The Local Area Watch

LAWYER GUILD DEMANDS: EXPLAIN YOURSELF!

I received a curious letter today. A Victoria Kremski of the Michigan State Bar, our state’s friendly lawyers’ guild, sent me a letter demanding that I explain myself. Curious because I was unaware that I was answerable to a private professional association whose primary purpose is to ensure that the law protects its turf from all competitors. Ah well, that’s why Ms. Kremski thinks I am answerable to the Bar.

It seems that the Bar is upset with me because I invaded its turf. Apparently I had the temerity to enter a court of law as layman and speak for myself instead of hiring one of the members of the lawyers’ guild to do so. Hence, Ms. Kremski’s demand that I explain myself to the Bar.

Ms. Kremski apparently is serious about this. She took the trouble to tell me that she can make trouble for me because the Supreme Court of Michigan has gone through the trouble to hire the Michigan State Bar as its enforcer. As such the Bar makes sure that no non-lawyers out there get the idea that the practice of law belongs to anyone but members of the lawyers’ guild. Now it would seem to a dispassionate soul that our government created a colossal conflict of interest when it let the Michigan State Bar determine what shall be prosecuted as the unauthorized practice of law. After all, as the lawyers’ guild, the Bar has a distinct incentive to define that in terms most favorable to its members. And so it does.

The Sixth Amendment of the Constitution guarantees that lawyers’ guild cannot stop a layman from having direct access to the courts to plead his own case. Self-representation in a court of law is a right, but that hasn’t stop the Bar from chewing away at the margins of that right. In my case, the Bar has objected to the manufacturing company my family owns representing itself in a lawsuit. The Bar claims that corporations do not have the right of self-representation.

Unfortunately for the Bar, Michigan state law explicitly states that a corporation does the right to self-representation in a court of law. Furthermore, the Michigan Court Rules don’t forbid corporate self-representation either. It seems that the only basis the Bar has for opposing corporate self-representation is a sixty-year-old ruling of the Michigan Supreme Court in which the court waded into a turf battle between the Detroit Bar Association and a group of trust associations over whether non-lawyer trust employees could continue their traditional practice of representing their trustees in probate court. The Supreme Court said no.

How this became the basis for forbidding the owner of small company from representing his company in court is a little baffling. (See the legal brief exposing the faultiness of this precedent by clicking here.) What is not baffling is the self-interest of the lawyers’ guild to rely upon whatever is handy to make the case for expanding its domain.

As might be expected, I told Ms. Kremski not too delicately to go to hell. We’ll keep you posted if the Bar responds.

CITY AWARDS CONTRACT TO FIRM OF TOXIC DUMPING DEFENDANT

Should we be surprised?

Tuesday evening the Grand Rapids City Commission, a.k.a. Boss Logie & the Supine Six, awarded the law firm Wardrop & Wardrop P.C. a City contract for legal services. The small three-man firm specializes in bankruptcy, immigration, and ambulance-chasing – ahem, that is, personal injury. Exactly why the taxpayers need the services of such a firm isn’t clear.

(L.A.W. will send a Freedom of Information Act request to the City to find out.)

What is clear is that one of the firm’s partners is Robert Wardrop, who is also a co-defendant of Boss Logie’s in the hazardous waste dumping lawsuit Tingley v 900 Monroe. One of the wrongful acts alleged in that lawsuit is that Wardrop struck a crooked deal with Logie and former City economic development chief Ned Zimmerman that, to make a VERY short story of it, ensured that the developers of the Berkey & Gay building would have a drive for transporting offsite the hazardous waste they were digging out of that property.

Wardrop had indiscreetly blabbed about this deal, and even went so far as to put the basic facts of it in an affidavit, as a way to stop the local court from prohibiting the developers from using that drive, which they desperately needed to get the hazardous waste out. Will Wardrop keep blabbing now that an attorney-client privilege – and a steady flow of taxpayer dollars - exist between the City and his firm?

Let’s answer that with the question that started this story. Should we be surprised that the City has decided that the taxpayers need an ambulance chaser on the payroll? Not if that ambulance chaser can implicate Boss Logie and the City in dumping hazardous waste in the middle of our fair city.

