Special master appointed in JTC complaint against Adams

The Michigan Supreme Court has named Donald Miller, a retired Macomb County circuit court judge, to hear evidence of misconduct charges filed by the Judicial Tenure Commission against Wayne County Circuit Court Judge Deborah Ross Adams.

The JTC, in Formal Complaint No. 89, charged Adams with lying under oath and forging documents in connection with her divorce.

The divorce complaint landed in Oakland County Circuit Court Judge Mary Ellen Brennan’s courtroom after the entire Wayne County circuit bench recused itself.

The JTC charges that Adams, while represented by counsel, frequently called Brennan’s office concerning her case, and persisted in doing so after being advised that such contact was inappropriate. The JTC’s complaint alleges Adams, while under oath, denied she had made the calls.

The JTC further alleges that Adams forged her former attorney’s name on a motion and brief to set aside or modify Brennan’s judgment of divorce.

Adams is also charged with making false statements to the JTC about the matter.

The complaint alleges that Adams violated the Judicial Code of Conduct, several court rules and Michigan’s perjury statute.

Miller will hear evidence and prepare a report for the JTC. The JTC, after a hearing, can then decide to dismiss the complaint or recommend that the Michigan Supreme Court impose one of several forms of discipline such as public censure, a suspension or removal from office.

Kelly task force calls for campaign finance, judge election reforms

A non-partisan task force assembled nearly a year and a half ago by Michigan Supreme Court Justice Marilyn Kelly has come up with a list of recommendations to make the judicial selection process less expensive and more transparent.

The task force’s recommendations were released yesterday.

Among the reforms on the list of recommendations is a constitutional amendment to require gubernatorial appointment of state Supreme Court justices using either the federal executive appointment model, or Arizona’s selection commission model.

Kelly said that was one of the stickier issues, and one that did not garner consensus of the entire task force.

“The majority of the task force did support it,” she said. “But the majority and the minority felt it was important to not make it one of the consensus recommendations.”

So what does that mean? It means there are other issues the task force would like to focus on.

Also on the list of recommendations (which did have consensus agreement) :

• Public disclosure of all judicial campaign spending
• The implementation of an open primary system, rather than a partisan nomination system
• Requiring the Secretary of State to produce a voter education guide with information about judicial candidates
• A Supreme Court campaign oversight committee, which would check the factual claims in political advertisements and denounce those that are false and misleading.
• The implementation of a screening commission to help the governor fill judicial vacancies.
• The elimination of the age-70 ceiling on judicial candidates

A minority of task force members also felt that public financing of judicial races should be recommended, but in the end, that idea failed to get support.

The reason, ironically, is that since Citizens United, there has been so much money from third parties flowing into political advertising. Candidate committees already only spend a small fraction of the total amount spent on political advertising.

Kelly said that many on the task force felt that the committees need to be able to at least try to get candidate-approved (and hopefully truthful and respectable) advertisements out to the public to combat all the secret third-party, mostly negative and often untrue, messages.

Some of the items on the list of recommendations could be implemented quickly and easily, without a constitutional amendment or even legislative action.

The Secretary of State voter education guides is one of those.

“I feel strongly about the need to get the public informed,” Kelly said. “A full third of voters skip the judges altogether. We can’t presume they don’t care. If they don’t know the candidates, can you blame them for not voting for them? …

“The public is entitled to know things like if a judge is on the bench on time, or if he or she is harsh on the people in their courtrooms.”

Another recommendation that would be easily implemented is the commission to screen candidates for appointment to fill vacant supreme court vacancies.

“That would protect the governor from pressure from cronies,” she said. “And it would be possible for the public to know what’s going on.

As to whether or not any of the recommendations will get any traction, Kelly said, “We’re not Pollyannas here. If the system was going to correct itself it would have.”

But she’s hopeful because the one thing that the task force agreed on unanimously is that the judicial selection system is flawed.

“We may have disagreed on what those flaws are, but we all agreed the system has its flaws,” Kelly said

Berg nominated for appointment to USDC

The good news for Detroit assistant U.S. Attorney Terrence Berg is that he’s been nominated for a judgeship in Michigan’s Eastern District by President Obama. [Detroit Free Press]

The bad news is that he’s probably going to have to wait a while as Congress fights over his and every other appointment made since, oh, forever.

Bad policy or bad math?

The Detroit Free Press has a good opinion piece on the constitutional spat between Lansing Democrats and Republicans who have taken their battle to the Court of Appeals over immediate effect of some controversial legislation.

The Freep takes Republicans to task for getting a pretty basic elementary school algebra problem wrong: The state constitution requires a two-thirds vote for a bill to get immediate effect. And it’s pretty clear and plain language that spells out the requirement.

