Dems, GOP select MSC candidates at weekend conventions

Michigan Republicans and Democrats selected their slates of Michigan Supreme Court candidates at party conventions held this past weekend.

Republicans chose Oakland County Circuit Court Judge Colleen O’Brien to run for a full, eight-year term on the MSC. O’Brien topped Court of Appeals Judge Jane Markey for the spot.

Justice Stephen Markman was nominated to run for another full term. Justice Brian Zahra will run for a partial, two-year term.

Democrats selected 46th District Court Judge Shelia Johnson to run against Zahra for the two-year term.

Wayne County Circuit Court Judge Connie Marie Kelly and Bridget Mary McCormack, a University of Michigan law professor, were nominated to run for eight-year terms.

Although nominated by political parties, all MSC candidates appear on the nonpartisan section of the November ballot.

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.

Defendant faces computer-snooping charges

Leon Walker, who accessed his estranged wife’s email account without permission and later gained unauthorized access to computerized police records, see People v. Walker,  can be tried on charges arising from those incidents, the Michigan Supreme Court has ruled in a 6-1 decision.

The Court of Appeals, in the email incident, held that defendant was properly bound over for trial under MCL 752.795:

A person shall not intentionally and without authorization or by exceeding valid authorization … [a]ccess or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.

Walker worked for Oakland County’s information technology department. After he was charged, his superiors told him he could no longer access police and court databases. Despite the directive, Walker, with the unwitting help of two other Oakland County employees, gained access to a police records database, resulting in a second charge under MCL 752.795.

The COA ruled that Walker was properly bound over on that charge as well.

The MSC agreed in both instances but three justices expressed concern that the statute paints with a very broad brush.

In her dissent, Justice Marilyn Kelly said that Walker raised some arguments that are “worthy” of review:

Defendant argues that the language of MCL 752.795 is ambiguous. Also, he insists that the statute was not intended to criminalize a person’s reading of his or her spouse’s e-mails. He provides examples of innocuous conduct for which a person could be criminally prosecuted under the prosecution’s reading of the statute.

[Footnote 4] For example, defendant argues that a parent could be convicted for monitoring his or her child’s Internet and e-mail usage. He argues that a person could be convicted for using the calculator or word-processing programs on his or her spouse’s computer without permission. [end footnote]

Defendant also raises a significant question about whether Internet-based e-mail accounts fit within the statute’s reference to “a computer program, computer, computer system, or computer network.” …

I note that the Legislature is considering a bill [HB 4532] introduced specifically because of this prosecution that would exempt defendant’s conduct from the scope of MCL 752.795.

Given that this Court has declined to consider the issues involved here, the Legislature would do well to consider whether it intends that MCL 752.795 subject the behavior involved here to criminal penalties.

Justice Stephen Markman, in a concurrence joined by Chief Justice Robert Young Jr., said that Walker’s conduct “unquestionably” fell within MCL 752.795 but wrote “separately to urge the Legislature to consider whether it intends to criminalize the full range of conduct to which the statute potentially extends.”

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.

MSC affirms conviction despite basic “duty to retreat” instruction in castle doctrine case

In People v. Richardson, the Michigan Supreme Court considered a defendant’s claim of self-defense. After a boondoggle¹ between the Richardsons and their neighbors, the Abrams, in which names were called, rocks were thrown and spit was, well, spit, Brandy Abrams came to the Richardson’s door with a baseball bat to challenge Ms. Richardson to fight. After what can properly be described as a heated exchange, the defendant decided he’d had enough, grabbed a gun and stepped out on the porch.²  Shots were fired and Abramses were hit.

Richardson said he was acting in self defense  because he was on his porch and, under the castle doctrine, he had no duty to retreat. He was convicted of assault to do great bodily harm less than murder and felony-firearm in the Wayne Circuit Court.

The dispute on appeal was whether the trial court properly instructed the jury on self defense. The jury was read an instruction for basic self defense, including the general duty to retreat, along with the exceptions, including the castle doctrine. Initially, the judge didn’t explain that curtilage is considered part of the home under Michigan’s castle doctrine statute, MCL 768.21c , but did so after the jury asked for a clarification of the definition of “home.”

