MSC removes Inkster District Court judge from office

The Michigan Supreme Court has removed Inkster District Court Judge Sylvia James from office for judicial misconduct.

In the MSC’s opinion, authored by Justice Marilyn Kelly, the Court stated that the evidence established:

that respondent misappropriated public funds, some of which were intended for victims of crime in the city of Inkster. She inappropriately spent much of this money on self-promoting advertisements and travel expenses for herself and various other court employees. She treated these funds, as the master phrased it, as her own “publicly funded private foundation.” In addition, she (1) denied people access to the court by instituting and enforcing an improper business-attire policy, (2) employed a family member in violation of court policy, and (3) made numerous misrepresentations of fact under oath during the investigation and hearing of this matter.

The cumulative effect of respondent’s misconduct, coupled with its duration, nature, and pervasiveness, convinces this Court that she is unfit for judicial office. Although some of her misconduct, considered in isolation, does not justify such a severe sanction, taken as a whole her misconduct rises to a level that requires her removal from office.

Four of the Court’s justices, Chief Justice Robert Young, Stephen Markman, Mary Beth Kelly and Brian Zahra, signed Kelly’s lead opinion.

Justices Michael Cavanagh and Diane Hathaway concurred “in the majority’s result of removal from office and its decision to direct the Judicial Tenure Commission to submit an itemized bill of costs pursuant to MCR 9.205(B).”

In a separate opinion, Markman, joined by Young, concurred in removing James from office but said they would have gone even further.

Although the majority’s ordering removal from office addresses the immediate harm caused by Judge James, it is an inadequate response and fails to address the likelihood of continuing harm. As a result of the majority’s decision, Judge James will be removed from office from today’s date until the expiration of her present term at the end of 2012. She has her name on the August primary ballot, however. If she is successful in the primary, her name will be placed on the ballot for the general election in November. And should she prevail in those elections, she will be allowed to resume her judgeship on January 1, 2013. …

This Court has a duty to redress the harms done by Judge James’ harm, and that duty is not vitiated if Judge James is reelected. Nor is that duty limited to past harm; rather, it also extends to guarding against future harm. Imposing a six-year conditional suspension, which would be in effect throughout the next judicial term, is the only way this Court can adequately protect judicial integrity and redress the substantial harm caused by Judge James’s refusal to be bound by the same laws she is charged with applying.

DMBA pans three incumbents in 2012 judicial ratings

The Detroit Metropolitan Bar Association has ranked three incumbent judges seeking re-election or higher office  as “not qualified” in the DMBA’s judicial ratings for the Aug. 7 election.

The DMBA gave a “thumbs down” to:

Wayne County Circuit Judge Richard Halloran Jr. The Michigan Supreme Court has disciplined Halloran twice since 2002.  In In re Halloran, 466 Mich. 1219 (2002), Halloran consented to a public censure by the MSC and a 90-day suspension without pay. Halloran admitted or did not contest findings by the Michigan Judicial Tenure Commission concerning an incident in a public restroom with an undercover officer.

In In re Halloran, 486 Mich. 1054 (2010), Halloran agreed to a public censure and a 14-day suspension without pay, Halloran dismissed 30 family law cases, which he failed to timely adjudicate, to avoid an administrative reporting requirement that would have revealed he missed deadlines to complete the cases.

Inkster District Court Judge Sylvia James. The Michigan Supreme Court recently heard charges issued by the Judicial Tenure Commission against James. The JTC has alleged James misused funds from the court’s Community Service Program account and made misrepresentations to the JTC and the special master appointed to conduct an administrative hearing on the matter.

Update Aug. 1, 2012: The Michigan Supreme Court issued an opinion on July 31, in which James was removed from the bench. See In re James.

Dearborn District Judge Mark Somers. Sommers was hit with two jury awards last year totaling more than $1 million in favor of female court workers. The juries agreed that in one case, Somers wrongfully eliminated her position and in another, wrongfully discharged her.

The DMBA’s complete rankings are available here.

Foster Care Review Board seeks nominations for annual honors

Do you know any judges or lawyers who have worked to make the state’s foster care system a better one? Then the Foster Care Review Board wants to hear about them.

The board is now accepting nominations for its annual Child Welfare Awards, in categories including “Jurist of the Year” (judges and referees), “Foster Care Worker of the Year,” “LGAL of the Year” (lawyer-guardian ad litem), “Foster Parent of the Year,” and “Parent Attorney of the Year.”

