JTC asked to look into Hathaway real estate deals

Ever since WXYZ-TV reported on the questionable circumstances surrounding the short sale of property owned by Michigan Supreme Court Justice Diane Hathaway, the legal community has been buzzing about whether the Judicial Tenure Commission would be investigating.

The JTC, per its standards and practices, has been mum on the subject.

Former John Engler aide and GOP strategist Dan Pero told the Detroit Free Press that he’s asked the JTC to look into whether Hathaway committed fraud in the transaction.

Pero said the basis of his request for investigation was a May 9 report by WXYZ-TV suggesting Hathaway and her husband, attorney Michael Kingsley, transferred residential properties they owned in Michigan and Florida to Kingsley’s adult children to qualify as distressed homeowners and win bank approval for a short sale of another home they owned on Lake St. Clair.

Hathaway’s attorney, Steve Fishman, called Pero’s request a “partisan hit job.”

According to the article, Pero’s wife ran the 2008 campaign of then Chief Justice Clifford Taylor, whom Hathaway ousted to take her seat on the court. Pero insists the history is irrelevant to his request.

Judicial candidates lose incumbency designation challenge

Just how important is the constitutionally and statutorily required incumbency designation on Michigan judicial ballots?

Consider this: Bill Ballenger, Lansing political pundit extraordinaire, and editor and publisher of Inside Michigan Politics, has told me on several occasions that in Michigan, 95 percent of all incumbent judges in the last 20 years have been re-elected.

That gives incumbent judges almost a virtual lock in terms of job security (notable exception: former Michigan Supreme Court Chief Justice Clifford Taylor’s loss to Diane Hathaway in the 2008 election).

Mark Janer and Steven J. Jacobs, two candidates for the 74th District Court, know the incumbency designation is a powerful election tool. That’s why they went to court recently to argue that 74th District Court Judge Jennifer Cass Barnes, a very recent (June 1) Granholm appointee, shouldn’t be listed as such on the August primary ballot.

Former 74th District Court Judge Scott Newcombe decided to resign earlier this year, effective May 31. Janer, Jacobs and Barnes all filed timely petitions in April to be electoral candidates for the open seat, which was designated as a non-incumbent position.

On April 23, Governor Jennifer Granholm appointed Barnes to fill the remainder of Newcombe’s term – which expired at the end of the year. Barnes took office June 1.

Janer and Barnes sued to prevent Barnes from receiving the incumbency designation. The argument presented to Bay County Circuit Court Judge Frederick L. Borchard, as recounted by the Michigan Court of Appeals in Janer, et al. v. Barnes, et al.:

[B]ecause Barnes filed nominating petitions to access the ballot as a non-incumbent, and because her appointment occurred after the deadline for incumbent judges to access the ballot, she is not entitled to the incumbent designation on the ballot.

Borchard dismissed the complaint, which sought a declaratory judgment, mandamus, and injunctive relief.

They fared no better in the COA. A per curiam panel consisting of judges Peter D. O’Connell, Donald S. Owens and Stephen L. Borrello ruled that

Const 1963, art 6, § 24 and MCL 168.467c(2) are unqualified mandates. They do not impose a time period in which an incumbent candidate must act in order to qualify for the incumbent designation.

Because the language is clear and unambiguous, judicial interpretation is not permitted, and the provisions must be enforced as written. …

The only requirement for the incumbency designation on the ballot is the incumbent status of the judge, which it is undisputed that Barnes now has attained. Accordingly, she is entitled to the incumbency designation.

And an almost certain win in August.

MSC denies leave in child-abuse reporting case

On a 4-3 vote, the Michigan Supreme Court has upheld a Court of Appeals decision that held a hospital could be held vicariously liable for two doctors who may have breached a statutory duty to report suspected child abuse.

The MSC denied leave in Lee v. Detroit Medical Center (majority opinion) (dissenting opinion).

The key holdings by COA Judge Donald Owens, joined by Judge William Whitbeck: a failure-to-report claim does not sound in medical malpractice and a hospital may be held vicariously liable if staff doctors do not comply with MCL 722.623, which triggers a duty to report when there is “reasonable cause to suspect child abuse or neglect.”

