The plot thickens: Johnson appointed to Inkster district court

Gov. Rick Snyder’s Sept. 5th appointment of Sabrina Johnson to the Inkster-based 22nd District Court could result in one of the shortest stays on the bench since Justice Alton Davis’s four-month stint on the Michigan Supreme Court in 2010.

Or it may be just the boost she needs to keep the job past the Jan. 1, 2013 expiration of her appointment.

Johnson, a long-time Wayne County assistant prosecutor with deep Inkster roots, was named to fill an opening created when the MSC removed Sylvia James from the bench on July 31 for misconduct. The Court found that James engaged in financial, administrative and employment improprieties, and then misrepresented the state of affairs to the Judicial Tenure Commission.

MSC Chief Justice Robert Young and Justice Stephen Markman voted with a unanimous Court to throw James off the bench. But they wanted even more. In a separate opinion, they argued in vain that James should be made to sit on the judicial election sidelines for six years. The two justices feared that James would simply run again and reclaim a seat on the very court she had just been booted from.

Seven days after being removed from the bench, James topped a field of eight contenders In the Aug. 7 primary for the 22nd District Court.

Here’s where the plot thickens. Johnson was also on the primary ballot. She finished second.

Johnson, now freshly appointed until the end of the year to fill the balance of James’ term, needs to win the November election or she’ll surrender the seat back to James.

A victory for James will give her the opportunity to thumb her nose at everyone who had anything to do with getting her kicked off the court. Young and Markman’s worst nightmares will come true.

Johnson will be listed on the ballot as an incumbent judge. James won’t. That usually does the trick in judicial elections and goes a long way in explaining Snyder’s appointment of Johnson.

But being forced from the bench for misusing public funds and telling whoppers to the authorities normally spells the end of a judicial career.

Except in Inkster, where some voters, caught up in a cult of personality, are apparently willing to reward James’ misconduct with another six-year term.

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MSC: Emergency school manager oath-of-office case moot

Robert Davis, the Highland Park school board’s secretary who last week pleaded not guilty to federal charges of converting school district funds, has one less thing to worry about, courtesy of the Michigan Supreme Court.

The Court yesterday threw out his suit, Davis v. Emergency Manager of the Detroit Public Schools, which challenged Roy Roberts’ authority to serve as the emergency manager of the Detroit Public Schools.

In May 2011, Gov. Rick Snyder appointed Roberts under MCL 141.1501 et seq., Michigan’s emergency manager law. Roberts went to work without taking an oath of office.

Davis, a vocal critic of the law who backs up his views with litigation, asked Attorney General Bill Schuette to initiate a quo warranto action, claiming that without the oath of office, Roberts had no authority to run the Detroit schools.

After Davis sought quo warranto relief, Roberts took the oath, and a few days later, Schuette declined Davis’s request.

Davis’s next stop was at the Court of Appeals, which also turned him down. In an order dated Oct, 6, 2011, the COA said Robert’s failure to immediately take the oath didn’t violate MCL 201.3(7), which meant the office of emergency manager “was not, and did not need to be, declared vacant.”

The COA also ruled that Roberts fixed the problem by taking the oath of office before Davis filed his COA action, and that before taking the oath, Roberts was functioning as a de facto officer.

The Michigan Supreme Court yesterday approved the result but not the reasoning.

[W]e VACATE that part of the of the Court of Appeals October 6, 2011 order providing the legal reasoning for the denial of the application.

In all other respects, the application for leave to appeal is DENIED as moot in light of the fact that Roy S. Roberts was reappointed to serve as Emergency Manager for the Detroit Public Schools, effective April 2, 2012, and he signed an Oath of Office on that date.

In a concurring statement, Chief Justice Robert Young Jr. questioned whether an emergency manager is even constitutionally required to take an oath of office. Young said the issue need not be decided because the case was moot.

Young’s concurrence prompted Justice Stephen Markman to respond:

Given that the responsibilities of the emergency manager are, during extraordinary economic circumstances, to carry out the duties of the mayor and the members of the city council of a municipality, all of whom themselves are required to take oaths of office, it would seem anomalous that an official serving in their stead would not also be required to make the same commitment to the laws and constitutions of the United States and Michigan.

$9.2M: Michigan tops nation in supreme court campaign spending

Michigan led the nation in campaign spending for 2009-2010 on state high-court elections, according to a report prepared by the Justice at Stake Campaign and two of its partners, the Brennan Center for Justice and the National Institute on Money in State Politics.

