"This Court Will Not Tolerate Allusion!"

Michigan has a crime commonly known as "fleeing and eluding," MCL 257.602a. One might argue that if you are brought before a court on that charge, your very presence undermines the prosecutor's contention that you are guilty of eluding, but... I split too fine a hair - the actual statute does not require that you be proved to have been successful in eluding your pursuer.

A couple of years ago the Court of Appeals apparently took an entirely different view of what it means to... elude:

Defendant appeals by leave granted his guilty-plea convictions of third-degree fleeing and alluding, MCL 257.602a(3)(a), and driving while license suspended, second offense, MCL 257.904(3)(b). Defendant was sentenced as a third habitual offender, MCL 769.11, to 30 to 120 months' imprisonment for the fleeing and alluding conviction and 144 days in jail for the driving while license suspended conviction. We affirm.

People v Kade, No. 285402, 2009 WL 1941372 (Mich Ct App July 7, 2009). A sentence of 2-1/2 to 10 years for alluding? I wonder if that includes a sentence enhancement for mixing metaphors.

There's Optimism For You....

One of former Detroit Mayor Kwame Kilpatrick's lawyers is optimistic about a recent Court of Appeals ruling:

Hajji today said the Court of Appeals order means they are taking his appeal seriously.

“I think it’s very favorable to me,” he said. “They are looking at this with the eyes of a microscope from what I can see and they are not taking it lightly.”

I do agree with this much: the Court of Appeals does appear to be taking a very careful look at the case. Were it not a high profile case, they may well have passed on providing further review and issuing a stay of proceedings. But favorable? You don't ordinarily see two judges adding written opinions to a simple order of the court. From Judge Murray:

However, I respectfully dissent from this Court's sua sponte¹ decision to stay the lower court proceedings. Defendant has failed to argue the full requisite criteria for the granting of a stay... and has only argued that the trial court erred in several respects. However, other than raising one potential legal error regarding use of Mrs. Kilpatrick's personal funds to pay towards the restitution order, see MCL 557.21(1), an issue which was presented to the Court last year in a prior application that was denied... defendant has not in my view raised any other legal errors committed by the trial court that would warrant a stay.

From Judge Hood:

I write separately to express my disay at the abject nature of the pleadings filed on behalf of defendant. This Court is an error correcting court... and we are bound by the proceedings held in the lower court. Therefore, the litigants are required to present the transcripts of any proceedings and any ordere entered by the lower court for appellate review. MCR 7.210(A).... Our review is limited to the record created in the lower court.... The motion and brief filed by defendant requesting reconsideration of a stay does not contain any citation to legal authority or the lower court record, contrary to the court rules, but rather contains a narrative one-sided view of the proceedings. Indeed, the court rules provide that pleadings that do not conform to the court rules may be stricken....

In this case, defendant's filing is unconscionable and does not merit serious consideration in light of the nature of the filing.

Judge hood indicated that she would not strike the defendant's pleadings, despite their being "grossly noncompliant and inappropriate", and would join a second judge in granting the stay, in the name of "judicial economy". I suspect in a case that was lower in profile, the Court's action in the name of judicial economy would involve denying a stay, striking the defendant's filing and dismissing the appeal.

I'm still puzzling over Kwame Kilpatrick's legal team. He seems to show up in court with a succession of high priced lawyers, but goes to the Court of Appeals with a lawyer who appears to have very little appellate experience. A bit more about the motion to the Court of Appeals:

Kilpatrick's attorney, Daniel Hajji, made the claim in an impassioned 14-page motion filed with the state Court of Appeals late Tuesday in an effort to postpone the ex-Detroit mayor's Friday probation-violation hearing in circuit court - one that could eventually land him behind bars.

Wayne County Circuit Judge David Groner will arraign Kilpatrick for failing to pay $79,011 toward the $1 million he owes in restitution by last Friday's deadline. Kilpatrick and his lawyers say he doesn't have the money, despite his plush lifestyle in a tony Dallas suburb and $120,000-a-year sales job for Covisint, a Compuware subsidiary.

