MSC: Emergency school manager oath-of-office case moot

Robert Davis, the Highland Park school board’s secretary who last week pleaded not guilty to federal charges of converting school district funds, has one less thing to worry about, courtesy of the Michigan Supreme Court.

The Court yesterday threw out his suit, Davis v. Emergency Manager of the Detroit Public Schools, which challenged Roy Roberts’ authority to serve as the emergency manager of the Detroit Public Schools.

In May 2011, Gov. Rick Snyder appointed Roberts under MCL 141.1501 et seq., Michigan’s emergency manager law. Roberts went to work without taking an oath of office.

Davis, a vocal critic of the law who backs up his views with litigation, asked Attorney General Bill Schuette to initiate a quo warranto action, claiming that without the oath of office, Roberts had no authority to run the Detroit schools.

After Davis sought quo warranto relief, Roberts took the oath, and a few days later, Schuette declined Davis’s request.

Davis’s next stop was at the Court of Appeals, which also turned him down. In an order dated Oct, 6, 2011, the COA said Robert’s failure to immediately take the oath didn’t violate MCL 201.3(7), which meant the office of emergency manager “was not, and did not need to be, declared vacant.”

The COA also ruled that Roberts fixed the problem by taking the oath of office before Davis filed his COA action, and that before taking the oath, Roberts was functioning as a de facto officer.

The Michigan Supreme Court yesterday approved the result but not the reasoning.

[W]e VACATE that part of the of the Court of Appeals October 6, 2011 order providing the legal reasoning for the denial of the application.

In all other respects, the application for leave to appeal is DENIED as moot in light of the fact that Roy S. Roberts was reappointed to serve as Emergency Manager for the Detroit Public Schools, effective April 2, 2012, and he signed an Oath of Office on that date.

In a concurring statement, Chief Justice Robert Young Jr. questioned whether an emergency manager is even constitutionally required to take an oath of office. Young said the issue need not be decided because the case was moot.

Young’s concurrence prompted Justice Stephen Markman to respond:

Given that the responsibilities of the emergency manager are, during extraordinary economic circumstances, to carry out the duties of the mayor and the members of the city council of a municipality, all of whom themselves are required to take oaths of office, it would seem anomalous that an official serving in their stead would not also be required to make the same commitment to the laws and constitutions of the United States and Michigan.

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MSC will review pension tax law

The Michigan Supreme Court has granted Gov. Rick Snyder’s request for an advisory opinion on the constitutionality of reducing or eliminating tax exemptions for pension incomes.

The MSC will hearing arguments on the constitutionality of 2011 PA 38 on Sept. 7.

The questions submitted for the MSC’s review are:

  • (1) whether reducing or eliminating the statutory exemption for public-pension incomes as described in MCL 206.30, as amended, impairs accrued financial benefits of a “pension plan [or] retirement system of the state [or] its political subdivisions’ under Const 1963, art 9, § 24;
  • (2) whether reducing or eliminating the statutory tax exemption for pension incomes, as described in MCL 206.30, as amended, impairs a contract obligation in violation of Const 1963, art 1, § 10 or the US Const, art I, § 10(1);
  • (3) whether determining eligibility for income-tax exemptions on the basis of total household resources, or age and total household resources, as described in MCL 206.30(7) and (9), as amended, creates a graduated income tax in violation of Const 1963, art 9, § 7; and
  • (4) whether determining eligibility for income-tax exemptions on the basis of date of birth, as described in MCL 206.30(9), as amended, violates equal protection of the law under Const 1963, art 1, § 2 or the Fourteenth Amendment of the United States Constitution.

The Attorney General will submit separate briefs arguing for and against the legislation’s constitutionality.

Not everyone thinks health care law suit is a loser

Michigan Attorney General and gubernatorial candidate Mike Cox has been drawing some heat for joining other state attorneys general in a Florida-based law suit that challenges the constitutional basis of the recently enacted federal health care law.

Gov. Jennifer Granholm gave him a scolding a while back. See, The Michigan Lawyer, “Who’s the Boss?”

There, I noted that some legal experts have opined that the suit “has about as much of a chance as a snowball in, let’s say, Florida. See, The Michigan Lawyer ‘Cox says he’ll challenge health care law.'”

I’m here today to tell you that Cox has marshaled some support for the idea that the suit has merit.