Judge Peter O’Connell, dissenting in Lee, said doctors will be quick to report anytime a child under their care has a bump or a bruise to avoid litigation based on an alleged breach of the reporting duty.

Michigan Lawyers Weekly had a full report of the COA’s decision.

In the MSC, Chief Justice Marilyn Kelly and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway denied leave. Justices Maura Corrigan, Robert Young and Stephen Markman filed vocal dissents.

From Corrigan:

Because MCL 722.623 created a new statutory duty to report suspected abuse or neglect, defendants make a good argument that the Child Protection Law provides exclusive remedies for violation of the duty. …

Under the Child Protection Law, only individuals, not institutions, are required to report. MCL 722.623(1). And only a “person who is required … to report an instance of suspected child abuse or neglect and who fails to do so” is liable for resulting civil damages, MCL 722.633(1). Accordingly, I question whether an institution may be held liable for a reporting violation. …

[T]he Court of Appeals held that a complaint against physicians for alleged failure to report abuse sounds in ordinary negligence rather than medical malpractice. But, as the dissenting Court of Appeals judge aptly explained, doctors use medical judgment to determine whether a child has been abused and, therefore, whether abuse should be reported.

Accordingly, a doctor often will have “reasonable cause to suspect child abuse” that triggers the reporting requirement, MCL 722.623(1)(a), on the basis of different facts and knowledge than would a layperson who is required to report abuse pursuant to the statute. Thus, although laypersons may be held to ordinary negligence standards when they fail to report potential abuse, when a doctor fails to report his medical expertise is called directly into question.

Young joined Corrigan’s dissenting statement.

Markman echoed Corrigan’s statement that the issues are “jurisprudentially significant.”

Specifically at issue here is: (a) whether a claim against a physician based on a violation of the statute sounds in medical malpractice or ordinary negligence; and (b) whether a hospital may be subject to vicarious liability under the statute. In what are clearly thoughtful majority and dissenting opinions, the Court of Appeals held that a claim based on the Child Protection Law sounds in ordinary negligence and that vicarious liability is applicable.

Disqualification motion denied

Fears that “the appearance of impropriety” standard may be too low and too subjective might be put to rest, with the release of the first ruling in a Michigan Supreme Court disqualification motion.

Southfield-based attorney Geoffrey Fieger had moved to disqualify justices Stephen J. Markman, Robert P. Young and Maura D. Corrigan in Anthony PELLEGRINO v. AMPCO Systems Parking (No. 137111). Fieger claimed those justices are biased against him and his firm, based on past political campaign speech.

But Markman cited staleness, having said during his 2000 reelection campaign only that Fieger had made campaign contributions to his opponents; and once during a speech to a medical society, Markman had made a statement about “trial lawyers” but did not mention Fieger nor his firm by name.

And the statements are just so old, Markman wrote: “He mistakenly attributes to 2002 several matters that are supported by exhibits having occurred during 2000. While, properly, there may be no statute of limitations to claims of bias or prejudice, the staleness of a complaint must at least constitute one factor in assessing the ‘appearance of propriety’ …”

In deciding some 40,000 cases, Markman said,  “Counsel has prevailed in those cases in which, in my judgment, the law was on his side, and he has not prevailed in those cases in which, in my judgment the law was not on his side.”

Further, he pointed out that he had once before disqualified himself from participating in a Fieger case, Fieger v Cox, 480 Mich 874 (2007), because it pertained to Markman’s reelection campaign in 2004.

Young and Corrigan did not participate in the Markman disqualification motion, but justices Diane M. Hathaway, Michael F. Cavanagh, Elizabeth A. Weaver and Chief Justice Marilyn Kelly concurred.

Though certainly the newly adopted MCR 2.003 states that the appearance of impropriety is a ground for judicial disqualification, Weaver wrote in her concurring statement, “The statements made by Justice Markman were made before this Court adopted MCR 2.003 as amended. We will not apply the appearance-of-impropriety standard retroactively to statements made by a justice concerning a party or party’s attorney prior to the rule’s amendments. However, we will apply the standard prospectively to statements made by a justice concerning a party or a party’s attorney from the date that the order amending MCR 2.003 was entered.”

