The Appearance of Impropriety, pt. 2: Lost in the Wind

[XLFD]

Craig's List

 

In Part One, we offered a question as to an appearance of impropriety that arose in our FOIA appeal civil action that made its first appearance six months into the case, when both parties entered the courtroom for the first time in a summary judgment hearing.  Among the discussion of that thread, the appearance of impropriety was found to be the filial relationship that existed between Judge Richard Cooper and an associate of the law firm that was representing the City of Ludington, Craig Richard Cooper, as pointed out in the letterhead of that law firm that it regularly submitted to Judge Cooper's 51st Circuit Court over the last six months, as shown here.

 

Without a CARRE in the World

 

On the same day, 10-12-2011, that letterhead went to the Circuit Court in my case, something else started in that court, as chronicled in the LDN: "According to CARRE president Cary Shineldecker, the group’s legal representatives delivered appeal applications and fees to 51st Circuit Court today to appeal special land use permits for Consumers Energy’s Lakewinds Energy Park and met towers.  CARRE will be asking for an injunction and stay of construction, Shineldecker said."

 

Consumer's Energy used the local law firm it has used throughout to defend their side Gockerman, Wilson, Saylor and Hesslin (and Craig Richard Cooper).  The following actions were reported in that same paper as far as that case went:

 

10-20-11:  "...the court has the filing but stated nothing has been done on the case yet."

11-26-11:  "...The motion to dismiss is only in response to the lawsuit involving the met towers. It was filed in 51st Circuit Court Nov. 14.  In it, attorneys for Consumers Energy allege CARRE is not an “aggrieved party,” and therefore lacks standing and legal capacity to sue. [a strategy that firm would use in our case as well.]

12-9-11:  "51st Circuit Judge Richard I. Cooper adjourned a hearing Friday night without ruling on CARRE’s request for a stay or an injunction to stop construction of Consumers Energy’s Lake Winds Energy Park being built in Riverton and Summit townships. 

Instead of continuing longer into Friday night for closing arguments, he instructed attorneys to submit “wrap-up” briefs on or before Thursday Dec. 15 on whether or not a stay or injunction is warranted.

...Cooper also instructed attorneys to submit briefs on previous laws concerning who has standing in the case."

12-10-11:  "Consumers’ attorney Richard Wilson objected to some of the questions presented by CARRE’s attorney Karen Ferguson, and some handed up by CARRE members in the audience, but often Cooper allowed objected-to lines of questioning to continue...
Outside the courtroom, Wilson said as he left “it was a good day." [perhaps because, his law partner would be sitting with the Judge through Christmas talking ex-parte on the case.]

12-31-11:  "In his ruling Thursday, Cooper stated that CARRE met the standards for standing by presenting opposition that is both active and persistent. That is why he denied the Consumers’ motion to dismiss the case." [A small win for CARRE, but their legal standing seems fairly solid.]

1-5-12: "At the close of the hearing, Cooper allowed CARRE’s attorneys, Karen Ferguson and Peter Wendling, to submit another 10-page brief on the cases, allowing 14 days for the brief to be prepared, 14 more for response briefs from county and Consumers Energy attorneys and seven days after that for rebuttal from the CARRE attorneys. After that, Cooper will deliberate and decide." [By this schedule, Cooper will begin deliberations on February 10.]

2-9-12:  "The timeline on when Cooper might rule is not known...In responding to Consumers, Ferguson argues the “rush to approve this project in order for consumers to obtain government money has led to many material errors that put the public’s health, safety and welfare at risk.”

2-28-12:  "Mason County Circuit Court Judge Richard Cooper has not yet ruled on a lawsuit brought by the Citizens’ Alliance for Responsible Renewable Energy.

3-19-12:  "Cooper sides with ZBA:  Rules board considered ample evidence in wind turbine case"  [Headline in LDN, with a link here to the rationale.]

 

Smoke in the Wind?

 

So it took Honorable Judge Richard Cooper nearly 40 days to make a ruling which effectively found that everything concerning the client that his son's law firm was helping to defend was kosher, within the law, safe, and healthy enough for the citizens of Mason County.  With, the judge's disclosure in my civil action against the city on 3-7-2012, that his son was a member of the defense's team may present an appearance of impropriety (147 days after the judge's son came forth with fellow Ludington City Attorney Richard Wilson to represent the City of Ludington) you may think CARRE has a valid grievance against the judge's decision as being improper. 

But this doesn't look to be the case.  Early in the CARRE lawsuit (according to a reliable source), the judge revealed the potential appearance of impropriety to the plaintiff's lawyers of his son being on the defendant's legal team.  The lawyers made a decision to waive any objection to that point, and the CARRE folks lost nearly a half year of time in a quixotic tilting at windmills in the courtroom, while the construction began and continues.  The windmills won.

 

Why Am I Always the Last to Know?

