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.

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.

Circular circulation

From The Detroit Free Press comes this interesting tale of a government job-swap:

Longtime Wayne County Probate Judge David Szymanski put in for retirement in early November, planning to leave his $140,000-a-year judgeship on Dec. 21.

On Dec. 20, Gov. Jennifer Granholm appointed deputy Wayne County Treasurer Terrance Keith to fill Szymanski’s spot on the probate bench, leaving Keith’s $145,000-a-year deputy clerk position open.

Who did Wayne County Treasurer Raymond Wojtowicz appoint?

He didn’t have to look far. He hired Szymanski.

The former judge said his judicial pension should pay him between $55,000 and $60,000 a year on top of his new salary and help him put his children through college.

“There was no quid pro quo,” Szymanski said.

Keith, who had worked for the county for about nine years, didn’t return phone calls this week seeking comment on the job switch.

Hugh Clarke Jr. named to Lansing district court bench

The Lansing State Journal reports that Hugh Clarke Jr. has been appointed judge of the 54A District Court.

Said Clarke of his appointment by Gov. Jennifer Granholm:

“I’m certainly pleased and humbled. I want to thank the Governor for this opportunity she has bestowed on me. I’m looking forward to serving the citizens of Lansing in this position.”

Clarke has unsuccessfully campaigned four times for a seat on the bench: twice for Ingham County Circuit Court and twice for district court seats.

He’s a Cooley Law School grad and has an undergraduate degree from Wayne State University.

Among Clarke’s notable cases: a $2 million settlement for Claude McCollum, who was wrongful convicted of murder and served several years in prison before being freed.

Krause appointed to COA

Gov. Jennifer Granholm has appointed 54-A District Court Judge Amy Krause to the Michigan Court of Appeals.

Krause fills the open seat created when COA Judge Alton T. Davis was appointed to the Michigan Supreme Court following former MSC Justice Elizabeth Weaver’s resignation.

Krause’s appointment ends speculation that Granholm might reappoint Davis to the COA. Davis lost his re-election bid to the MSC earlier this month.

Krause is an adjunct faculty member at Thomas M. Cooley Law School and a former assistant attorney general. She is a recipient of the State Bar of Michigan Champion of Justice Award and is chairperson of the Michigan Domestic Violence Prevention & Treatment Board.

She’s a Notre Dame law grad with a bachelor’s degree from the University of Michigan.

Granholm fills SE Michigan judicial vacancies

Governor Jennifer Granholm appointed three new judges to replace vacancies in southeastern Michigan.

In the Third Circuit Court (Wayne County), Lawrence Talon was appointed to replace Bill Callahan, who had resigned. Talon’s term will expire on January 1, 2013. He was an assistant prosecutor in Wayne County.

In the Sixth Circuit Court (Oakland County), Phyllis McMillen was appointed to replace Hon. Mark Goldsmith, who was appointed to the U.S. District Court, Eastern District of Michigan earlier this summer. McMillen was a judge with the 53rd District Court and an adjunct professor at the Thomas M. Cooley Law School. She is also vice president of the Michigan Association of Drug Court Professionals.

Charles Goedart was appointed to replace Robert Turner as a district court judge in the 43rd District (Ferndale, Hazel Park and Madison Heights). Goedart was with Dickinson Wright PLLC.

It’s soon time to change our way of speaking

As some of us in the news business know, each publication has its own rules in terms of the style used. It can vary from whether a township designation is used on first reference only, to whether a car company’s “corporation” or “company” status is used at all.

Well, it looks like the next governor will lay down his own rule in terms of what we’re called around here, as the Detroit Free Press reports:  

Republican gubernatorial nominee Rick Snyder likes to think of himself as someone who will give Michigan the kind of leadership “where all Michiganders can win together.”

In his 10-minute victory speech Tuesday, Snyder referred to “Michiganders” coming together or working together or winning together four times.

In fact, he uses Michigander in almost every stump speech, in answers to questions, on his Web site.

But many fellow citizens think they’re Michiganians.

Those include Gov. Jennifer Granholm and at least her two immediate predecessors: John Engler and Jim Blanchard.

Virg Bernero, the Democrat running for governor, hasn’t used either term noticeably.

We asked his preference.

“Michigander” was the one-word response from his spokesman.

So, kumbaya, brothers and sisters: Whoever wins, we’ll soon all be Michiganders.

Take a breeze through the “Comments” section of the online version of the story, and you’ll find one reader who has a suggestion: “I’d prefer to be called EMPLOYED!”

Granholm signs utility theft bills

Last time I checked, these two things were already illegal.

From the AP:

LANSING, Mich. (AP) — A new state law aims at cracking down on energy theft from utilities in Michigan.

Gov. Jennifer Granholm signed bills Wednesday that make it a felony to illegally sell or transfer utility service. The penalty will be up to five years in prison and a $5,000 fine for a first offense.

The bills also create specific penalties for assaulting utility workers while on the job. The minimum penalty would be a misdemeanor punishable by up to a year in jail and a $1,000 fine. Penalties would stiffen if the assault resulted in injuries requiring medical attention.

Energy theft has become a larger safety and utility cost issue during Michigan’s economic downturn. Illegal hookups have caused fires and resulted in higher costs for those who have legal utility connections.

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.

Granholm to sign texting bill on Oprah

DETROIT (AP) — Michigan Gov. Jennifer Granholm will sign legislation with a little more pomp and promotion than usual.

Granholm signs into law the state’s texting-while-driving ban Friday during a broadcast of "The Oprah Winfrey Show." Her appearance will be aired via satellite from Detroit’s Renaissance Center.

Granholm’s signing is one of many events at "No Phone Zone" rallies in Detroit, Los Angeles, Boston, Atlanta and Washington, D.C., that are part of the broadcast.

Winfrey launched the campaign against distracted driving in January. She has sponsored a pledge on her website asking motorists to commit to not text or talk on phones while driving.

Texting will be a primary offense under Michigan’s law, meaning police can pull over motorists solely for using phones to send text messages.