Supreme Court justice named our Woman of the Year

Michigan Supreme Court Justice Marilyn Kelly was named as Michigan Lawyers Weekly’s Woman of the Year at our 2012 Women in the Law luncheon on Sept. 27.

Michigan Supreme Court Justice Marilyn Kelly holds her award after being named Michigan Lawyers Weekly’s 2012 Woman of the Year at the Detroit Marriott, Troy. (Photo by Mark Bialek)

Kelly has accomplished a lot in her career, including public service spanning the last 48 years.

As noted in her Women in the Law profile (see our Sept. 10, 2012, edition), Kelly was the first woman elected to State Board of Education in 1964, and was re-elected in 1968 and 1972.

While still on the board, she enrolled at Wayne State University Law School and graduated with honors in 1971. She was elected to the Court of Appeals in 1988, and re-elected in 1994. In 1996, she was elected to the Supreme Court for the first of her two terms. She was the Court’s chief justice from 2009-11.

Her push to make courts more accessible has resulted in last month’s launch of a new legal self-help website, Michigan Legal Help.

Kelly also was a loud and unwavering voice in the call for more comprehensive and fair indigent representation. She surely is gratified with HB 5804, to create the Michigan Indigent Defense Commission, going to the full House with strong bipartisan support.

That Commission would set standards, attempt to stabilize funding and promote best practices.

And, as Kelly told MiLW writer Ed Wesoloski for her Women in the Law profile, she counts G. Mennen Williams — Michigan’s 41st governor and a Supreme Court justice — among her heroes and mentors. She recalls him as a charismatic man, who was forever extending his arm to “give a warm, firm handshake.”

She also mentioned that she is a SCUBA diving enthusiast, and to this day still actively participates in the sport. In addition, she confessed to Ed the guilty pleasure of reading spy novels.

Kelly started a Limited English Proficiency Program to assist non-English speakers navigate their way through the legal system.

Her most visible effort, without question, was her work on the Michigan Judicial Selection Task Force on which she served as co-chair with Senior Circuit Judge James Ryan, of the 6th U.S. Circuit Court of Appeals.

They brought together a group of lawyers, non-lawyers, businesspeople and campaigners and researched the judicial selection process.

The task force released a comprehensive report calling for more transparency in the selection and campaign process and offered sensible solutions and alternatives that would make the judicial selection process more effective and transparent.

Those recommendations are still being considered.

Testing for textualism

Bryan Garner and U.S. Supreme Court Justice Antonin Scalia have written a treatise entitled Reading Law: The Interpretation of Legal Texts.

It has everything you ever wanted to know about the subject matter, prefaced by an essay, in which Scalia predictably explains that textualism is the only valid approach to the interpretation of law.

What the book doesn’t have, explains Garner in the latest issue of the ABA Journal, is a textualism test that he and Scalia were considering for inclusion in their 567-page epic.

A sample:

• A contract entitles a caterer to be reimbursed for the expense of supplying “trays, glasses, dishes, utensils or other tableware.” In his reimbursement schedule, the caterer lists $1,500 for paper napkins. Is this expenditure reimbursable?
• No. Under the ejusdem generis canon the phrase or other tableware is limited to things of the same types as in the preceding list: trays, glasses, dishes, utensils. Those are sturdier items that are more or less durable (even if plastic); paper napkins are flimsy and are more often disposed of within seconds after use. The listed items are for serving food and facilitating consumption; paper napkins, by contrast, are for cleaning. If, as seems likely, the caterer drafted the contract, the contra proferentem canon would reinforce this result.

There’s plenty more where that came from. Check it out.

HT: SBM Blog

Detroit hip hop act sues feds over gang classification

For those who grew up in the 1990s, the act at the center of this need no introduction. For the rest of you…

Meet the Insane Clown Posse. This Detroit “horrorcore” hip hop duo is perhaps best known for its short stint in the WWE (yes, that WWE) and for showering its fans at shows with Faygo sodas. The pair, dubbed Shaggy 2 Dope and Violent J, have been around for 20 years. You can’t be a music act for that long without having a loyal fan following. It’s logo is a silhouette of a clown running with a cleaver.

