Columns

By Mark Jenkins

When it comes to affording housing, more and more Americans are living on the edge of the abyss.

A recent report by Redfin notes that half of U.S. homeowners and renters sometimes, regularly, or greatly struggle to make their house payments. More than a third took no or fewer vacations. And more than a fifth skipped meals and/or worked overtime in order to pay for monthly housing costs.

To make matters worse, even if Americans could afford such costs, there simply aren’t enough houses to go around. At the end of 2023, America was short upwards of 3.2 million homes, according to census data analyzed by Hines, a global real estate developer. And those houses and apartments that are being built are not easily afforded.

It is amid such a shortage of affordable housing that the U.S. Supreme Court on Monday will hear oral arguments in arguably the most significant case about the rights of unhoused people to come before the court in more than 40 years. At issue in City of Grants Pass, Oregon v. Johnson is whether cities are allowed to punish people for using what they are classifying as “camping equipment” — pillows, sleeping bags, even cardboard boxes — as shelter for sleeping outside even when there are no available options for safe shelter.

The city council makes no pretense of their intent. Their president is on record as saying, “the point is to make it uncomfortable enough for them in our city so they will want to move on down the road.”

Like many small towns, Grants Pass has no homeless shelters qualified by the Department of Housing and Urban Development. The city relies solely upon the Gospel Rescue Mission to fill that need. But the mission has strict requirements for those who would stay there. Residents “must dress and behave according to their birth gender;” work six hours a day, six days a week; attend mandatory Bible studies every morning and evening; and pay $100 monthly rent. And if one is too sick or disabled to work, there is simply “no room at the inn.”

“Instead of responding to an increase in homelessness with compassion and housing services,” said Jesse Rabinowitz of the National Homelessness Law Center (NHLC), “the city of Grants Pass decided to give people tickets of around $350 for camping outside.” Rabinowitz continued, “This is literally about if people can be punished for using something like a blanket a cardboard box or a pillow when they’re sleeping outside.”

In 2019, in the case of Boise v. Martin, the Ninth Circuit court held that enforcing criminal restrictions on public camping when there is no “access to adequate temporary shelter” violates the Eighth Amendment’s Cruel and Unusual Punishments clause. It is this ruling that Grants Pass is challenging. Should the Supreme Court rule in Grants Pass’s favor and overturn Boise v. Martin, it will, in effect, criminalize homelessness during a growing shortage of housing. Freddie Mac recently estimated that, as of the fourth quarter of 2020, the United States had a housing supply deficit of 3.8 million units. This means that, if every available housing unit were filled tonight, millions of Americans would still find themselves sleeping out of doors. And, if Grants Pass were to have its way, they would be sleeping without pillows or blankets.

All too often, when confronted with the facts of this case, the response is to assume that unhoused persons are living on the streets by choice or as the result of a choice to become addicted to drugs or alcohol. Little regard is given to the systematic dismantling of the social safety net that has occurred over the last fifty years.

When I was 10 years old, in 1968, my clergyman father enrolled in a summer training program at the Chicago Urban Training Center. Twelve major American denominations established this center to train clergy, seminarians, and laity interested in inner city ministry. Among the mentors he met there was Kwame Ture, then known as Stokely Carmichael, one of the most active, committed, and engaging social organizers of the day.

On the first week of the program, he and others were subjected to something called, “the Plunge.” They were each given five dollars in change and sent out to live on the streets. In order to fit in, my father wore an old army overcoat that had been dyed. He spent his first night in a flophouse. The second in an all-night movie theater. After that, he was out of money. No food. And nowhere to stay.

So he signed on at a local business called “Rent-a-Man.” There he got a job unloading box cars making $11.25 for the day. At the end of the day, when he was paid, he noted that social security had been withheld even though the company had not bothered to get his number. It was a tax that would clearly never be paid. And to make things worse, he was paid not in cash but in a voucher. Like the 19th century Welsh coal miners who were paid with vouchers from the company store, workers at “Rent-a-Man” were paid with a voucher that could only be cashed at the bar across the street.

“You get a cycle going there,” my father later said. “You go to the bar. You cash your check. You drink up most of your check. And then the next day you’re without funds. You’ve got to go back and work again for a day.”

