Judge Hugh Clarke keeps his job

The Michigan Supreme Court unanimously ruled ex-Governor Jennifer Granholm’s appointment of Judge Hugh Clarke to the 54-A District Court in Lansing was constitutional. [Attorney General v Clarke, Lawyers Weekly 06-75876]

Attorney General Bill Schuette had challenged Clarke’s appointment because it was made during the “lame duck” period after Governor Rick Snyder was elected and Granholm left office.

The court found:

We conclude the following:
(1) A judicial vacancy “shall be filled by appointment by the governor.” Const 1963, art 6, § 23.
(2) The resignation of Judge KRAUSE created a vacancy on the 54-A District Court. Id. (“A vacancy shall occur . . . in the district court by . . . resignation . . . .”).
(3) “The person appointed by the governor shall hold office until 12 noon of the first day of January next succeeding the first general election held after the vacancy occurs . . . .” Id.
(4) Michigan law defines “general election” as “the election held on the November regular election date in an even numbered year,” MCL 168.2(h), and sets the November regular election date as “the first Tuesday after the first Monday in November,” MCL 168.641(1)(d). Accordingly, in this case, the “first general election held after the vacancy occurs” falls on Tuesday, November 6, 2012.
(5) Therefore, defendant “shall hold office until 12 noon” on January 1, 2013. Const 1963, art 6, § 23.
(6) The argument of plaintiff that an absurd result could conceivably arise under this Court’s interpretation of Const 1963, art 6, § 23 in circumstances not presented in this case raises an abstract issue that is not properly before this Court.

Justices Michael Cavanagh and Marilyn Kelly concurred:

I concur in the majority result dismissing the complaint for quo warranto, but only because I believe that there is no conflict between the statutes authorizing “holdovers” for district court judges and the Michigan Constitution. Specifically, MCL 168.467m(1) provides that “[i]f a vacancy occurs in the office of district judge, the governor shall appoint a successor to fill the vacancy” who “shall hold office until 12 noon of January 1 following the next general November election at which a successor is elected and qualified.” Additionally, MCL 168.467i provides that the term of office for a district judge “shall be 6 years” and “shall continue until a successor is elected and qualified.” These statutes clearly authorize holdovers for district judges and do not conflict with Const 1963, art 6, § 23. Therefore, defendant is entitled to hold office until noon on January 1, 2013.

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MSC will hear AG’s district court judge challenge

The Michigan Supreme Court has agreed to bypass the Michigan Court of Appeals and hear Attorney General Bill Schuette’s quo warranto action, in which Schuette claims Lansing 54-A District Court Judge Hugh Clarke Jr. is illegally occupying his judicial office.

The MSC’s order states that it will assume jurisdiction over the case. The matter has been placed on the Court’s May 2011 session calendar.

Clarke was appointed to the court in December to fill a vacancy created when District Court Judge Amy Krause was appointed to the Michigan Court of Appeals.

Schuette says it was technically proper for Clarke to fill the last days of Krause’s unexpired district-court term. But, Schuette said last Jan. 7, “any attempt to remain in office past noon on January 1, 2011 is illegal because he cannot fulfill the new term Krause had been elected to on November 2, 2010, but had not started before she left the district court.”

Clarke is being represented by former Michigan Supreme Court Justice Thomas Brennan and attorney Lawrence Nolan.

Lansing district judge sends heavyweights to fight AG’s ouster attempt

Over the weekend, The Lansing State Journal reported that former Michigan Supreme Court Justice Thomas Brennan and attorney Lawrence Nolan are going up against Michigan Attorney General Bill Schuette, who is seeking to oust Lansing District Court Judge Hugh Clarke Jr.

Schuette, you’ll recall, says Clarke is illegally occupying his judicial office: “Schuette seeks to unseat Lansing district judge.”

Former Gov. Jennifer Granholm appointed Clarke in December to fill a vacancy created by Lansing District Court Judge Amy Krause’s appointment to the Michigan Court of Appeals.

According to Schuette, Clarke’s appointment could only last until the end of Krause’s term of office, which ended at noon, Jan. 1.

Krause had been re-elected to the district court in November. Schuette’s position is that Clarke can’t serve the term to which Krause had been re-elected but had not begun serving when she was appointed to the COA.

Brennan and Nolan want the Michigan Supreme Court to bypass the COA, which has original jurisdiction of Schuette’s quo warranto motion to unseat Clarke.

From The LSJ:

Schuette, a Republican who took office Jan. 1, says Clarke’s appointment should have ended on Jan. 1. He further argues that Gov. Rick Snyder has the legal authority to fill the seat once held by Krause.

In their response, Clarke’s attorneys say that state law has an appointee to the District Court bench fill the seat until the “next general November election, at which time a successor is elected and qualified.”