Kelly also noted the staleness of the complaints against Markman.

“It is not alleged that Justice Markman has made subsequent public comments about attorney Geoffrey Fieger,” she wrote. “Moreover Justice Markman’s voting pattern over the past decade does not reflect bias against Mr. Fieger or the appearance of bias …”

New disqualification rule will make justices more accountable

The Detroit Free Press editorial stance on justice disqualificaiton:

For 175 years, it has been up to each justice on the Michigan Supreme Court to decide when he or she should be disqualified from hearing a case. Now the majority that took control of the state’s highest court last year has adopted a new rule that authorizes the full court to second-guess its individual members’ judgment on the critical question of impartiality.
Depending on which faction of that bitterly divided body one asks, Michigan is either entering a new era of judicial transparency or poised at the precipice of a constitutional crisis. …

Our own, somewhat less melodramatic view is that making each justice accountable to his or her peers is an improvement over the status quo, in which a litigant has no practical recourse against a judge who refuses to step aside no matter how compelling the evidence that the judge is biased.

MSC appoints new chief judges

Judge William B. Murphy has been named as the new chief judge of the Michigan Court of Appeals.

The Michigan Supreme Court approved the appointment last week with votes for Murphy from Chief Justice Marilyn Kelly and Justices Michael Cavanagh, Stephen Markman and Diane Hathaway.

Murphy was appointed to the court in 1988. Previously, he was a member of the East Grand Rapids City Commission, a law clerk for the Michigan Court of Appeals, and he worked as an attorney in private practice. Judge Murphy received his bachelor’s degree from Michigan State University and his law degree from Wayne State University.

The MSC also approved a slew of chief judges for the state’s circuit and district court.

The court released three appointment lists: chief judges of multiple-judge courts, chief judges of single-judge courts and appointments discussed individually at the public conference.

MSC denies drug defendant’s appeal on 3-3 vote, Corrigan may testify for former judge in related case

The Michigan Supreme Court, on a 3-3 vote, has let stand the conviction of Alexander Aceval, the Inkster bar owner who pleaded guilty in a second criminal drug prosecution after his first conviction was tossed out because the trial judge, the prosecutor and two witnesses allegedly acquiesced to perjured testimony.

The 3-3 split resulted when Michigan Supreme Court Justice Maura Corrigan declined to participate in the appeal. Corrigan wrote, “I may be a witness in a related case.”

According to a report in The Detroit News, Corrigan has agreed to be a character witness for former Wayne County Circuit Court Judge Mary Waterstone, who presided over Aceval’s first trial. Waterstone, former Wayne County drug prosecutor Karen Plants, and two Inkster police officers now face felony charges arising from the perjury allegations in connection with Aceval’s first trial.

Here’s how the MSC’s voting went: Justices Elizabeth Weaver, Robert Young and Diane Hathaway voted, without comment, to deny the appeal.

Chief Justice Marilyn Kelly dissented from the denial, raising concerns that Aceval may have been denied the right to counsel of his choice.

She also said the Court should “address whether defendant was deprived of due process such that retrial should be barred. The prosecution acquiesced in the presentation of perjured testimony in order to conceal the identity of a confidential informant.”

Justice Stephen Markman also dissented.

False testimony was provided in this drug-related criminal prosecution, and the police, the assistant prosecutor, and trial court were apparently aware of this. Defendant’s first trial, at which the false testimony was offered, ended in a mistrial. Subsequently, the trial court allowed the prosecutor to initiate a second criminal prosecution, which resulted in a guilty plea. After remand from this Court, the Court of Appeals affirmed, and defendant now appeals to this Court. Because this is a remarkable case, I would grant leave to appeal for the exclusive purpose of determining whether, pursuant to the double jeopardy clauses of the United States Constitution, US Const, Am V, and the Michigan Constitution, Const 1963, art 1, sec 15, a second trial should have been barred.

