Pro Bono Fair 2011 coming soon to a place near you

A partnership of law firms, local bar associations, legal aid clinics and the Thomas M. Cooley School is presenting Pro Bono Fair 2011 at four locations across the state in October.

The events are designed to connect attorneys and legal services organizations in their community and to explore volunteer opportunities.

The inaugural event is the Oakland and Macomb Pro Bono Fair on Thursday, Oct. 6 at the Thomas M. Cooley Law School’s Auburn Hills Campus, 2630 Featherstone, Auburn Hills from 4:30 p.m. to 6:30 p.m. Dickinson Wright is sponsoring the event.

The keynote speaker will be Julie I. Fershtman, President, State Bar of Michigan.

Fershtman, along with Peter M. Alter, Oakland County Bar Association President; Gail Pamukov-Miller, Macomb County Bar Association President; Stephanie D. Jones, Straker Bar Association President and David S. Maquera, Hispanic Bar Association President say:

The Oakland and Macomb Pro Bono Fair is a practical and expedient way for you to learn more about legal services organizations and the programs that help the thousands who are in urgent need of civil legal aid. The need has grown, as funding for legal services has been dwindling.

Michigan’s legal community has been generous with its time and financial support, but more help is needed. All Oakland and Macomb area attorneys are urged to attend the pro bono fair. You are under no obligation to take a case or to make a time commitment. The fair is meant to be a chance to learn more, network with colleagues, and consider new ways to provide pro bono service.

Other Pro Bono Fairs are scheduled for later in the month. Here’s a list:

  • October 11, 2011
    Grand Rapids Pro Bono Fair
    11:30 a.m. – 1:30 p.m.
    Thomas M. Cooley Law School
    Grand Rapids Campus
  • October 11, 2011
    Detroit Pro Bono Fair
    4:00 p.m. – 6:30 p.m.
    Dykema
  • October 17, 2011
    Lansing Pro Bono Fair
    4:00 p.m. – 6:00 p.m.
    Thomas M. Cooley Law School
    Lansing Campus

For more information, and to RSVP (requested but not required), please contact Robert Mathis, SBM Pro Bono Service Counsel, at
rmathis@mail.michbar.org or call (517) 346-6412.

E-filing project ordered for Ottawa County courts

The move toward statewide electronic document filing in the court system continues.

The Michigan Supreme Court announced yesterday that Ottawa County courts will participate in a five-year e-filing pilot project beginning Oct. 1.

The purpose of the pilot program is to study the effectiveness of electronically filing court documents in connection with the just, speedy, and economical determination of the actions involved in the pilot program. …

Participation may be initiated with new case filings or existing case files. At the discretion of the judge, participation may also include postdisposition proceedings in qualifying case types.

This is a voluntary e-filing project; however, once a case is designated as part of the e-filing project, it is presumed that all further documents will be filed electronically. Ottawa County recognizes that circumstances may arise preventing one from e-filing.

To ensure all parties retain access to the participating courts, parties that demonstrate good cause will be permitted to file documents with the clerk, who will then file the documents electronically.

The MSC’s directive, Administrative Order No. 2011-4, covers the 20th Circuit Court, the Ottawa County Probate Court and the 58th District Court.

The project will remain effective until Dec. 31, 2016 or until further order of the court.

In their opinions

“Why would a down-on-his-luck working person, who needed a payday advance to pay his bills, whose check to the payday lender subsequently bounced, and who knew that he still owed money to the payday lender, question the legality of a judgment requiring him to pay treble damages and costs to the payday lender?”

– Michigan Court of Appeals Judges Curtis T. Wilder, Peter T. O’Connell and Michael J. Talbot, per curiam, in Michigan Deferred Presentment Services Ass’n v. Ross.

Good question. Before the advent of the Deferred Presentment Service Transactions Act (DPSTA), MCL 487.2121 et seq., payday lenders enthusiastically sought treble damages under MCL 600.2952(4), a provision of the Revised Judicature Act, after their customers repaid the loans with nonsufficient funds (NSF) checks. Often, treble damages were awarded after the hapless borrowers failed to appear in court.