From Dawson Bell’s report in The Detroit Free Press:

Michigan Attorney General Mike Cox’s legal challenge to sweeping federal health care legislation is a “serious constitutional claim” that has been too readily dismissed by law scholars and some politicians, a Georgetown University law professor said Tuesday.

Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown, said there is a realistic possibility the U.S. Supreme Court ultimately could invalidate several of the new law’s key provisions as congressional overreach. Barnett was invited by Cox to speak to reporters Tuesday.

Barnett said Congress has never before asserted the authority to require individuals to make a specific purchase or be fined — as the health care legislation would, under a mandate that all American citizens have insurance or pay a fee to the government. …

Barnett conceded that a majority of scholars across the country have expressed the view that courts will defer to Congress and President Barack Obama on the constitutionality of the health care law.

But he said he thinks that is because many of them have not closely read recent decisions by the court on the limits of federal power.

Scott Davis, reporting in The Lansing State Journal, also has a good take on the topic.

MSC to consider COA’s conflict ruling in Waterstone case

What a mess.

Back in 2005, when Mary Waterstone was still a Wayne County Circuit Court judge, the Wayne County prosecutor’s office charged Alexander Aceval with narcotics trafficking and took the matter to trial.

Waterstone presided. Karen Plants handled the prosecution. The jury deadlocked. A new trial was scheduled for June 1, 2006.

But before his retrial, Aceval came forward with an amazing tale. At his first trial, he claimed, two cops took the stand and lied to protect a confidential informant’s identity. Aceval alleged that the informant had lied as well.

Okay, here’s the really amazing part: Aceval said Plants knew about the perjury, had two ex parte hearings with Waterstone to tell her all about it, Waterstone sealed the hearing transcripts, didn’t say a word to Aceval and still let the case go to the jury.

Aceval said all of this meant there should be no retrial, especially not with Waterstone presiding and Plants prosecuting.

Waterstone disqualified herself. The retrial proceeded as scheduled with a new judge, who unsealed the ex parte hearing transcripts. The transcipts revealed that the perjury was apparently tolerated in a woefully misguided, and ultimately unsuccessful attempt, to keep the informant’s identity confidential.

The plot thickened with allegations that Aceval, before the retrial, convinced one of the prosecution’s witnesses to do some lying of his own on Aceval’s behalf.

The witness said that was indeed what happened and purged his testimony. The retrial was cut short when Aceval pleaded guilty to possession with intent to distribute more than 1,000 grams of cocaine.

Aceval repeated his allegations about Waterstone, Plants, the informant and cops in a federal-court suit filed on Nov. 30, 2006. Waterstone, naturally, was a named defendant. Because she was a judge at the time, the state attorney general’s office stepped up to defend her. On March 17, 2008, the federal court dismissed Aceval’s case, which he had filed pro per while in prison, apparently because he didn’t give the court his address.

Meanwhile, Wayne County Prosecutor Kym Worthy had a problem on her hands. Worthy decided that due to a clear conflict of interest, she could not initiate any criminal charges relating to the perjury. She asked the Michigan Prosecuting Attorney’s Coordinating Council to assign a special prosecutor. The council was turned down by prosecutors from four different counties.

Attorney General Mike Cox stepped up to the plate and took the case.

While the AG’s office was working up its investigation of Waterstone, the Court of Appeals was considering Aceval’s appeal. No doubt about it, wrote Judge Kirsten Frank Kelly on Feb. 5, 2009:

defendant was denied due process because of the trial court’s and the prosecutor’s misconduct. However, here we stress that defendant was not convicted following his first trial; rather, the trial court declared a mistrial because of a hung jury. This was clearly the appropriate remedy. Although both the trial court’s and the prosecutor’s conduct was plainly reprehensible, the blameworthiness of either is not the critical factor, because the primary inquiry is the misconduct’s effect on the trial. …

In this case, the complained-of misconduct did not prejudice defendant because he received the remedy that was due him: a new trial.

For these reasons, defendant’s constitutional due process claim must fail. …

Affirmed.

See, People v. Aceval. (majority opinion) (concurring opinion)

The AG’s office issued felony charges against Waterstone the very next month. Waterstone responded that Cox’s office defended her when Aceval sued in federal court and now wanted to prosecute her on basically the same facts. Waterstone argued that a conflict of interest prevented the AG from prosecuting her.

