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.

‘The show is just beginning’: JTC case against Hudsonville judge moves forward

A special master has been appointed in the Judicial Tenure Commission’s case against 58th District Court Judge Kenneth Post in Hudsonville, who jailed an attorney for contempt after he repeatedly invoked his client’s Fifth Amendment privilege.

According to the JTC’s formal complaint against Post, attorney Scott Millard was representing Ethan Whale at an arraignment before Post. During the arraignment, Post asked Whale whether he would be “clean or dirty” if given a drug test. Millard told Post that Whale would stand mute to Post’s question.

Post insisted that Whale answer the question. After a recess, Post asked Whale directly if it was true that he didn’t want to reveal the last time he had used drugs. Millard interjected and said that was so.

Post told Millard that he was talking to Whale, not Millard. After another recess, during which Whale was tested and came up positive, Post continued to question Whale directly about the last time he used drugs. Millard twice attempted to assert Whale’s Fifth Amendment privilege on behalf of Whale. Post cut him off each time and warned him that a contempt citation was on the way.

Post told Millard that he needed Whale’s answer to determine “what the bond level is going to be.”

Post persisted in his questioning of Whale. Millard persisted in attempting to assert Whale’s rights.

Post fined Millard $100 for contempt of court. Millard again asserted Whale’s Fifth Amendment privilege. Post ordered Millard jailed for contempt.

While Millard was in custody and on his way to the county jail, according to the JTC’s complaint, Post summoned him back to court.

Just before Millard appeared in court, the court’s recording system captured these remarks between Post, who was laughing, and an unidentified speaker:

THE COURT: Good thinking. The show is just beginning. You won’t get better tickets anyplace. I’d sit up close if I were you.

UNIDENTIFIED SPEAKER: Okay.

THE COURT: The front row is good.

Post told Millard, who appeared before him in handcuffs, that he would be released if he agreed to return to court with Whale and allow Whale to answer Post’s question. After some discussion Post again remanded Millard to jail.

After an hour in jail, Millard was transported to the Ottawa County Circuit Court, in handcuffs and leg shackles, both attached to a belly chain. Circuit Judge Leo Post (no relation to Kenneth Post) ordered Millard released.

The JTC’s complaint charged that Judge Kenneth Post failed to follow the law, displayed an improper demeanor toward counsel and trivialized a court proceeding.

Post responded to the complaint with a 30-page answer. In the “Conclusion” section of the answer, Post wrote:

Judge Post admits that he made a mistake of law in not realizing that Attorney Millard’s instruction to his client not to respond in light of his client’s 5th Amendment rights was colorable and therefore that the holding of Attorney Millard in contempt was an abuse of his discretion. However, an error of law does not subject a judge to a violation of the Judicial Canons or to a violation anticipated by MCR 9.104(1) 9.205 (sic) or the Michigan Constitution or (sic) 1963 as amended in Article 6 Section 30.

Judge Post admits that his remarks, as directed to Attorney Millard were sarcastic and possibly demeaning, and therefore constituted a “failure to be patient, dignified, and courteous to lawyers with whom the judge deals in an official capacity,” contrary to the Code of Judicial Conduct, Canon 3A (3), and that his conduct may have “eroded public confidence in the judiciary and that he failed to avoid all impropriety,” contrary to the Code of Judicial Conduct, Canon 2A.

No word yet on a hearing date. Stay tuned.

MSC removes Inkster District Court judge from office

The Michigan Supreme Court has removed Inkster District Court Judge Sylvia James from office for judicial misconduct.

In the MSC’s opinion, authored by Justice Marilyn Kelly, the Court stated that the evidence established:

that respondent misappropriated public funds, some of which were intended for victims of crime in the city of Inkster. She inappropriately spent much of this money on self-promoting advertisements and travel expenses for herself and various other court employees. She treated these funds, as the master phrased it, as her own “publicly funded private foundation.” In addition, she (1) denied people access to the court by instituting and enforcing an improper business-attire policy, (2) employed a family member in violation of court policy, and (3) made numerous misrepresentations of fact under oath during the investigation and hearing of this matter.

