MSC denies AG request in U of M grad student union case

The Michigan Supreme Court has denied to hear a request from Michigan Attorney General Bill Schuette to stop a hearing to determine if graduate assistants at the University of Michigan can unionize.

According to the order, released this afternoon, MCL 24.301 only allows interlocutory appeals in contested cases. Chief Justice Robert P. Young noted that “While the proposed intervenors [Schuette and a group opposed to the research assistants organizing] present nonfrivolous arguments rejecting that claim, the Court of Appeals does  not have jurisdiction in this particular matter … .”

Justice Stephen J. Markman concurred even though he said he shares the “unsuccessful intervenors’ concerns regarding the manifest unfairness of the fact-finding hearing now underway before the administrative law judge as a result of [Michigan Employment Relations Commission]’s denial of the two motions to intervene … . ”

He said that because the university and the Graduate Student Research Assistants agree that the assistants are public employees, “there is no party to represent the alternative legal position that GSRAs do not constitute ‘public employees’ under [Public Employee Relations Act].”

MERC denied a motion to intervene, stating: “We must carry out our statutory responsibility … without interference from non-parties opposed to the very rights provided to public employees by PERA.”

However, Markman wrote that “It would seem that in carrying out its statutory responsibility, MERC might have viewed it as helpful, rather than as a matter of ‘interference,’ that it be presented with arguments on both sides of an issue under consideration.”

Community Legal Resources rebrands for a statewide presence

After 12 years of being known as Community Legal Resources, the Detroit-based pro bono legal and technical assistance group is changing its name to Michigan Community Resources.

The group, which serves low-income people and nonprofit organizations, said that recent growth and a diversification of services prompted the name change to something that more accurately reflects its capabilities and increased range.

Over its course of existence, the group has grown from four to 17 employees, relocated its Detroit office, and added a Lansing branch.

The Huffington Post Detroit recently honored Michigan Community Resources with the “HuffPost Detroit Impact Award,” and was one of only 11 groups chosen for 2011.

MSC removes Justin from office

In a unanimous decision, the Michigan Supreme Court has removed 12th District Court Judge James Justin.

In this case, respondent’s fixing of traffic tickets issued to himself, his family, and staff alone warrants the most severe of sanctions. However, respondent’s substantiated misconduct is much more extensive. The duration, scope, and sheer number of respondent’s substantiated acts of misconduct are without precedent in Michigan judicial disciplinary cases. Respondent’s long-term pattern of judicial misconduct constitutes a negation of the proper exercise of judicial authority that more than justifies the sanction imposed.

We order respondent’s removal from office.

Chief Justice Robert P. Young Jr. wrote.

Will fracking be banned?

The following post was written by John Stodder, The Dolan Company National Affairs Correspondent. Dolan is the parent company of Michigan Lawyers Weekly.

The spectacle of protesters descending on New York’s capitol to pressure Gov. Andrew Cuomo to support a ban on fracking earlier this week has prompted various interested parties to revisit the question of what lies ahead for the controversial natural gas drilling technique.

The stakes are high. If fracking – the process of injecting a mixture of water, sand and chemicals to fracture deep deposits of shale, allowing trapped gases to be released and drilled – is an acceptable way to extract natural gas, then the U.S. and much of the world will have a bounty of fuel for generating electricity, heating and perhaps transportation, for generations.

But environmentalists fear that precious groundwater aquifers could be destroyed by fracking fluids and collateral releases of methane. In response, industry leaders say such fears are based on misinformation.

New York Times environmental blogger Andrew Revkin sees the “quieter corners” of what the environmental community is seeking. Instead of a ban on fracking, they say they are looking for regulations that will “give the greatest social and economic benefits with the least risk of environmental regrets.”  However, rhetoric at the rally suggests that people at the grassroots don’t want compromise.

Fracking has significance far beyond the borders of New YorkState. According to the U.S. Energy Information Administration, there are 5,760 trillion cubic feet of “technically recoverable” shale gas resources in 32 foreign countries, about 15 percent of which is in the U.S. There are immense deposits in a Northeastern belt running fromOhio throughPennsylvania to upstateNew York, inTexas,Oklahoma,Arkansas andLouisiana, inMichigan and in theRocky Mountains.