Award recipients will be recognized at the FCRB annual training conference Nov.  9 in Lansing.

Nomination forms are available online here. For more information, contact Kathy Lohr at (313) 972-3288 or lohrk@courts.mi.gov.

Truckers can drive longer hours to deal with UP gas emergency

Even under the best of circumstances, it’s a long haul for truckers delivering gasoline and certain other petroleum products to the interior of Michigan’s central and western Upper Peninsula.

The closest pipeline terminal is in Green Bay, Wisconsin, where lots of Yoopers go to shop when they want a change of pace from what Marquette, Michigan has to offer.

Green Bay is a long drive from places like Marquette, Escanaba and Iron Mountain in the central UP. It’s a bit shorter from places like Houghton and Ironwood on the western end of the UP. Check it out on a map.

All of these places depend on gasoline haulers that fill up at the Green Bay pipeline terminal.

Well, the Green Bay pipeline terminal is on the fritz. The next closest pipeline terminals are in Milwaukee and Madison, Wisconsin, which are several hours south of Green Bay.

What was a long haul for gasoline tankers is now an even longer one, so much so, that truckers are having trouble keeping in line with state and federal regulations that dictate how long they can be on the road before taking a required break. And that means they’re falling behind on their delivery schedules.

You don’t want sleepy-eyed truckers driving two-lane highways pulling several thousands of gallons of gas, diesel fuel and jet fuel behind them. Jet fuel? Yes, Marquette has an international airport serviced by major airlines.

But the wheels of commerce, not to mention the wheels on UP residents’ and vacationers’ cars, must keep turning.

So, the solution is to turn a blind eye toward regulations that limit the number of hours in a day that truckers can legally operate their rigs.

Gov. Rick Snyder has declared an “imminent energy emergency.” Executive Order No. 2012-12 suspends “state and federal regulations relating to hours-of-service for motor carriers and drivers transporting gasoline, diesel fuel and jet fuel to address transportation needs arising from the impact of this energy emergency.”

There’s plenty of legal authority that allows him to do that. The wisdom of doing that is a debatable topic.

But, one way or another, the gas will get through.

Suit alleging law school’s misleading post-grad numbers dropped

A $300,000 class-action lawsuit against The Thomas M. Cooley Law School was dismissed by U.S. District Judge Gordon Quist on Friday.

The lawsuit, filed August 2011 by 12 Cooley graduates, alleged they were misled by Cooley’s post-graduate employment reports.

In granting Cooley’s motion to dismiss, Quist noted that while the school’s employment and salary figures were “vague and incomplete,” the students should have relied on more than statistics when making their decision to enroll.

“Plaintiffs and prospective students should have approached their decision to enter into law school with extreme caution given the size of the investment,” Quist wrote. “With red flags waiving and cautionary bells ringing, an ordinary prudent person would not have relied on the statistics to decide to spend $100,000 or more.”

In addition, the graduates alleged fraud and negligent misrepresentation on Cooley’s part, and violated the Michigan Consumer Protection Act.

But Quist said the MCPA applies to “providing goods, property, or service primarily for personal, family or household purposes.” As such, “the MCPA did not apply because the plaintiff purchased the services for a business or commercial purpose,” he wrote.

Besides saying that the plaintiffs unreasonably deduced that the “percentage of graduates employed” statistic included only graduates who were employed in full-time legal positions, Quist wrote that it was unreasonable to believe Cooley’s stated average starting salary of $54,796 represented a figure for all its graduates. That figure represents the average salary of graduates who responded to the school’s survey and chose to reveal their salaries.

Sense and sensibility: Consecutive contempt sentences could get MSC review

The way Judge Michael Warren of the Oakland County Circuit Court saw things, he was giving Brian James Veilleux a break when he sentenced him to three years of probation with 365 days in jail (with work-release) for possessing cocaine.

The sentencing guidelines called for up to 34 months in prison, and under the plea agreement, Veilleux could have received a 1- to 15-year prison term.

Veilleux had an impressive list of felony and misdemeanor convictions, 10 in all. Most were related to drunk driving or drugs.

But Warren decided to be lenient and told Veilleux just that when he announced the sentence.

All things considered, Veilleux should have been grateful. But something must have rubbed him the wrong way.