Brennan also argues that the Michigan Supreme Court does not have the power to remove a judge without a recommendation from the Judicial Tenure Commission. Further, such removals can occur only in a specific set of circumstances, none of which apply to the dispute over Clarke.

“We stand by our position. It’s a matter of principle and precedent based on a previous case involving a Supreme Court justice,” said John Sellek, a spokesman for Schuette. Sellek added that due to the lateness of the filings Friday, the Attorney General’s Office had not had a chance to look them over.

In the meantime, Clarke continues to preside over his court.

“I have a parking place. I’m going to work every day, working for the people of Michigan,” Clarke told The LSJ.

Schuette seeks to unseat Lansing district judge

Michigan Attorney General Bill Schuette says Lansing District Court Judge Hugh Clarke is now unlawfully on the bench and has filled a quo warranto motion with the Michigan Court of Appeals to remove him from office.

A press release from Schuette’s office explains:

Clarke was appointed by the previous administration to the 54-A District Court (Lansing) on December 20, 2010.

Schuette says it was technically proper for Clarke to fill the last days of the unexpired term of former District Court Judge Amy Krause. However, any attempt to remain in office past noon on January 1, 2011 is illegal because he cannot fulfill the new term Krause had been elected to on November 2, 2010, but had not started before she left the district court. …

Under state law, the Attorney General may seek, via a quo warranto motion, to remove a person who “unlawfully holds or exercises a state office.”

In the complaint, the Attorney General’s office charges that Clarke is not lawfully permitted to serve in office at this time because the state constitution says that vacancies filled by the governor expire at “12 noon of the first day of January next succeeding the first general election held after the vacancy occurs”

Furthermore, Schuette cites Kelley v. Riley as precedent that an appointee may not serve the next term of the person they replace. In Kelley, a majority of the Michigan Supreme Court granted quo warranto against then-Michigan Supreme Court Justice Dorothy Comstock Riley, a Republican.

In that 1982 case, the Court ruled that Justice Riley could not serve the new term of the judge she succeeded by appointment by then-Governor Milliken. Justice Riley was removed from office and the next governor, Democrat James Blanchard, was entitled to appoint a new individual to serve the new term.

Asst. AG (Anti-Gay) III: Cox explains decision to keep Shirvell

[In case you missed them: Part I/Part II]

The saga of Andrew Shirvell and his vendetta against a college student continues, as his boss, Michigan Attorney General Mike Cox, appeared on CNN’s Anderson Cooper 360 to explain his decision not to fire Shirvell. [Video of the interview at the link]

While Cox didn’t exactly defend Shirvell, calling him a bully, he said Shirvell has the right to publish the things he did under the First Amendment.

Democratic candidate for AG David Leyton has called for his Republican counterpart, Bill Schuette, to join him in calling for Shirvell to be fired.

UPDATE: From the Detroit News, Cox has now suspended Shirvell.

Attorney General Mike Cox changed his stance Thursday, suspending Andrew Shirvell after the assistant attorney general attracted national attention for a controversial blog that ridicules and denounces a University of Michigan student leader for his gay advocacy, religious beliefs and character.

The suspension came a day after Cox told CNN he didn’t intend to fire Shirvell, citing civil service rules that protect government employees from being "fired willy-nilly" for exercising their rights of free speech.

UPDATE II: From the Michigan Daily, the AG’s office says Shirvell took a leave of absence on his own accord.

Bill would let parents sign liability waivers for children

The Michigan House Judiciary Committee will take testimony tomorrow on HB 4970, which would allow a parent or guardian to sign a liability waiver on behalf of a child participating in sports or recreational activities.

The legislation was prompted by a Court of Appeals decision, Woodman v. Kera, LLC. The decision invalidated a liability release signed by a 5-year-old boy’s parent and let a negligence suit go forward against a commercial play area operator after the child broke his leg.

In his lead opinion, Judge Michael Talbot said under the current state of both statutory and common law, the waiver could not stand.

[T]his court is aware of no legislative enactments upholding exculpatory agreements, executed by parents on behalf of their minor children before injury, that waive liability for injuries incurred in either commercial or nonprofit settings. …

[I]n the absence of a clear or specific legislative directive, we can neither judicially assume nor construct exceptions to the common law extending or granting the authority to parents to bind their children to exculpatory agreements. Thus, the designation or imposition of any waiver exceptions is solely within the purview of the Legislature.

Judge Richard Bandstra “reluctantly” concurred with Talbot.

[O]urs is an extremely and increasingly litigious society. Any entity that provides an educational, recreational, or entertainment opportunity to a minor does so at great risk of having to defend an expensive lawsuit, meritorious or not. To avoid some of that, preinjury waivers have become commonplace. If the law does not honor those waivers, the implications appear inevitable: the cost of providing opportunities will rise, some families who would like their children to participate will no longer be able to afford to, and, ultimately, some opportunities will simply become unavailable altogether. …

Because of the impact of today’s decision and the compelling arguments against abrogating preinjury parental waivers, I encourage the Michigan Legislature or Supreme Court to further consider the issue.