Life on the streets is not what it seems. Societal structures – structures purposefully designed to do what they do – conspire to keep people homeless and in poverty. It is, in essence, a modern-day indentured servitude. Only the indentureship is structured in such a way as to trap people permanently in their circumstance. Perhaps saying it’s a conspiracy seems over the top. But it was no accident that those alcoholic workers were sent to the bar to get paid.

“We need to be very clear,” says Rabinowitz of the NHLC, “that there is a well-funded, billionaire-backed, national campaign to criminalize homelessness in cities and states across the country.”

Regardless of what so many think, the vast majority of people who live on the streets are not there by choice. They are there because they lack the resources, financial and otherwise, to find shelter. They are there because there simply isn’t enough housing or shelters available.

If the court should side with Grants Pass, as it seems likely, we will be housing the homeless in jails and prisons. But even should they rule that jailing or fining the homeless for using a pillow when no safe shelter is available does indeed constitute cruel and unusual punishment, that will not solve the problem. Until this country gets serious about providing its citizens with a living wage and affordable housing, none of this is going to go away.
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Mark Jenkins retired in 2015 after 30 years of parish ministry in the Episcopal Church and 11 years teaching at Wayne State University. Since then he has spent his days reading, writing, cooking, and publishing the occasional essay.

By Berl Falbaum

I have some recommended reading for the American journalistic community.

It is not time-intensive or laborious; it is just one page—page 234—in a biography, “The Chancellor: The Remarkable Odyssey of Angela Merkel.”

On that page, the author, Kati Marton, discusses how Merkel’s body was betraying her; she was suffering from severe tremors, very noticeable in public, and so severe that, at times, Merkel, the former German chancellor, could not stand up for a national anthem.

Merkel had served as chancellor for 16 years, from 2005-21, and was deciding whether to run again. She did not; she was 66 at the time. At the peak of her tenure, she was, arguably, the most powerful public official in Europe.

Well aware of public concern, Merkel issued the following statement: “I would simply say, you have known me for quite a while and know that I am able to fulfill my office.  As a human being I also have a personal interest in my health, especially as my political career is ending in 2021, and I would like to lead a healthy life after this one.”

The press took notice and, after serious reflection, made a decision that is journalistically fascinating and hard to imagine ever happening in our own media environment.

Journalists, please read the following carefully:

“Our press association held a meeting,” said Anna Sauerbrey, a Berlin-based columnist, “and we decided to stick to our tradition of not covering the chancellor’s health unless it prevents her from doing her job. She is obviously during her job. We consider this a private matter.”  

The author, Marton, writes, “By American standards, German media’s reluctance to pursue the story of the chancellor’s health seems remarkable. In this unsettling new world, this collective decision by the media to respect the chancellor’s privacy seemed downright quaint.”

Quaint? How about, by U.S. standards, unthinkable, inconceivable, incomprehensible.

I raise this issue given the U.S. media’s obsession with President Biden’s gaffes. In the millions of words written about them, none—and I believe I can use the absolute “none”—has ever reported how they affected either domestic or foreign policies.

No one has taken the time to consider whether they are newsworthy in terms of Biden’s performance. Nor has anyone considered, as one reporter, a stutterer, pointed out that when Biden talks, he not only has to decide what he wants to say but how to say it to avoid stuttering.  That, of course, leads to gaffes.

As Clarence Page, a stutterer, wrote in The Chicago Tribune, “When you bump up against a word that’s not going to let you proceed without a struggle, you just switch to another word.”

The media’s only objective seems to be to get a “good story” and beat competitors to the punch.

Of course, Biden is not the first public official at the presidential level to be a victim of reckless and simplistic journalistic practices.  There have been many and one that still leaves me mystified: Dan Quayle who in 1992, as vice president, misspelled “potato” while at a New Jersey elementary school, adding an “e” at the end of the word.

This error, which had nothing to do with his official duties, hounded him during his entire career, and is ingrained in our political culture and history. Given the massive, relentless coverage, many still remember this faux pas, more than 30 years after the fact.  Incidentally, Quayle was not totally at fault; he used a teacher’s flash card in making the mistake.

If you Google “famous bad spellers,” you will find, among others, Jane Austen, Albert Einstein, Winston Churchill, George Washington, F. Scott Fitzgerald, Ernest Hemingway, and William Butler Yeats. All of them performed pretty well in their respective discipline.