Justice Michael Cavanagh joined in Markman’s dissent.

It’s already beginning …

We’re still 18 months away from the next time we select Michigan Supreme Court justices but a quick visit to the Michigan Democratic Party’s Web site might convince you that Election Day was just around the corner.

Justice Robert Young is drawing early re-election heat

Having dispatched Cliff Taylor in last November’s contest with Justice Diane Hathaway’s election to the high court, the Democrats are already putting the smack on Justice Robert Young, who is up for re-election in 2010.

From the Dem’s home page this morning:

“Justice Robert Young: Enemy of the People”

“Young: Doing Good Not Judges’ Role”

“Law Day 2009: Justice Young Erodes Vital Constitutional Right – Young Undermines Right to Trial By Jury”

“Justice Young Calls Plaintiffs, Justice Weaver Liars”

Wow! At this rate, by October 2010, the Dems may be blaming Young for earthquakes, tornadoes, wildfires, tsunamis and possible asteroid strikes.

Seriously, this sort of partisan ballyhoo is to be expected but what’s noteworthy is the amount of it, and so early in the game, too.

All of this underscores just how important the Dems think it is to secure another reliable seat on the Michigan Supreme Court. The current lineup, by political party, has Chief Justice Marilyn Kelly, and Justices Michael Cavanagh and Diane Hathaway in the Democratic corner, and Justices Young, Maura Corrigan and Stephen Markman in the Republican camp.

Justice Elizabeth Weaver, a Republican, has been critical of the other Republican justices and has sided with the Democrats on some issues. Weaver is also up for re-election in 2010. There’s been talk that the Republicans may not nominate her and that she might run as an independent.

With that in mind, the Democrats are likely thinking that it’s critical to deliver a knock-out punch to Young in 2010 to achieve a solid 4-3 majority on the court.

The Democrats are getting some early help in other quarters.

First, some context: The State Bar of Michigan’s Consumer Law Section recently released a study, which concluded that Michigan Supreme Court decisions have left the Michigan Consumer Protection Act “toothless.”

The study examined MSC opinions dealing with the Michigan Consumer Protection Act and found that, over the years, the court has exempted from the act most of the businesses that generate most of the consumers’ complaints.

It didn’t take long for the Detroit Free Press to paint some faces on the study’s statistical analysis and finger who the Freep’s editorial board thought was the main culprit. From last Friday’s editorial page:

In two landmark cases in 1999 and 2007, the Republican state Supreme Court majority installed by Gov. John Engler effectively gutted the Michigan Consumer Protection Act, ruling that the intent behind the law was to exempt nearly three-quarters of the businesses that generate the most consumer complaints.

Both rulings, authored by Justice Robert Young Jr., contravened 23 years of aggressive enforcement in which the attorney general and consumer advocates relied on the MCPA to hold unscrupulous businesses accountable for deceptive and unfair practices.

It looks like Young is in for a long, hard campaign.

Who do they like? Dailies weigh in with MSC endorsements

With two weeks to go before the election, editorial boards at some of the state’s daily newspapers are weighing in on the Michigan Supreme Court race.

As one might expect, the Detroit News is solidly in Chief Justice Clifford Taylor’s corner:

“Taylor should be retained on the court.

“Taylor will relinquish the chief justiceship next year, as is the court’s custom, but he has been careful with the public’s money as chief justice and sought reasonable ways to contain costs. He led the justices and appellate judges in relinquishing their cars. In a time of tight economic resources, he asked the State Court Administrative Office, which through the Supreme Court has oversight responsibilities for all state courts, to examine whether the number and jurisdictions of some lower court judges should be reallocated or reconsidered. It was the right kind of question for the court to be asking.

“The chief justice is one of a group of jurists who have in recent years changed the direction of the court – mostly for the better. Individual rulings can always be questioned, but the overall movement of the court has been to return to the concept that liability must have a relationship to fault.”

Less expected was the Detroit Free Press‘ decidedly lukewarm endorsement of the chief justice.

