MSC censures former Justice Weaver for airing deliberations

From the Associated Press:

DETROIT (AP) — Five members of the Michigan Supreme Court have rebuked a former justice who secretly recorded internal discussions and released a transcript during the election season to show that a justice had used the N-word in 2006.

"It is truly a sad day when this Court is forced to censure a former colleague," the justices said in a Nov. 17 letter to Elizabeth Weaver.

"None of your fellow Justices was aware that you were tape recording our private deliberations on cases. Had you requested our consent to record, we would have refused it," the justices said. "We know of no instance in the past when a Justice has secretly recorded Court deliberations."

Weaver quit the court in August and campaigned against Justice Robert Young Jr. In October, she released a transcript to reveal that he had used the N-word while justices were discussing cases in May 2006.

Young, who is black, acknowledged using the racial slur but said he was simply quoting a disgraced former Detroit-area judge during a talk about judicial politics. Weaver recorded her fellow justices while participating that day by conference call. She insists it was legal.

"We as Justices owe a duty to the Court and to the public to make clear that we do not condone your behavior as outlined in this letter," the five justices said.

A message seeking comment was left Monday for Weaver, who was on the court for nearly 16 years.

The letter was signed by Chief Justice Marilyn Kelly and justices Young, Maura Corrigan, Stephen Markman and Michael Cavanagh. Justice Diane Hathaway declined to sign it, saying a censure first requires a formal hearing.

It was not immediately clear why Justice Alton Davis did not participate. He was appointed to replace Weaver and recently lost an election to keep the seat.

[UPDATE: You can read the letter here. (The Detroit News)]

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ADB’s dismissal of alcohol-related reprimand upheld

The Michigan Supreme Court has refused to review the Attorney Discipline Board’s decision to vacate a hearing panel’s reprimand, with conditions, of Dianne L. Baker, who pleaded guilty to driving while visibly impaired and faced the discipline process as a result.

As reported in our Feb. 22 issue, the Attorney Grievance Commission wanted to put Baker through the wringer. The AGC offered to back off if Baker agreed to contractual probation, which required Baker to swear off alcohol, attend counseling or submit to alcohol monitoring, and to file quarterly progress reports.

The AGC wanted all of this because it perceived that Baker had a drinking problem and was not doing anything about it. Baker declined the offer and told the AGC to prove its case.

A hearing panel agreed with the AGC’s assessment and issued a reprimand that contained substantially the same conditions Baker rejected when she turned down the contractual probation offer.

On review, the Attorney Discipline Board said the evidence just didn’t add up against Baker and vacated the reprimand. The ADB pointed to Baker’s negative alcohol tests, the hearing panel’s adverse determination of Baker’s credibility without citing any supporting evidence and Baker’s voluntary counseling sessions.

What’s more, said the ADB in its opinion:

Even if the record indicates what could be deemed excessive alcohol consumption at certain points in [Baker’s] life, we must also consider the evidence of [her] voluntary cessation or reduction of alcohol use during most periods of her life, which include consistent employment in responsible positions, childbirth and child-rearing years, and graduation cum laude from law school while working.

There’s no justification for Baker to be involved with the discipline process, the ADB said.

[W]e find clear evidence that respondent drove while impaired by alcohol on one occasion. This criminal conduct was appropriately dealt with by the district court.

The other evidence marshaled fails to demonstrate the existence of a problem for the attorney discipline system to address.

Late last month, a four-justice majority denied the AGC’s application for leave to appeal. Justices Maura D. Corrigan and Robert P. Young Jr. would have granted leave.

Justice Elizabeth A. Weaver sat this one out, explaining:

I abstain from voting on any items dealing with the Judicial Tenure Commission (JTC) and/or the Attorney Grievance Commission (AGC) to avoid any appearance that I could be trying to affect the outcome of the referrals of me to the JTC and AGC by Justices Corrigan, Young and Markman.

See, The Michigan Lawyer, “Weaver, Corrigan, Young and Markman: Supreme Court potboiler,” for more about this topic.

Keeping Up With The Candidates: July 2 Edition

This week started off with a powder keg issue for Michigan politicians: Congress’s failure to extend jobless benefits.

With Michigan’s (somewhat) improved unemployment rate still hovering somewhere over 13 percent, all gubernatorial candidates are stuck between, on one hand, trying to play up fiscal responsibility for a state that is broke,* and on the other hand, showing the proper amount of compassion for the thousands who were first laid off from their livelihoods, and now are uncomfortably close to suffering the ultimate indignity: being laid off from unemployment.

* Yes, I know the Congress is the one not extending benefits, but the candidate’s comments will undoubtedly be twisted to show they are in favor of some kind of welfare state.

Jackie Headapohl of the Grand Rapids Press called all of the candidates to find out their thoughts on the issue, with predictable results:

The offices of Republicans Tom George, Pete Hoekstra and Mike Cox, as well as the office of Democratic candidate and Lansing Mayor Virg Bernero did not return calls or e-mails yesterday, but  Bouchard, Snyder and Democratic candidate Andy Dillon offered statements through their spokespeople.

