Senators introduce bill to name Frank J. Kelly walkway

File this under N for “neat-o.” A bipartisan group of Michigan senators have introduced a bill to name the walkway between the Capitol and the Michigan Hall of Justice the “Frank J. Kelly Walkway,” in honor of the former Michigan Attorney General.

Here’s the bill.

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How young is too young for life in prison?

Ever look at your teenage children and wonder what’s wrong with them? I do. I look at my teenage son and wonder, “Good grief, was I EVER like that?” I probably was. But my adult self is a very different person with (mostly) better judgment and (definitely) a deeper sense of empathy for others and understanding of consequences of my actions.

Can any child or teenager really understand those consequences? The American Civil Liberties Union of Michigan says no. Yesterday, the ACLU of Michigan and Second Chances 4 Youth released a report documenting the systemic disadvantages facing young people in the adult criminal justice system.

When I was my son’s age, 10 years was a long time. Twenty years was forever. And I had no idea what forever really meant.

Most of us recognize that child and teenage brains just aren’t fully grown, so we as a society, as parents, and as a culture offer our kids greater protection from their own actions until they are old enough to live with the consequences.

Unless of course, that teenager commits a crime. Then all bets are off.

The ACLU reports that there have been 371 young offenders sentenced to life without the possibility of parole in Michigan (only one other state has more than 371). About one-third of those were present or committed a felony when the homicide was actually committed by someone else.

The ACLU notes:

  • Race affects the plea bargaining process for adolescents. Young people accused of homicide where the victim was white were 22 percent less likely to receive a plea offer than in cases where the victim was a person of color. There are clear geographic disparities as well; Oakland, Calhoun, Saginaw and Kent counties offer lessor sentences to young people far less often than the rest of the state.
  • Juveniles reject plea offers far more often than adults. They are less equipped to negotiate pleas because of their immaturity, and inexperience. (Remember when you were young and 10 years seemed like a long time, and 20 years seemed like forever, but you had no idea what “forever” really meant?) Many of them said that they didn’t understand the nature of the charges theywere facing or the meaning of parole.
  • Lawyers who have represented young people who were convicted and sentenced to life have a much higher rate of attorney discipline. Some 5 percent of all attorneys have been reprimanded, compared to 38 percent of those who represented young people who later were sentenced to life in prison.

Michigan requires that defendants as young as 14 be tried as adults if they are charged with certain crimes. The U.S. Supreme Court heard arguments in March in two cases that test the constitutionality of sentencing juvenile offenders to life-without-parole sentences.

How much religion should be in our laws?

Election year is a great time to invest in soap boxes. And this year is no different.

The soap boxes were stacked last week, you might say to Kingdom Come, in Lansing when dozens of people converged on the Capitol to urge lawmakers to take up House Bill 4769, which would keep courts from recognizing Sharia law (without ever actually mentioning Sharia law). The bill was introduced in June 2011, and has since not moved out of the House Judiciary Committee.

The bill would “limit the application and enforcement by a court, arbitrator, or administrative body of foreign laws that would impair constitutional rights; to provide for modification or voiding of certain contractual provisions or agreements that would result in a violation of constitutional rights; and to require a court, arbitrator, or administrative body to take certain actions to prevent violation of constitutional rights.”

Last week, I called the bill’s sponsor, Grandville Republican Rep. Dave Agema, to ask: Is this a thing now? I was looking for examples of when foreign laws have actually impacted cases in Michigan. I’m still waiting for that return phone call.

In one example coming from Michigan courts, the Michigan Court of Appeals in Tarikonda v. Pinjari upheld Michigan law, and rejected an Indian man’s claim that because he “divorced” his wife in the manner allowed in his home country: by stating three times “I divorce thee,” his divorce should be recognized in Michigan. But the trial court let foreign law sneak into Michigan courts and recognized the divorce.

Thomas M. Cooley Professor William Wagner offers some interesting insight in his May 2011 analysis here, in which he discusses the tension that many Christians feel as secular interests from the political left encroach on American jurisprudence, and at the same time religious interests from outside Judeo-Christian cultures also are moving in.

He calls the bill good legislation. While it may not be crucially needed right now, he said that allowing foreign influence and religious law to creep into American lawmaking and court decisions could slowly open the door for what most Americans would consider too much God in our law.

“The bill wouldn’t hurt anybody. It would only protect women, children and religious freedom,” he said.

Allowing some religious aspects of our culture into our laws and courts all depends on how it gets there, Wagner said. For example, he said that a bill that would prohibit physician-assisted suicide could be introduced in Michigan by a group of physicians who have a completely secular reason: It violates their professional ethics and erodes public opinion of their profession. And the bill sails through Congress and goes into law.