BOSS LOGIE SUED IN TOXIC DUMPING CONSPIRACY, WON'T RUN FOR RE-ELECTION

Citizens, two newsworthy events concerning Boss Logie transpired in the past two weeks. The local media informed you of one, but not the other.

Event #1: On Monday, June 24, 2002, yours truly, William Tingley, the executive director of the Local Area Watch, served a civil complaint on John H. Logie, mayor of Grand Rapids, at his office with the law firm Warner Norcross & Judd L.L.P. The complaint alleges that Logie abused the office of mayor to assist help local developers dump several thousand tons of soil contaminated with hazardous waste at in the abandoned concrete water tanks of the Monroe Avenue water filtration plant, a nationally registered historic site.

Event #2: On Tuesday, July 9, 2002, Logie announced that he will not seek a fourth term in next year's mayoral election. Recently Logie has been lobbying for a "strong mayor" amendment to the Grand Rapids city charter and stated that the reason for his retirement is that he did not want his support for that amendment to appear self-serving.

Well, folks, you know which event the Grand Rapids Press, the t.v. news anchors, and the radio stations told you about and which one they didn't. Perhaps Boss Logie was being square with us about his reason for retiring, but it might've nice if our local media, those watchdogs of the public interest (poodles can be watchdogs, right?), queried the mayor about other possibilities such as, mmm, Event #1.

LEGAL NEWS: APPEAL TESTS NEW RULES

Today the plaintiffs in Tingley v 900 Monroe, the hazardous waste dumping lawsuit currently pending in the Kent County Circuit Court, filed an application for leave to appeal Chief Judge George S. Buth's order denying the plaintiffs' motion to disqualify Judge H. David Soet from hearing the case. This appeal will test recent changes to the Michigan Court Rules governing the disqualification of a judge who may be a witness to the case he is proceeding over.

On May 17, 2002, William Tingley, executive director of the Local Area Watch, asked Judge Soet to disqualify himself from sitting as the judge in the matter of Tingley v 900 Monroe, because the judge was a witness to the fraud alleged in the lawsuit and so would be called as a witness to testify. Judge Soet refused to recuse himself stating that as a judge he was immune from testifying upon certain matters. He then referred the matter to Judge Buth, who as the chief judge of the Kent County Circuit Court, reviews requests for disqualification of the other judges on the local bench.

Judge Buth had scheduled a hearing of the matter on Friday June 21st. However, Tingley and his co-plaintiffs gave Judge Soet a proposed amendment of their lawsuit which further detailed the fraud the judge had witnessed - which did not rule out the possibility of the judge's knowing acquiescence to the fraud - in hearing of another matter on Friday June 7th. Judge Buth then unexpectedly and without comment ruled on the following business day, Monday, June 10th, that Judge Soet would not be disqualified.

By court rules, specifically Michigan Rule of Evidence 605, a judge cannot be called to testify as a witness in the case he is presiding over. Therefore if Judge Soet continues as the judge in Tingley v 900 Monroe, as is presently the case because of Judge Buth’s decision, he cannot be compelled to testify about the fraud he witnessed.

It is Judge Buth’s decision that the plaintiffs have appealed. It appears that this appeal is the first to test the 1995 amendment to Michigan Court Rule 2.003 which expanded the grounds for judicial disqualification. The application for leave to appeal will not be heard until the next session of the Court of Appeals in October.

JUDGE TO DUMPERS: ALLEGATIONS ARE SERIOUS

In response to L.A.W. Executive Director William Tingley's request for an injunction to stop releases of hazardous waste from the old Monroe Avenue water filtration plant in Grand Rapids, Michigan, Kent County Circuit Court Judge H. David Soet has ordered an evidentiary hearing starting on July 26, 2002.

In a letter dated July 1, 2002, Judge Soet stated that Tingley's request for an injunction "makes serious allegations against some defendants of violating environmental law in the disposition of contaminated ... [This request] will probably involve the testimony of experts and judging from the faxed letter received by the court and all counsel from Mr. Dickinson [one of the defendants] any adverse expert opinion may be hotly disputed and countered by other expert testimony. We have, therefore, canceled the hearing set for July 5 and set this matter for a 2-day Evidentiary Hearing" on Thursday, July 25th and Friday, July 26th at 8:30 AM.

