Civil rights clinic sues to get access to prisoner clients

Daniel Manville said he has had just about enough. As the director of the Civil Rights Clinic at Michigan State University, he has to travel from the Metro area to Western Michigan to the far west side of the Upper Peninsula in order to meet with clients.

That’s hard enough.

But when he started hearing that prisons were going to shorten the hours during which attorneys could meet with clients, and that some were not going to provide private meeting space for confidential conversations, Manville said that burden was too much.

He said he first had a problem when he was visiting a prison in Adrian. He was told then that he couldn’t use a private conference room to meet with his client.

“The woman working the desk said, ‘We don’t have a key for that room,’ but that’s just ludicrous,” Manville said. The captain produced a key, but when he couldn’t track down an officer to provide personal protection for Manville, the meeting had to take place with the door open.

Manville didn’t make much of it, and wrote off the experience as a fluke. But then he visited another prison, where he was told that there would no longer be visiting hours on Tuesdays and Wednesdays, even for attorneys.

That’s unworkable, he said.

So he’s suing the director of the Michigan Department of Corrections, and wardens at three prisons. He filed Monday in the Eastern District.

“All I am asking for is for them to be reasonable, which is in some cases asking a lot of the Department of Corrections,” Manville said. “In more than 20 years I have never had a problem with being able to meet with a client. It’s getting to be unreasonable.”

Manville said that he was told that budget cutbacks have caused the prisons to shorten visiting hours.

Among the other named plaintiffs are attorneys Gerald Lorence, Craig Davis, Dory Baron, Lee Somerville and Nick Suciu. The case is Civil Rights Clinic, et al. v. Washington, et al.

Man sues team over three extra text messages

Just under the wire for May…

If you’re a fan of just about anything, you can sign up for text message updates (also known as mobile alerts) from that thing. Sports teams often use them to send ticket deals and score updates to fans. Of course, these things are “opt-in,” so if you don’t want them, don’t sign up for them.

Fred Weiss signed up for mobile alerts from his beloved Pittsburgh Penguins. When he signed up, the team’s documentation said he’d received “no more than three texts per week.” In the first week, he received five text messages. The second week, four. That’s right, he received three extra text messages over a two week period. This was unacceptable. If there’s one man in the world that you don’t send three extra text messages to, it’s Fred Weiss. Fred Weiss isn’t going to stand around and let some automated service send messages that, assuming he doesn’t have an unlimited texting plan, cost him an extra 30 cents.

Weiss filed a class action lawsuit in California alleging the team violated the Telephone Consumer Protection Act and breached its contract:

By exceeding the authorized limits on weekly text message calls made to Plaintiff… Defendant has caused Plaintiff and the other members of the Class actual harm, not only because they were subjected to the aggravation that necessarily accompanies the invasion of privacy caused by unsolicited text message calls, but also because consumers frequently have to pay their cell phone service providers for the receipt of such wireless calls.

[The Consumerist, Pens Blog, Larry Brown Sports and Courthouse News]

I did mention this was an “opt in” thing, right? Weiss could simply opt out by texting STOP PENS to 32623. How do I know this?

I went to the website. This took 20 seconds.

Instead, he filed a lawsuit. Not just any lawsuit, but the Lawsuit of the Month.

Rehab center pays to settle discrimination suit

Southfield rehabilitation and nursing company Health Partners, Inc. has agreed to pay $25,000 to settle a case in which the company was accused of discrimination against an employee who had tested positive for tuberculosis.

In EEOC v. Health Partners, Inc. (Case No. 2:11-CV-12024), filed in U.S. District Court for the Eastern District of Michigan, the EEOC charged that Health Partners violated the Americans with Disabilities Act (ADA) by refusing to allow an employee to start working after she tested positive for tuberculosis on a preliminary skin test. The EEOC contended that such conduct violates the ADA because Health Partners regarded her as disabled even though she was not contagious and did not pose a direct threat of health risk.

