COA reduction: Why not sooner?

Two days ago, we posted news of the Court of Appeals reduction from 28 judges to 24. In the post, I was critical of the timetable, of which there really isn’t one. The four judges who will be removed will essentially get to choose who they are and when they leave, beholden only to the 70-year-old limitation.

So if the goal of this reduction is to lower the budget for the Court of Appeals by four judgeships and staff, it’s not happening in any defined future.

This morning, SBM Blog, the State Bar’s blog, asked the question “Why not pull the plug right away?” and offered three reasons:

  1. Downsizing judgeships without degrading services requires thoughtful planning, good management — and time. The phased-in eliminations allow for an orderly, workable transition.
  2. The judges in courts identified as having excess judgeships will not be idle. The workload analysis identified 45 excess judgeships, but also found that there was a need for 35 new judgeships in other jurisdictions.  At the recommendation of the Supreme Court, the Legislature has enacted legislation phasing out the excess judgeship, but has not created any new judgeships. Michigan’s constitution wisely provides for “one court of justice” administered by the Supreme Court, which means that the excess capacity available through the phased-in eliminations can be used to address the need for judicial services in the “under-judged” jurisdictions.
  3. To ensure balance of powers, the Michigan Constitution protects the seats of judges for the duration of their terms.

The post refers, I think, to all judicial reductions. While I find it strange that some of the local courts are being consolidated immediately but others three years from now,1 at least those are defined times for the courts to be consolidated. The Court of Appeals has no timeline for its reduction. And that’s where I respectfully disagree.

1  Some of these changes happened after the original plan was made, protecting some cities’ judgeships from the chopping block.

Only one of these bullets answers the post’s question, and only partially at that. First, it’s not really a phased-in reduction.  A phased-in reduction would be one in which each judgeship and staff reduction takes place at staggered times, but by a timetable. Under this bill, that doesn’t necessarily happen. If four judges (one from each district) decide not to run at the same time or choose to retire at the end of the year, the reduction will happen at the same time. What are the chances of four judges stepping down at the same time? Probably slim, but it’s possible.

Also, as I wrote on Wednesday, all judges can continue to seek re-election until they turn 70. So if judges run and lose, the judgeship isn’t eliminated until the successor quits/retires. And if he loses an election … it could take more than 10 years for the full plan to run its course.

Second, while the “extra” judges certainly are going to be hearing cases, the reason the reduction was needed wasn’t simply because of budgetary reasons. It was because the Judicial Crossroads Task Force showed that filings dropped from 10,951 in 1989 to 6,177 in 2010. Part of that decrease may be attributable to a change in how files were counted (see the footnote on page 67), but it’s still a significant decrease. In fact, from filings dropped almost 25 percent from 2006 to 2010. In other words, the number of filings doesn’t justify the number of Court of Appeals judgeships.

Finally, as to the constitutional argument, that certainly provides a reason to allow four judges to finish their terms, but this reduction plan goes beyond that. It doesn’t end the judgeships of the next judge in each district whose term ends. It allows each judge to serve until they choose not to or the term that ends after they are 70.


Michigan Legislature passes Court of Appeals reduction plan

The Michigan Legislature has passed SB 849, which would reduce the number of Court of Appeals judges from 28 to 24. The bill now goes to Gov. Rick Snyder for his signature.

Sounds good, right? I mean, the Judicial Crossroads Task Forceshowed that appeals filings are down so much that the state doesn’t need 28 judges and their staffs. But a review of the bill shows that the court might remain in its current bloated state for some time.

In its current state, there is no set timetable for the reduction to happen. The bill states that one judgeship in each of the state’s four districts will be eliminated if it becomes vacated. So really, it’s not even the next four judgeships to become vacated. Each district can only lose one, so if two are vacated, the seat with the shortest remaining term is the one that becomes eliminated.

If none are vacated via retirement, resignation, removal or death (unless there’s a fifth method to vacate a seat during a term), the seats can be eliminated if a sitting judge chooses not to run for re-election. Of course, if one runs and is defeated, under this bill, it wouldn’t trigger elimination of the seat (Not that it should, necessarily, as it would certainly stifle anyone’s aspirations to challenge a sitting judge. But it certainly could kick the proverbial can down the road even further.)There’s even a clause that protects the seat of Judge Amy Ronayne Krause, who was appointed by former Governor Jennifer Granholm last November and has yet to run for election. 

Michigan’s going to get a smaller judiciary eventually, just not as soon as you might have thought.

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).

High court won’t intervene in dispute over $100M deal with female prisoners

The Associated Press has reported that the Michigan Supreme Court has declined to intervene in a dispute over a $100 million settlement with former and current female prisoners who claimed they were sexually harassed behind bars.

Oakland County wants the women’s names so victims of their crimes also can be paid. While that dispute is pending, the county wants the state to suspend payments.

But in a 3-2 decision in Neal v. Department of Corrections, et al., and Oakland County Reimbursement Unit, released Nov. 10, the Supreme Court said it won’t freeze payments and won’t overturn the Michigan Court of Appeals decision.