GOP candidate Michael Bouchard is apparently against an extention. At least that’s what it seems, based on the statement released by his spokesperson, Marie Antoinette Ted Prall:

A spokeswoman for Bouchard said, "Mike Bouchard believes that the best way to combat unemployment is to make Michigan the place to do business again. As a Senator, Mike was a leader in crafting legislation that gave people a hand up, not a hand out. That’s the same kind of governor he will be."

Fellow GOP candidate Rick Snyder and Democratic candidate Andy Dillon favor extending the benefits:

According to his communication director, Rick Snyder "doesn’t support increasing the national debt and raising taxes. He does believe that federal unemployment benefits should be extended to help put food on the table by cutting spending to offset the costs."

Democratic candidate and State House Speaker Andy Dillon is a proponent of extending federal unemployment benefits according to a campaign spokesman. "Far too many people are out of work and need the help," he said.

Elsewhere, Dillon and Virg Bernero debated again on Monday, and civility again took a back seat to one liners. Such is life in politics.

Bernero repeatedly referred to Dillon as "speaker of the mess" and said it’s too late for him to lay out ideas he should have implemented in the last four years as the leader of the state House.

"You can’t handle the job you got and you want a promotion?" Bernero asked during the taping of the debate at WTVS public television studios in Wixom.

Dillon shot back that unemployment has soared in Lansing during Bernero’s administration, auto manufacturing employment has dwindled from 28,000 to 16,000 and the city’s credit rating has been lowered.

"In your term as mayor your budget has gone up every year except this one," Dillon said.

He touted his experience as a private investor and legislative leader, saying the combination gives him the background needed to lead the state out of its economic morass.

"My opponent is a 20-year career politician now running for his sixth office," the speaker said.

Bernero charged that Dillon "screwed up" the Michigan Business Tax and the Promise grants for college students. "Now he wants to circle back" and fix those problems, he said. He also said Dillon is on record opposing national health care reform legislation.

Dillon replied he never opposed the federal health care bill. He fired back that Bernero was labeled an ineffective legislator in a survey of his peers and that he was in the Legislature when the state’s structural deficit took root.

According to the Michigan Messenger, both Democrats will be firing up the ad wars after the Fourth of July. In other ad news, remember Mike Cox’s allegedly stolen and internet leaked ads defending him against potential Manoogian Mansion attacks? Cox is running them in Detroit.

Asked whether the commercials are being run because of persistent questions about Cox’s investigation, campaign manager Stu Sandler said: "No. We wanted to introduce Mike’s background as a prosecutor."

Eh, ok.

Also the Detroit Free Press has done a series of profiles on all of the primary candidates: Bernero, Dillon, Cox, Snyder, Pete Hoekstra, Bouchard and Dr. Tom George. (Incidentally, please take no offense, Tom George supporters, at the lack of news in these posts about your candidate. I’ve not found any stories about him in the major papers, or I would have posted it.)

Supreme Court candidates still have a couple weeks to officially enter the race, but this we know: Justice Robert P. Young Jr. is in (you can follow his campaign on Facebook here if you are so inclined), and Justice Elizabeth A. Weaver is as well … as an independent (no Facebook page found). So a new GOP candidate will probably run against Weaver for the MSC (and when I say “probably” I mean “definitely.”)

But will the Democrats put anyone up against her? And will any of the new candidates have a Facebook page for you to follow/spam? See you next week.

MSC: Anonymous tip was sufficient for school search, reverses Perreault

The Michigan Supreme Court reversed the decision in People v Perreault, in which a Court of Appeals panel said a school administrator’s search of a student’s vehicle on school grounds violated the defendant’s Fourth Amendment rights.

At issue in that case was whether the school took appropriate steps to verify the information contained in the anonymous tip on which it based its search.

The Supreme Court said it reversed the decision “for the reasons stated in the Court of Appeals dissenting opinion.” The court also rejected a defense argument that the role of the police “rendered this a police search.” The police passed the tip it obtained from an anonymous tip line to a school administrator, and the police’s liaison officer was present during the search, but did not conduct the search himself.

The dissenting judge, Peter D. O’Connell, wrote that the totality of circumstances provided the administrator with “sufficient indicia of reliability to support reasonable suspicion of criminal activity.”

Justice Stephen J. Markman, joined by Justices Maura D. Corrigan, Robert P. Young Jr. and Elizabeth A. Weaver, concurred with the order, writing:

Thus, there was corroborating information to indicate that the tipster’s information was reliable. In my judgment, the tip and the corroborating information were sufficient for school officials to form a particularized suspicion that defendant was, in fact, selling drugs from his truck in the school’s parking lot. Therefore, the search of defendant’s vehicle conducted by school officials on school property did not violate defendant’s constitutional rights. Rather, it was an entirely reasonable search under the Fourth Amendment.

Chief Justice Marilyn Kelly, joined by Justice Michael F. Cavanagh, dissented, saying the case was a close call and that she would grant the parties leave to appeal.