But the party has a 63-47 majority, which has been deemed good enough on several occasions.

It will be interesting to see how it all plays out. You can read the story here.

Judge James found guilty

The Detroit Free Press is reporting that 22nd District Court Chief Judge Sylvia James has been found guilty of misusing public funds.

Retired Washtenaw County Judge Ann Mattson was appointed special master over the case. She ruled that James had “demonstrated ‘a lack of respect for the law’ by lying to the commission and misappropriating funds,” according to the Freep.

Could teens hold the answers to closing the wage gap?

You’d think we’d have figured this out by now, but a wage gap between men and women still exists, and among some groups of workers it’s pretty deep. And since we haven’t yet solved the problem, my hopes are not particularly high that my contemporaries — the middle-aged crowd — hold the answers to closing the gap.

But is it possible that my teenage son’s contemporaries can figure it out? My instinct was to quickly conclude, “Oh no. On any given day, about a third of the kids in my son’s high school haven’t even figured out that they’re walking around with their flies open.” But, and it hurts me to admit this, I might be wrong. At least the Equal Employment Opportunity Commission (EEOC) thinks I might be wrong.

Here’s the state of the current problem: Last week, U.S. News cited a study by the Institute for Women’s Policy Research that “among the 20 most popular occupations for women workers, they only out-earn men in one field: bookkeeping, accounting, and auditing clerks.”

Further, though 96 percent of secretaries and administrative assistants are women, those women only earn about 86 percent of what men earn, according to the story.

Often, the gap is created by societal norms, such as the division of duties when it comes to child rearing or caring for sick family members, or maintaining a household, which often are still considered primarily women’s work.

The disparity is even greater among low-wage workers and some minority groups. The story says that women overall earn $10,800 less per year than men. But African American women earn $19,600 less, and Latinas earn $23,900 less.

But here’s the possible solution: teenagers. To try to figure out why the gap is still larger than we’d like, and how to close it, the EEOC is asking young people to weigh in.

Tomorrow, the EEOC is celebrating the 20th anniversary of Take your Child to Work Day by inviting teenagers to its Denver Field Office to participate in a dialogue for solutions on how to bridge the gender wage gap in America.

According to the EEOC, suggestions from this forum will be sent to the National Equal Pay Enforcement Task Force in Washington, D.C.

The reason the teenagers may hold the keys to solving the problem is that they are an unbiased group, said Denver EEOC Field Director Nancy Sienko.

She might be right about that. Not only are teenagers mostly untarnished by many of life’s experiences (think: child-rearing, dealing with serious illness, and meeting the responsibility of making ends meet in a recession), but among young people, women have now for the first time surpassed men in how much value they place on earning a lot of money.

An April 23 story on The Job Mouse website reported that young women value high-paying careers more than their male counterparts.

The story says that when asked if career is high on their list of life priorities, 66 percent of women between the ages of 18 and 34 said yes. That number has been growing, according to the story.

But the key to true equality has often been thought to lie with the men. When young men’s priorities — about work and career, child rearing and housekeeping — match those of women, then household responsibilities and wage earning will start to look more balanced between the sexes.

The Job Mouse reported that 59 percent of young men, when asked about life priorities, answered that career is high on the list.

So my mother’s generation opened the doors, mine walked through them and now view work outside the home as a necessity, and perhaps my teenage son’s generation will be the one that finally figures it all out. Let’s hope so.

Judge Wade McCree: Sexy and he knows it

http://www.myfoxdetroit.com/video/videoplayer.swf?dppversion=11212

Court Bailiff: Detroit Judge Wade McCree Sent a Nearly Nude Photo of Himself to My Cell Phone: MyFoxDETROIT.com

Someone’s been working out:

A husband is upset after finding a photo of a nearly nude man on his wife’s cell phone. She says the photo came from her boss? What does she do for a living?  She’s a court bailiff. Who’s her boss? Detroit 3rd Circuit Judge Wade McCree.

Fox 2’s Charlie LeDuff shows the photo to Judge McCree.  The Judge seems quite proud of it.  Play the video to get the full report and to hear an interesting reaction from the Judge.

[Where else but Fox 2 Detroit?]

The video of Charlie Leduff’s report is something to see. Unfortunately, we can’t embed it, but clicking on the link will take you there.

The highlights? The photo showed Judge McCree shirtless from the waist up. He seemed not the least bit embarrassed that the photo was released. After all, he swims a mile a day at the YMCA. The photo was sent to Fox 2 by the husband of a court employee who had the photo on her phone. The husband is apparently Darth Vader.