And boy, does ICP have a massive and loyal fan following. Their fans, called Juggalos, mostly travel far and wide to see the two, particularly at the annual “Gathering of the Juggalos,” a weekend long festival of music and frivolity starring ICP and the rest of the acts on its Psychopathic Records label. They even have an infomercial (language NSFW in places):

As you can imagine, Juggalos are largely young, white males who dress up like their ICP. According to the Department of Homeland Security, the Juggalos are also a gang, a “non-traditional” one, right up there with the Latin Kings.

Represented by Birmingham-based entertainment lawyer Howard Hertz, the band has sued the federal government on behalf of its fans. Shaggy 2 Dope explained the band’s position to The Village Voice, complete with a civics lesson. [via Gawker]

“You’re trying to grow love in your country and s***,” Shaggy 2 Dope told me last month. “Then the head of your country—the FBI—just turns around and f***ing kicks you in the nuts. How are you supposed to respond to that?”

Yes, America, exactly how are you supposed to respond to that?

The VV writer went to the recent Gathering and heard first hand the Juggalos tales of woe.

Spend an hour wandering around the Gathering and you’ll hear story after story after story about cops, schools, and bureaucracies discriminating against Juggalos for wearing Insane Clown Posse gear and their label’s Hatchetman logo. There’s the guy who lost his kids to a foster home because of his tattoo. There’s the Juggalo who was discharged from the United States military for having a Psychopathic Records CD. There’s the Wisconsin kid who was forbidden from wearing Insane Clown Posse shirts to school, but didn’t have money for new clothes, so he kept getting suspended.

“I know it’s just Juggalos and to a lot of people out there, that’s the lowest life form,” acknowledges Violent J. “But they’re being fucked with heavily. And this is some extraordinary shit that’s happening to us.”

ICP has a website, JuggalosFightBack.com, at which its asking Juggalos to tell their tales of harassment so that they “can fight for you in Court.”

But seriously, the report is pretty strange, particularly in its description of a band’s “criminal” makeup.

 Most Juggalo criminal groups are not motivated to migrate based upon traditional needs of a gang.

That’s because they are 14.

And, fellas, if you don’t want you or your fans to be associated with gangs, it would help if you didn’t flash gang signs in photos on your website.

Investiture ceremony for COA’s Boonstra announced

The investiture ceremony for Michigan Court of Appeals Judge Mark Boonstra takes place Sept. 27 at 3:30 p.m. at Michigan Library & Historical Center, 702 West Kalamazoo St. in Lansing, with a reception in the Hall of Justice following the ceremony.

U.S. Sixth Circuit Court of Appeals Judge Ralph Guy, Jr. will swear Boonstra into office. Boonstra served as Guy’s law clerk from 1983 to 1985.

Governor Rick Snyder appointed Boonstra to the COA last March for a term ending Jan. 1, 2013. Boonstra is running unopposed for a partial term ending Jan. 1, 2015.

Before his appointment, Boonstra was a senior principal in the law firm of Miller, Canfield, Paddock and Stone, P.L.C., where he practiced for nearly 27 years.

Boonstra graduated from the University of Michigan in 1983 with both a Juris Doctor degree and with a Master of Applied Economics Degree. He is also a 1979 Phi Beta Kappa graduate of Michigan State University, with a B.A. in Political Science.

For more information about the event, contact Deborah Allen at 517-373-0898.

House Judiciary Committee meets to consider crime bills

The House Judiciary Committee meets Sept. 27, 2012 to consider a full plate of crime legislation and other matters. The 10 a.m. meeting is in Room 326 of the House Office Building in Lansing.

Listed below are the bills, sponsor and a brief description of the legislation.

• HB 5789 (Rep. LaFontaine) Civil procedure; civil actions; property on which animal fighting is conducted; declare to be a nuisance.
• HB 5692 (Rep. Walsh) Crimes; arson; certain arson violations; revise elements of crimes and provide for increased penalties.
• HB 5693 (Rep. Cotter) Crimes; arson; certain arson violations; revise elements of crimes and provide for increased penalties.
• HB 5694 (Rep. Graves) Crimes; arson; certain arson violations; revise elements of crimes and provide for increased penalties.
• HB 5695 (Rep. Oakes) Criminal procedure; sentencing guidelines; sentencing guidelines for certain arson violations; enact.
• HB 5076 (Rep. Pettalia) Local government; budgets; challenging an approved budget; clarify.
• HB 5664 (Rep. Somerville) Criminal procedure; sentencing guidelines; alcohol content for individuals operating a motor vehicle under the influence of alcoholic liquor in the code of criminal procedure; maintain at 0.08 without reversion to 0.10.
• HB 5665 (Rep. LaFontaine) Crimes; intoxication or impairment; alcohol content for individuals operating a vehicle under the influence of alcoholic liquor; maintain at 0.08 without reversion to 0.10.
• HB 5600 (Rep. Haveman) Juveniles; criminal procedure; set-aside convictions for juvenile adjudications; clarify eligibility.
• HB 4998 (Rep. Heise) Civil procedure; evictions; court procedures; make miscellaneous revisions.
• HB 4263 (Rep. O’Brien) Housing; landlord and tenants; requirement for lawful reentry by landlord; modify.