In their dissent, Justice Stephen Markman and Chief Justice Robert Young Jr. say the lack of intervention will hurt crime victims.

Markman wrote in the order: “I would immediately stay any further disbursements to prisoners until the Court of Appeals has finally determined: (a) whether notice to the victims is required by law to be provided by the MDOC before any proceeds of a class-action settlement are disbursed to prisoners; and (b) whether full, and not half, payments of restitution are required by law to be disbursed to victims of plaintiffs’ crimes before any disbursements are made to plaintiffs.”

Justices Diane M. Hathaway and Mary Beth Kelly recused themselves.

Medical provider owes no fee to plaintiff attorney, MSC says

In May, the Michigan Court of Appeals decision in Miller v. Citizens Insurance allowed a first-party plaintiff’s attorney to collect a fee from a medical provider who received payment from an insurer because of the first-party action.

The court reasoned that without the first-party action, the provider might have only received payment from Medicaid, which would have been much less than the amount it received.

On Friday, November 4, the Michigan Supreme Court reversed the decision in an order:

Plaintiff’s reliance on MCL 500.3112 is unavailing because that provision, which permits equitable apportionment of personal protection insurance benefits among payees, does not encompass an award of attorney fees to an insured’s counsel.  However, the Court of Appeals’ reliance on the common-fund exception to the American rule was erroneous because no common fund was created.

Of concern to this Court is that the circuit court’s order, and the Court of Appeals’ affirmance, could be mistakenly interpreted as extinguishing the DMC’s contractual right to payment for its services.  We wish to make clear that this is not the case.  No-fault benefits are “payable to or for the benefit of an injured person . . . .”  MCL 500.3112.  In this case, through settlement, the benefits were paid to plaintiff, and her attorney asserted an attorney’s charging lien over the settlement proceeds.  Thus, the effect of this was only to settle claims as between  the insurer, plaintiff, and her attorney.  The circuit court’s order of dismissal pursuant to the settlement agreement did not have the effect of extinguishing the DMC’s right to collect the remainder of its bill from plaintiff.  Such a result could not have been achieved without an explicit waiver, or at least unequivocal acquiescence, by the DMC, which was not obtained.

Power on

The Michigan Court of Appeals has affirmed an order of the Michigan Public Service Commission approving a renewable energy plan that will include a $5.3 billion wind power project.

The plan was submitted by Consumers Energy Co. after the state of Michigan adopted its Clean, Renewable, and Efficient Energy Act in 2008, which requires 10 percent of all energy sales to come from renewable sources by 2015.

The cost of the project, according to the July 12, 2011, opinion in The Association of Businesses Advocating Tariff Equity v. Michigan Public Service Commission, et al., will be recovered in part by charging higher energy prices, and in part by collecting a surcharge of $3 per month for residential customers, $16.58 per month for commercial customers, and $187.50 per month for industrial customers. The charges may be collected over a span of 20 years.

It’s the increased costs that (Association of Businesses Advocating Tariff Equity) ABATE  is concerned about, and it argued that the project is too large and too costly.

The group, made up of major manufacturers and energy consumers, said that there is no reason the entire project must be implemented now. It called the plan “speculative and inflated.” In other words, the project will be over-built. But Consumers argues that in order to ensure enough land acquisition and the best prices for the equipment needed for wind farms and transmission lines, now is the time to build; putting off some of the project could result in higher costs.

The Public Service Commission approved the plan, with modifications to address what it called flaws in the plan. ABATE appealed.

The Court of Appeals concluded that the commission’s “findings are supported by testimony and exhibits … and that (ABATE) has thus failed to demonstrate that the decision to allow Consumers Energy to proceed with its renewable energy plan was unreasonable and unlawful.” The 2008 law not only requires the percentage of the state’s energy to come from renewable sources, but it also allows that energy companies can meet up to half of that obligation by building their own renewable energy facilities. And the companies can seek surcharges to pay for it.

COA reverses itself, allows videographer

After much wrangling and apparent confusion, the Michigan Court of Appeals has reversed itself and will allow a journalist to videotape oral arguments in a pot case.

After initially denying Eric VanDussen’s request to tape the proceedings in People v. Anderson, the COA finally came to the realzation that he actually IS a journalist.

Or maybe it was the State Supreme Court telling the COA that its excuse explanation that “fair administration of justice requires such action,” wasn’t good enough.

Or maybe it was Justice Markman’s comments on a different COA denial questioning that  same rationale — noting that every single Supreme Court oral argument is “accessible to the public on Michigan Government Television.”

Or maybe it ‘s the fact that an administrative file has been opened concerning the continued workability of Administrative Order 1989-1 — which allows courts to use excuses  give explanations like “fair administration of justice requires such action,” to deny access.

A big question is why the COA would deny media access in such a hotly debated issue as the medical marijuana law, which is in great need of scruitny and closely followed by all quarters.

Well, the smoke has been cleared from the room — at least for now.