The DPSTA, which provided licensure of payday lenders and subjected them to oversight by the Office of Financial and Insurance Regulation (OFIR), limited the lenders’ remedy to the amount of the check plus $25.

But the treble damage actions apparently continued unabated, prompting OFIR Commissioner Ken Ross to issue an administrative order directing the lenders to follow the DPSTA or risk having their licenses yanked.

How dare he? The Michigan Deferred Presentment Services Ass’n, a trade group that represents payday lenders, sued Ross under 42 U.S.C. 1983, claiming that Ross was denying the lenders their First Amendment day in court.

The COA’s response was a polite version of “utter nonsense.”

Plaintiff cannot claim that a violation of 42 USC 1983 occurred simply because a newly enacted statute precluded recovery of certain damages that plaintiff’s members had become accustomed to receiving in NSF cases.

Further, the administrative order simply informs payday lenders of the authority that, by statute, the Legislature granted to the OFIR to enforce the DPSTA and to respond to violations.

If it so chooses, a licensed payday lender may still file a cause of action with the district court seeking recovery in excess of what the DPSTA statutorily permits. The statute, however, permits the OFIR to revoke licenses and impose civil fines for violations of the DPSTA.

The administrative order notifies payday lenders of the consequences of choosing to violate the DPSTA, all of which are authorized by statute. Defendant does not violate 42 USC 1983 by issuing another administrative order informing payday lenders of the statutorily mandated penalties that they face if they violate the provisions of the DPSTA.

The panel noted that the DPSTA was enacted to “curb abuses” and scolded the payday lender industry.

We find it particularly curious that payday lenders continue to seek damages under the RJA, in contravention of the DPSTA, against individuals who do not have the resources or legal acumen to address the payday lenders’ repeated application of the incorrect statute.

Many customers of payday lenders are individuals who live paycheck to paycheck; the point of the payday lending business is to provide short-term salary advances to individuals who otherwise would not have enough money to make it to their next payday.

Therefore, many of these default judgments would be against individuals who probably cannot afford legal representation and who likely are not even aware that the payday lender sought recovery under the wrong statute. …

Realistically, how would such an individual even know that the DPSTA, not the RJA, governed the amount that a payday lender could recover for his bounced check, and how could that individual, lacking legal training or the funds to hire an attorney, hope to make such a technical legal argument?

MSC will hear indigent defense system case

In June, a split panel of the Michigan Court of Appeals ruled in Duncan, et al. v. State of Michigan, et al. (majority opinion here) (dissenting opinion here) that plaintiffs can proceed with claims that the indigent defense systems in Berrien, Genesee, and Muskegon counties are constitutionally deficient.

The Michigan Supreme Court, in an order released Friday, has agreed to review the case.

The leave granted order comes as the Legislature mulls ways to improve the delivery of legal services to indigent criminal defendants, including a state-funded public defender system.

The MSC’s order directs the Clerk of the Court

to place this case on the April 2010 session calendar for argument and submission. Appellants’ brief and appendix must be filed no
later than February 8, 2010, and appellees’ brief and appendix, if appellees choose to submit an appendix, must be filed no later than March 11, 2010.

The Criminal Law Section of the State Bar of Michigan, the Prosecuting Attorneys Association of Michigan, and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae, to be filed no later than March 29, 2010. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae, to be filed no later than March 29, 2010.

Shoud Michigan repeal immunity law for drug industry?

“Recently we learned that the Department of Justice will fine Pfizer $2.3 billion in civil and criminal penalties for its illegal marketing of the drugs Bextra, Zyvox, Geodon and Lyrica. This is not only the largest penalty ever levied against a drug company. It is the largest penalty ever levied against any company in American history,” according to a guest columnist in The Detroit Free Press.

“Pfizer and its subsidiary entities — the former Upjohn and Pharmacia — not only promoted these drugs for uses that were not approved by the FDA. They also marketed the drugs for uses that were explicitly rejected by the FDA, primarily because of safety concerns. To the degree that patients were killed or injured as a result, Pfizer’s off-label marketing scheme amounts to negligent homicide.