The Free Press noted Taylor’s aversion to courts making public policy from the bench and his view “that courts have narrow but important roles. What a statute says is what it says. What the Constitution says is what it says.”

Here’s the Free Press’ editorial rejoinder:

“That mission may sound good to those who agree with Taylor that courts in Michigan had gone too far for too long. But it’s an agenda nonetheless. It’s judging cases through the prism of a specific, long-term policy goal.

“Even worse, Taylor — the only justice up for election this year — and his conservative colleagues have taken their philosophy far beyond mere textual readings of the law or the Constitution to a point where they are, in fact, making policy as much as any of the former justices they’ve criticized.”

“Taylor is enough of a problem on the high court to warrant endorsing nearly anyone as an alternative.”

But there’s an issue, according to the Freep:

“Unfortunately, state Democrats have chosen Wayne County Circuit Judge Diane Hathaway as their candidate. Despite a solid record on the Circuit Court, Hathaway, 54, demonstrates no better grasp of the role of high court justice than Taylor, and can’t even articulate a judicial philosophy that she’d bring to the court. …

“What Hathaway says about how she would simply ‘follow the law’ is not unlike what Taylor says about his philosophy. But in an interview with the Free Press editorial board, Hathaway could not say why she would arrive at different decisions from Taylor, only that she would. She would likely be out of her depth on the high court, and not much more than a reliable, but unexplained, vote that’s the opposite of Taylor’s. That’s not reason enough to put her there.”

The Detroit Free Press concluded by scolding Hathaway’s backers:

“It’s one thing for Democrats, liberals and trial lawyers to complain about the state Supreme Court. It was quite another, apparently, for them to find a credible candidate to challenge its chief justice this year.

“Justice CLIFFORD TAYLOR should be retained Nov. 4 on the Michigan Supreme Court, but voters really deserved a better choice.”

The Bay City Times views the high court election as a choice between two extremes:

“On the conservative end, we have Chief Justice Clifford Taylor. On the liberal side, we have Diane Hathaway, Wayne County Circuit Court judge for 16 years.
Both are seasoned jurists, yet each would bring a very different philosophy to Michigan’s highest court. …

“Do you throw out one extreme for the other? Perhaps. But Hathaway hasn’t made a compelling case for such drastic action in this campaign.”

The Oakland Press opined that:

“It is certainly true that Michigan’s court has a reputation as conservative, but whether such terms as liberal or conservative are helpful in discussing a judicial contest is highly debatable. It seems that impartiality would be a better standard. Why is the plain and simple wording of the law subject to such philosophical interpretations?”

The Oakland Press’ editorial board said that once one puts the philosophical debate aside, what’s left is court administration:

“On this score, [Taylor’s] record is impressive.

“Taylor says that for the last 10 years, the state’s Supreme Court has delivered certainty, clarity and stability in the law. He says this has resulted in a dramatic drop in the filing of frivolous lawsuits throughout the Michigan state court system. In fact, he says the caseload has dropped so much that appellate judicial vacancies should not be filled in areas where court filings are down.

“He also asked all judges receiving a state car as a result of their compensation package to return it to the state for auction, resulting in a savings of more than $420,000.

“He has supported jury reform, backing proposals aimed at giving jurors more information and helping them render fair, impartial verdicts. He also would allow jurors to take notes and to ask proper questions of witnesses. …

“Hathaway is a well-qualified candidate, but on an objective basis, there is no compelling reason for voters to make a change.”

But the Lansing State Journal had no problem urging a change of personnel:

“The most important vote a Michigan resident can cast this fall is to oust Chief Justice Clifford Taylor from the Michigan Supreme Court.

“The direct beneficiary of this decision will be Diane Hathaway, the Democratic nominee. The LSJ endorses Hathaway’s candidacy as a way to protect the rights of Michigan residents against the assaults of the Taylor-led court.

“John Engler put Taylor on the Supreme Court. And huge amounts of money from business interests with business before the high court have kept him there.

“While there, Taylor and his political allies on the court have again and again put the people’s interests last.”