The cumulative effect of respondent’s misconduct, coupled with its duration, nature, and pervasiveness, convinces this Court that she is unfit for judicial office. Although some of her misconduct, considered in isolation, does not justify such a severe sanction, taken as a whole her misconduct rises to a level that requires her removal from office.

Four of the Court’s justices, Chief Justice Robert Young, Stephen Markman, Mary Beth Kelly and Brian Zahra, signed Kelly’s lead opinion.

Justices Michael Cavanagh and Diane Hathaway concurred “in the majority’s result of removal from office and its decision to direct the Judicial Tenure Commission to submit an itemized bill of costs pursuant to MCR 9.205(B).”

In a separate opinion, Markman, joined by Young, concurred in removing James from office but said they would have gone even further.

Although the majority’s ordering removal from office addresses the immediate harm caused by Judge James, it is an inadequate response and fails to address the likelihood of continuing harm. As a result of the majority’s decision, Judge James will be removed from office from today’s date until the expiration of her present term at the end of 2012. She has her name on the August primary ballot, however. If she is successful in the primary, her name will be placed on the ballot for the general election in November. And should she prevail in those elections, she will be allowed to resume her judgeship on January 1, 2013. …

This Court has a duty to redress the harms done by Judge James’ harm, and that duty is not vitiated if Judge James is reelected. Nor is that duty limited to past harm; rather, it also extends to guarding against future harm. Imposing a six-year conditional suspension, which would be in effect throughout the next judicial term, is the only way this Court can adequately protect judicial integrity and redress the substantial harm caused by Judge James’s refusal to be bound by the same laws she is charged with applying.

MJA seeks nominations for Hilda Gage Judicial Excellence Award

Judge Hilda Gage, the inspiration for the MJA’s Hilda Gage Judicial Excellence Award.

Do you know a current or former circuit court or Court of Appeals judge worthy of recognition for an outstanding legal career?

The president of the Michigan Judges Association, Judge Timothy Hicks, wants to hear from you.

The MJA is accepting nominations for its third annual Hilda Gage Judicial Excellence Award. The award recognizes current or former Circuit or Court of Appeals Judges who have demonstrated exemplary service by excelling in trial and docket management, legal scholarship and contributions to the profession and the community.

The award is named in honor of the late Judge Hilda Gage. Gage served with honor on the Court of Appeals and Oakland Circuit Bench before passing away in 2010. She was renowned for her courage and scholarship. She was the first female President of MJA and the first woman to chair the Judicial Tenure Commission.

Past recipients of the Hilda Gage Judicial Excellence Award include the Hon. J. Richardson Johnson, of the Ninth Circuit Court in Kalamazoo, and the Hon. James Ryan, formerly of the Third Circuit Court in Wayne County, the Michigan Supreme Court, and the United States Sixth Circuit Court of Appeals.

Hicks said that MJA seeks nominees who follow in Judge Gage’s footsteps by “serving their state and their communities with integrity, skill, and courage every day.”

Nominations are due by July 20. Here’s a nominating form and instructions or give Hicks a call at (231) 724-6337.

Special master appointed in JTC complaint against Adams

The Michigan Supreme Court has named Donald Miller, a retired Macomb County circuit court judge, to hear evidence of misconduct charges filed by the Judicial Tenure Commission against Wayne County Circuit Court Judge Deborah Ross Adams.

The JTC, in Formal Complaint No. 89, charged Adams with lying under oath and forging documents in connection with her divorce.

The divorce complaint landed in Oakland County Circuit Court Judge Mary Ellen Brennan’s courtroom after the entire Wayne County circuit bench recused itself.

The JTC charges that Adams, while represented by counsel, frequently called Brennan’s office concerning her case, and persisted in doing so after being advised that such contact was inappropriate. The JTC’s complaint alleges Adams, while under oath, denied she had made the calls.

The JTC further alleges that Adams forged her former attorney’s name on a motion and brief to set aside or modify Brennan’s judgment of divorce.

Adams is also charged with making false statements to the JTC about the matter.