6th Circuit: MSC got it wrong, DIBC is not a ‘federal instrumentality’

The procedural wrangling is impressive, the arguments are exhaustive but the bottom line is this: The Detroit International Bridge Co. (DIBC) is not a “federal instrumentality,” according to the 6th U.S. Circuit Court of Appeals in Commodities Export Co. v. Detroit Int’l Bridge Co.

In so ruling, the federal appeals court said a contrary holding by a unanimous Michigan Supreme Court, City of Detroit v. Ambassador Bridge Co., 748 N.W.2d 221, 223 (Mich. 2008), is owed “no deference.”

The ruling has its genesis in the mid-1990s, when DIBC and the Michigan Department of Transportation began working on a project to make the Ambassador Bridge easier to get to from the interstate freeways (MDOT’s job) and to beef up the bridge’s infrastructure (DIBC’s job).

DIBC received federal approval to build new toll plazas, a duty-free gas station and a weight station for trucks. But the city of Detroit balked at granting DIBC the necessary zoning variances. DIBC plowed ahead with construction. Detroit sued. The case made it to the MSC, which ruled in Ambassador Bridge Co. that DIBC was a “a federal instrumentality for the limited purpose of facilitating traffic over the Ambassador Bridge,” and thus immune from Detroit’s zoning ordinances.

Commodities Export Co. sued the federal government and Detroit about a year later, complaining that DIBC, flexing its federal instrumentality muscle, unilaterally condemned and closed the only road providing access to Commodities Export’s property. Commodities Export said Detroit failed to protect Commodities from DIBC’s actions and that the federal government failed to rein in its federal instrumentality, DIBC.

DIBC intervened in the suit. The federal government then filed a cross-claim against DIBC, alleging that contrary to DIBC’s representations and the MSC’s decision in Ambassador Bridge Co., DIBC “’is not a federal instrumentality, of any kind, or any other type of arm, appendage, servant, or agent whatsoever of the United States,’ and thus its ‘representations that it is any kind of federal instrumentality are contrary to federal law.’”

The federal government argued that as a result, it could not be held liable for any claim by Commodities’ Export for an unlawful, uncompensated taking of its property.

The federal district court sided with the federal government. The 6th Circuit affirmed.

The 6th Circuit cut through a thicket of jurisdictional arguments, abstention claims, and assertions that the MSC’s decision had preclusive effect. The federal appeals court determined there were no barriers to declaring that Ambassador Bridge Co. “is at most non-binding, persuasive authority, which we are free to follow or to reject[.]”

The 6th Circuit chose “reject.”

“[T]he Bridge Company bears none of the hallmarks of a federal instrumentality. It is a private, for-profit corporation, created by private individuals, not by the United States. … The government, moreover, does not control the Bridge Company’s day-to-day operations. … Nor does it even have a significant financial stake in the Bridge Company’s success.”

The 6th Circuit continued, “The Bridge Company, moreover, is a frequent adversary of the United States in litigation, and the Supreme Court has twice held that the Bridge Company is not immune from state taxation, which, of course, it would be if it were a federal instrumentality.”

The DIBC is viewed as all sorts of things, depending on who is doing the looking. But after today’s 6th Circuit decision, DIBC can’t be seen as an extension of the federal government.