Tingley's request for an injunction is based on allegations that he made in the lawsuit Tingley v 900 Monroe filed in Kent County Circuit Court on June 11, 2002. Those allegations include the unlawful removal of contaminated soil from the site of the old Berkey & Gay furniture factory during its renovation in 1999 and 2000 and the unlawful landfilling of that soil in the abandoned concrete water tanks of the filtration plant.

OPEN LETTER TO G.R. PRESS EDITOR: BARK, WATCHDOG!

July 1, 2002

Mr. Michael Lloyd
The Grand Rapids Press
155 Michigan Street, N.W.
Grand Rapids, Michigan 49503

Re: Tingley v 900 Monroe

Dear Mr. Lloyd:

It is unfortunate that the Press took no interest in the story three weeks ago that the City of Grand Rapids destroyed documents after we asked for their production in the matter of Local Area Watch v City of Grand Rapids, Kent County Circuit Court Case No. 02-00218-CZ. Mayor Logie and the City have gone to considerable lengths to conceal from the public the fact that hazardous waste was dumped into the abandoned concrete water tanks of the old Monroe Avenue water filtration plant, of which the destruction of documents referred to above is part. Because of the lack of coverage, the public remains uninformed of the hazardous waste lying in the open contaminating a historic site in the center of town.

Fortunately, the Local Area Watch has gathered sufficient evidence to take action to mitigate this public hazard. I have filed the enclosed lawsuit, Tingley v 900 Monroe, Kent County Circuit Court Case No. 02-03723-NZ, and have requested a preliminary injunction against the City of Grand Rapids, Mayor Logie, and others. The court hearing for this request is scheduled for Friday, July 5, 2002, at 1:30 p.m. The objective of the injunction is to compel the defendants to remove the hazardous waste from the filtration plant and to notify those who may have been exposed to that waste during its excavation from the old Berkey & Gay furniture factory site, its transport through the City, and its disposal at the filtration plant.

The story is simple enough to understand. Three years ago, Mayor Logie arranged for the City to sell one of the developers of the Berkey & Gay site the filtration plant for the purpose of “storing dirt” there. To preclude the developers from dumping soil contaminated with hazardous waste into the filtration plant’s water tanks, the City mandated an inspection regime as a condition of the sale. This apparently mollified the City Commissioners who were otherwise hesitant about the transaction. However, as soon as the sale was closed, the City inexplicably canceled the inspection regime and then the Berkey & Gay developers began dumping their hazardous waste into the tanks.

After a year of this dumping, on October 19, 2000, the federal government’s National Response Center sent the City’s Environmental Protection Department an emergency warning of the dumping. The City, however, ignored this warning. The City Commission discussed the dumping in closed session on November 21, 2000, and decided against action. After Assistant Attorney General Thomas Piotrowski instructed the Michigan Department of Environmental Quality to open a criminal investigation of the dumping, the City Commission again discussed the dumping in closed session on March 6, 2001. Mayor Logie deterred a City inquiry into the matter by stating that the allegations of dumping were a lie.

Then around April 20, 2001, the City received from us a notice of intent to sue under the state’s Natural Resources and Environmental Protection Act for the City’s complicity in the dumping of hazardous waste at the filtration plant. The City Commission met in closed session and directed the creation of report on the matter, the drafting of which was assigned to Tom Mort of the Environmental Protection Department. Whether it was before or after it received Mort’s report, the City Commission again met in closed session on May 8, 2001, and decided against holding a public meeting to inform City residents of the nature and the threat of the hazardous waste that was dumped at the filtration plant.

On June 25, 2001, the Local Area Watch sent a Freedom of Information Act request to the City for disclosure of these closed session minutes. After two months of delay, the City refused. On January 7, 2002, the Local Area Watch filed a complaint in Kent County Circuit Court (referred to above) to compel disclosure of these minutes. On January 28, 2002, the Local Area Watch sent the City a discovery request for production of these minutes. When the deadline came a month later for disclosing these minutes, Assistant City Attorney Daniel Ophoff claimed he needed an extension of time to answer our request, which we granted. Ophoff requested additional extensions offering various excuses, which we again granted.

