Last week Judge Dennis Kolenda of the Kent County Circuit Court dropped the hammer on a man who had lied under oath in a murder case and sentenced him to prison for nine to twenty-five years for committing perjury. Good. Our judicial system is rife with perjury because prosecutors are loathe to bring perjury cases like this one.
For example, the Kent County prosecutor has declined to bring perjury charges against one of the River Rats, Robert Wardrop. Wardrop had made under oath false statements in Kent County Circuit Court, which helped the Toxic Towers developers dump 20,000 tons of contaminated soil at the Monroe Avenue water filtration plant (see article below) and another 6,000 tons elsewhere in the Grand Rapids vicinity. This was confirmed in July 2003 when the court formally found that Wardrop's evidence was false.
Even though Wardrop's false statements under oath abetted grave violations of both state and federal environmental laws that exposed hundreds of innocent persons to toxic concentrations of hazardous substances, including arsenic, lead, and mercury, the Kent County prosecutor has refused to act. So, I don't know what it takes to get the prosecutor off the dime when it comes to perjury, except that a deliberate assault upon the health and the safety of the public doesn't do the trick.
Kent County Sheriff Larry Stelma fired Deputy Mike Tanis, scion of local politico Art Tanis, for filing a false police report. Stelma accused the former deputy of lying about the force used to apprehend a suspect near Comstock Park in January. It appears that Tanis pepper-sprayed the suspect after he was already handcuffed and secured in the rear seat of the patrol car, whereas Tanis had originally reported using pepper spray on the suspect only during the arrest.
Stelma justified his action by making clear that one of deputy's duties is to provide sworn testimony, which must be above reproach. He told the Advance: "Testimony is a fundamental part of an officer's job. It's not a question of if they will ever be called to testify, they will."
On the one hand, discipline like this should quell some of the concerns expressed in the Urban League's recent report questioning the trustworthiness of Grand Rapids area police officers in the treatment of minority residents. On the other, the antics of the River Rats show that lying to law enforcement and the courts remains a scourge in our judicial system. That said, let's welcome progress where we find it.
We received some unexpected comments on the most recent installment of our "River of Corruption" series in which we detailed the involvement of eight local attorneys in the Toxic Towers dumping scandal, a.k.a. the River Rats. No one disagreed that the conduct of these lawyers was abominable. Instead our respondents were surprised that their deceitful actions were ethically proscribed. One wag asked me, "Isn't a lawyer a liar by definition?" It seems, dear readers, that some of you have so low of an opinion of the legal profession that you believe the bar doesn't even bother to set standards for honesty and fair-dealing.
There are in fact standards governing the ethical conduct of attorneys. In this state those standards are embodied in the Michigan Rules of Professional Conduct (MRPC). The Michigan Supreme Court is responsible for formulating these standards and disciplining attorneys who do not comply with them. The Supreme Court has delegated the disciplinary function to the Attorney Grievance Commission (AGC), which is a body composed mostly of attorneys to investigate, prosecute, and discipline their miscreant brethren. The AGC's record is a mixed bag, as might be expected of a fox guarding the henhouse, but that's another story. The point here is that, without regard to any failure of the AGC to act (because the final say always rests with the Supreme Court), we tagged each of the River Rats with ethical misconduct that we have found to be in violation of the MRPC.
For example, we cited Dick Wendt for unethically serving two masters to the advantage of one over the other. While Wendt was representing the City of Grand Rapids in the negotiation of a tax subsidy for the Boardwalk developers, his law firm was representing the developers! No surprise that City taxpayers ended up with a raw deal. This is a clear conflict of interest. Wendt had a duty of loyalty to negotiate (or even refuse to offer) a tax subsidy to the Boardwalk developers that was in the best interest of the residents and taxpayers of the City of Grand Rapids, while at the same time his law firm wanted to obtain the best deal possible for the Boardwalk developers.
So who's Wendt's boss? The taxpayers or his law firm? That's a circle he cannot ethically square, which is why MRPC Rule 1.7(b) prohibited Wendt from representing the City in that case.* Nevertheless, he did so to the disadvantage of City taxpayers when the Boardwalk developers landed a unprecedented $2.5 million tax subsidy for their project.
Another example, we told you that John Ferroli falsely briefed the court in our pending environmental citizen suit against the Boardwalk developers that the facts we alleged were knowingly false. For Ferroli to ethically make such a charge he had to know with certainty from his own investigation of our claims that what we had alleged was untrue. Having a difference of opinion is not enough to accuse someone of lying to a court, a very serious charge. Of course, the videotape, photographic, and scientific soil test evidence is in and has substantiated the factual contentions of our citizen suit, so Ferroli could never have honestly known anything to the contrary sufficient to tar us with making false statements of fact to the court. False accusations like this are a violation of MRPC Rule 3.3 which forbids a lawyer from knowingly making a false statement of material fact to a court.