Judge Bill Schuette (now off the court and campaigning hard to be the state’s next attorney general) pragmatically noted in his concurrence that important public policy considerations cut both ways.

Certainly, no one in the Michigan judiciary desires to turn a deaf ear or a blind eye to wayward businesses, dishonorable nonprofit organizations, or volunteer groups that might place a child in a dangerous situation, notwithstanding a parent’s executing a release and waiving liability for resulting injury. Equally significant is the fact that an immense amount of youth activities — church groups, Boy Scouts, sports camps of all kinds, orchestra and theatrical events, and countless school functions — run and operate on release and waiver-of-liability forms for minor children. …

[T]he Michigan Legislature will have to determine whether a statutory exception to the common-law rule for preinjury waivers should be adopted, and whether there should be any differentiation between for-profit and nonprofit groups as some states have seen fit to do.

The Legislature heeded the call with the introduction of HB 4970 last year. A House Fiscal Agency analysis predicts “an indeterminate, but likely positive, fiscal impact on the judicial branch. Any fiscal impact would depend on the amount of litigation avoided due to the waiver of claims of liability.”

In the meantime, the Michigan Supreme Court granted leave in Woodman and heard oral arguments in October. A decision is due by the end of July.

Amicus Curiae: Our Links To Things Of Interest

[At least once a week, I will post things that may be of interest from other publications. Some will be news stories from other states that are interesting. Others may be columns or viewpoints on issues that may be of use to a practitioner.]

Parole Evidence Former Court of Appeals judge Bill Schuette is running for attorney general as a Republican. The Detroit Free Press published an editorial column he wrote in which he proposes “broad-based public safety reform” in the face of the state paroling convicted felons from Michigan prisons to save costs.

A report by the Council of State Governments makes clear why Michigan needs to reform its criminal justice system. In a comparison of Great Lakes states:

• Michigan has the highest rate of violent crime.

• Michigan has the highest rate of unsolved violent crime.

• Michigan has the fewest number of police officers per capita. In fact, Michigan has lost more than 1,900 law enforcement officers since 9/11.

• Michigan sends the fewest felons to prison per capita.

The Free Press had proposed that Michigan restore a good time for prisoner behavior policy. Schuette thinks its a bad idea.

Finally, the Free Press proposal to restore good time for prisoner behavior would be the death knell for truth in sentencing. Truth in sentencing means that a prisoner will serve at least his or her minimum time. Before the implementation of this practice, some prisoners were back on the streets committing crimes before their minimum sentence had even been reached (and that is still sometimes the case for those prisoners sentenced before the implementation of truth in sentencing). Families, judges and especially victims need to know that those convicted of a crime will serve their minimum time.

Winning cases: So easy even a caveman can do it The media loves reporting on stories in which Everyman eschews the help of a professional and succeeds anyway, especially when it comes to representing himself in court.

In this case, Everywoman was a middle-aged nurse who beat the IRS in tax court in a dispute over her deduction of $15,000 in tuition for online MBA classes.  [Wall Street Journal via Yahoo]

Her odyssey began in 2006, when she filed her 2005 return. It showed just over $50,000 of income, several smaller deductions, and one large one—for $14,787 of expenses for an M.B.A. from the University of Phoenix, an online school. Ms. Singleton-Clarke deducted the tuition because her tax preparer told her she met the law’s narrow definitions.

When the IRS audited the return in late 2006, she conceded all the IRS’s challenges to her deductions but one. She dug in her heels on the tuition deduction because, after looking at a complex diagram in IRS Publication 970, she believed she qualified for it.

The audit process first involved several rounds of confusing IRS correspondence. "At one point I had three requests for the same records, each with a different contact name. I had to spend hours calling to figure out who needed what," says Ms. Singleton-Clarke, a steely but soft-spoken woman.

The story would have been more informative if it described which of the deductions described in Publication 970 she used and how she qualified.

How did she win? Attention to detail and do exactly what you’re told:

Ms. Singleton-Clarke had been told to bring copies of her documents in triplicate, including a time line of her career. Judge Stanley Goldberg questioned her closely and complimented her on her record-keeping during the hour-long trial. "The whole time," she says: "I was thinking, here is this god-like man who is going to make an important decision for me. But he wasn’t a bully. I had met with the bullies before."

Reached Friday by phone, Judge Goldberg said: "I remember the case well because Ms. Singleton-Clarke was so articulate and well-prepared. Too many taxpayers are not."

Elsewhere, The Lawyerist weighs the pros and cons of letting law firm employees go on Facebook. Law.com’s Legal Blog Watch reports of a Montana judge that refused to throw out a verdict that found a baseball bat manufacturer liable in a products liability case, even though it also found that the bat was not defective.