"The clientele he must establish a rapport with are likely to be the privileged and the affluent," Hajji said in the motion. "Burgers and beer at the local bar is not going to be sufficient."

This, apparently, means that Kilpatrick must spend his entire take-home pay to rent a lavish mansion... except he doesn't, as the money to rent his mansion falls like manna from heaven.

[In a court hearing] on what should have been fairly ordinary matters, with questions like, Does your wife leave the house each morning to go to work? Shockingly, Kilpatrick said he didn't know. Groner then asked, "Who's paying the rent?" Kilpatrick responded with a simple, "Um," and then looked to his attorneys, Michael Schwartz and Daniel Hajji. "I assume my wife is paying the rent ... because I'm not."

Yeah, right. And wow, for an employer who hired a felon fresh out of jail, Compuware sure is generous:

Perhaps the most surprising revelation during last month's hearing was that four of Michigan's wealthiest men — including Compuware CEO Peter Karmanos Jr., auto retailer Roger Penske and Quicken Loans chairman Dan Gilbert — had given a total of nearly $240,000 in loans to Kilpatrick's family around the time he left prison. Precisely how the money was used is unclear. The executives swiftly issued statements nearly identical in tone to explain their actions. "We were concerned about the city's inability to move forward due to the situation and circumstances that had surrounded Mayor Kilpatrick and his administration," Gilbert's statement read. The statement of Karmanos, Kilpatrick's boss, read: "We wanted to help care for his family until he could get back on his feet. At this time the loans remain outstanding."

And they say it's hard to get a job with a record, no experience, and no apparent qualifications other than your mother's being a sitting Member of Congress. Oh, yeah. I guess that last bit helps.

Back to the motion:

"The trial court appears to infer that it wants Mr. Kilpatrick to live a middle-class existence, when such an existence is inconsistent with earning a sufficient amount to fulfill his restitution obligation.

"Mr. Kilpatrick is going to have to function in the upper echelons of society."

Kilpatrick works as a sales representative for Covisint, a subsidiary of Detroit-based Compuware. He has a base salary of $120,000, but could earn substantially more through commissions. Compuware officials could not be reached for comment Tuesday evening.

A sales position with a base salary of $120,000 (plus an extra $60K as a draw against future commissions, plus a quarter-million dollar loan), where the employee is expected to live the life of Riley? Well, then, Kilpatrick must be making an impressive number of sales to merit that substantial base salary, to be augmented by commissions that could float his lifestyle?

Kilpatrick works as a sales representative for Covisint, a subsidiary of Detroit-based Compuware. He has a base salary of $120,000, but could earn substantially more through commissions. Compuware officials could not be reached for comment Tuesday evening.

So... it would appear that as commissions go we're still in the world of the hypothetical. That is, it doesn't look like Kilpatrick has landed a single sale. Yet the manna from heaven keeps pouring down:

During a hearing Tuesday over Kilpatrick's failure to pay, Beverly Smith, area manager for the Michigan Department of Corrections, gave Groner a draft report outlining the department's assertion that Kilpatrick violated his probation by failing to make the full $79,011 payment by Friday.

However, payments for the former mayor came in through 57 money orders totaling $14,048 on Friday and 17 money orders totaling $21,125 on Monday. The money came from unidentified payees.

Lucky man.

After the hearing, Michael Alan Schwartz, one of Kilpatrick's lawyers, said the violation hearing will not become a gimme for prosecutors: "You got to have due process ... and I'm going to hold them to their proofs."

He also said that some of Kilpatrick's payments could have been donations from "warm-hearted people" who wanted to help out.

Michael Schwartz is still on Kilpatrick's legal team. Michael Schwartz is an experienced appellate practitioner. And yet the appeal was filed (in, by Judge Hood's measure, atrocious form) by a junior member of the team with little appellate experience? I assume I'm not the only one who finds that to be a bit fishy.
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1. When a court grants relief "sua sponte" it does so on its own initiative, without the request of a party.

