Dems, GOP select MSC candidates at weekend conventions

Michigan Republicans and Democrats selected their slates of Michigan Supreme Court candidates at party conventions held this past weekend.

Republicans chose Oakland County Circuit Court Judge Colleen O’Brien to run for a full, eight-year term on the MSC. O’Brien topped Court of Appeals Judge Jane Markey for the spot.

Justice Stephen Markman was nominated to run for another full term. Justice Brian Zahra will run for a partial, two-year term.

Democrats selected 46th District Court Judge Shelia Johnson to run against Zahra for the two-year term.

Wayne County Circuit Court Judge Connie Marie Kelly and Bridget Mary McCormack, a University of Michigan law professor, were nominated to run for eight-year terms.

Although nominated by political parties, all MSC candidates appear on the nonpartisan section of the November ballot.

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The plot thickens: Johnson appointed to Inkster district court

Gov. Rick Snyder’s Sept. 5th appointment of Sabrina Johnson to the Inkster-based 22nd District Court could result in one of the shortest stays on the bench since Justice Alton Davis’s four-month stint on the Michigan Supreme Court in 2010.

Or it may be just the boost she needs to keep the job past the Jan. 1, 2013 expiration of her appointment.

Johnson, a long-time Wayne County assistant prosecutor with deep Inkster roots, was named to fill an opening created when the MSC removed Sylvia James from the bench on July 31 for misconduct. The Court found that James engaged in financial, administrative and employment improprieties, and then misrepresented the state of affairs to the Judicial Tenure Commission.

MSC Chief Justice Robert Young and Justice Stephen Markman voted with a unanimous Court to throw James off the bench. But they wanted even more. In a separate opinion, they argued in vain that James should be made to sit on the judicial election sidelines for six years. The two justices feared that James would simply run again and reclaim a seat on the very court she had just been booted from.

Seven days after being removed from the bench, James topped a field of eight contenders In the Aug. 7 primary for the 22nd District Court.

Here’s where the plot thickens. Johnson was also on the primary ballot. She finished second.

Johnson, now freshly appointed until the end of the year to fill the balance of James’ term, needs to win the November election or she’ll surrender the seat back to James.

A victory for James will give her the opportunity to thumb her nose at everyone who had anything to do with getting her kicked off the court. Young and Markman’s worst nightmares will come true.

Johnson will be listed on the ballot as an incumbent judge. James won’t. That usually does the trick in judicial elections and goes a long way in explaining Snyder’s appointment of Johnson.

But being forced from the bench for misusing public funds and telling whoppers to the authorities normally spells the end of a judicial career.

Except in Inkster, where some voters, caught up in a cult of personality, are apparently willing to reward James’ misconduct with another six-year term.

One-person grand jury to investigate alleged election-rigging in GOP house race

Responding to a petition by the Michigan Democratic Party, a majority of the Ingham County Circuit Court judges has authorized a one-person grand jury investigation of alleged election-rigging by House Speaker Jase Bolger and Rep. Roy Schmidt.

Judge Rosemarie Aquilina will conduct the probe of the two House Republicans and Matt Mojzak. Mojzak was allegedly recruited as a straw candidate to run a write-in campaign as a Democrat in Schmidt’s district after Schmidt made an 11th hour jump from the Democratic Party to the GOP.

Mojzak was allegedly offered money to stay in the race after it was learned that he couldn’t satisfy the residency requirements to run in Schmidt’s district.

We blogged some of the meaty details last month when the story first broke.

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.

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:

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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.

No harm, no foul in Joe the Plumber’s First Amendment case

Samuel Joseph Wurzelbacher

Samuel Joseph "Joe the Plumber" Wurzelbacher

What’s Samuel Joseph Wurzelbacher — you know him better as “Joe the Plumber” — been up to lately?

In the 2008 presidential campaign, John McCain, Sarah Palin and the media made Wurzelbacher the icon for Republican opposition to then-Senator and candidate Barack Obama’s economic policies.

Obama was campaigning in Wurzelbacher’s neighborhood. Wurzelbacher asked Obama about the potential tax consequences of opening a plumbing business. Obama’s reply included a statement that he wanted to “spread the wealth.”

The exchange was caught on video and soon after, McCain, during a presidential debate, dubbed Wurzelbacher as “Joe the Plumber.”

Wurzelbacher became a media darling, dispensing criticism of Democratic policies in general and Obama’s in particular.

He’s capitalized on that by running for Congress in Ohio’s 9th District. Earlier this month, he won the Republican primary and will face incumbent Democrat Rep. Marcy Kaptur in the November general election.

He’s also been watching a federal First Amendment and privacy rights lawsuit that he filed swirl right down the drain.

Wurzelbacher’s exchange with Obama drew more than just media attention.

According Wurzelbacher’s suit, several days after his Oct. 12, 2008, encounter with Obama, three high-ranking officials in the Ohio Department of Job and Family Services, all Obama supporters, huddled together. They decided to authorize searches related to Wurzelbacher on child-support enforcement, welfare and unemployment databases, which were at their disposal.

Did they uncover any dirt? We’ll never know because the search results were never made public. But what became known, after the Office of the Ohio Inspector General made inquiries, was that the searches took place.

Wurzelbacher’s suit alleged that all three officials were suspended, and when the dust settled, two had resigned and the third was fired.

He alleged First Amendment and privacy right violations, claiming his exchange with Obama motivated the searches.

The federal district court granted defendant officials judgment on the pleadings.

In the Sixth Circuit, Judge Richard Griffin noted:

In order to adequately plead a First Amendment retaliation claim, a plaintiff must allege:
(1) the plaintiff engaged in constitutionally protected conduct;
(2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.