MSC appoints chief judge, issues rule changes and proposals

In recent orders released by the Michigan Supreme Court, the Court:

• Appointed the Hon. Elizabeth Church as chief judge of the Chippewa County Probate Court for a term ending Dec. 31, 2012.
• Revised the e-filing pilot project in the 13th Circuit Court (Grand Traverse, Antrim, and Leelanau Counties)
• Adopted a concurrent jurisdiction plan for the 33rd Circuit Court, the 90th District Court, and Charlevoix/Emmet Probate District Court
• Adopted a concurrent jurisdiction plan for the 57th Circuit Court, the 90th District Court, and Charlevoix/Emmet Probate District Court

The Court amended MCR 6.001 and adopted new MCR 6.202. According to the staff comment accompanying the order, “The revision of MCR 6.001 provides a cross reference to MCR 6.202, a new rule adopted in this order. MCR 6.202 incorporates a ‘notice and demand’ procedure into the Michigan Court Rules with regard to forensic reports. Under the rule, a party could seek to admit a forensic report as evidence if notice requirements are met and no objection is filed. If a party objects to admission of the report, the analyst would be required to testify. The staff comment is not an authoritative construction by the Court.”

The Court approved LCR 3.204 of the Wayne County Circuit Court. According to the staff comment accompanying the order, “These local court rule provisions of the 3rd Circuit Court have been adopted in an effort to better process cases filed with a case-type suffix of ‘DC.’ Subrule (A) requires the use of uniform Child Custody Cover Sheets when an action is filed in a child custody dispute. Subrule (B) requires the use of the most recent local Court Uniform Child Custody Jurisdiction and Enforcement Act forms or the equivalent most recent State Court Administrative Office forms in an action seeking registration, enforcement, or modification of another state’s or a foreign country’s child custody determination. The staff comment is not an authoritative construction by the Court.”

The Court proposed amendments to three Michigan Court Rules.

• A proposed amendment of MCR 3.616, according to the staff comment, “would provide that the files of a young adult foster care youth are confidential, but may be accessed by the youth and by DHS. The proposal further would eliminate the requirement that the petition and order be served on the previous court in which the youth’s child protection case was disposed because the case is no longer active. This order also corrects numbering of subsection (F)(2)(i)-(iv) so that the subsections are labeled with letters (a)-(c). The staff comment is not an authoritative construction by the Court.”
• A proposed amendment of MCR 3.925 “would clarify rules and procedures for retention and destruction of various records in juvenile cases,” according to the non-authoritative staff comment.
• The proposed amendment of MCR 3.976, according the staff comment, “would require a court to indicate on the record the reason that no petition for termination of parental rights need be filed, thus providing a record to future auditors who review the state’s foster care program that the court explicitly chose the option. The staff comment is not an authoritative construction by the Court.”

The Court also extended the public comment period for proposed MCR 1.111 and MCR 8.127. Interested parties have until Nov. 1 to comment on two separate proposed rules that would create a certification and discipline program for court interpreters.

State Bar’s 78th president takes the wheel

After Grand Rapids litigator Bruce Courtade took oath as 78th president of the State Bar of Michigan on Sept. 20 at DeVos Place, he emphasized that bar dues would not be raised under his watch*.

Bruce Courtade (right) acknowledges the crowd after being sworn in as 78th State Bar of Michigan president by Michigan Supreme Court Chief Justice Robert Young Jr.

Why? “Because Jenny will kill me,” he said to a roomful of laughter. He was referring to his wife, Jenny DeLessio, who also is an attorney.

All kidding aside, Courtade said he’s ready to lead the 2012-13 year by moving forward with the SBM’s strategic plan, and with what has been recently put into place.

He noted that the SBM’s Solutions on Self-Help Task Force has gotten SCAO-approved forms accessible via the web for people who can’t afford a lawyer to take to court. The Q&A-style forms are in fourth-grade English and will help in uncontested divorces and PPOs.

Courtade also said that the recommendations from the Judicial Crossroads Task Force initiative will continue to work for funding for legal aid providers and advocating for indigent defense issues. He noted that a House bill for indigent defense has gotten 77 co-sponsors as it goes to a vote this coming week, and he’s hopeful it will receive similar reception in the Senate

And, as he told Michigan Lawyers Weekly in a recent article, he wants to push for civics education in schools, and making citizens aware of the Constitution and their constitutional rights. To show his seriousness on that, he made sure a copy of the U.S. Constitution was on each table at his swearing-in luncheon.

“I’m not a constitutional scholar,” he said. “I carry the Constitution with me at all times to remind me why we do what we do. … It’s the words that are contained in it that makes our more perfect union more perfect.”