Very shortly after being sentenced, defendant began to shout and curse at the trial court judge. He persisted in this behavior despite being told that he was being found in contempt for each outburst. The trial court held defendant in contempt a total of seven times before defendant was removed from the courtroom. The outburst was not transcribed, but defendant does not contest the characterization of his behavior.

The trial court entered an order … sentencing defendant to jail terms of 90 days for each contempt citation. The terms were to be served consecutive to one another and consecutive to defendant’s one-year jail term that defendant was serving as part of his probation sentence. Defendant never appealed from the sentences. People v. Veilleux. (Michigan Court of Appeals) (unpublished per curiam) (majority opinion) (dissenting opinion)

In short, Veilleux, who was no stranger to the court system, got a year in jail for possessing less than 25 grams of cocaine and was ordered to serve significantly more time — 630 days — for being lippy with the judge.

After a year in jail, Veilleux was released in error without serving his seven consecutive contempt sentences.

His early freedom was short-lived. Less than three weeks later, he was arrested for assault. He was drunk at the time. The assault charge was dropped. But being drunk was a probation violation.

Warren was generous in allowing credit for time served but gave Veilleux a long sentence for the probation violation — 34 months to 15 years in prison. That sentence, said Warren, would begin to run right after Veilleux served all seven of his consecutive contempt sentences.

In the Court of Appeals, Veilleux argued that Warren lacked authority to order consecutive contempt sentences and to order that the drug sentence would run consecutive to the contempt sentences.

We’ve been down this road before with Judge Warren, the Court of Appeals replied. In a 2005 case, People v. Williams (Michigan Court of Appeals) (unpublished per curiam), the COA affirmed Warren after he imposed four consecutive contempt sentences on a “rude and disruptive” defendant. According to the Williams panel:

The clear and unambiguous language of MCL 768.7a(1) requires that each of defendant’s sentences for contempt not only be consecutive to the term of imprisonment being served at the time the contemptuous conduct occurred but also be consecutive to “terms of imprisonment which the person … has become liable to serve.” Because as each instance of contempt of court occurred, the trial court properly and immediately found defendant guilty of contempt, MCL 600.1711(1) … defendant “has become liable to serve” a term of imprisonment for that contempt of court. Thus, as the trial court found defendant guilty of each succeeding contempt as it occurred, defendant was liable to serve his prior contempt sentences.

The Veilleux panel acknowledged that Williams was not binding.

We find Williams to be instructive only to the extent that it holds that “each contempt sentence is required to be served consecutively to those prior contempt sentences for which defendant had already become liable to serve.” Although raised in the context of allowing stacking of multiple contempt sentences, the phrase supports a finding that a defendant should always be required to serve a sentence for which he has become liable to serve. …

Defendant must be made to complete the sentence from which he was improperly discharged. Failure to so order would result in defendant suffering no penalty for his outrageous courtroom behavior and criminal contempt convictions.

In her dissent, Judge Deborah Servitto argued that MCL 768.7a(1) doesn’t apply in this case. She noted that the statute applies to “a person who is incarcerated in a penal or reformatory institution in this state …. and who commits a crime during that incarceration[.]”

Veilleux wasn’t incarcerated when Warren banged the contempt gavel seven times.

And, said Servitto, this brings us to another point for consideration.

I am sure that most judges have experienced the not-so-respectfully expressed resentment of a defendant at one time or another. But, as observed in In re Contempt of Dudzinski, 257 Mich App 96, 107; 667 NW2d 68, (2003), when wielding contempt powers, “[t]rial courts …. must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” After all, “[j]udges are supposed to be men of fortitude, able to thrive in a hardy climate.” Id. In imposing seven consecutive 90-day sentences, it appears as if the trial judge was acting in response to an offense to his sensibilities.

Veilleux filed a leave application with the Michigan Supreme Court. Perhaps Servitto’s sensible dissent got the MSC thinking about a couple of things. The MSC will hear oral arguments on whether to grant leave to appeal.

At oral argument, the parties shall address: (1) whether sentences imposed after a finding of criminal contempt must be served consecutively under MCL 768.7a; and (2) whether a court may hold a person in contempt multiple times for each contemptuous act in a continuous course of conduct.

The MSC also ordered “the Oakland Circuit Court to determine whether any recording of the defendant’s contemptuous behavior exists, and if so, to provide a copy of that record to this Court.”

