Social Justice in the Courts

Emergency Manager Litigation

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Attorneys from the National Lawyers Guild and Sugar Law Center agreed to file a major constitutional rights lawsuit challenging the Michigan Emergency Manager Law as in violation of the U.S. Constitution. On March 27, 2013, plaintiffs filed suit (Phillips v Snyder) against the state in the Federal District Court for the Eastern District challenging the constitutionality of PA 436. The judge assigned to hear the case was Judge Steeh;

In May 2013, the state filed papers to have our case dismissed alleging plaintiffs did not have standing and generally denying any constitutional violations. Plaintiffs filed a response opposing the state’s argument. Judgment on these issues is still pending.

In July 2013, Detroit filed for Chapter 9 bankruptcy and an automatic stay was placed on all court cases against the City of Detroit (a stay puts a case on indefinite hold until the bankruptcy court lifts the stay or until the bankruptcy is over). Our case was not against the City of Detroit so the automatic stay did not automatically apply, but the Governor asked the bankruptcy court to extend the stay to cases against the Governor and State Treasurer (identifying three pension cases that directly impacted Detroit pensions, but not our case);

The bankruptcy court agreed to extend the stay to include all cases against the Governor and State Treasurer;

In August 2013, the Governor then asserted that the wording of the extended stay applied to our case (the wording of the bankruptcy court’s order granting the extended stay stated that the stay applied to all cases against the Governor). The judge in our case agreed, (even though he explicitly questioned why it should apply to this case);

In September 2013, we filed papers with the bankruptcy court to lift the stay in our case; (requesting a lift to the stay means that we made the argument that the stay did not apply to our case, given the nature of our case, particularly with the constitutional issues involved, and we requested that our case be allowed to proceed.)

At the end of October 2013, the bankruptcy judge, Judge Rhodes, lifted the stay in our case to permit us to seek a ruling on the constitutionality of Public Act 436;

In November 2013, the Governor (joined by the City/ Debtor in bankruptcy/Kevin Orr) asked the bankruptcy court to reconsider its order lifting the stay in our case;

The bankruptcy court then ordered additional briefing and a hearing. In late December, Judge Rhodes issued another order deciding not to reconsider his order lifting the stay and to allow us to proceed;

We then immediately filed papers asking the Federal District Court (where our case is pending) to reopen the case based on the bankruptcy judge’s ruling;

Earlier this month, the Governor filed papers to appeal the bankruptcy court’s ruling (which the City/ Debtor in bankruptcy/Kevin Orr also joined). We will be opposing the appeal.

Meanwhile, we are scheduled to appear in Federal District Court (Judge Steeh) on February 6 for a Scheduling Conference.

Defense of Michigan Coalition Against Tar Sands (MICATS) Protesters Barbara Carter, Vicci Hamlin, and Lisa Leggio.

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Last summer there were protests involving civil disobedience at two sites in West Michigan, against Enbridge Co.’s re-building of it’s oil Pipeline 6B. This pipeline runs down from Alberta, through Minnesota, Wisconsin, Illinois, Indiana, up into Michigan, and across Michigan. The pipeline then breaks up into three branches: one goes to the refinery in Southwest Detroit; one goes to a refinery in Toledo; and one goes across the Detroit River to a refinery in Ontario.  This is the pipeline that ruptured near Kalamazoo a few years ago and flooded the Kalamazoo River with Oil This pipeline is already bringing Canadian tar sands into the U.S. It is being rebuilt to make it larger in preparation for increasing the importation of Canadian tar sands in the U.S..  It was the refining of the Canadian tar sands that came through this pipe that resulted in the mammoth piles of pet coke (a refining by-product) on the Detroit River that resulted in protests last summer over the resulting air pollution.