The Michigan Supreme Court affirmed the conviction. Justice Marilyn Kelly wrote for the majority:

We wholeheartedly agree with the dissent that the castle doctrine and the right of personal self-defense are longstanding and precious rights that we must vigorously uphold. But this case jeopardizes neither. The factual dispute was whether defendant honestly and reasonably believed that he was entitled to use deadly force. The court correctly instructed the jury that defendant had no duty to retreat if attacked in his home. Once the trial court clarified
that the porch was part of defendant’s home, the jury instructions removed any remaining questions about whether defendant had a duty to retreat. We further agree with the dissent that had the jury not been instructed that a person has no duty to retreat when attacked in his or her home, reversal would have been required. Our decision in Pond v People and 150 years of subsequent caselaw clearly mandate such a result.
But nothing in that caselaw required the judge in this case to sua sponte give the jury an instruction not to let the fact that defendant did not retreat into his house enter its deliberations. People v Riddle addressed this question in a footnote in dictum. But we do not agree that the footnote mandates reversal in the instant case. As noted, the success of defendant’s self-defense claim did not hinge on whether he was required to retreat or stand his ground on his porch. Rather, it hinged on whether he honestly and reasonably believed that it was necessary to use deadly force while standing his ground. After being properly informed that defendant had no duty to retreat if attacked in his home, the jury concluded that deadly force was not necessary. It recognized that the evidence showed that defendant was unharmed and could have continued to stand his ground and remain unharmed without shooting the victims. The dissent makes the right arguments in the wrong case.

In his dissent, Justice Stephen Markman wrote that Richardson’s conviction should have been vacated because the jury should never have been permitted to consider retreat as an option because the Adamses were in the curtilage of Richardson’s house, and there’s no duty to retreat in the home.

¹ This is highly technical legalese. Use with caution.

²  This decision will forever be memorable to me for this passage:

It is agreed that at this point defendant remonstrated that he was “getting tired of this shit,” pulled out one of his three loaded handguns, and fired six times.

MSC vacates conviction over Confrontation Clause issue

In People v. Fackelman, the Michigan Supreme Court ruled that the prosecution’s failure to call an independent psychiatrist to testify during trial violated the Confrontation Clause.

In the majority opinion, Justice Stephen J. Markman wrote that the psychiatrist’s opinion was essentially the tiebreaker in the “battle of the experts” and had great importance because 1) the exam took place soon after the alleged crime and 2) the expert had no affiliation with either party.

[O]ur review of the record leads inescapably to the conclusion that Dr. Shahid [the independent expert] was a true “witness against” defendant. The ultimate issue at trial was not whether defendant had actually engaged in the conduct that led to the criminal charges; instead, it was whether he was legally insane at the time. At trial, the medical term that both testifying experts used as shorthand for describing legal insanity was “psychosis,” which, as the prosecutor’s expert explained to the jury, is “when a person loses touch with reality.” Repeatedly, the jury’s attention was focused on this particular mental state. The experts defined “psychosis,” described the symptoms of a person in a “psychotic state,” debated whether a person “could slip in and out of [psychosis] at various time frames,” offered their opinions regarding the effect of psychosis on memory, and rendered their own diagnoses in terms of whether defendant was experiencing psychosis, with the defense expert, Dr. Mistry, concluding that he was and the prosecution’s expert, Dr. Balay, concluding that he was not. In this context, the prosecutor’s improper introduction and repeated use of Dr. Shahid’s diagnosis that defendant was not, in fact, experiencing psychosis fully rendered the doctor a witness against defendant.

Markman also noted that, even if otherwise proper, the report was misused because only the facts and data, and not the diagnosis, would be admissible under MRE 703

In all, Markman said the use of the report and diagnosis was plain error that was outcome-determinative because the sole issue of the trial was the defendant’s mental state.

Chief Justice Young dissented, joined by Justice Brian Zahra, arguing that the defendant waived his Confrontation Clause argument because he didn’t call the witness either. Such a decision was a strategic one because, “he believed that the author would be a bad witness for the defense and would undermine the proffered insanity defense,” Young wrote.

Markman and Young squared off in the opinions over whether the medical reports are testimonial under Melendez-Diaz v. Massachusetts.

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. …

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.