So be assured, readers, that we are not complaining about the general nastiness of the River Rats. We believe their misconduct in the Toxic Towers dumping scandal constitutes specific violations of the Michigan Rules of Professional Conduct. We have already obtained some judicial findings to support our conclusions, and we expect more will come. With those in hand, we will then pursue the discipline of these miscreants that is appropriate to their misdeeds. Stay tuned.
* MRPC Rule 1.7(b) does allow a lawyer to represent a client despite a conflict of interest if that client gives his informed consent to that representation. (Even consent is not carte blanche for a conflicted lawyer, because he is required to have a reasonable belief that his representation of the client will not be materially limited by the conflict of interest.) However, we made a Freedom of Information Act request of the City of Grand Rapids to find out if consent were ever given, and the City certified that there was no record of it. Nor has Wendt produced any proof of consent.
In the next installment of our "River of Corruption" series I'll have some unflattering things to say about the Grand Rapids bar. So, that gives me all the more reason to highlight one of the good attorneys in this neck of the woods: John A. Smietanka.
John served as U.S. Attorney for West Michigan during the Reagan and Bush administrations. He was also a nominee to the bench of the Sixth Circuit Court of Appeals and twice a candidate for attorney general of Michigan. It's our misfortune we didn't elect him, because we would have had a real crimefighter in that office after nearly four decades of politicized schlock-law under Frank Kelly. However, our misfortune was the good fortune for one man in dire need of justice.
Last Friday Larry Souter was released by the U.S. District Court from a Michigan prison where he was serving a 30- to 60-year sentence for second-degree murder. In 1992 Mr. Souter was convicted in Newaygo County of murdering Kristy Ringler in 1979. John and his associate Anne Buckleitner won Mr. Souter his freedom after a long struggle to expose the faultiness of the evidence against him. The day was finally won when a witness came forward with compelling proof that the unfortunate Ms. Ringler had not been murdered but was killed in a hit-and-run accident by a now-dead Tennessee man.
There's a lot of rot in the legal profession and the courts these days. A guild of self-interest has arisen to protect lawyers and judges from the consequences of their mistakes -- and even misconduct. This guild has subordinated the pursuit of justice for the glory of the brass ring; failing that, a quest for wealth that is unseemingly for men and women who make money only by taking money. That is why John's dedication to Mr. Souter's cause, especially through the dimmest days, is worthy of notice and our respect.
[A note, dear readers. In the interest of full disclosure, I've known John for ten years now. He has helped me and my family with some tough problems that have rankled the players here in town. So, even without his advocacy of Mr. Souter's freedom, I would still know John to be a man of justice.]
Last Tuesday City Commissioner Rick Tormala used his position on the Fiscal Committee to block a $7,500 settlement that Assistant City Attorney Margaret Bloemers had negotiated to resolve a personal injury claim brought by a Kentwood man arrested by the Grand Rapids police a few years ago. The man, Raymond Gallagher, complained the police hurt his wrists when they handcuffed him. However, there is no dispute that the police acted properly or that Gallagher was permanently injured.
Tormala is right to take the City's attorneys to task for their gutlessness in settling cases that have little going for them other than a feared (and not necessarily real) emotional appeal to a jury. After all, it's the taxpayers' money being thrown down the drain when City attorneys run away from a jury when the law is on the City's side.
Then again, why is Tormala silent when a City attorney makes common cause with malefactors, such at the Toxic Towers polluters, in a personal vendetta, destroying incriminating public records, filing false statements with courts, racking up big costs for the City, and leaving the taxpayers exposed to potentially billions of dollars in fines once a jury sees videotape evidence of the very acts the City Attorney's office is denying happened?
Why the silence about such folly? Oh, that's right. Because the City Attorney's Office ordered Tormala and his fellow commissioners to say nothing.* So who's really working for whom at City Hall?
* Both Mayor Heartwell and Commissioner Tormala informed me last year that all of the elected officials in the City government were prohibited from discussing the Toxic Towers case upon the orders of the City Attorney's office.
Today the Supreme Court of the United States unceremoniously informed us that on February 22, 2005, it denied a writ of certiorari for U.S.ex rel. Tingley v. 900 Monroe, Case No. 04-886. So we've reached a dead-end with this particular process to hold the polluters and their cohorts responsible for the Toxic Towers illegal dumping scandal. Fortunately other avenues for accountability remain.