“That is probably why Pfizer was compelled to plead guilty to felony charges, which is also unprecedented in such contexts. In most instances, companies plea-bargain to misdemeanor admissions, fines are levied, and that is the end of it.”

Social Security disability hearings: Two-year wait in Michigan

A nationwide surge in Social Security disability claims has hit Michigan disproportionately hard, reports The Detroit News.

The flood has caused a case logjam at the state’s five Social Security hearing offices, which have some of the longest wait times in the nation: nearly two years, according to The News.

It takes an average of 676 days to get a claim processed at Metro Detroit’s Oak Park office — the third longest wait time among the country’s 142 hearings offices. Only the Madison, Wis., and Indianapolis offices are slower at 688 and 719 days, respectively.

Processing takes 659 days in Detroit, which ranks fifth slowest in the country. The average wait time nationwide is 487 days.

To try to shorten the waiting time, the government is opening offices and hiring judges.

Unintended consequences? PPO cases jamming court dockets

The Detroit Free Press reports that in the 15 years since the Legislature created personal protection orders as a tool against domestic violence, PPOs are increasing coming into play in relatively frivolous disputes.

From the Freep:

A rift between two neighbors over grass clippings, a potty-mouthed text messenger sending notes to a woman he barely knows and a squabble that began four years ago with an empty pizza box — all seemingly bad behavior by people who, it could be argued, should just learn to get along.

Instead, those are among thousands of personal protection order cases clogging Michigan courts each year. …

Oakland County Circuit Judge Cheryl Matthews, who prosecuted domestic violence cases for many years before taking a seat on the family court bench, said such unwarranted PPO requests can be dangerous.

“These cases dilute the seriousness of situations where a PPO is very much warranted,” she said.

More from The Detroit Free Press.

A mail-box rule for inmates?

A state prison inmate will finally be able to mount a circuit-court challenge of an administrative determination that he intentionally kicked a prison guard while trying to escape.

The Michigan Supreme Court, on a 5-2 vote, has ordered the Ionia County Circuit Court to hear the case based on “unique procedural facts.”

Unique, indeed.

Patrick Kinney pleaded guilty to three of the four misconduct charges lodged against him after he attempted to escape from prison. But he was adamant that he did not intentionally kick a guard during the attempt. A Department of Corrections hearing officer found otherwise and later denied a rehearing.

From Chief Justice Marilyn Kelly’s concurring statement in Kinney v. Dep’t of Corrections:

Under MCL 791.255, plaintiff had 60 days from the delivery or mailing of that denial of rehearing, until May 3, 2004, to file an application for direct review by the circuit court. He delivered his application to prison officials on April 14, 2004. The prison records show that plaintiff’s petition was placed in the outgoing mail the next day, April 15. But the Ingham Circuit Court did not date-stamp the application as received until May 10, 2004, ten days after the filing deadline.

The circuit court issued an order allowing plaintiff to resubmit his application within 21 days. Plaintiff’s new deadline was August 4, 2004. He delivered his application to prison officials well in advance of the deadline, on July 20. The prison records indicate that this application was placed in the outgoing mail on July 21. Again, however, the circuit court did not record the application as received until well after the deadline, on August 13, 2004, 25 days after plaintiff delivered it to prison officials.

This time, the circuit court entered an order dismissing plaintiff’s petition as untimely. Plaintiff sought delayed leave to appeal the order, but the Court of Appeals denied it. This Court denied leave to appeal on October 31, 2006.

Almost three full years after filing his application for review of his assault conviction, plaintiff sought superintending control in the Ionia Circuit Court. That court dismissed the complaint, adopting the defendant’s reasoning that plaintiff’s only remedy had been a direct appeal of right to the circuit court. The Court of Appeals affirmed the dismissal.

Nearly five years after plaintiff filed the initial appeal challenging his assault conviction by the DOC hearing officer, this Court is finally granting plaintiff his day in court. The outrageousness of such a lengthy delay is obvious.

Kelly went on to say that that the case is a perfect example of why the MSC needs to adopt a prison-mailbox rule, under which a petition for review would be considered “filed” on the day it is handed to prison authorities for mailing.

No so fast, say Justices Maura Corrigan and Robert Young.