Rather than engage in protracted litigation, Health Partners agreed to a two-year consent decree which requires it to pay $25,000 to the employee and train those employees responsible for hiring about ADA rules, according to the EEOC.

Isn’t it romantic?

Today the House Judiciary Committee will take up a package of bills that would allow district court magistrates and judges, and probate judges to solemnize marriages anywhere in the state.

Senate bills 698-700 have passed in the Senate. They would allow judges to perform marriages anywhere in the state without having to get a temporary assignment from the State Court Administrative Office; it would also require a $10 fee for performing the ceremony to be paid to the court.

Just in time for wedding season, the committee will discuss the bills this morning at 10:30.

Miller Johnson’s Kalamazoo office to move

When clients come to Miller, Johnson, Snell & Cummiskey PLC’s new Kalamazoo office, they might be tempted to ask if they get to use the pool, too.

That’s because come June 22, the firm will take up 18,000 square feet on the second floor of the business suites of the Radisson Plaza Hotel & Suites.

The firm’s Kalamazoo outpost had spent 32 years in the downtown district on Rose Street, two blocks away from its new location. There are 14 attorneys working there.

Lance Hartman, the firm’s director of marketing and business development, said the move wasn’t being made because of immediate expansion, but more so out of updating and increasing space for potential future growth.

Judge goes undercover in K2 hunt

Judge Kirsten Nielsen Hartig has had quite enough of the K2-related crimes in her county. Hartig, a judge at 52-4 Oakland County District Court, decided to go undercover to search for retailers who are selling K2, or Spice, or any of the other many substances that are passing themselves off as a supposed man-made substitute for marijuana.

Oakland County has been hit pretty hard lately by the stuff. A recent rash of horrifying deaths are tied to K2 in some way or another. In one case, a teenager stands accused of killing his father and critically injuring his mother and brother; in another, a grandmother is charged with murdering her teenage grandson. She is reported to have said she was afraid of him, and he’d been using K2.

Michigan legislators are trying to pass legislation that would allow criminal prosecution for selling the substance, which Hartig said is actually nothing at all like marijuana, even if it’s marketed as a synthetic substitute for weed. The proposed legislation would allow K2 sellers to be prosecuted as if they were selling, or rather, trafficking, marijuana.

MSC: Court must warn CSC defendant of mandatory lifetime monitoring

A trial court must warn a criminal sexual conduct (CSC) defendant that his guilty plea carries with it mandatory lifetime electronic monitoring by police, the Michigan Supreme Court said in People v. Cole.

The decision is the latest extension of the U.S. Supreme Court’s 2010 Padilla v. Kentucky decision, in which the high court ruled that a defendant must be informed of the mandatory immigration consequences of his guilty plea, because the mandatory consequences were a direct consequence of the crime.

It’s not the first extension of the Padilla rule in Michigan. In People v. Fonville($), the Michigan Court of Appeals ruled that mandatory sex offender registration is a direct consequence of a  conviction, thus the defendant had to be warned of it before he pleaded guilty to child enticement and kidnapping charges.

In February, the Court of Appeals ruled in People v. Gomez($) that the Padilla rule can’t be applied retroactively. Leave to appeal that decision to the Michigan Supreme Court is pending.

Earlier this May, the Court rejected a proposal that would have created a Padilla court rule.

MSC approves electronic signatures and notarization

The Michigan Supreme Court has amended MCR 1.109 to provide for electronic signatures and electronic notarization of signatures when necessary.

The Court added new subsection C, which provides:

(C) Signatures.

(1) A signature, as required by these court rules and law, means a written signature as defined by MCL 8.3q or an electronic signature as defined by this subrule.

(2) An electronic signature means an electronic sound, symbol, or process, attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

(3) If a law or court rule requires a signature to be notarized or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law or court rule, is attached to or logically associated with the signature.

(4) Retention of a signature electronically affixed to a document that will be retained by the court in electronic format must not be dependent upon the mechanism that was used to affix that signature.

Amended MCR 1.109 takes effect immediately.