“The New Politics of Judicial Elections 2009–10” compiled figures that showed high-court spending in Michigan was nearly $4 million more than in Pennsylvania, the next state on the list:

Michigan: $9,243,914
Pennsylvania: $5,424,210
Ohio: $4,437,302
Alabama: $3,538,805
Illinois: $3,477,649
Texas: $2,951,719

The report had this to say about the election cycle:

In Michigan … interest groups and political parties dominated the airwaves, estimates of campaign spending ranged from $9.1 million to $11.1 million (with $6.8 million to $8.8 million in non-candidate spending). Regardless of the precise figure, Michigan’s judicial election spending was easily the nation’s highest in 2009-10. …

So great was the independent spending in Michigan that the four supreme court candidates [Young, Kelly, Justice Alton Davis and Judge Denise Langford-Morris], who raised a total of $2.3 million, at times seemed like bystanders in their own elections.

The state Republican Party single handedly outspent all four candidates, investing more than $4 million in electoral support. Kicking in more than $1.5 million was the state Democratic Party, while the Law Enforcement Alliance of America (LEAA), a Virginia-based group with ties to the National Rifle Association, also made a major TV splash.

Most of the special-interest spending in Michigan was concealed from the public, a fact that accounts for the variation in estimates of total spending. Although ads by both parties and the LEAA were blatant attempts to sway votes, Michigan’s outdated disclosure law treated them as apolitical “issue ads,” and required no campaign finance filings disclosing the amounts spent. Estimates of total spending therefore were largely based on the volume of TV ads each group ran, and estimates of what that airtime cost. It also was impossible to decipher who ultimately bankrolled independent efforts in Michigan.

After being the preeminent player in the previous five supreme court campaigns, the state Chamber of Commerce sponsored no television advertisements in 2010. But it did give $5.4 million to the Republican Governors Association (RGA), a national campaign organization. The RGA ultimately transferred $5.2 million back to Michigan’s Republican Party, which was the leading television sponsor in this year’s high court campaign. Accountability was lost in the face of the RGA’s massive national shell game.

The report also slammed the Michigan Democratic Party’s campaign against Young:

The Democrats anti-Young campaign reached rock-bottom … when they ran an ad that said Young “used the word ‘Slut!’ and ‘The “N” Word!’ in deliberations with other justices” and urged voters to call Young and “tell him we don’t need a racist or a sexist on the Michigan Supreme Court.”

6th Circuit: Fieger’s MSC recusal suit moot

The Sixth Circuit has turned down what it describes as Geoffrey Fieger’s “latest attempt to involve the federal courts in his long-running dispute with several justices of the Michigan Supreme Court.”

In Fieger v. Gromek, et al., the Southfield attorney took another run at Justices Maura Corrigan, Robert Young, Stephen Markman and former Justice Clifford Taylor who, thanks to his losing re-election bid in 2008, is no longer a party to the suit. They’ve been instrumental in zapping some very large judgments Fieger obtained for his clients. So, Fieger has been, and probably will always be, their very vocal critic.

And, according to Sixth Circuit Judge Julia Smith Gibbons, the four have dished it right back:

The justices have publicly responded to Fieger’s comments during the course of their re-election campaigns, suggesting to the citizens of Michigan that being despised by Fieger is not necessarily a bad thing.

Fieger’s previous federal-court attempts to keep Corrigan, et al. from hearing his appeals have focused on violations of his clients’ rights to a fair and impartial tribunal.

In Fieger v. Gromek, he took a more personal tack. From Gibbons’ opinion:

Rather than assert the alleged harm to his clients’ interests by the potential absence of an impartial tribunal, the current suit seeks to vindicate Fieger’s own personal interest “to pursue his chosen profession, avocation and occupation free from reprisal for exercising his First Amendment rights … and to have his cases … decided by a fair, independent, and impartial tribunal.”

Fieger alleges that the justices’ “public, personal, political, and professional animus” toward him requires their recusal and that the justices’ failure to do so violates his Fourteenth Amendment right to due process of law.

U.S. District Court Judge Mariann Battani dismissed the case under the Rooker-Feldman doctrine. Fieger appealed.