Griffin, joined by Judges Julia Gibbons and Bernice Donald, agreed with the federal district court that Wurzelbacher came up short on pleading an “adverse action.”

He asserts that defendants, without his knowledge, performed several improper database searches under his name. However, the complaint contains no information regarding what, if any, information was discovered. Moreover, if any information was obtained, it was never publicly disclosed. …

Wurzelbacher did not suffer a threat to his economic livelihood … was not defamed … did not endure a search or seizure of property … and did not experience the public disclosure of intimate or embarrassing information … .

In addition, Wurzelbacher was not threatened with a continuing governmental investigation, and he does not allege that defendants’ actions in fact caused a “chill” of his First Amendment rights.

As to that last point, it’s tough to imagine how he could have possibly done so.

The appeals panel also ruled that informational privacy rights are violated when released information may lead to bodily harm or concerns matters of a sexual, personal or humiliating nature.

Wurzelbacher pleaded none of this.

No harm, no foul.

The case is Wurzelbacher v. Jones-Kelley, et al.

MSC upholds county apportioning law

A divided Michigan Supreme Court has upheld 2011 PA 280, which limits county commissions to 21 members in counties with 50,000 or more residents.

In addition, in counties with more than 1 million residents, the act reassigns apportionment duties from county reapportionment commissions to the board of commissioners.

Counties not in compliance with the act have 30 days to adopt a conforming apportionment plan.

What’s the practical effect of all of this? It’s an enormous gift to Oakland County Republicans, according to the legislation’s critics.

As the act is written, Oakland County is the only county that will have to redraw its election maps right now. And because the county has more than 1 million residents, Oakland’s reapportionment commission, where Democrats have a 3-2 edge, gets cut out of the picture, and the Republican-controlled county commission is now in the driver’s seat.

Earlier this month, the Michigan Court of Appeals sided with the plaintiffs in Houston, et al. v. Governor, et al. (majority opinion) (concurring/dissenting opinion), and ruled that the act was unconstitutional.

The COA majority reasoned that because the act affected Oakland County only, it was a local act that required a two-thirds vote by the Legislature. The act is invalid because didn’t muster the required number of votes under the state constitution, the COA majority ruled.

Defendants, Gov. Rick Snyder and the Oakland County Board of Commissioners asked the MSC to grant leave to appeal. The MSC heard oral arguments on an expedited basis. Plaintiffs, in defending the COA’s ruling, hammered on two points: first, the act’s effects resulted from an exercise of raw political power, and second, the COA got it right — the act is a local act because it affects Oakland County only.

Late yesterday, in a 4-3 order, the MSC majority responded “so what” to the first point and “reversed” to the second point.

The majority, Chief Judge Robert Young, and Justices Stephen Markman, Mary Beth Kelly and Brian Zahra, acknowledged the case was a political hot potato but said that simply doesn’t matter:

Plaintiffs make much of the alleged political motivations behind the Act, calling it a “political favor” to the Oakland County Executive and citing numerous supportive editorial comments.

As with any redistricting of political maps, the parties here vie to create maps that benefit their own interests, and a dispute with partisan implications has not surprisingly arisen. Notwithstanding this reality, “[t]he validity of legislation can never be made to depend on the motives which have secured its adoption, whether these be public or personal, honest or corrupt.” Cooley, Constitutional Law, p 154.

In a case like this, someone’s ox was bound to be gored:

In reaching our decision, this Court, as it is always, is engaged in applying the equal rule of law to the best of its ability. That there may be some partisan advantage to one side or another in this decision is simply a function of the fact that there is no conceivable decision that could have been reached in which one side or the other could not have asserted that partisan advantage accrued to the other. We believe that a fair review of the decisions of this Court in which some partisan advantage was at issue would make clear that our decisions have been marked by a commitment to a faithful reading of the law.

As to the merits, the majority looked to the two-part test in Dearborn v. Board of Supervisors, 275 Mich. 151 (1936), for determining whether an act is local or general.

First, the limiting criteria of the act must be reasonably related to the overall purpose of the statute. Second, the act must be sufficiently open-ended so that localities may be brought within the scope of its provisions as such localities over time meet the required criteria. …

2011 PA 280 satisfies the Dearborn test. First, the limiting criteria are reasonably related to the overall purpose of the Act. Here, the overall purpose is to limit the number of districts a county may apportion, and the population criteria set forth in the Act seem a reasonable means of achieving that purpose.

Second, the Act is open-ended. It provides various population ranges and places corresponding limits on the number of districts for every county within those ranges. As a county’s population increases above or below a given range, the number of districts that may be apportioned by that county will increase or decrease respectively.

That the transitional provision, requiring compliance with the Act within 30 days by counties whose apportionment does not currently satisfy the requirements of 2011 PA 280, practically applies only to Oakland County frustrates neither of the elements of Dearborn. …

Absent a transitional period during which some counties must necessarily be treated differently from others, it would be impossible for the Legislature to make general, uniform changes to public policy pertaining to local government.

That is, to bring counties that are out of compliance with the Legislature’s preferred public policy into compliance, and to establish uniform policy, those counties out of compliance must be treated differently during the transition or else uniformity can never be achieved.

The transitional provision here accomplishes just such a purpose by ensuring that Oakland County will not be the only county that operates outside of the apportionment limits of the Act until the next census.

Justice Marilyn Kelly, joined by Justice Michael Kelly, dissented. Justice Diane Hathaway, in a separate dissent, agreed with Kelly’s dissent.

The act’s effective date is March 28.

The political cartographers in Oakland County are sharpening their pencils in anticipation.