Up at the Michigan Supreme Court, Aceval was pressing his argument that his first trial had been too tainted to even permit a second trial, the one that ultimately resulted in his guilty plea. The MSC split 3-3 on taking the case, which meant the COA’s affirmance of Aceval’s conviction was left intact.

The 3-3 split resulted because Justice Maura Corrigan had agreed to be a character witness for Waterstone if her case ever comes to trial. See, The Michigan Lawyer, “MSC denies drug defendant’s appeal on 3-3 vote, Corrigan may testify for former judge in related case

Last month, the COA, in People v. Waterstone, agreed with the former judge’s argument that Cox’s office had no business being in the case.

We conclude that the Attorney General violated the MRPC in undertaking the prosecution of defendant regarding misconduct in office in conjunction with the Aceval trial, where the Attorney General formerly defended her against Aceval’s federal claims, without first obtaining her consent. [My emphasis, not the COA’s]

To remedy the conflict of interest, we direct that the Attorney General withdraw from the prosecution of this case.

As you might have expected, the AG sought leave to appeal.

Last week, the MSC ordered Waterstone and the AG’s office to appear before the Court and argue whether leave should be granted. Corrigan again stated she wasn’t participating because she might be called to testify for Waterstone.

If the MSC ultimately rules that there is a conflict, it’s back to square one. The hunt for a prosecutor will begin anew, and, recall, they’re not exactly lining up at the gates for a crack at this one.

What a mess, and there’s no end in sight.

Bernstein jumps into AG race

Richard BernsteinFarmington Hills attorney Richard Bernstein has announced his candidacy for the state attorney general’s office.

The 36-year-old Democrat, who is blind, leads the Public Service Division of The Sam Bernstein Law Firm.

From Bernstein’s campaign Web site:

Every day our streets become less safe, water and air less clean, pensions less stable, and health insurance less secure. Michigan’s consumer protection laws have been severely weakened. Our civil rights laws watered down. And now, our dire economy has made our most vulnerable citizens even more at risk. …

“We need a fresh start. We need an Attorney General who fights and wins for everyday people, and that’s the change I plan to bring to the Capitol.

“I know we can do a better job of protecting Michigan’s people. And I want to bring my record of independent-minded thinking, and a no nonsense approach to getting things done to Lansing. It is one thing to legislate, but another to litigate. As I travel around Michigan, I hear frustration with state government. A different approach is long overdue.”

Bernstein is a member of Wayne State University’s governing board. He’s been endorsed by Congressmen Mark Schauer, Gary Peters and John Conyers.

Berstein is competing with Genesee County Prosecutor David Leyton for the Democratic nomination.

Republicans Mike Bishop, the Michigan Senate majority leader, and former Court of Appeals judge Bill Schuette, are slugging it out for the Republican nomination.

Complaint about Kilpatrick campaign cash filed with SOS

Maurice Kelman, a retired Wayne State University Law School professor, apparently taking a cue from Attorney General Mike Cox, has filed a complaint with Secretary of State Terri Lynn Land, accusing Kwame Kilpatrick of misusing $976,000 in campaign funds.

Kelman’s complaint, obtained by The Detroit Free Press, alleges

Kilpatrick violated campaign-finance law by using his re-election fund to pay the criminal defense lawyers who defended him during the text message scandal.

State Attorney General Mike Cox wrote last month that elected officials could not use campaign money to combat criminal charges stemming from personal conduct. He also said Land should weigh each case on its merits. Land’s spokeswoman said her office will review the complaint.

Evidentiary hearing delayed in perjury prosecution against former Wayne County judge, others

A much-anticipated evidentiary hearing for former Wayne County Circuit Judge Mary Waterstone, retired Wayne County Assistant Prosecutor Karen Plants and Inkster Sgt. Scott Rechtzigel and Officer Robert McArthur has been delayed until later this month, reports The Detroit News.

Attorney General Mike Cox is prosecuting the four on perjury or suborning perjury charges.

From The Detroit News:

The latest delay stems from a lawsuit filed in Wayne County Circuit Court by Waterstone. She wants to remove Cox from the case because of claims of conflict of interest. An attorney from his office defended her against complaints related to the case filed with the Michigan Judicial Tenure Commission. A hearing is set for Sept. 25.

Plants and the officers are charged with obstruction of justice, which is punishable by up to life in prison. Waterstone faces misconduct charges that carry a possible five-year sentence.

Prosecutors allege all four defendants knew officers lied on the witness stand to hide the identity of an undercover informant, who also testified falsely.