Gov. appoints White to 38th Circuit Court bench

Gov. Rick Snyder appointed appointment Monroe family lawyer Daniel White to the 38th Circuit Court in Monroe County. The appointment fills the vacancy created by the resignation of Judge Joseph A. Costello Jr.

White began his legal career as an attorney with the law firm of Lennard & Graham. For nearly 30 years, he has been in private practice. He is a former member of the Monroe City Council and remains active in his community and professional organizations, including the Monroe County Bar Association and the Monroe County Airport Board. He is a graduate of Monroe County Community College, University of Michigan and earned his law degree from the University of Toledo.

White’s appointment runs through Jan. 1, 2013. He will have to seek election in November 2012 for the remainder of the term ending Jan. 1, 2015.

COA backpedals on published premises case

Earlier this year, Court of Appeals Judge Amy Ronayne Krause, joined by Judges Davis Sawyer and Peter O’Connell, issued for publication a noteworthy premises liability decision, Chesser v. Raddisson Plaza Hotel at Kalamazoo Center.

They’ve apparently had seconds thoughts on the matter. They recently vacated the decision and replaced it with an unpublished opinion.

Chesser, a convention speaker, was injured when she fell from the back of a stage.

The hazard was open and obvious, the panel ruled. There were no guards at the back of the elevated stage and there was a gap between the stage and a wall.

In the original opinion, the panel addressed two issues: Did the hazard have “special aspects” that made it unreasonably dangerous despite its open and obvious nature? And was the hazard effectively unavoidable?

Second question first: The COA rejected a defense argument that Chesser, being aware of the hazard, could have chose not to get on the stage and speak, no matter how awkward or embarrassing that may have been.

Being on defendant’s stage was the primary reason for her presence at defendant’s premises in the first place. Ms. Chesser could technically have avoided the hazard, but she could not have avoided the hazard without completely undermining her use of defendant’s facilities. A condition is “effectively unavoidable” if it cannot be avoided by an invitee without that invitee avoiding the premises altogether. Hoffner v Lanctoe, 290 Mich App 449, 461-464; 802 NW2d 648 (2010), lv pending 489 Mich 877 (2011)[.]

So, what about those “special aspects?” In the original, published opinion, part of the panel’s reasoning that Chesser had no claim included a discussion of other speakers who had crossed the stage without incident. Everyone else made the trip safely. So, the panel reasoned, the hazard was effectively avoidable.

Chesser’s accident was a “statistical fluke,” as Krause put it.

We, and others, found the decision interesting, so we summarized the published case, blogged about it and wrote a news story about it.

Now we’re telling you to forget about it.

On April 5, the COA issued an order vacating Chesser. The order stated a new opinion would be issued.

The new opinion was issued later. It took the COA two tries to get it right.

On April 17, the COA issued an unpublished opinion in Chesser. But unless one knew about the April 5 order, there was no solid indication of the unpublished opinion’s significance.

A quick note: when the COA vacates an opinion, the vacating order is usually accompanied by the replacement opinion, or, when the replacement opinion is issued later, there is usually an order referring back to the order that originally vacated the opinion being replaced.

There must have been a “What’s going on here?” inquiry because two days later, on April 19, the unpublished opinion was released again, with an order vacating the April 17 opinion and the key phrase “ON RECONSIDERATION” (which should have been on the April 17 opinion) displayed on the first page of the unpublished April 19 opinion.

It was an uncharacteristic lapse in the COA’s usually meticulous handling of its opinion releases.

Okay, so administrative miscues aside, what’s the difference between the vacated published version of Chesser and the unpublished, non-binding version of Chesser?

The statistical- fluke discussion is gone, along with the suggestion that Chesser didn’t really have the option of dodging her speaking engagement.

What’s emphasized is that photographs of the accident scene showed an open and obvious hazard, which a reasonable person would have appreciated given the elevation, the tight quarters and the lack of railings or guards.

To the extent the parties were arguing what the photographs showed or didn’t show regarding the hazard from Chesser’s perspective, both parties missed the mark, said the panel in the newly issued opinion. The test is what a reasonable person would have perceived, not Chesser.

Bottom line: the COA issued a published opinion with noteworthy statements about avoiding hazards and calculating whether a hazard is avoidable based on the number of other safe encounters. The COA took that one back and replaced it with a legally less-ambitious opinion resolving an “open and obvious” premises claim.

The published version of Chesser was fun while it lasted.

MSC denies leave in Detroit financial review case

The Michigan Supreme Court has denied leave to appeal in Robert Davis’ case against the City of Detroit financial review team.

Davis, a union activist, has been fighting to prevent the city and the State of Michigan from entering into a financial agreement, arguing that state’s financial review teem violated Open Meetings Act.