The complaint alleges that Adams violated the Judicial Code of Conduct, several court rules and Michigan’s perjury statute.

Miller will hear evidence and prepare a report for the JTC. The JTC, after a hearing, can then decide to dismiss the complaint or recommend that the Michigan Supreme Court impose one of several forms of discipline such as public censure, a suspension or removal from office.

Western District suspends bankruptcy lawyer

Southfield bankruptcy attorney Jeffrey David Thav has been suspended from practice for one year in the U.S. District Court for the Western District of Michigan.

A three-judge panel issued the suspension after concluding that Thav

failed to meet the basic practice standards of this District in failing to show up for hearings on repeated occasions and despite multiple warnings from more than one Bankruptcy Judge in this District.

Thav had been on an informal probation, designed by Bankruptcy Judge Scott Dales to address Thav’s failure to appear for scheduled hearings. The informal probation was lifted, after which Thav missed more scheduled hearings, prompting disciplinary proceedings under the Western District’s Local Rule 83.1(k).

Other matters involving Thav “illustrates an underlying practice management problem that is at the root of why the panel believes a one-year suspension is necessary.”

The panel noted Thav’s late payment of court fees.

On no less that forty-two occasions over less than ten months[,] payments from Attorney Thav’s office were significantly late, even when the fees at issue had been collected in advance from the client

Thav’s required fee disclosures “in several matters appeared inaccurate, or at least incomplete, in some material aspects,” according to the panel’s order.

The panel also noted that Thav

who lives and works outside the [Western] District[,] [had] some kind of arrangement with an attorney who lived and worked in the Western District to cover [Thav’s] hearings in the [Western] District.

It did not appear, however, that the arrangement was disclosed to or approved by the affected clients.

Thav was engaged in a multi-district bankruptcy practice but was unable to meet the Western District’s “basic practice standards,” said the panel.

A one-year suspension will give Attorney Thav an opportunity to consolidate his practice, concentrate his resources and build his legal and management skills to the point where he may well be able to handle a multi-district practice that includes … [the Western] District … .

The case is In the Matter of Attorney Jeffrey David Thav. Administrative Order 12-019.

The giving season: CBA donates $10K+ to state charities

News of good cheer comes our way from Caralyce M. Lassner, who serves on the Board of Directors of the Consumer Bankruptcy Association.

Lassner, recently honored as a Michigan Lawyers Weekly Up and Coming Lawyer, says it’s been a good year for the CBA in terms of revenue from continuing education programs.

In keeping with the CBA’s annual tradition, some of that revenue, more than $10,000, has been donated to local charities.

The charities, as nominated by the membership and voted on by the CBA Board of Directors, include:

• The Heat and Warmth Fund (THAW)
• Forgotten Harvest
• Children’s Hospital
• S.A.Y. Detroit Family Health Clinic
• Cabrini Clinic
• Starfish Family Services
• Wounded Warriors
• Access to Bankruptcy Court
• Legal Services of South Central Michigan

The Consumer Bankruptcy Association is a voluntary bar association open to legal professionals working in the bankruptcy field in the Eastern District of Michigan.

After second look, Markman grants disqualification in criminal case

Robert Winburn was convicted of murder in 1990 and his appeal bubbled its way up to the Michigan Supreme Court.

Winburn filed a motion under MCR 2.003, seeking to have Justice Stephen J. Markman disqualify himself from the case. Winburn alleged the 1990 conviction had “overlapping facts” with a federal investigation by the Bureau of Alcohol, Tobacco, and Firearms of narcotics trafficking in which Winburn was allegedly involved.

Winburn says that in 1992, then-federal prosecutor Markman reviewed the ATF investigation and declined to press charges.

Markman denied the motion on Nov. 7, stating at the time:

[D]efendant has established no connection between the facts of the 1990 murder that are currently in dispute and the circumstances of the federal drug investigation in 1992, except that defendant was involved in both matters.

Thus, the crux of defendant’s argument is simply that I participated in a decision (not to prosecute defendant) nearly two decades ago, and that I am now participating in another decision concerning a different crime in which defendant was allegedly also involved.