Up To Your Neck In Debt? In Foreclosure?

Then you may be mentally deficient. At least according to a recent unpublished decicion of the Michigan Court of Appeals.

Under MCL 700.5401 a probate court may appoint a conservator for a person if:

The individual is unable to manage property and business affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.

Interpreting that provision, the Court of Appeals wrote:

As respondent notes, when a statutory term is not defined by the statute, this Court construes the term according to its plain and ordinary meaning. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 18; 651 NW2d 356 (2002). Resort to dictionary definitions is acceptable and useful in determining ordinary meaning. Id. “Mental” is defined as “of or pertaining to the mind.” Random House Webster’s College Dictionary (1995). “Deficiency” may be defined as “the state of being deficient; lack; insufficiency.” Id. In addition, “deficient” is further defined as “a person who is deficient, esp. one who is mentally defective.” Id. Based on these definitions, “mental deficiency” as used in the statute could plausibly refer to someone who has simply made consistently bad decisions with respect to his or her property, without being afflicted by some form of officially recognized mental illness or incapacity, as respondent argues.

Brickman v Brickman, No. 278403 (Mich. App., Oct. 16, 2008).

I am initially skeptical of the court's separation of the term "mental deficiency" into two separate terms. This can be problematic - consider the interesting results you could produce by defining "ice cream" in a similar fashion. Contrast what you find if you actually try to define the term "mental deficiency":

mental deficiency - n. See mental retardation. (The American Heritage Dictionary of the English Language, Fourth Edition).

That leads us to:

mental retardation - n. Subnormal intellectual development as a result of congenital causes, brain injury, or disease and characterized by any of various cognitive deficiencies, including impaired learning, social, and vocational ability. Also called mental deficiency. (The American Heritage Dictionary of the English Language, Fourth Edition).

A similar definition of "mental deficiency" can be found in Merriam-Webster and WordNet.

The fact that the term "deficient" could be used to "a person who is deficient, esp. one who is mentally defective" is not instructive. Applied in this context, this becomes a circular argument that, as somebody who is mentally deficient may be informally called "deficient", any person who is in any way deficient in any manner relating to their mental functioning is "mentally deficient". (And how far do we take this type of reasoning? Should we interpret the word "confinement" in the statute to reference the onset of labor in a pregnant woman?)

Further, consider what the court's interpretation means for the interpretation of the statute. The statutory language suggests that a court ruling on a conservatorship petition should find both that "The individual is unable to manage property and business affairs effectively" and that there's a reason for that incapacity "such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance." Under the new ruling a probate court need not find that there's a reason for the incapacity: "The individual is unable to manage property and business affairs effectively because the individual has not managed his or her property and business affairs effectively."

As I read the statute, making bad financial choices is not of itself grounds for the appointment of a conservator, nor should it be. But... now it is.

Where Men are Men and the Sheep Are....

Okay, no jokes about Calhoun County. But in light of a recent ruling by the Michigan Court of Appeals, that acts of bestiality don't require registration as a sex offender, I think there's room for a difference of opinion. Is this a good rulling? Or is it baaaaaaad?

(Read the opinion here [PDF])

Evictions from a "Manufactured Home Community"

Under Michigan law, as is quite reasonable, landlords are granted immunity for damage which results to a tenant's property incidental to their executing a lawful order of eviction. Or, at least, that's the way I always read the statute:

(2) Any tenant in possession of premises whose possessory interest has been unlawfully interfered with by the owner, lessor, licensor, or their agents shall be entitled to recover the amount of his actual damages or $200.00, whichever is greater, for each occurrence and, where possession has been lost, to recover possession. Unlawful interference with a possessory interest shall include:

* * *

(b) The removal, retention, or destruction of personal property of the possessor.

* * *

(3) The provisions of subsection (2) shall not apply where the owner, lessor, licensor, or their agents can establish that he:

(a) Acted pursuant to court order ...

