attrition, and will be save about $750,000 by the end of this year.

The reductions were recommended by the State Court Administrative Office in its biannual report issued in August.

To read the report, click here.

Realtors hope $25B foreclosure settlement will spark housing revival

The following post was written by John Stodder, The Dolan Company National Affairs Correspondent. Dolan is the parent company of Michigan Lawyers Weekly.

With the residential real estate industry shell-shocked from years of a moribund market, its spokespeople can be forgiven for taking a cautious attitude toward this week’s announcement of a $25 billion settlement with five of the nation’s biggest mortgage lenders over flawed and fraudulent foreclosure practices.

The money in the settlement will mostly go to borrowers and homeowners who are underwater. According to the Washington Post, the settlement “will force lenders to revamp how they interact with troubled homeowners and bar them from trying to foreclose on borrowers while simultaneously negotiating mortgage modifications.”

But could the settlement help get the residential market moving again, even in the face of historic low interest rates and plummeting prices?

“We do hope that the resolution will help more lenders with the certainty they need to kick loose more loans,” said Walter Molony, a spokesman for the National Association of Realtors inWashington,D.C. He cautioned, however, that the impact will be limited because the settlement doesn’t help the millions of borrowers with loans owned by Fannie Mae or Freddie Mac.

Eric Berman, communications director for the Massachusetts Association of Realtors, was pleased that the settlement was designed to help more homeowners stay in their homes because that kind of stability slows the ongoing descent of home values in many markets – though the market isn’t as bad, he hastened to add, inMassachusetts as it is in many other areas.

But even there, he said, “Distress sales impact values of homes of people who are not in a distress situation.”

Realtors also hope the settlement “can give lenders the confidence to start up with loan modifications, short sales and principal write-downs,” Berman said. “We’re going to have to wait and see. From our members’ point of view, short sales take forever. The only thing short about a short sale is the definition.”

While realtors continue to ruminate, the blogosphere reacted quickly:

 

  • Financial blogger Yves Smith at Naked Capitalism gives “The Top Twelve Reasons Why You Should Hate the Mortgage Settlement.”  She is scathing. “We’ve now set a price for forgeries and fabricating documents: It’s $2,000 per loan,” which, as she points out, for an average loan is “less than the price of the title insurance that banks failed to get when they transferred the loans to the trust.”
  • Writing at the Huffington Post, financial reform activist Dennis Kelleher calls the deal a “criminal sell-out,” because the $20 billion in loan forgiveness, though impressive at first blush, only adds up to $20,000 per 1 million homes. According to a Zillow report in November, some 14.6 million home borrowers have fallen into a negative equity position.
  • Reuters’ financial blogger Felix Salmon likes the deal because the attorneys general didn’t give up too much and the banks didn’t get too much. Banks only got immunity from suits over the practice of robosigning, but can still be sued over a range of other alleged misdeeds that contributed to the mortgage default crisis.

 

– John Stodder

 

AG says ‘no dice’ to Lansing casino

Michigan Attorney General Bill Schuette’s latest cause is the defeat of a plan to build a gaming casino in downtown Lansing.

Schuette and Gov. Rick Snyder have told the Sault Ste. Marie Tribe of Chippewas, which already operates five casinos, that they can’t build on non-tribal property, reports Michigan Public Radio.

But the tribe’s spokesman disagrees, and so does Lansing Mayor Virg Bernero. The tribe says that it has the legal right to take the land into trust.

COA: Detroit marijuana proposal should have been on ballot

A proposed amendment of a Detroit ordinance, which would have eliminated penalties for use or possession of small amounts of marijuana on private property, should have been placed on the November 2010 ballot, a split Court of Appeals Panel has ruled.

Detroit election officials kept the proposal off the ballot after city lawyers said the proposal conflicted with state law.

The Coalition for a Safer Detroit, which backed the ballot initiative, sought a writ of mandamus to compel the Detroit city clerk and election commission to place the proposal on the ballot.

Wayne County Circuit Court Judge Michael Sapala refused to issue the writ. Sapala agreed that state law trumped the proposal, so there was no legal duty to put the proposal on the ballot.

In a 2-1 decision, the Court of Appeals reversed.

Judge Henry Saad, joined by Judge Elizabeth Gleicher, said under MCL 117.25 and the Detroit City Charter, the clerk had a clear duty to put the proposal on the ballot.

[I]t was a ministerial act for defendants to place the initiative petition on the ballot once the clerk determined that the petitions contained the required number of qualified signatures.

Because the clerk certified the petition, which contained the requisite number of qualified signatures, defendants had a clear legal duty to place the initiative on the ballot and plaintiff had a clear legal right to the performance of that duty.

Further, no other legal remedy was available where defendants declined to place the proposed amendment on the ballot through an exercise of discretion which is not permitted by law. Accordingly, we hold that the trial court abused its discretion in failing to enter an order of mandamus because plaintiff satisfied the elements necessary for mandamus relief.

Further, said the majority, the time to substantively challenge the proposal as conflicting with state law is after enactment, not before.

We take no position on whether a court may come to this conclusion when this proposed ordinance, if passed, is challenged. We also take no position on the wisdom of the petition or speculate about any actions that may or may not be taken if and when the proposed amendment is enacted.

Simply stated, before it becomes law, any judgment on the merits of such a claim would be an academic discussion about a hypothetical set of facts. Our courts should not render hypothetical opinions about matters that may never become law.

Despite that pronouncement, the majority took a shot at it anyway.

The proposed amendment appears to only provide that the use or possession of less than one ounce of marijuana on private property by a person 21 or older will not also be punished under the Detroit ordinances.

And, though plaintiff’s objective in supporting this initiative may well be to take yet another incremental step to legalize marijuana in Michigan and, though the intended effect of the ordinance may be to discourage arrests for the possession or use of small amounts of marijuana, this is not properly before us.

We do note, however, that it remains the case that local police officers may arrest a person for the commission of a state felony or misdemeanor under MCL 764.15 and, under the Detroit City Charter, it is the obligation of the Detroit Police Department to “enforce the laws of the state and the nation” as well as “the ordinances of the city.” City of Detroit Charter, § 7-1101.

Thus, the proposal, on its face, does not appear to change the fact that all persons under Michigan’s jurisdiction remain subject to the drug laws contained in the Public Health Code which criminalize the use and possession of marijuana.

Judge Jane Markey dissented. She had no trouble concluding that the proposal was contrary to state law, and on that basis, should not be on the ballot.

The rights of initiative and referendum are reserved to the people by Const 1963, art 2, § 9, which states, pertinent to this case:

The people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative, and the power to approve or reject laws enacted by the legislature, called the referendum. The power of initiative extends only to laws which the legislature may enact under this constitution. [Emphasis added.]

In my opinion, the emphasized sentence imposes a substantive limit on the right of initiative.

The case is Coalition for a Safer Detroit v. Detroit City Clerk, et al. (majority opinion) (dissenting opinion)