The reason many environmental organizations stop short of calling for a fracking ban is the nature of the end product, natural gas. Per BTU, the Environmental Protection Agency says natural gas has just over half the carbon dioxide emissions of coal, which it is increasingly displacing to produce electricity. With the stubbornly high costs of renewable power, some environmental leaders embrace natural gas as a transitional fuel to reduce CO2 emissions and slow the effects on climate.

But such concessions tend to be abandoned in the immediate vicinity of proposed fracking projects, as demonstrated by Monday’s rally, during which New York State Sen. Tony Avella, author of the fracking ban, shouted “Shame on you!” to environment groups that didn’t support him on the issue.

In the U.S., there are temporary fracking bans in New Jerseyand New York, but no permanent prohibitions. Bulgariahas voted to ban fracking and revoked a fracking permit it had granted to Chevron.France has also banned fracking despite its wealth of shale gas deposits.

In his account of a recent Duke University workshop on fracking, “the Green Grok,” a.k.a. Bill Chameides, dean of Duke’sNicholasSchool of the Environment, posed the key question for environmentalists: “Does fracking undermine drinking water?” His answer: “This is a huge question with only a tiny bit of data – enough to raise some questions, but not enough to provide definitive answers.”  

Meanwhile, the EPA began a study of the impact of fracking on drinking water in 2010. That study is still underway. The agency’s final word won’t necessarily be definitive and certainly won’t persuade everyone, but the matter will likely remain in a holding pattern until the study is finished.

Look only at respondent behavior in PPO dispute

In a contempt proceeding, a court should only consider the behavior of the respondent of a personal protection order (PPO), the Michigan Court of Appeals ruled.

The decision clarifies the analysis in such situations, Judge Kirsten Frank Kelly wrote. The respondent in the case, Dawn Kabanuk, had argued that she was provoked into violating PPO against her.

In In re: Kabanuk, Kabanuk’s sister-in-law, Mary Nordstrom, had obtained the PPO against her and her husband, Kenneth. All three were at the Oakland Circuit Court for a show cause hearing in which Kabanuk’s brother (and Nordstrom’s husband) Ronald violated a visitation order. During the event, Kabanuk was accused of confronting Nordstrom in front of a hallway full of witnesses and court personnel and saying, “I have one thing to say to you. You’re a f***ing bitch and I hate you.”

Kabanuk denied the incident happened that way, claiming that Nordstrom provoked her, and alleged that Nordstrom was wrongly using the PPO “as a sword rather than a shield” under People v. Freeman.

The court determined the Freeman language was dicta, and clarified that it only referred to poorly written PPOs, and not PPOs in general, and that the PPO holder “is under no obligation to act in a certain way.”

Instead, a court must look only to the behavior of the individual against whom the PPO is held. Here, Dawn does not argue that the PPO was carelessly worded or incorrectly entered; rather, she argues that by placing herself in the courthouse when Dawn and Kenneth were bound to be there, Mary was inviting a confrontation.

We do not find Mary’s conduct to be relevant in evaluating whether Dawn was in violation of the PPO. When evaluating whether there has been a violation of a PPO, the proper focus is on the behavior of the individual against whom the PPO is held (Dawn), not the behavior of the one who holds the PPO (Mary).

EEOC: Auburn Hills company laid off workers, based on age

The Equal Employment Opportunity Commission filed a lawsuit Jan. 20, claiming that Auburn Hills-based Hutchinson Sealing Systems Inc. selected project engineers for lay-off based on age.

Hutchinson manufactures automotive, aerospace, defense and marine industry parts.

According to the EEOC’s suit (Case No. 2:12-cv-10264, filed in U.S. District Court for the Eastern District of Michigan), the company “manipulated its criteria for selecting project engineers for layoff based on age.

