A note to our readers

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We have a new name! The MiLW Blog.

And you’re still going to get the same great blogging.

You’ve probably noticed that we haven’t added any new posts here recently.

We are no longer updating The Michigan Lawyer.

Here’s why: We have moved The Michigan Lawyer blog from the WordPress domain to our own and renamed ourselves The MiLW Blog.

All of the posts from The Michigan Lawyer have been migrated to The MiLW Blog.

The bottom line: a new, name, a new domain and the same great stuff from Michigan Lawyers Weekly.

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Erhart appointed to 90th District Court

Harbor Springs attorney James Erhart has been appointed to the 90th District Court covering Emmet and Charlevoix counties.

The appointment fills the vacancy created when Judge Richard May resigned.

Erhart’s appointment is through Jan. 1, 2015. He must seek election in November 2014 to serve a full six-year term.

Erhart, admitted to the State Bar of Michigan in 1979, has practiced law in the Petoskey area for many years. He was a partner and shareholder with the Stroup, Erhart & Lyons law firm.

A former adjunct professor in the paralegal program at North Central Michigan College from 2000-2009, Erhart is a state bar commissioner and and chairs the bar’s Upper Michigan Legal Institute.

Erhart received his J.D. from the Detroit College of Law.

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

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.

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.

MSC announces appointments to AGC, ADB and state bar board of commissioners

The Michigan Supreme Court announced a number of appointments to the Attorney Grievance Commission, the prosecutorial arm of the state’s attorney discipline system, the Attorney Discipline Board, the discipline system’s adjudicative arm, and the State Bar of Michigan’s Board of Commissioners, which directs the state bar’s operations, including finance, public policy, member services, and strategic planning.

Appointed to the AGC:

Wanda M. Stokes of Lansing, attorney and division chief of the Michigan Attorney General Licensing and Regulation Division, is appointed to a term ending October 1, 2015.

Martha M. Snow of Northville, attorney and shareholder in the law firm of Xuereb Snow PC, is appointed for a term ending October 1, 2015.

Rozanne F. Sedler, L.M.S.W., A.C.S.W., of Southfield, a clinical social worker with Jewish Family Services in Oak Park, is reappointed to a term ending October 1, 2015.

David L. Porteous of Reed City, attorney and principal of the law firm of McCurdy Wotila & Porteous, PC, is appointed chairperson of the AGC for a term ending October 1, 2013.

Barbara B. Smith of Bloomfield Hills, attorney and principal of the law offices of Barbara B. Smith PLLC and Smith Mediation Center, is appointed vice-chairperson for a term ending October 1, 2013.

Appointed to the ADB:

Louann Van Der Wiele of Auburn Hills, vice president and associate general counsel in the Office of the General Counsel of Chrysler Group LLC, is appointed for a term ending October 1, 2015.

James M. Cameron, Jr. of Ann Arbor, attorney and member of the law firm of Dykema Gossett PLLC, is reappointed to a term ending October 1, 2015 and is reappointed vice-chairperson for a term ending October 1, 2013.

Dr. Sylvia P. Whitmer of West Bloomfield, who served as executive director of instruction K-12 for the Birmingham Public Schools from 1990 until her retirement in 2005, is reappointed to a term ending October 1, 2015.

Thomas G. Kienbaum of Birmingham, attorney and member of the law firm of Kienbaum, Opperwall, Hardy & Pelton, PLC, is reappointed chairperson for a term ending October 1, 2013.

Appointed to the Board of Commissioners

D. Randall Gilmer of Trenton, an associate in the law firm of McGraw Morris, P.C.

C. Thomas Ludden of Bloomfield Hills, partner in the law firm of Lipson, Neilson, Cole, Seltzer & Garin, PC.

Stephen J. Gobbo of Lansing, state cemetery commissioner and regulatory compliance division director for the bureau of commercial services, Michigan Department of Licensing and Regulatory Affairs.

All three appointees will serve as commissioners-at-large for three-year terms, effective on the adjournment of the outgoing board’s meeting this afternoon.

Also appointed as a commissioner-at-large was Charles S. Hegarty of Canton, member of the law firm of Bodman PLC. He will serve the remainder of the term of Jules B. Olsman of Berkley, president of the law firm of Olsman, Mueller, Wallace & MacKenzie, PC. Olsman was elected to the Board of Commissioners by State Bar members in June. Hegarty’s term will expire in September 2013.

– Information from the MSC’s Office of Public Information

Vehicle Code changes on House Judiciary Committee agenda

The House Judiciary Committee meets on Wednesday, Sept. 19, to take testimony on proposed changes to the Michigan Vehicle Code.

Update: The bill cleared the committee on Wednesday and now goes to the full House for consideration.

SB 809 would amend the code to do the following:

• Prohibit a Secretary of State (SOS) hearing officer from issuing an unrestricted license to a person who received a restricted license following drunk driving violations, until the person met all requirements for a driver license (or other conditions were met).
• Require the SOS to postpone considering issuance of an unrestricted license to a person who completed a sobriety court program, for three months for each “minor violation” during an ignition interlock monitoring period.
• Require a restricted license to be suspended, revoked, or denied if the person who was issued the license, with a requirement for an ignition interlock device, committed a “major violation.”
• Require a mandatory 120-day license suspension period to be served consecutively to a 60-day suspension period imposed for two serious traffic violations within 36 months, and revise the definition of “serious traffic violation.”
• Delete a requirement of a one- or three-year license suspension for a six-point violation while operating a commercial motor vehicle.
• Increase the length of a license suspension for operating a commercial vehicle during certain out-of-service periods.

– SB 809 Analysis from the Senate Fiscal Agency

The committee meets in Room 521 House Office Building, Lansing at 9 a.m.