A group of Catholics in Indiana hear about it and go to their Congressman, a well-known Catholic. And they say that their religious beliefs tell them that all life is sacred, and would like this bill to be a law. The Congressman introduces an identical bill, but for a religious reason. It sails through and becomes a law. That’s still fine, said Wagner.

But elsewhere, a Muslim Congressman introduces the exact same bill, because it is consistent with his religious beliefs and in his view, laws of the government cannot conflict with his religion. In other words, his religion is his law. Even if it’s the exact same bill, that’s not OK, Wagner said.

It’s a tricky balance — how do our courts recognize one religious influence as part of American culture, but exclude another? And should they?

Tell us what you think. Is this really a thing that we ought to be worried about? Have our courts been overrun by some influence that we should try to quell? And if the bill passes and becomes law, how much religious philosophy already recognized in our laws and founders’ documents (the Bill of Rights, for example) would lose meaning?

Case to challenge open and obvious standard

Farmington Hills attorney Richard Bernstein has filed a lawsuit in Macomb County Circuit Court, challenging whether icy sidewalks at his client’s apartment complex were really open and obvious to his client. Even if they were obvious to all the other tenants, Bernstein’s client is blind.

Darrick Calhoun lives at Green Valley Apartments in Clinton Township. In January 2010, he slipped on the ice and was injured. Bernstein argues that the apartment complex owed a duty to his client to keep walkways free of hazards.

The suit seeks damages, but Bernstein also believes this case could serve to set precedent and challenge Michigan’s “Open and Obvious” standard – an objective guideline used by courts in injury cases, established by the Michigan Supreme Court. Under the standard, defendants are typically not held responsible for hazards to the public that can be visible, even if a plaintiff is disabled (in this case, unable to see the hazard).

“This standard established by the Michigan Supreme Court goes against hundreds of years of common law,” said Bernstein in a press release this morning. “It’s time for our courts to start acting fairly on behalf of injured and disabled citizens. Where this has become increasingly dangerous is that in Michigan, the courts are holding blind people to the same standards as those with sight in dangerous situations. This could be the case that finally turns the tide.”

The Michigan Court of Appeals took up that issue in 2003 in an unpublished opinion in Sidorowicz v. Chicken Shack Inc. Citing Lugo v. Ameritech Corp. Inc., the Court noted: “By focusing on the unsafe condition before the plaintiff is injured, the Lugo Court rejected any consideration of special aspects of the plaintiff. Applying this analytical approach to an ordinary pothole, the court reemphasized the focus on the condition and not the plaintiff and stated that an ‘ordinarily prudent’ person would typically be able to see the pothole and avoid it.”

The case has been assigned number 12-1937 to Judge Peter Maceroni.

Priest-penitent privilege survives challenge

The 1,500-year-old tradition of confidentiality between priests and their parishioners is alive and well, following a legal challenge in Michigan Court of Appeals.

In People v. Bragg, defendant Samuel Dale Bragg is on trial for fist-degree criminal sexual conduct, accused of molesting a young relative when he was 15 years old and she was 10 years old.

At his March 2011 preliminary examination in Wayne County 34th District Court in Romulus, Assistant Prosecuting Attorney Angela Povilaitis called Bragg’s pastor to testify. The pastor, Rev. John Vaprezsan, had previously given police officers a written statement in which he said that Bragg had made a confession in his office, where Bragg’s mother happened to work.

The prosecutor argued that the conversation wasn’t a confession. For starters, Bragg’s mother was present. That means that it’s unclear what role Vaprezsan was fulfilling as he talked to Bragg — the mother’s boss or a pastor? The prosecutor also argued that it’s not as if Bragg sought counsel from his pastor, as a confessor seeking to unburden his soul would do. Instead, the pastor summoned Bragg to his office to talk, after the alleged victim and her family, who are also members of the church, told him what had happened.

But Bragg’s attorney, Farmington Hills-based Raymond Cassar, argued that Bragg never made such a confession, but even if he did, it is protected and confidential. Cassar said that because Bragg was still a teenager at the time that the pastor called him to his office to discuss the matter, the mother’s presence doesn’t waive Bragg’s expectation of confidentiality. Further, the pastor pressured Bragg to confess in a manner that a pastor might, so anything Bragg would have told Vaprezsan should be confidential. We reported on this story last year, and subscribers can read it in full here.

The District Court admitted the evidence. Even though Cassar said that without the pastor’s statement, there was still enough presented to bind over his client for trial. The pastor testified. Bragg was bound over for trial. Wayne County Circuit Court Judge Cynthia Gray Hathaway approved the bind over based on the victim’s testimony, but determined that the district court abused its discretion in admitting the pastor’s testimony in violation of priest-penitent privilege.