State allocates $97.2 million to help the foreclosed

The Michigan Legislature passed a bill that would divvy up $97.2 million to create a Homeowner Protection Fund to assist those affected by the national foreclosure crisis. Gov. Rick Snyder is expected to sign the bill into law posthaste.

The funds are coming from the state’s share of a national settlement with five leading mortgage servicers that were accused of shady foreclosure processes and servicing.

According to the Attorney General’s office, the money is being split as follows:

· Foreclosure Rescue Scam Victim Restitution – $7.5 million. Many Michigan residents have fallen prey to foreclosure rescue scam artists who offered to help citizens save their homes.  This fund will provide restitution payments of up to $3,000 per person for victims of foreclosure scams.  Eligibility criteria to determine qualifying cases will be established at a later date.

· Assistance for Veterans – $5 million.  The men and women who served our country also have been affected by poor mortgage servicing and foreclosure practices.  These funds will provide targeted relief for military servicemembers unable to qualify for existing programs.

· Michigan Attorney General Home Protection Unit – $6 million.  These funds will allow Schuette’s office to ramp up investigation and prosecution of foreclosure-related crimes.  This unit has brought charges in 28 cases since 2009 and there are approximately 69 cases currently under investigation.  These funds will allow for additional investigators and prosecutors to combat foreclosure related crimes.  

· Blight Elimination – $25 million.  These funds will be dedicated to blight elimination efforts throughout Michigan.  $10 million will be allocated for blight elimination in the city of Detroit and $15 million will be allocated for use throughout the rest of the state.  Given that blighted property contributes to an environment conducive to crime, targeting blight elimination in these areas will further efforts to reduce crime.

· Foreclosure Counseling for Homeowners – $20 million.  The Michigan State Housing and Development Authority (MSHDA) and Michigan State University Extension Offices will use these funds to expand their much-needed, free homeowner counseling services for citizens seeking to avoid foreclosure.

· Housing and Community Development Programs – $3.7 million.  These funds will be allocated to the Michigan Housing and Community Development Fund which develops and coordinates public and private resources to meet the affordable housing needs of low income households and revitalizing downtown areas and neighborhoods in Michigan.

· Grants to Help Homeowners Refinance – $5 million.  These funds will allow The Michigan State Housing Development Authority (MSHDA) to provide Grants to help pay the closing costs of citizens who utilize the Homeless Assistance Recovery Program (HARP).  Eligible citizens will receive assistance paying closing costs associated with refinancing their home.

· Assistance to Homebuyers – $15 million.  These funds will assist both service members and non-service members by providing grants to offset the purchase price of a home.  Service members may be eligible for grants up to $5,000 and non-service members up to $3,000.  Eligibility criteria to determine qualifying cases will be established at a later date.

· Education Achievement Authority – $10 million.  These funds will be used by the Education Achievement Authority (EAA) to help improve performance of Michigan’s lowest performing schools. 

More information is available at the state’s website.

Gender issues in law to be discussed at firm’s four branches

On July 25, gender issues in the legal profession will be discussed at a brown-bag lunch program, as part of the ABA Woman Advocate Committee’s Regional Networking Gathering.

And if you’re interested in the free event, there are four locations where you can go to participate in it.

It’s hosted by Butzel Long’s Women’s Leadership Committee, and instead of having it at just one location, it will be held simultaneously at the firm’s Detroit, Bloomfield Hills, Ann Arbor and Lansing offices.

The program will include a tele-address from incoming ABA President Laurel Bellows. Attendees are encouraged to bring a brown bag lunch, and reservations are required.

To RSVP, contact Angela Emmerling Boufford at boufford@butzel.com for the Ann Arbor event; Robin Luce Herrmann at luce-herrmann@butzel.com for Bloomfield Hills; Rebecca Davies at davies@butzel.com for Detroit; or Debra Geroux at geroux@butzel.com for Lansing.

House speaker, state rep cook up a stinker says Kent County prosecutor

Remember the so-called “back room deal” in which former Justice Elizabeth Weaver retired months before the 2010 election? According to accusations at the time, the “deal” was struck so that then-Governor Jennifer Granholm could appoint a Democrat supported replacement to be an “incumbent” on the November ballot. State Republicans were apoplectic about the deal at the time and, as you can see from the above line, rejoiced when the “coup” failed and Mary Beth Kelly was elected to Weaver’s seat that November.

Welp, such back room deals aren’t limited to Democrats, apparently.

