Supreme Court justice named our Woman of the Year

Michigan Supreme Court Justice Marilyn Kelly was named as Michigan Lawyers Weekly’s Woman of the Year at our 2012 Women in the Law luncheon on Sept. 27.

Michigan Supreme Court Justice Marilyn Kelly holds her award after being named Michigan Lawyers Weekly’s 2012 Woman of the Year at the Detroit Marriott, Troy. (Photo by Mark Bialek)

Kelly has accomplished a lot in her career, including public service spanning the last 48 years.

As noted in her Women in the Law profile (see our Sept. 10, 2012, edition), Kelly was the first woman elected to State Board of Education in 1964, and was re-elected in 1968 and 1972.

While still on the board, she enrolled at Wayne State University Law School and graduated with honors in 1971. She was elected to the Court of Appeals in 1988, and re-elected in 1994. In 1996, she was elected to the Supreme Court for the first of her two terms. She was the Court’s chief justice from 2009-11.

Her push to make courts more accessible has resulted in last month’s launch of a new legal self-help website, Michigan Legal Help.

Kelly also was a loud and unwavering voice in the call for more comprehensive and fair indigent representation. She surely is gratified with HB 5804, to create the Michigan Indigent Defense Commission, going to the full House with strong bipartisan support.

That Commission would set standards, attempt to stabilize funding and promote best practices.

And, as Kelly told MiLW writer Ed Wesoloski for her Women in the Law profile, she counts G. Mennen Williams — Michigan’s 41st governor and a Supreme Court justice — among her heroes and mentors. She recalls him as a charismatic man, who was forever extending his arm to “give a warm, firm handshake.”

She also mentioned that she is a SCUBA diving enthusiast, and to this day still actively participates in the sport. In addition, she confessed to Ed the guilty pleasure of reading spy novels.

Kelly started a Limited English Proficiency Program to assist non-English speakers navigate their way through the legal system.

Her most visible effort, without question, was her work on the Michigan Judicial Selection Task Force on which she served as co-chair with Senior Circuit Judge James Ryan, of the 6th U.S. Circuit Court of Appeals.

They brought together a group of lawyers, non-lawyers, businesspeople and campaigners and researched the judicial selection process.

The task force released a comprehensive report calling for more transparency in the selection and campaign process and offered sensible solutions and alternatives that would make the judicial selection process more effective and transparent.

Those recommendations are still being considered.

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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:

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.

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

MSC orders oral argument in marijuana ‘collective cultivation’ case

Does a person violate the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., by growing marijuana for other caregivers or patients?

The Michigan Supreme Court may provide an answer. The Court has ordered oral arguments in People v. Bylsma, ___ Mich App ___ (2011), on Bylsma’s application for leave to appeal an adverse Court of Appeals ruling.

Bylsma, a registered caregiver under the MMMA, had 88 marijuana plants under cultivation in a rental space. Following a police raid, Bylsma was charged with manufacturing marijuana. Under the MMMA, a registered caregiver may possess 12 marijuana plants for each registered patient that the caregiver is connected to through the Michigan Department of Community Health’s registration process.

Bylsma was connected to two registered patients, entitling him to possess 24 plants. The remaining plants, Bylsma said, belonged to other registered caregivers and patients. Bylsma argued that he was entitled to immunity under § 4(b) of the MMMA because nothing in the act prevents other caregivers or patients from using the same space to grow marijuana.

The COA denied his motion to dismiss the charge. The COA reasoned that the evidence, which Bylsma did not dispute, showed that he possessed all 88 plants, and that under the MMMA, he was entitled to only 24.

The MSC has directed the parties to address:

“(1) whether the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq., permits qualifying patients and registered primary caregivers to possess and cultivate marijuana in a collective or cooperative; and

“(2) whether, under the circumstances of this case, the defendant was entitled to immunity from prosecution for manufacturing marijuana under § 4 of the MMMA, MCL 333.26424, or entitled to dismissal of the manufacturing charge under the affirmative defense in § 8 of the act, MCL 333.26428.”

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.

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.