Michigan Court of Appeals Judge Michael Riordan announces Dana Warnez as the newly sworn in chair of the Representative Assembly.

Right next door, at the Representative Assembly, Dana Warnez was sworn in as its 2012-13 chair, with Court of Appeals Judge Michael Riordan leading the proceedings. The RA also elected Vanessa Williams as its new clerk.

*As an earlier blog post noted, SBM dues actually have been reduced.

Get ready for dues, eJournal changes at State Bar

While only a fraction of State Bar of Michigan members are going to be at the SBM annual meeting in Grand Rapids today and tomorrow, Executive Director Janet Welch noted that something’s happening today that affects all members: dues invoices are going out.

State Bar of Michigan Executive Director Janet Welch addresses attendees at the kickoff of the ICLE 2012 Solo and Small Firm Institute, held in conjunction with the SBM meeting in Grand Rapids.

And, for the first time since 2004, there will be a change in the dues amount.

“Your dues are going down,” she said at her annual welcome and report at the kickoff of the ICLE 2012 Solo and Small Firm Institute, held in conjunction with the SBM meeting at DeVos Place.

This is thanks to a recent Michigan Supreme Court order that called for the decrease of the disciplinary portion of annual dues effective this bar year by $10, something the Representative Assembly has historically lobbied for (only the high court can set dues amounts). This time around, the Supreme Court acted on this on its own.

“We are below the national average in our dues, and I think we can make a good case that we are giving you more for your money than other states’ bar associations,” said Welch, who pointed to two examples for the coming year.

One of the most popular member benefits is the daily eJournal case summary email, which Welch said has summarized almost 50,000 cases since it was launched in 1999 as the first electronic daily case summary service in the country. This year, the eJournal added CaseMaker, which allows SBM members free access to its legal research software, and new features have been added to it based on what members asked for – such as faster search results with a more intuitive interface, personalized search history and customizable folders.

Then there’s the Practice Management Resource Center, the SBM’s online resource for solo and small firm management, which has refreshed a lot of its content thanks to the encouragement of outgoing State Bar President Julie Fershtman, who formed a task force last year seeking for ways to improve it. Resources in financial management, calendaring, client relations, marketing, best practices and disaster policies, record retention and IOLTA have been updated, and a new library of law-related e-books via the Overdrive software is about to launch.

In addition, Welch said that a new mentoring database, the JobTarget Mentor Board, is being developed to bring seasoned Michigan attorneys together with new ones.

That’s something that’s going under the watch of incoming SBM President Bruce Courtade, who will be sworn in later today. Check with the Michigan Lawyer blog later today for more on that.

Indigent defense bill clears House Judiciary Committee

A bill that addresses sweeping problems in the state’s indigent defense system has cleared the House Judiciary Committee.

HB 5804, would establish the Michigan Indigent Defense Commission Act and create a comprehensive approach to providing constitutionally effective assistance of counsel to indigent criminal defendants.

The legislation creates the Michigan Indigent Defense Commission (MIDC). The 14-member board would consist of 13 individuals appointed by the governor from nominations submitted by legislative leaders, the State Bar of Michigan, the Criminal Defense Attorney Association of Michigan, bar associations representing minority interests, judges’ associations and the chief justice of the Michigan Supreme Court, who would also serve as the commission’s 14th member.

Among the bill’s key features:

• Delivery of indigent criminal trial defense services (includes selection, funding, and payment of defense counsel) independent of the judiciary yet ensuring that judges are permitted and encouraged to contribute information and advice concerning the delivery of indigent criminal trial defense services.
• Active participation of other members of the Bar with an indigent criminal defender office when indigent criminal trial defense services caseloads are sufficiently high.
• Screening indigent adults for eligibility and assigning counsel as soon as feasible after formal charges are filed.

HB 5804 aims to:

• provide defense counsel with sufficient time and space where confidentiality is safeguarded for meetings with clients; control workload to permit high-quality representation;
• match the defense counsel’s ability, training, and experience with the nature and complexity of cases to which he or she is appointed;
• have the same defense counsel continuously represent the client, with some exceptions, at every court appearance throughout the pendency of the case;
• provide with and require defense counsel to attend relevant continuing legal education; and
• [provide for] the systematical review of defense counsel for quality and efficiency of representation according to MIDC standards.

The measure now moves to the full House for further consideration.