Nonetheless, this is an injustice if for no other reason than the court record will permanently reflect U.S. District Court Judge Robert Bell's intemperate calumny of us and our cause. In fact, I'm filing this post under "The Guild" because I believe this injustice has more to do with the defects of the judicial system in this country than the substance of our complaint against the Toxic Towers polluters.
We were shut out of the federal judicial process for one reason and one reason alone: We had the temerity to circumvent the bar and represent our complaint on our own. Whatever the merit of the old saw that a man who represents himself has a fool for a client, the law does not exist as a full-employment program for attorneys. The fact that judges are more comfortable handling lawyers than ordinary pro se citizens is not a legitimate reason to raise the hurdles unrepresented parties must clear to access the courts. The right to seek redress is primary; whether or not that right is sought through a mouthpiece should have no bearing.
Nevertheless, many judges do make negative assumptions about cases brought by ordinary individuals rather than through attorneys. They look for technicalities to ignore the substance of the complaint being brought before them. (Judge Bell went to considerable lengths in this regard to boot our case.) Thus, the pro se litigant becomes fodder for docket-clearing. There is no denying that many frivolous and meritless cases are brought pro se, because no lawyer will responsibly file them. The flip side is that many volatile, yet meritorious, cases are never brought to court, because no lawyer in the community will stick his neck out in an unpopular cause. So, the mere absence of a lawyer is no basis for forming any belief about the merit of a lawsuit.
But it happens, and what to do about that? Especially after a biased judge drags your name through the mud and remains utterly unrepentant when shown he had his facts completely wrong? Food for thought.
Today the Detroit Free Press reports that attorney Charlie McCallum of the Grand Rapids law firm Warner Norcross & Judd L.L.P. (FYI: Boss Logie's firm) has been appointed chairman of the American Bar Association's standing committee on ethics and professional responsibility. Hmm. In a certain sense, one can't argue that McCallum doesn't understand the ethical and professional quandaries lawyers can get themselves into.
I wonder what advice McCallum would dispense to a lawyer who is partner in a law firm while also an officer of a corporate client that is employing his wife as an executive with the authority to purchase from another client of his, for whom he is managing a financial workout, a property he needs to sell to stave off bankruptcy. Don't get caught?
The Michigan Court of Appeals also completely reversed Judge George Buth's dismissal of a related hazardous waste case your executive director had filed. It found that Buth, while serving as the chief judge of the Kent County Circuit Court (and recently dethroned by the State Court Adminstrator), had usurped the authority of the trial judge to toss out my hazardous waste complaint. It has now been re-instated.
In light of our appellate victory in the other case, I will probably have our attorney consolidate the two cases, which have been remanded to Judge James Redford. The recently-elected Redford replaced Judge David Soet after Soet resigned from the bench last year with two years left in his term. Soet's resignation was a surprise to everyone but us. He quit his post after we had filed a complaint against him in the U.S. District Court in which we alleged that he pressured a local attorney to put a witness on the stand to give perjured testimony.
Because of these events, suffice it to say that we have some confidence that the evidence, and not backroom deals, will determine the merit of our hazardous waste complaint from here on out.
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.
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.
Today I just received notice that the barkless, toothless, and otherwise worthless Attorney Grievance Commission turned loose another shyster who yours truly caught red-handed helping his law firm double-deal the residents and taxpayers of the City of Grand Rapids.
The AGC has opined that the decidedly estimable Dick Wendt of the law firm Dickinson Wright P.L.L.C. did no wrong in representing the City of Grand Rapids in the negotiation of a taxpayer subsidy for the developers of the Berkey & Gay site while other members of his law firm sat at the other end of the table representing the developers. Little wonder the Berkey & Gay developers bagged 2.5 million taxpayer dollars when their law firm controls both sides of the table, but it is astonishing that the AGC couldn’t figure out that a conflict of interest as blatant as this is unethical.
Even if the keystone cops of the AGC can’t get the simple stuff straight, how come the Mayor, the City Commission, the City Manager, and the City Attorney aren’t protecting the denizens of Grand Rapids from such chicanery? Indeed, how come there is even an opportunity for the law firm Dickinson Wright to take advantage of the taxpayers, when we already have full-time lawyers on the City payroll?
Where’s the City Comptroller whose sole charge is policing taxpayer funds? Why should the taxpayers have to pay for legal services tainted by a conflict of interest? The taxpayers of this City are, at the very least, entitled to a law firm’s loyalty when they buy its services. Clearly the taxpayers did not have Dickinson Wright’s undivided loyalty when they were also representing the developers seeking the subsidy.
But then why should mere professional ethics stop Dickinson Wright from feeding at the taxpayer trough?
Seeing that the officially designated shyster cops, the Attorney Grievance Commission, can’t handle anything more complicated than a purse-snatching, yours truly has joined a lawsuit filed in Kent County Circuit Court to bring a crew of crooked attorneys to heel.