Earlier this week, Markman reversed his decision and will recuse himself from Winburn’s case:

Defendant has now filed a motion for “clarification of material facts.”

In this motion, defendant expands upon the record and presents new evidence supporting his previously unexplained and unsubstantiated assertion that there are “overlapping facts” between the two matters.

This evidence, in my judgment, does establish a connection between the instant appeal — in which I would participate as a judge — and the prior criminal investigation– in which I participated as prosecutor.

Under these circumstances, I believe that my disqualification is warranted, and accordingly I recuse myself from the consideration of this matter.

Sometimes, persistence pays off.

State Bar wants client solicitation rule revamped

The Michigan Supreme Court is seeking comments on a proposed amendment of Michigan Rule of Professional Conduct 7.3, ADM File No. 2010-22.

The proposal, sponsored by the State Bar of Michigan, would place limitations regarding attorney solicitation of potential family law clients.

The proposal would added the following language to MRPC 7.3a

[I]n any matter that involves a family law case in a Michigan trial court, a lawyer shall not initiate contact or solicit a party to establish a client-lawyer relationship until the initiating documents have been served upon that party or 14 days have passed since the date the document was filed, whichever action occurs first.

This limitation does not apply if the party and lawyer have a pre-existing family or client-lawyer relationship.

For purposes of this rules, “family law case” includes the following case-type code designations from MCR 8.117: DC, DM, DO, DP, DS, DZ, NA, PJ, PH, PP, or VP.

According to the staff comment accompanying the proposal, the state bar “argues that allowing attorneys to notify defendants before service leads to greater risk of domestic violence against the filing party or other illegal actions (such as absconding with children or removing assets from a joint bank or other financial account) that may occur before service can be completed.”

Accompanying the proposal is a request from Michigan Supreme Court Justice Diane N. Hathaway that persons submitting comments “address whether the proposed amendment to the rule is consistent with Shapero v Kentucky Bar Ass’n, 486 US 466; 108 S ct 1916; 100 LEd 2d 475 (1988), or raises any other constitutional concerns.”

The comment period for the proposal closes March 1, 2012. Send comments in writing or by email to: Supreme Court Clerk, P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. Reference ADM File No. 2010-22.

MSC mulls changes to Code of Judicial Conduct

The Michigan Supreme Court is considering amendments to the Code of Judicial Conduct that would clarify judges’ obligations concerning extrajudicial activities, especially where money is involved.

The Court has published two alternative proposals for comment.

Alternative A would impose the same obligations regarding extrajudicial activities for both law-related and other activities. This would be accomplished by combining Canons 4 and 5.

Canon 4 would be amended to clarify what civic and charitable fundraising activities are allowed or prohibited.

Alternative B would accomplish much of the same but would be loosely based on the ABA Model Code of Judicial Conduct.

According to the staff comment accompanying the proposed amendments:

The most recent iteration of the ABA Model Code splits the existing language of Michigan’s Canon 4 through Canon 6 into 15 separate rules.

For purposes of the proposed language of Alternative B, however, the separate model rules are combined in the proposed revised text of Michigan’s current two Canons, and would retain nearly all the language that currently exists in Canon 4 and Canon 5.

But the proposal is similar to the ABA Model Code in that proposed Canon 4 would begin with a description of the underlying foundational requirements for any extrajudicial activities (i.e., participation in the activity must not undermine the judge’s independence, integrity, or impartiality) and other general requirements, and then would set out the allowed fundraising and other financial activities in Canon 5.

Both proposals would permit judges to accept testimonials, which Canon 7 currently prohibits with this language:

C. Fundraising Other Than for Campaign Purposes Prohibited.
Except as provided in 7B(2)(b) and (c),
(1) No judge shall accept a testimonial occasion on the judge’s behalf where the tickets are priced to cover more than the reasonable costs thereof, which may include only a nominal gift[.]

The Court wants your comments on the proposal. Send them in writing or by email to: Supreme Court Clerk, P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov.

The comment period closes March 1, 2012. Refer to ADM File No. 2005-11.