The Court also amended MCR 3.204 – Proceedings Affecting Children. Under the amended rule, which takes effect Sept. 1, disputes concerning child support, custody or parenting time will be handled by motion practice whenever possible instead of filing a supplemental complaint.

The goal is to consolidate cases in a way that is more compatible with trial court case management systems.

Under an amendment to MCR 3.616, ex parte voluntary foster care petitions from the Department of Human Services must now indicate the youth’s race. The amendment, which takes effect Sept. 1, makes the rule consistent with MCL 400.655(a).

The Court declined to adopt proposed MCR 3.220, which would have required trial courts to set deadlines in domestic arbitration cases and would have allowed arbitrators to issue interim awards during the arbitration proceedings.

Class action act didn’t alter removal rule

A familiar story in troubled economic times has produced a new ruling concerning federal civil procedure from the Sixth Circuit.

A Kentucky couple bought a house with a loan issued by America’ Wholesale Lender, secured by a mortgage with Mortgage Electronic Registration Systems (MERS). Later, the couple defaulted on the mortgage. Countrywide Home Loans foreclosed in state court, claiming MERS assigned the mortgage.

The couple filed a counterclaim against Countrywide, arguing that MERS never had a valid mortgage. Countrywide said the counterclaim was deficient because MERS wasn’t joined as a necessary party.

The couple then filed a third-party class action complaint against MERS. MERS, said the couple, was nothing more than an electronic data base for keeping track of mortgages and did not hold a valid mortgage, having failed to follow Kentucky’s registration procedures.

Here’s where the fresh twist to things begins.

MERS, as a third-party defendant, removed the case to federal district court. Normally, third-party defendants can’t do that. First Nat’l Bank of Pulaski v. Curry, 301 F.3d 456, 461 (6th Cir. 2002).

The Kentucky couple, citing Pulaski and 28 U.S.C. § 1441(a), moved to remand their case to state court.

This time it’s different, MERS argued.

[MERS] sought removal of the action based on 28 U.S.C. § 1453(b). The [Class Action Fairness Act of 2005] provides that a district court has jurisdiction in a civil action where there is diversity of citizenship; the amount in controversy exceeds $5 million; and the proposed class includes at least one hundred members. …

[MERS argued] that under section 1453(b), a qualifying class action “may be removed by any defendant without the consent of all defendants.”

You’re reading the statute way too broadly, the Sixth Circuit ruled.

[MERS] attempts to distinguish Pulaski by arguing that section 1453(b), which includes the term “any defendant,” has expanded the right of removal in Class Action Fairness Act cases.

But that language is used in a specific context — it is part of a larger clause providing that an appropriate action “may be removed by any defendant without the consent of all defendants.” Contrary to [MERS’] position, the provision simply modifies the rule that all defendants must consent to the removal.

What the Class Action Fairness Act doesn’t do is extend removal opportunities to third-party defendants, the Sixth Circuit concluded.

The case is In re Mortgage Electronic Registration Systems.

JTC asked to look into Hathaway real estate deals

Ever since WXYZ-TV reported on the questionable circumstances surrounding the short sale of property owned by Michigan Supreme Court Justice Diane Hathaway, the legal community has been buzzing about whether the Judicial Tenure Commission would be investigating.

The JTC, per its standards and practices, has been mum on the subject.

Former John Engler aide and GOP strategist Dan Pero told the Detroit Free Press that he’s asked the JTC to look into whether Hathaway committed fraud in the transaction.

Pero said the basis of his request for investigation was a May 9 report by WXYZ-TV suggesting Hathaway and her husband, attorney Michael Kingsley, transferred residential properties they owned in Michigan and Florida to Kingsley’s adult children to qualify as distressed homeowners and win bank approval for a short sale of another home they owned on Lake St. Clair.

Hathaway’s attorney, Steve Fishman, called Pero’s request a “partisan hit job.”

According to the article, Pero’s wife ran the 2008 campaign of then Chief Justice Clifford Taylor, whom Hathaway ousted to take her seat on the court. Pero insists the history is irrelevant to his request.