More light shed on the MSC justice grievance

The Grand Rapids Press reports on the story behind the story of the three Michigan Supreme Court justices who asked the Judicial Tenure Committee to investigate alleged ethical violations by Justice Elizabeth A. Weaver.

According to the story,Weaver spilled the beans about some behind-the-scenes discussions about a lawyer conduct case which had already concluded. The reports says she gave that information during a discussion with attorney John Muth, who had represented Weaver in another matter. However, Muth was involved in another similar case, which was at the time pending before the Attorney Grievance Commission. The case later came before the Michigan Supreme Court, and Weaver disqualified herself, which she said brought the alleged misconduct to the attention of her colleagues.

Where’s the injustice?

Lesson to lawyers with aspirations to solve the justice system’s flaws: be sure you pick the right battlefield on which to fight.

One lawyer last week irked Michigan Supreme Court Justice Elizabeth A. Weaver when he argued on application the injustice of his client’s sentence. In People v Kade, Bernard Kade had pleaded guilty to third-degree fleeing and eluding and was informed by his lawyer that the maximum sentence would be five years.

However, Kade was a habitual offender, having been convicted twice of operating under the influence, and he was sentenced to a minimum of two years, six months, and a maximum of 10 years. The trial court denied his motion to withdraw his plea.

Attorney Dana B. Carron said that he should have been informed of his maximum possible sentence as required by MCR 6.302(B)(2).

Kade served 30 months, and by the time Carron was in front of the Michigan Supreme Court, Kade was actually out of prison and was sitting in the courtroom.

And that made Justice Stephen J. Markman ask, “Why isn’t this case moot? … Is it his intent to withdraw his plea?”

Carron said it won’t be moot until his client is released from parole.

“He’s willing to take the potential punishment in order to gain for everyone else,” Carron said.

Carron said that in his line of work he’s seen hundreds of defendants charged as habitual offenders, and the judge almost always enhances their sentences, so they should be made aware of that during the plea negotiations.

Justice Robert P. Young asked why Kade’s attorney didn’t just tell him as much.

The best a judge could do before sentencing is give an “indeterminate ‘something really bad could happen to you'” warning about habitual offender sentencing enhancements, Young said.

And allowing defendants to withdraw their pleas at sentencing would create havoc in plea negotiations, said Prosecuting Attorney Marilyn J. Day.

“The only problem with allowing the withdrawal of a plea … now you’re at sentencing,” Day said. “The prosecutor is in a bit of a bind because they were relying on that plea.”

Still, she added, that bind is better than defendants appealing after the fact.

“What’s the problem here? Where’s the injustice?” Weaver asked. “You have given us not one bit of reason but intellectual theorizing in the future.

“If you want to argue about other cases in the future … when that case comes maybe we’ll here it.
That’s where I am. You’ll have to convince the rest of these people to take this case.”

She said she simply couldn’t find one reason  that the court should grant Kade any relief.

“Is it really unjust,” she asked, “that he might have to behave himself” for the duration of his probation.

He only has to behave until September, Day noted. That’s when he’ll be discharged from parole.

COA Judge Jane Markey: MSC wannabe?

Jane E. Markey

Court of Appeals Judge Jane E. Markey

The stage may be set for Jane E. Markey, a Grand Rapids-based Michigan Court of Appeals judge, to seek one of the two Republican Party slots for the Michigan Supreme Court election in November.

Markey, according to The Grand Rapids Press, is interested in the nomination. Normally, MSC incumbents get their party’s nod but things are little different this time around for the GOP.

The GOP undoubtedly will nominate MSC Justice Robert P. Young Jr. to run for re-election. But Republican backing for Justice Elizabeth A. Weaver, who is also up for re-election, is far less certain.

She’s repeatedly broken ranks with Young and the other GOP-sponsored justices currently on the Court, Maura D. Corrigan and Stephen J. Markman.

In fact, Young doesn’t even want her on the ticket. He drew a line in the sand last January when he said, “They can nominate her, or they can nominate me,” referring to Republican convention delegates and Weaver, respectively.

The final straw may have been last week’s explosive public administrative hearing at the Michigan Supreme Court.

Corrigan, Young and Markman revealed that they asked the Judicial Tenure Commission to investigate Weaver for allegedly revealing internal deliberations about a case. The three say that Weaver violated Administrative Order No. 2006-8:

Deliberative Privilege and Case Discussions in the Supreme Court

The following administrative order, supplemental to the provisions of Administrative Order No. 1997-10, is effective immediately.

All correspondence, memoranda and discussions regarding cases or controversies are confidential. This obligation to honor confidentiality does not expire when a case is decided. The only exception to this obligation is that a Justice may disclose any unethical, improper or criminal conduct to the JTC or proper authority.

[Effective December 6, 2006]

Weaver says the order was never properly adopted and tried, without success, to get it rescinded at last week’s conference.

All of this bodes well for Markey and others who want a shot at a presumably open GOP top court slot.

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