“In the first round of layoffs, William Galas was the only engineer selected for layoff. At the age of 62 at the time, he was the oldest project engineer. A mere month later, Hutchinson laid off two more project engineers. This time, Hutchinson added one new layoff criterion that led to the second- and third-oldest project engineers at the time, ages 51 and 48 respectively, to be selected for layoff.”

The company couldn’t explain the new criteria. The EEOC claims that if the company had used the same criteria for the later layoffs as it did for the first one, the second and third engineers would not have lost their jobs. Instead, younger engineers would have been let go.

The EEOC released a statement saying that it had tried to reach a pre-litigation settlement through its conciliation process.

“The agency seeks to recover monetary compensation for Galas and the two other project engineers in the form of back pay other relief, including reinstatement, front pay and anti-discrimination training for the company,” according to the EEOC.

Media Civil War

The new media, led by Wikipedia, Google and reddit, are protesting the proposed anti-piracy legislation, SOPA (Stop Online Piracy Act) and PIPA (Protect Intellectual Property Act), that the music and film industries are seeking.

Wikipedia and reddit took Wednesday off, while Google’s masthead showed the logo completely covered with an image of black tape. Media coverage of what Wikipedia is doing has been widespread, with the message going out through thousands of online channels that the legislation would unleash censorship of the Web.

PC World’s summary explains that the bill, aimed at foreign websites that provide users with access to copyrighted material such as films and hit songs, “would allow rights holders to seek court orders requiring payment providers, advertisers, and search engines to stop doing business with an infringing site. In other words, rights holders would be able to request that funding be cut off from an infringing site and that search links to that site be removed. The site in question would have five days to appeal any action taken.”

However, according to foes like the Electronic Freedom Foundation (EFF) and The Cato Institute, the law provides that the site alleged to be hosting copyrighted content could be shut off from all sources of revenue and would become harder for Internet users to find. Neither piece of legislation does enough to protect against false accusations, they claim. At a minimum, says the EFF, “any service that hosts user generated content is going to be under enormous pressure to actively monitor and filter that content.” For start-up services, this monitoring chore is so costly that the companies would not survive, they argue.

The primary advocates for SOPA/PIPA include the Motion Picture Association of America and the Recording Industry Association of America. MPAA is headed by former Senator Chris Dodd, D-Conn. In a statement, Dodd called the Wikipedia and Google protests “stunts that punish their users or turn them into corporate pawns … [and] an abuse of power” designed to “intentionally skew the facts to incite their users in order to further their corporate interests.”

Jonathan Lamy, spokesman for the RIAA, tried to make light of the blackout, tweeting that, with Wikipedia unavailable, “somewhere today, a student is doing original research and getting his/her facts straight. Perish the thought.” The comment was later pulled off Twitter.

However one characterizes it, the SOPA blackout has given the legislation’s foes momentum, at least for now. Republican Sen. Marco Rubio, R-Fla., and Rep. Ben Quayle, R-Ariz., both former supporters, have removed their names from the list of sponsors. The SOPA blackout was the top item on Google Trends for much of Wednesday.

~John Stodder, Dolan Co. National Affairs Correspondent

SCOTUS allows death row inmate to refile appeal after lawyer error

Prisons are stocked full of people who feel like they are in there because their lawyers screwed, um, up. Let our mailbox testify as much.

But perhaps no one has had worse luck with his lawyer as Alabaman Cory Maples. Maples was on death row and landed New York firm Sullivan & Cromwell to pursue the appeal of his death sentence, arguing that his trial lawyer was constitutionally insufficient.

But when the lawyers representing him left the firm, no one bothered to tell the Alabama court, who sent the notice that it would hear his appeal for post-conviction relief to the firm and had it returned. Maples didn’t learn of the error until he received a letter sent to him in prison telling him that his appeal was abandoned.

Sullivan & Cromwell tried to get the appeal reopened, pushing it as far as the U.S. Supreme Court, which by a 7-2 vote, decided to give Maples the appeal he sought. Justice Ruth Bader Ginsburg said the law firm’s mistake was “more than simple attorney negligence.”