 

This raises the question:  Why were CARRE attorneys told back in October of the father-son relationship in the court, whereas Toni and I were not told until five months had passed.  Surely, the City Law Firm knew of it, the Judge knew of it, and the Circuit Court administrators knew of it, because after all, they had already disclosed that to the CARRE lawyers.  But I petitioned the court repeatedly for expediency, followed the spirit of the law and court rules (if not always the letter of the same), and I was effectively ignored by the court when I made motions, while Craig Richard Cooper's law firm played fast-and-loose with submitting harassing motions and invasive discovery, while avoiding the plaintiffs' attempts at discovery and giving us a FOIA reply certified under oath by Ludington City Manager John Shay to be "the reply" we searched for, but it was far from it. 

All this and more was allowed to go on for the 147 days between when the Judge's son's law firm appeared for the defendant (10-12-11) to the time Judge Cooper made his admission.  This is inexcusable for not only the judge, but for that law firm which just happens to be our City Attorney, and the 51st Circuit Court. 

The Michigan Code of Judicial Conduct among other things, speaks of the Appearance of Impropriety in its Canon 2, which says among other things:  "A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities... A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others."  Furthermore, Canon 3 says:  "A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B)."

Likewise, lawyers have similar, but less restrictive, professional conduct standards, many of which were ignored by the Ludington City Law Firm from Manistee.  Attorney George Saylor III, representing the City, assured the judge (and us) that his partner/judge's son, Craig Cooper had not done anything in relation to this case, on that 147th day into our lawsuit.  Yeah, right.

 

Legal Neophytes

 

This is effectively mine and Toni's first shot at being a party in a suit outside of traffic, landlord/tenant, and small claims court handled by the district court.  We don't know nearly as much law as the Judge, the court administrators, or anyone in  the City's Law Firm.  But we do know that what we have got from this court and the defendants is patently unfair and against codes of professional ethics.  The judge brought up the appearance of impropriety finally on March 7, discussed that another Judge would be provided, but then we read in the March 13th paper, while reading about another denied FOIA appeal in front of the City Council, that he hadn't been disqualified, called about the 'oversight' to the court, and still didn't receive anything by March 22nd. 

Court rules say that such motions should be done within 14 days of the discovery of the DQ and can be submitted by the judge or either party.  Even though we had gotten two conflicting messages from the judge and court making us think they were handling it, we had to spend $20 more of our money to make a Motion for Disqualification so that we could make sure and get the ball rolling again.  These documents are attached below. 

From the CARRE lawsuit, the Baby Kate Case, and my FOIA civil action, the unfairness of the 51st Circuit Court is bleeding through, and that bias is against the people of this county.  But if you are part of a City or County government or a law firm that happens to have the judge's son as a partner-- you're looking pretty good.

[AQUAMAN]

I would also like to remind X that the information you recently got from the county FOIA coordinator, the Circuit Court Judge's current pay is $37K. I looked at the LDN archives from 1990, when Cooper was running against Wilson, another Wilson of local past, for the office. It was a heated contest, and the Judgeship's pay was listed at $98K per year. Quite a discrepancy from today's reported salary. I also noticed in 1990 that would be the 3rd term of office for Cooper, meaning he was first elected in 1978, and now has 5 terms of office served, some 33 years plus, and now he must be something like over 70 years old, maybe 75, so when does he plan to retire? When another not reaching yet age 60 is retiring, and shouldn't be yet at all if age is a determining factor for retirement to begin with. 

[Marty Redman]

From all I've heard and seen, Coopers history has been tough on crime.  Being tough on crime usu. means that you more are tough on upholding civil liberties for people coming before you as a judge.  Great judges for police and prosecutors.  I think he should also follow Judge Ravens footsteps out of the MC Courthouse. 

This does deserve some explanation and some apologies.  I agree that it is worth more than a slap on the wrist to the judge and the Cities lawyers.  I hope you get a judge from outside the county to replace tricky Dick. 

[AQUAMAN]

Yup Marty, Tricky Dick thought he was above the law, executive privilege and a pardon pretty much proved he was too. But our Tricky Dick isn't President, just a common county judge. Maybe he's hoping for some dynasty, where he stays judge till he dies, then his son takes his place till he dies, and so on...lol. If the powers to be are fair and worthy, they would find a way to force a quick and silent retirement asap. But will they?

[Marty Redman]

That could happen.  People search Craig Cooper and you come up with an address on Dewey Road near Sherman.  If his firm keeps getting positive results in front of his dad, hes a shoe in.  Is there still time to get in fro probate judge this year?

[Willy]

I'm guessing Cooper Jr.'s law firm hired him because he is the son of a judge so a little favoritism would be expected. As I've mentioned before it would be interesting to know if the judge pardoned himself from all cases his son's firm was involved in or did he wait until it was challendged.

[XLFD]

Court records are not available under the FOIA, but I believe the dockets for such are available for inspection at the County Clerk's office.  Unfortunately, I am still under the whims of our local Circuit Court's situational ethics, and further speculation by this entity might just cloud their propriety further as they have not yet responded formally to disqualification at this point.  Michigan's Court Administration Office (SCAO) might have that information available, however, and I may just search that out first. 

Counting on the Attorney Grievance Commission or the Judicial Tenure Commission to follow through on such an investigation is probably asking for too much from those agencies.