Corrigan, joined by Young, dissented from the court’s action of giving Kinney his day in court.

Corrigan said the appropriate remedy would be to

remand this case to the trial court and order the Department of Corrections (MDOC) to show cause for the consistent delays in transmitting the plaintiff inmate’s legal mail to the courts. First, the delays may have originated from the MDOC’s Baraga Maximum Correctional Facility, where plaintiff is housed. The MDOC is a party both to this suit and to the underlying suit in which plaintiff petitioned for judicial review of an MDOC hearing officer’s decision. The MDOC is also the beneficiary of the delays, which resulted in the dismissal of plaintiff’s petition in the underlying suit. Accordingly, it is appropriate to order the MDOC to explain the delays at a show cause hearing. Second, until the court has additional facts concerning the cause of the delays, providing relief to plaintiff is premature. Finally, the courts will benefit from explicit fact-finding by the trial court in this case. Even if the delays originated with the MDOC, their causes remain a mystery.

The MSC has opened an administrative file on adopting a prison-mailbox rule and will soon be considering the merits of such a rule.

Update 04/13/09: MSC Public Information Officer Marcia McBrien has informed The Michigan Lawyer Blog that the court will take up the prison-mailbox rule at the court’s May public administrative conference.

SADO chief Neuhard is MiLW’s Lawyer of the Year

James R. Neuhard, director of Michigan’s State Appellate Defender Office, has been selected as the Lawyer of the Year by Michigan Lawyers Weekly.

James R. Neuhard - I cant think of people who have more problems than the convicted.

James R. Neuhard - "I can't think of people who have more problems than the convicted."

Neuhard was chosen this afternoon from a group of lawyers who were given MiLW’s Leaders in the Law Award.

In the words of Glenda Russell, MiLW’s Publisher and Editor-in-Chief:

Jim Neuhard represents those who are poor and imprisoned, those who much of society wishes would just disappear, or, at least, be treated as separate and unequal.

True, many of them are guilty, which does make them separate.

But Jim is that nagging voice inside all of our heads, that voice that says, “Yes, separate, but still protected by the Constitution of the United States of America.”

In other words, equal under the law.

Neuhard will barely have time to bask in the glory of being MiLW’s 2009 Lawyer of the Year. He’s due in Washington, D.C. early tomorrow to attend a Congressional hearing about the sorry state of Michigan’s indigent-defense system.

Our own Carol Lundberg will be there, too, to cover the hearing.

We’ll have more about Neuhard and the hearing in the March 30 issue of Michigan Lawyers Weekly.

COA expands e-filing options

The Michigan Court of Appeals has expanded its electronic filing and service program, E-File&Serve, to include all criminal cases and all civil appeals from the Oakland County Circuit Court that were assigned to that court’s e-filing project.

According to Marcia McBrien, the Michigan Supreme Court’s Public Information Officer, the program had been limited to “civil appeals from Michigan Public Service Commission rulings and appeals by right in criminal cases from Wayne, Oakland, and Macomb counties where the State Appellate Defender Office represents the defendant.”

There are plenty of advantages to using E-File&Serve, says the COA and the program’s service provider, Wiznet, Inc., in a joint statement. Some highlights:

  • The Court of Appeals does not require paper filings of documents submitted through the E-File&Serve system.
  • The system enables attorneys to submit filings electronically to the Court 24-hours a day, 7 days a week from any PC with Internet access.
  • A filing received by 11:59 p.m. on a business day is considered filed that business day under MCR 7.202(2). A filing received on a weekend or holiday is considered received on the next business day.
  • The Clerk’s Office will review documents on a daily basis and has a goal of reviewing documents within one business day of their arrival.
  • Once documents are submitted electronically, you may view the status of those documents on the Wiznet system.

There’s more:

With E-File & Serve, attorneys have the option to immediately e-serve other parties in the case.

  • Documents are electronically served to other parties in a case via email generated by the system.
  • When you opt to use e-service, a service notification email containing a link to the electronic document(s) will be served to other parties in the case.
  • You will be able to use the system to track when each party received and opened the filing.

    The COA has a complete set of E-File&Serve guidelines here.