The Court of Appeals noted that the case is unusual:

“We are not faced with a pastor who learned of ongoing or future criminal activity and struggled over whether to report it to the authorities. We are not asked to consider whether a cleric may speak to the police concerning information conveyed with an expectation of privacy. Today, we consider only whether a cleric may reveal in court a congregant’s statements made in confidence,” said the opinion.

The Court noted that “all 50 states have enacted statutes or evidentiary rules, and the federal government has accepted as part of its common law … [that] everywhere in this nation, any penitent speaking to any clergyman of any denomination enjoys an evidentiary privilege precluding the use in court of his ‘confession’ or sometimes more broadly his ‘communication.'”

The Court also noted that not only would a pastor refuse to make public the confidential conversations with parishioners, “Pursuant to MCL 600.2156, a cleric is not permitted to ‘disclose’ certain statements made to him.”

The Court opined that when Bragg spoke to Vaprezsan, the statements “fall within the scope of privileged and confidential communications under MCL 767.5a(2). The communication was necessary to enable Vaprezsan to serve as a pastor, because the defendant communicated with Vaprezsan in his professional character in the course of discipline enjoined by the Baptist Church.

“The communication between defendant and Vaprezsan served a religious function — it enabled Vaprezsan to provide guidance, counseling, forgiveness, and discipline to defendant.”

Cassar said that if the case had gone the other way, it would have had a chilling effect on communication with clerics.

“I think this is a great day for all religions. People can continue to confide in clergy without fear that their confidential conversations will be disclosed,” he said.

A spokeswoman for the Wayne County Prosecutor’s Office said this morning the prosecutor will seek leave to appeal in Michigan Supreme Court.

State auctions mineral rights, state rep. asks for disclosure on mining chemicals

Michigan State Rep. Lisa Brown, D-West Bloomfield, has been concerned about what goes into the ground when companies drill to get gas out. And when property in her own county, Oakland, went up for sale in yesterday’s state mineral rights auction of more than 100,000 acres, she decided to ask that the public be informed about it.

Brown introduced House Bill 5565, which would require companies drilling for gas in Michigan to disclose what chemicals they are using in the hydraulic fracturing, or fracking, process. The bill has been referred to the House Committee on Energy and Technology.

“This wouldn’t prohibit companies from fracking,” Brown said. “It would just require disclosure before they could put the chemicals into the ground, and whether the process is the least dangerous way to get the gas, and if it’s not, they’d have to say why they’re not using the least dangerous way.”

The bill would also allow for public comment, which is not required now.

Not that the public has remained silent on the issue. Yesterday, environmental groups around the state engaged in protests, concerned over fracking in the Great Lakes State (The Great Lakes are the largest supply of fresh ground water in the world).

Closer to home, Brown said she’s concerned because even though Oakland County is population-dense, many residents in her district are still using well water, particularly in Commerce Township.

“This legislation would protect everyone. It would protect people, and it would protect the companies. If they have disclosed what chemicals they’re using, and the chemicals aren’t dangerous, they couldn’t be held liable later on,” Brown said.

It would also allow for trade secrets to be protected, something that opponents of disclosure have voiced concern about.

She said that she hopes that all of her colleagues and the governor, regardless of their political leanings, would be in favor of the bill.

“We talk about transparency and accountability all the time in Lansing. People in both parties say it’s important,” Brown said. “I’m trying to promote that.”

Michigan Department of Natural Resources spokesman Ed Golder said that in yesterday’s auction, the state leased 91,225 acres in 23 counties, for a total of $4,118,848, or an average of about $39.90 per acre. He described it as a fairly normal auction. In May 2010, the state brought in a record-breaking $178 million, or $1,500 per acre.

Republicans introduce bills to protect docs in med mal cases

There’s been a storm brewing in Lansing for months. On one front are senators who would like to create what critics say is immunity for doctors in medical malpractice cases. On the other front are legislators who want doctors who have committed medical malpractice to face tougher sanctions.

Yesterday afternoon, the first winds started to blow into town as four bills were introduced. The bills, Senate Bill 1115,   Senate Bill 1116, Senate Bill 1117, and Senate Bill 1118, would do a number of things, starting with limiting non-economic damages (and including the loss of household and other services in those non-economic damages).

“Talk about a Republican war on women. Who usually provides those household services?” said plaintiff’s attorney Marc Lipton.

The bills also would create a hard cap on damages, and protect physicians from litigation if the alleged malpractice was “the exercise of professional judgment. … [A] person exercises professional judgment if the person acts with a reasonable and good-faith belief that the person’s conduct is both well founded in medicine and in the best interests of the patient.”