Gibbons noted that the doctrine only applies when the alleged harm is based on a past state-court judgment. So, Fieger couldn’t complain about the justices’ prior failures to recuse but he could “potentially” claim that future failures would violate his 14th Amendment rights.

More from Gibbons:

On remand, the district court determined that while Fieger had brought both facial and as-applied challenges to Michigan’s recusal procedure, only the facial challenge survived the issuance of our mandate. …

The district court reasoned that an as-applied challenge “in future cases” necessarily “does not and cannot exist” because as-applied challenges can only concern past actions of the parties involved. … According to the district court, as-applied challenges exist solely “to redress existing violations,”not future ones. … Turning to the merits of the remaining facial challenge, the district court found that Fieger’s claim could not succeed because Michigan’s existing recusal procedures would not be clearly unconstitutional in all circumstances.

Gibbons then noted that Battani didn’t get it exactly right:

It is clear that our prior holding explicitly acknowledged that Fieger’s suit contained an as-applied challenge to Michigan’s recusal rules in addition to his facial attack. … As we did not consider that our holding prohibited Fieger from advancing his as-applied challenge on remand, it was error for the district court to cite our opinion as the basis for its decision to refuse to consider the claim.

But it’s all a moot point now said Gibbons:

On November 25, 2009, the Michigan Supreme Court formally amended MCR 2.003, specifically providing for its application to justices of that court. …
The amendments also incorporate several changes that directly address and clarify the issues underlying Fieger’s challenge.

For example, the disqualification rule now expressly addresses the question of bias or any appearance of bias that may arise from a judge’s campaign speech: “A judge is not disqualified based solely upon campaign speech protected by Republican Party of Minn. v. White, 536 U.S. 765 (2002), so long as such speech does not demonstrate bias or prejudice or an appearance of bias or prejudice for or against a party or an attorney involved in the action.”

Fieger still has some big cases swirling around on appeal. See, The Michigan Lawyer, “Judicial disqualification: To participate or not participate? That is the question.”

Campaign season is just around the corner.

The next move, if anybody makes one, should be interesting.

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. …
Justice Maura Corrigan
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: Justice Stephen Markman(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.

MSC adopts prisoner mailbox rule

Pro se prisoners’ appeals will be considered filed when they place the legal documents in the prison’s outgoing mail system, under Michigan Court Rule amendments the Michigan Supreme Court adopted yesterday on a 5-2 vote.

From the staff comment to ADM File No. 2009-07:

The rule applies to appeals from administrative agencies, appeals from circuit court (both claims of appeal and applications for leave to appeal), and appeals from decisions of the Court of Appeals to the Supreme Court.

The amendments affect MCR 7.105, 7.204, 7.205, and 7.302 and take effect May, 1, 2010.

Why did the MSC do this? You may be shocked to learn that prison mail systems do not always operate as efficiently as the U.S. Postal Service. Chief Justice Marilyn Kelly presented her view on the situation in a concurring statement to the amendments:

This Court has seen numerous prisoner appeals rejected as untimely despite the fact that they were delivered to the prison mail system before the filing deadline. In one case in which the appeal was not timely received, the prisoner placed it in the prison mail system more than two weeks before the filing deadline. See In re Kinney, 483 Mich 944 (2009) (KELLY, C.J., concurring).

In dissent, Justice Maura Corrigan said the rule is unnecessary and noted that Michigan provides “inordinately generous” filing deadlines.

The prison mailbox rule that the Court now adopts, however, unnecessarily favors prisoners by extending their rights to appeal and thereby delays finality of their cases. The rule clearly does not engender equality of treatment, but establishes special treatment for prisoners only.

Young acknowledged that prisoners are not on equal footing with members of the general public.

Certainly, a dilatory prisoner may be more disadvantaged than a dilatory member of the public. However, imprisonment is not without its inconveniences. …

Rather than acknowledge that the generosity of our filing deadlines renders a mailbox rule unnecessary, the majority incentivizes delay by tardy filers who apparently cannot file their papers within either a 42-day period or a 365-day period. While the mailbox rule is premised on the federal system, the majority fails to acknowledge that inmates in the federal system have only 10 days in which to file their application.

It is one thing to ensure that imprisoned defendants have fair access to the courts. It is entirely another to reward a lack of diligence and cunctatory behavior.

Ok, anyone out there who has not sent a law clerk rushing to the courthouse with a last-minute, beat-the-deadline filing, please raise your hand.

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 …”