Last July, in Stockbridge, members of MICATS (Michigan Coalition Against Tar Sands) organized a protest during which four protesters fastened themselves to two pieces of construction equipment through a hollow tube that was difficult to cut through.  The local County Sheriff allegedly ordered them to release their hold on this tube and leave the property. They allegedly did not do so, and the police had to cut through the tube. They were arrested and charged with misdemeanor Trespassing and a felony charge of Resisting and Obstructing Police.  Six supporters who were nearby and who thought they were on a public roadway were also arrested and charged with misdemeanor trespassing.

Five attorneys from the NLG agreed to participate in the legal defense. Two other attorneys who were committed to a joint political defense also got involved. One protester was represented by an attorney hired by his parents, and did not participate in the joint political defense.

A favorable settlement was worked out for the six protesters charged with misdemeanors.  The protester who did not participate in the join legal defense has also settled his case (although not on very favorable terms). The other three protesters charged with felonies went to trial Monday, January 27, 2014, in the Ingham Circuit Court Building in the center of downtown Mason, MI.  The County prosecutor has been completely uncooperative and has told the attorneys he will back up the police to the hilt. The Judge has denied a motion to quash, and a motion to permit the protesters to present a defense of environmental necessity. After a 2.5 day trial, and nine hours of deliberations, an Ingham County jury convicted the three MICATS protesters.

All three protesters were convicted of misdemeanor trespass and of a felony charge of Resisting and Obstructing police, for allegedly failing to comply with an allegedly “lawful command to detach themselves from the machinery and leave the property.” Our legal team was well prepared and put up a valiant fight. However, the trial judge, the Ingham County prosecutor’s office, and the local police were determined to convict these three protesters.

The trial judge immediately revoked the bonds of all three protesters and remanded them to the Ingham County Jail.  The Sentencing Hearing will take place on March 5, 2014. In light of the attitude of the trial judge throughout the proceedings, it would appear the trial judge intends to impose  severe sentences on these three defendants.  One of the defendants has been charged as an habitual offender, and may receive an enhanced sentence as a result.
Another issue of concern is the issue of restitution.  Enbridge is seeking reimbursement for the costs of one day’s lost construction, and is demanding the defendants pay approx. $45,000.
In addition, the trial judge has ordered the police to investigate possible criminal charges against some of the supporters of the defendants, whom the judge apparently believes were trying to influence the deliberating jury when the jury members arrived at Court early this morning, by holding signs allegedly advocating jury nullification.
The NLG is looking for volunteers to begin to work on post-conviction motions and prepare for the eventual appeal.  Please contact us is you wish to assist.  

Defense of Michigan Coalition Against Tar Sands (MICATS) Protester Chris Wahmhoff.

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Another member of MICATS sat down inside an Enbridge pipeline, which was under construction in Calhoun County, and shut down construction for an entire day last summer.  He was also arrested and charged with misdemeanor. Trespassing and Resisting and Obstructing Police. The NLG attorney John Royal, representing this protester filed a Motion to Quash the Information, arguing that the testimony did not establish that the protester was given a clear command to come out of the pipe immediately or face prosecution. The Calhoun Circuit Court Judge agreed; granted the motion to quash, and dismissed all charges. However, this case is not yet over, as the prosecution has filed a Motion for Reconsideration, which is pending.

Defense of Freeway Protesters (Motown Slow Downs)

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Expressway protests of appointment of Detroit EM Manager. Several participants received impeading traffic tickets. All of these tickets have been adjudicated. We represented approximately 15 people, of which three had tickets from multiple protests. We were successful at obtaining the dismissal of most of these tickets; all the protesters that we represented whose cases were not dismissed were allowed to plead Responsible to Impeding Traffic. Two protesters went to Court without meeting with us and were found Responsible for their original charges. One protester paid his ticket without going to Court.

An MSP Sgt. threatened to re-issue some of the dismissed tickets, but so far we have not heard of any tickets being re-issued.

Highland Park Woodward Ave. slowdown protest against the destruction of Highland Park H.S. Library. Highland Park City Attorney Todd Perkins has agreed to dismiss these five tickets.