What we did not know was that Ophoff was stalling production of the closed sessions minutes until the “year-and-a-day” time limit of the Open Meetings Act for the minimum retention period of these minutes had expired. When we finally learned around May 8, 2002, that Ophoff had been asking for extensions in bad faith to give himself time to destroy instead of producing the minutes we requested, we filed an injunction against the City to stop further destruction of public records relevant to the City’s complicity in the dumping of hazardous waste at the filtration plant. However, as a practical matter, we were too late.

Nevertheless, it was not too late for the Press to hold the City accountable for its actions, actions which were contemptuous of the entire purpose of the Freedom of Information Act and the Open Meetings Act. Yet you chose not to. Whether or not the Press has thought the dumping of hazardous waste at the filtration plant merited attention, it is a little disturbing that the Press, the primary organ upon which the public relies to keep an eye on government, has been so complacent about the City openly defying those very laws, indeed the only laws, the public has to keep it accountable for its decisions.

I think it is time for the Press to examine the facts and honor its obligation to keep the public informed. To this end, I have enclosed the complaint Tingley v 900 Monroe against those responsible for dumping hazardous waste at the filtration plant, our injunction requesting that the filtration plant be cleaned up and the public notified of the hazard, and a set of eighteen exhibits supporting our request for injunction.

Sincerely,

Wm Q. Tingley III
Executive Director

INJUNCTION SOUGHT TO STOP RELEASES OF CHEMICALS FROM FILTRATION PLANT

William Tingley, the Executive Director of the Local Area Watch, has requested a preliminary injunction against several parties, including Fifth Third Bancorp, the City of Grand Rapids, and Mayor John H. Logie, to stop releases of hazardous waste from the abandoned water tanks of the old Monroe Avenue water filtration plant and to notify those who have been exposed to that hazardous waste of any health risks. Judge H. David Soet of the Kent County Circuit Court is scheduled to hear this request for injunction on Friday, July 5, 2002, at 1:30 p.m.

Tingley has alleged that the developers of the Berkey & Gay renovation project, currently known as The Boardwalk located at 940 Monroe Avenue N.W. north of downtown Grand Rapids, excavated hazardous waste from that site containing toxic concentrations of two dozen metals and chemicals including arsenic, lead, and mercury. The developers then transported that hazardous waste to the nearby Monroe Avenue water filtration plant, a nationally registered historic site, and dumped it into the empty concrete water tanks of that facility.

Tingley has further alleged that the developers removed and disposed of this waste without due care in violation of Michigan’s Environmental Response Act. The developers handled the waste without any special measures to ensure that it did not come into direct contact with the workers excavating it or with any members of the public during its transport and disposal. However, before excavating and moving this waste, the developers had been warned in writing by their environmental consultant that the waste must not come into direct contact with human beings and should not be moved. Later the Michigan Department of Environmental Quality also warned the developers that the waste presented a health hazard from the inhalation of phenanthrene evaporating from the hazardous waste into the ambient air.

Tingley has also alleged that the City of Grand Rapids deliberately destroyed documents that were evidence of Mayor Logie’s and the City’s complicity with letting the developers use the filtration plant as a hazardous waste landfill. In a Freedom of Information Act complaint filed earlier this year in Kent County Circuit Court, the Local Area Watch sought the disclosure of the minutes of Grand Rapids City Commission closed sessions in which Mayor Logie and the Commissioners made decisions concerning the dumping of hazardous waste at the filtration plant. In response to this complaint, the City Attorney’s office destroyed the minutes rather than disclose them to the court.

The request for preliminary injunction is part of a broader complaint holding the developers, Fifth Third Bancorp, several local attorneys, the City of Grand Rapids, and Mayor Logie responsible for a scheme to quickly and cheaply remove the hazardous waste of the Berkey & Gay factory site to the filtration plant to accommodate Spectrum Health’s plan to renovate the old factory into offices for its training consortium and apartments for students.