Many years ago I worked with a highly ethical manufactured home community, such that I was never asked to interpret the boundaries of this statute. But if asked, I would have indicated that to me the immunity extended only to damage incidental to the execution of a court's order. That is, nobody in his right mind would confuse an order of eviction with a court's grant of permission to trash a tenant's property, but if something were accidentally dropped, dinged, dented or damaged during the eviction process the landlord would be safe from a lawsuit. With a manufactured home, that would include damage incidental to the removal of the home from its foundation and utilities hookups, and which might occur during transport due to the contents being unsecured.

Boy, would my advice have been excessively cautious. You see, as it turns out (albeit by the terms of an unpublished and therefore non-precedentially binding decision) the landlord and his agents would enjoy absolute immunity for any damage they caused to the tenant's property, even if resulting in the total loss or destruction of the property.

Plaintiffs contend that nothing in the law provides immunity against the willful, wanton, or negligent destruction of the tenant's property. However, under the plain language of MCL 600.2918(2)(b) and (3)(a), a lessor and its agents are protected from claims alleging the unlawful "removal, retention, or destruction" of the possessor's personal property if the lessor and its agents acted pursuant to a court order. Although the alleged conduct in this case is disturbing and the disposition harsh, we emphasize that even under the process pursued in this case (as opposed to the arguably more proper mobile home proceedings), plaintiffs had notice and opportunity to avoid the misfortune that ensued.

(emphasis in original). First, as I read the facts outlined by the court, the Plaintiffs were not alleging negligent destruction - they were alleging intentional destruction (and conversion) of their property:

According to plaintiffs, defendants began using electrical saws to demolish a sun porch attached to the mobile home and were throwing shrubs, trees, and large pieces of wood from the porch through closed windows of the home, breaking the glass, while Annette Sickles was still inside the home. Plaintiffs asserted that they asked Stern Construction to stop damaging their home and its contents, but Stern Construction refused. Plaintiffs alleged that Hometown America was peeling off aluminum skirting and throwing it on a trailer with the intent of later selling it at a recycling center.

Plaintiffs claimed they again asked defendants to stop so they could retrieve some of their personal belongings, but defendants again refused to stop. According to plaintiffs, they stopped removing items from the home because those items were for all practical purposes destroyed; Annette Sickles then began removing personal belongings from a shed located on the lot. At that point defendants allegedly stopped destroying the home and immediately proceeded to "cut up" the shed, which resulted in its walls collapsing and destroying plaintiffs' personal property in the shed. Plaintiffs asserted that several of defendants' employees were laughing while they worked.

According to plaintiffs, on July 28, 2004, Stern Construction transferred the home and its contents to a dump. In alleged accordance with specific instructions from Hometown America, Stern Construction destroyed the home by bulldozing it into a hole and then covering it with garbage. Plaintiffs stated that everything they owned was destroyed except for a few items they were able to remove.

(emphasis added).

You see, to me the requirement that the landlord and its agents "Acted pursuant to court order" in order to gain immunity suggests that there is no immunity when the landlord and its agents engage in acts which cannot reasonably be construed as being a part of the execution of an order of lawful eviction. Intentionally destroying a tenant's property, stripping aluminum siding for resale, or having the remaining structure bulldozed into a landfill a day after the eviction is complete would fall outside of the scope of the eviction order, and would thus not be protected.

I'm not entirely sure that the Court of Appeals really intends to excuse this type of intentional misconduct - at least in future cases. If they did, presumably, they would not have characterized the alleged acts as "negligence". The acts described don't seem particularly different from a landlord's completing an eviction from a house or apartment by hauling the tenant's possessions down to the street, then selling them in a yard sale, selecting desired items to take and keep, or running over them with a truck. Negligence? (The Court of Appeals decision recited that the Plaintiffs' claimed conversion. Negligent conversion?)

As for the notion that the tenants brought it on themselves by not acting sooner? Of course they could have taken steps to avoid or minimize their damages - but it's the case any time a tenant is subjected to forcible eviction, so I'm not seeing how it is relevant to the court's analysis.