An aside on the evolution of our politics: Quayle’s misspelling severely damaged his entire career. Meanwhile, Trump’s thousands of lies, corruption, ugly sexual history, etc., did not stop him from winning the presidency in 2016, becoming the GOP presidential candidate in 2020, and he is poised to possibly winning the presidency again this year despite—let us not forget—having been impeached twice and found guilty of sexual assault in the civil proceeding. Someone explain all that to me.

Then there was President Gerald Ford who stumbled several times while climbing the steps on the ramp of Air Force One. The media ignored the “political relevance” of Ford’s accidents, constantly describing him as a clumsy ignoramus despite the fact that he was probably the most athletically talented president to hold the office, having had offers to play professional football, was an avid skier and decent golfer.

Indirectly, consider the coverage of Katherine, Princess of Wales, as she undergoes treatment for cancer. Understandably, the story needs to be covered; she is after all royalty. But how about substituting some respect, sensitivity, compassion and support for unfeeling sensationalism. The British press, particularly, has been shamefully ruthless.

There are, of course, other absurdities in the coverage of our politics. Would that the U.S. media copy page 234 of Marton’s book, study it, distribute it to all who cover public affairs, and take steps to implement such a policy.

Now that would be news!
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Berl Falbaum is a veteran journalist and author of 12 books.

Warner Norcross + Judd LLP has welcomed John A. MacKenzie as partner.

A litigator, MacKenzie concentrates his practice on commercial litigation and real estate matters. His litigation practice focuses on high stakes “bet the company” cases, business torts, shareholder disputes, contract disputes, supplier disputes and employment claims. MacKenzie’s real estate practice brings a understanding of riparian rights and water laws, along with experience in residential and commercial transactions, land use and zoning challenges. He is based in the firm’s Macomb County office.

MacKenzie comes to Warner after seven years with Maddin, Hauser, Roth, & Heller in Southfield, where he was a shareholder in the firm’s litigation and dispute resolution practice. He previously worked with Kopka Pinkus Dolin in Farmington Hills and served as corporate counsel for Atain Specialty Insurance Company, where he handled property and casualty insurance matters. While in law school, MacKenzie clerked for Macomb County Circuit Court Judge Richard Caretti and as a legal clerk for The City of Highland Park.

MacKenzie received his bachelor’s degree from Oakland University and his law degree from Cooley Law School.

MacKenzie is a board member for All Ways Cares Services Inc. and Anchor Bay Community Foundation. He is a member of the State Bar of Michigan, Macomb County Bar Association, and Oakland County Bar Association. MacKenzie has been frequently recognized for his work, including by Best Lawyers® “Ones to Watch,” Michigan Lawyers Weekly “Up & Coming Lawyers” and as a Michigan Super Lawyers “Rising Star.”

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The Macomb County Prosecutor’s Office is proud to announce the nomination of Sian Hengeveld, chief of trials and circuit court, for the ATHENA Award.  The ATHENA Award Program celebrates the potential of all women as valued members and leaders of the community, recognizing those who strive toward the highest levels of professional accomplishments and who devote time and energy to improving the quality of life for others.

As the chief of trials and circuit court, Hengeveld oversees approximately 70 assistant prosecutors and their dockets and trials, ensuring the effective administration of justice while upholding the highest ethical standards.  Her experience includes trying numerous felony cases, including those involving criminal sexual conduct, child abuse, abusive head trauma, child homicide and human trafficking.

In addition to her professional accomplishments, Hengeveld is committed to serving her community.  She has been a member of the Macomb County Lethality Team with Turning Point since 2023, advocating for victims of domestic violence and promoting initiatives to prevent intimate partner violence.  Hengeveld also serves as a presenter for the Forensic Nursing Program at Oakland University, educating future healthcare professionals on the legal aspects of forensic nursing.  Furthermore, she has been conducting countywide police department trainings since 2009, contributing to enhanced public safety measures across the region.

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Honigman is pleased to announce that I.W. Winsten has been inducted into the Wayne Law Wall of Fame. This recognition is the highest honor presented by Wayne State University Law School and celebrates Winsten’s professional success, positive influence on Wayne Law, and his character and integrity.