The lawsuit is Proto-CAM v Wardrop (Kent County Circuit Court Case No. 02-03723-NZ), and let me disclose an obvious point of self-interest. I would not be involved in this matter were it not for that fact that my for-profit business interests have been harmed these lawless lawyers. Nevertheless, this fact does not diminish the public interest in holding attorneys accountable for what all too often is excused by their brethren as “sharp practice”.
Clever is one thing. Lying to the judge, fabricating documents for sham transactions, and drafting false affidavits are what they appear to be: Frauds on the court.
I think I understand why the legal community is so blase about defrauding the court. A lawyer may know the law (and I stress the “may”), but a lawyer is usually very weak on the facts. To know the facts of your case a lawyer must spend time to learn them. However, a lawyer makes a buck by selling his time, and he has only so much time to sell. To ensure that he sells all of the hours he has, a lawyer books too many cases. (Kinda like the way airliners overbook seats.)
Because he has too many cases to handle, a lawyer cheats on the amount of time needed to know the facts of your case. If he doesn’t know the facts well enough, then he lacks the confidence to challenge a fraud that is being committed in the court. After all, proving a fraud always comes down to what is true or not.
Now combine your lawyer’s greed with his inbred timidity in challenging a fellow member of the bar (especially as a member of G.R. Law) and you can get an idea of how frauds slither through the court with little if any sanction against them. Little wonder your attorney brushes off a fraud with a faux-sophisticate’s shrug that it is nothing more than “sharp practice”.
Well, your executive director with two other intrepid souls have decided enough is enough. Wish us luck. If we can make these lawless lawyers pay for their “sharp practice”, maybe others so inclined will think twice about doing it in other cases.
The Attorney Grievance Commission informs me today that it won’t investigate Boss Logie for conflicts of interest resulting from his abuse of the office of Mayor of Grand Rapids for the benefit of his law firm’s clients, especially in relation to providing the Grand Rapids Water Filtration Plant as a hazardous waste dump for the toxic soil excavated from the nearby Berkey & Gay redevelopment project.
As it happens, two of Boss Logie’s biggest clients have a major stake in the Berkey & Gay project: Fifth Third Bank and Spectrum Health. Fifth Third lent the developers $25 million to spruce up the old hulk after insiders shook the Spectrum piggy bank hard enough to get the hospital to commit its training consortium to a lease for the project, which goes a long to repaying what has to be the biggest loan in the region for a Class-B commercial “spec” project.
(Odd how a project that a blue-ribbon tenant like Spectrum had pre-committed to can be labeled as a “spec” project by its developers, but then the Berkey & Gay’s developers have been doing a lot of fibbing about this project. Just ask the MDEQ and the City Assessor’s office.)
So knowing Boss Logie’s quaint impatience with mere ethical restraints on his conduct, little surprise that he met with the Empty Suits (officially known as the Grand Rapids City Commission) twice behind closed doors to put the ki-bosh on any inquiries into the dumping of Berkey & Gay waste at the Filtration Plant. Soon enough the City will have to turn over the minutes of these closed meetings to the judge in our Freedom of Information Act lawsuit, and we should be able to make public Boss Logie’s backroom conduct.
Then you can judge for yourself if the Attorney Grievance Commission still remains the Bar’s barkless watchdog.
The Pig in the Python The dirty little secret behind the success and failure of every school reform that the education establishment, the public school bureaucrats, and the teachers unions will never reveal.
The Fool's Gold of a College Education Most kids who get a college degree today have nothing but an expensive credential that lands them a job that any high school graduate could have gotten a generation ago -- WITHOUT the heavy burden of paying back a student loan.
The Fixer A four-part series about the local attorney behind the demise of Autodie, Butterworth Hospital, Amway, and Old Kent. Warning: Strong accusations of corruption, greed, and skullduggery. Not for the feint of heart.
Poison The nasty nature of the 26,000 tons of poison that The Boardwalk's developers dug up and then dumped upon the rest of us.
No Honor Among Thieves: The Demise of Quixtar The re-branding of Amway as Quixtar put lipstick on the pig, but none of the crappy way of doing business changed. Now comes public scrutiny around the world to control its kingpins and clean up the dirty "tools" business.
Lost Cause A story of how River City lost its way to a secure economic future.
Living Wage Kills Jobs City pols support a Marxist policy that, like all Marxist policies, hurt the very people they say it will help.
Defenders Who Do Not Defend Excessive plea-bargaining, lack of preparation, shoddy to non-existent representation, conflicts of interests are rife among lawyers taking public defender cases on the taxpayer dime.