Kent County Prosecutor William Forsyth accused State House Speaker Jase Bolger (R – Marshall) of conspiring with Rep. Roy Schmidt to switch parties and rig Schmidt’s 2012 reelection campaign by handpicking a severely underqualified 22 year-old as his Democratic opposition.

The prosecutor didn’t charge Bolger or Schmidt, however, finding that they didn’t do anything illegal. He did forward his report to the Secretary of State to investigate Schmidt’s alleged misuse of campaign funds to pay the handpicked opponent to take a dive. He asked the Legislature to look into the situation, which he found embarrassing “as a Republican elected official.”

According to the report obtained from The Detroit News’s website, Bolger convinced Schmidt to jump from the Democratic Party to the Republican Party. But the two agreed that in order to secure reelection, they needed to ensure that no established Democratic candidate opposed Schmidt this November. Schmidt offered $450 to his son’s friend, Matthew Mojzak, a 22 year-old clerk at a GNC store, to put his name on the ballot as a Democrat to run in the election.

Schmidt and his son met Mojzak at a Secretary of State office on May 15 to change Mojzak’s address to show he lived within Schmidt’s district. Then they went to two banks to find someone to notarize an affidavit of identity to be filed with paperwork to get Mojzak’s name on the ballot. Mojzak allegedly listed that he lived in the district for 22 years

The report says that Schmidt then took the affidavit and a money order Mojzak purchased to Bolger’s office and gave it to Bolger’s deputy chief of staff, Phil Browne. Browne filed the paperwork and paid the fee to get Mojzak’s name on the ballot.

Within minutes of Browne filing the papers, Schmidt withdrew his Democratic Affidavit of Identity that he had filed in February and filed the appropriate papers to have him placed on the the ballot as a Republican candidate.

Flabbergasted Democrats hustled to mount a write-in campaign to oppose Schmidt but soon learned that a 22-year-old fellow that no one in the party ever heard of was all set to go as a Democratic write-in candidate.

The report is supported by text message conversations involving Bolger, Schmidt and Browne that took place on May 14 and 15. The test messages appear in the report as follows:

After Schmidt’s switch, the media looked into Mojzak’s candidacy and found that he wasn’t a qualified elector and couldn’t run for office in Schmidt’s district because he hadn’t lived there for 30 days before the filing deadline.

He would withdraw his candidacy, but not before Schmidt allegedly offered him $1,000 to stay in the race. Schmidt also reportedly offered him free legal representation and “remind him that he … should claim the ‘22’ years on the affidavit was either a ‘mistake’ or ‘accidental’ on his part.”

In the end, Forsyth determined that Mojzak is the only person involved who actually committed a crime, but chose not to press charges against Mojzak, saying that he “ill-advisedly agreed to participate in this misadventure” and that “it is clear that he was duped into doing so and is the least culpable of anyone involved in this fiasco.”

But his words for Bolger and Schmidt were less than complimentary:

Whether anyone other than Rep. Schmidt and Speaker Bolger was involved in this plan is irrelevant in the context of a criminal investigation; it was not illegal. Incredibly, while it would be illegal to pay a boxer to take a “dive” or a basketball player to “point-shave”, it is not currently a crime in Michigan to recruit someone to run for public office, place them on the ballot at the “eleventh hour” and essentially pay them to make no effort to win.

Schmidt isn’t talking. Bolger told the Detroit Free Press he didn’t know money was involved. He has no plans to resign.

Political people in and out of Lansing aren’t amused.

Dennis Lennox, a Republican political operative from Traverse City, called on Bolger to relinquish the leadership role.

“This is a distraction, it shouldn’t be a distraction and the speaker should do the right thing and resign as speaker,” Lennox said.

Bill Ballenger, publisher of Inside Michigan Politics, said Bolger may be able to defend his actions when House Republicans meet today in Lansing, describing it as an attempt to bolster the GOP’s 64-46 majority.

“He was looking out for their best interest, he got a party convert, but he was inept and clumsy the way he went about it,” Ballenger said.

Landfills smell sweet compared to this.

NOTE: Ed Wesoloski and Brian Frasier collaborated on this report.

Detroit city council rejects Bing’s proposed union cuts

Per The Detroit News, the Detroit City Council has rejected Mayor Dave Bing’s proposed city employee paycuts.

We’ve obtained exclusive video of the event:

Wait, that’s not it…