Established in 2016, the Wayne Law Alumni Wall of Fame Award acknowledges graduates, former faculty, and staff of Wayne State University Law School who have distinguished themselves in their fields of work, contributed significantly to the community or have had a significant impact on the law school.

Winsten’s track record includes numerous trial victories and a reputation for excellence in motion practice and settlement negotiations. His experience spans a wide array of matters, from disputes involving the sale of businesses and shareholder disagreements to real estate development and constitutional issues. He is also sought after for teaching trial skills to fellow legal professionals.

In addition to his legal career, Winsten serves as an adjunct professor at Wayne Law.

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Taft Detroit partner Jon Sriro spoke at the Michigan Technology Leaders Summit on April 11. He served on the executive panel “Cyber-Security: Best Practices for Post Hack.” The conference covered the latest insights in information technology and provided the opportunity for IT professionals to network and exchange ideas. One hundred percent of the profits from the summit will be donated back to the community via charitable initiatives by SIM Detroit and the Michigan Council of Women in Technology.

Sriro represents companies in technology transactions and data privacy and data security matters. He has experience counseling clients on a range of privacy, cybersecurity, and information management issues in the context of vendor/vendee agreements, data and data security issues related to mergers and acquisitions, compliance, business strategy, technology transactions, litigation, incident response preparation, insurance, data breach/incident, and regulatory compliance issues.

Sriro is a Certified Information Privacy Professional/United States (CIPP/US) with the International Association of Privacy Professionals.

By Mary Smith

Our courts and judges are under attack. Serious threats against judges have doubled since 2019, with 457 serious threats targeting federal judges across the country in 2023. National leaders and private citizens are making false statements and scurrilous accusations against judges for partisan, personal gain. These attacks are no idle matter.  Often, they involve threats of physical harm or death — not only to the judges, but also to their families and staff.

Threats against the very individuals we have appointed or elected to administer our judicial system and the rule of law are not only wrong, they also threaten the very fabric of our democracy — judicial independence and the rule of law. All lawyers are bound by ethical rules based on the American Bar Association Model Rules of Professional Conduct. These rules prohibit lawyers from making false statements about the qualifications or integrity of a judge. Based on these rules, and to maintain the fair and independent administration of justice, lawyers also are encouraged to defend judges and courts that are unjustly criticized.

In 2018 the ABA Standing Committee on the American Judicial System issued a call to action — a report titled “Rapid Response to Fake News, Misleading Statements and Unjust Criticism of the Judiciary” — urging lawyers to stand up and correct the public record when courts are unfairly attacked. The report states:

“Bar associations have a special responsibility to ensure that the public holds the judiciary in the highest esteem. Judges are, and should be, highly respected leaders of our legal system ... Inaccurate, unjustified, and simply false criticisms of judges should be answered promptly and fully. The bar associations must take a leading role in responding to such criticisms.”

I urge all members of the American Bar Association as well as other bar association leaders and lawyers nationwide to rededicate themselves to preserving our nation’s impartial system of justice. Every one of us must stand up for our judges and their staffs and engage in the civic education needed to help the public understand how our courts work, the crucial role of independent judges in a functioning democracy and why their integrity must be defended and their safety ensured.

As lawyers, it is also incumbent on us to teach our fellow Americans how to take appropriate actions should they disagree with court opinions. For example, people involved in litigation who are unhappy with a court’s decision can file an appeal to a higher court for review by a different impartial decision maker. Members of the public who are dissatisfied with a court’s decision can organize a community meeting, write to newspapers and websites, petition Congress or their state legislature to change laws, support a citizens’ initiative or undertake the simple act of voting.

These are extraordinary times. As lawyers, we have a unique duty to lead our nation in the protection of our judges, the rule of law and American democracy. The time has come to rededicate ourselves to our obligations.
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Mary Smith is president of the American Bar Association and is the first Native American woman in this role. She is an independent board member and former CEO of a $6 billion national healthcare organization, the Indian Health Service. She currently serves on the board of PTC Therapeutics, Inc. (NASDAQ: PTCT), a global biopharmaceutical company and on the board of HAI Group, a leading member-owned insurance company for the affordable housing industry. She is also vice chair of the VENG Group, a national consulting firm.