Maples, wrote Justice Ruth Bader Ginsburg on behalf of the Court, had been effectively abandoned not only by the two New York lawyers, but also by the Alabama lawyer, John Butler, whom the lawyers had associated with in order to practice in Alabama. Butler, upon signing onto the case, told his colleagues that he would not make any actual contribution to the case, contrary to Alabama’s requirement that local counsel be more than simple facilitators for out-of-state representation.

“That the minimal participation he undertook was inconsistent with Alabama law,” Ginsburg wrote, “underscores the absurdity of holding Maples barred because Butler signed on as local counsel.”

“Abandoned by counsel, Maples was left unrepresented at a critical time for his state postconviction petition, and he lacked a clue of any need to protect himself,” Ginsburg continued. “In these circumstances, no just system would lay” the blame for Maples’ missing the deadline to appeal at his “death-cell door.”

Bill could help accused email snoop

Does everyone remember the story of Oakland County resident Leon Walker, who found himself in a legal pickle after being arrested and charged for reading his wife’s email? Well, he could be off the hook thanks to a proposed amendment to the law he’s accused of breaking.

He was charged with two counts of violation MCL 752.795, which prohibits fraudulent access to computers. On Dec. 27, 2011, the Michigan Court of Appeals in an unpublished opinion in People v. Walker said that there is no spousal immunity.

Tomorrow, the House Judiciary Committee will kick off 2012 with an agenda that includes amendments to MCL 752.795, which would create an exemption for spouses, provided that the spouse’s computer doesn’t belong to a school or business, the couple lives together, the computer and messages weren’t damaged or deleted, and the computer wasn’t accessed by use of force or coercion.

If it passes, the law would be remedial, and applied retroactively.

The committee will take up the bill Jan. 19 at 10:30 a.m.

Florida guy kills three in DUI, sues other driver

You know those headline lawsuits that get the “real folks’” dander up — those cases that seem so egregious that the facts inevitably get twisted into some urban legend, or get made into documentaries about tort reform? If you’ve been a lawyer for any time at all, or heck, if you’ve been in law school for five minutes, you’ve likely had someone (probably a brother-in-law) and some event you probably didn’t want to be at (cousin’s wedding) talkin’ at you ‘bout some story he saw in which some poor schmuck was sued by some guy who broke in his house and slipped on the immaculately shiny floors? Or, of course, the lady who sued over hot McDonald’s coffee. Chances are, the guy is incensed that you lawyer types file those things. At first, you try to explain that it didn’t really happen that way. After awhile, you give up, smile, nod and try to avoid eye contact whenever this clown is around.

Anyway, that guy has a new story to tell you about [Tampa Bay Times via ABA Journal]:

David Belniak had drugs in his system and never braked when he slammed into the back of a family’s car stopped at a red light on Christmas Day 2007. Three people died.

In August, Belniak pleaded guilty to three counts of DUI manslaughter and was sentenced to 12 years in prison. He never said a word in court, not even when the victims’ children begged him for an apology.

But he is voicing his opinion now.

He’s saying he’s not responsible for the crash.

And he wants to be paid for his suffering.

Belniak is being repped by his sister, so it’s not like he went out and found a guy willing to file this suit for him. His sister, Debra Tuomey, called the police’s investigation “government sanctioned assassination against one individual,” so she’s clearly maintained an objective view of her brother’s case.

The description of the accident is as follows:

The crash happened about 2:20 p.m. Dec. 25, 2007. McWilliams, of Hudson, was the driver and was stopped at a red light on U.S. 19 at Little Road. The group was headed to DeFranco’s house in Brooksville. They had Christmas presents and a holiday ham in the car.

Authorities said Belniak was driving between 75 and 85 mph when his pickup smashed into the back of McWilliams’ Chevrolet Tahoe. The SUV crumpled. Gerard Bassi died at the scene. Denise Bassi died in surgery that day. Linda McWilliams was taken off life support a week later.

So ready your answers, barristers! Your sister’s friend’s idiot boyfriend awaits, and he wants you to answer for the perceived sins of your profession