By A. Vince Colella

It has been more than 30 years since the Michigan legislature imposed “caps” on medical malpractice cases. Since that time there have been only a few challenges to the law. In fact, the paucity of challenges is rather curious, especially given the rather flimsy constitutional grounds on which the law sits. Putting aside the legal merit of limiting recovery on damages, from a public policy perspective, it just doesn’t make sense. In the late 1980s early 1990s, when states were adopting laws capping damages on mistakes made by doctors and hospitals, studies over the following decades suggested that the industry-proclaimed “health crisis” was not rooted in reality and was likely the product of fear mongering to lower insurance premiums for health care professionals and limit exposure to legitimate claims of injury and death related to sub-standard health care.

For example, one study from the Center for Justice Democracy at New York Law School found “indisputable” evidence that “caps” on damages in medical malpractice cases (euphemistically referred to as “tort-reform”) produced more medical errors and higher health care costs. Perhaps more importantly, the study determined that the adoption of damage caps did not increase the number of physicians, shattering the myth that doctors were unable to enter the practice of medicine due to the high cost of insurance and exposure to significant jury verdicts.

Still, notwithstanding data to the contrary regarding them, Michigan joined a number of other states in the passing of reform placing caps on damages. Following the legislative enactment, medical malpractice cases began to percolate through the appellate system centered on the constitutionality of the new law. In Zdrojewski v Murphy, the first appellate panel to address the issue — in an unpublished opinion — the court embraced the propaganda of a “perceived crises in the health care system” and found the public policy for “reducing medical malpractice liability” (the purported impetus behind the law) was sufficient to pass constitutional muster.

While the special interest of protecting doctors and their insurance carriers from having to be held fully accountable for medical errors influenced one panel of judges, the Court of Appeals quickly reversed course. In Wiley v Henry Ford Cottage (a published opinion) the court was outwardly critical of its predecessor opinion and re-emphasized Michigan’s Constitutional guarantee to a trial by jury did not end at determining liability but extended to the determination of damages. The Wiley court aptly pointed out that the fatal flaw in the Zdrojewski opinion was that the existence of a medical malpractice claim is not a creature of the legislation, therefore not subject to legislative abolishment. In other words, “while the Legislature may take away what it has given, it may not take away what the Constitution has given.” The fundamental unfairness of the caps is simple: arbitrarily reducing the amount of damages awarded by a jury handicaps its ability to provide full justice.

Unfortunately, the Wiley decision did not stand. Under the steady hand of a Michigan Supreme Court regime criticized for wreaking havoc on the rights of personal injury victims, Justice Clifford Taylor penned an opinion that would lead to three decades of discounted justice. Interestingly, the case that cemented the constitutionality of medical malpractice caps did not involve medical malpractice! In Philips v Mirac, the issue before the Supreme Court was whether a statutory damage cap on lessors of automobiles, i.e., rental cars, for injury caused by the negligent operation of the vehicle, was constitutional. In Phillips, the Supreme Court demonstrated its keen ability to perform the legal gymnastics of a proper constitutional analysis while pivoting toward a retrofitted opinion that protected the economic interests of the insurance industry. In finding caps to be constitutional, the court provided statutory examples of limitations on recovery. Of course, none of the anecdotal illustrations involved pure common law causes of action independent of statutory origin. Conspicuously absent from Justice Taylor’s opinion in Phillips is any reference, analysis, dissection or even mention of the Wiley decision. Perhaps in her dissent, Justice Elizabeth Weaver said it best: “No industry should be allowed to shift its burden of responsibility and accountability to the shoulders of the severely injured merely because it claims to be in crisis.”

The time is now.

Caps on damages have the ulterior consequence of de-incentivizing doctors to behave carefully. Lowering the risk of malpractice lawsuits weakens the deterrent factor necessary to maintain responsible care, judgement and decision making of medical professionals. A jury verdict is not an “award” or “compensation,” these are terms associated with things we achieve or earn. Rather, a verdict is a monetary measurement of human suffering. The idea that caps lower insurance premium costs, increases the number of health professionals and creates greater access to health care has been debunked. The only true consequence of placing a cap on recovery for those who have had the unfortunate experience of unimaginable suffering due to mistakes made by doctors and hospitals is cheating victims of their right to fully recover what has been lost or destroyed.
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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.