Dr. Dre and friends were on tap at first state Supreme Court oral argument

By John Minnis Legal News The new Michigan Supreme Court delved into the rapper world of Dr. Dre, Snoop Dogg, Ice Cube and Eminem during the court's first oral arguments Jan. 19 at the Michigan Hall of Justice. It was my first trip to the hallowed halls of the state's high court and home of Michigan's third branch of government. The six-story, U-shaped building beckons, welcomes and embraces all comers to the court. Its limestone exterior also promises "Freedom, Truth, Equality and Justice" etched in marble. On the west end of the Capitol Mall, the Michigan Hall of Justice, the court stands apart, independent from the executive and legislative branches. Visitors must sign-in, even if they are mistaken for arguing counsel, and must pass through hypersensitive scanning portals. As at the federal court downtown, the security guards are the epitome of courtesy. The domed Michigan Supreme Court is on the sixth floor, accessible via gilt-doored elevators. The doors to the sanctum are not solid, but rather feature frosted glass bearing the Michigan Coat of Arms. The round courtroom echoes the sentencing circles of the People of the Three Fires, Chippewa, Ottawa and Potowatomie tribes and features rich mahogany paneling, bench and gallery seating. Promptly at 9:30 a.m. Chief Justice Robert P. Young Jr. led his colleagues into the courtroom. To his left sat Justices Marilyn Kelly, Diane Marie Hathaway and Brian K. Zahra. To Young's right sat Justices Michael F. Cavanagh, Stephen J. Markman and Mary Beth Kelly. "Good morning and Happy New Year," Chief Justice Young addressed the gallery. "In addition to welcoming you, I have the opportunity to welcome our newest justice, Brian Zahra, and our newly elected justice, Mary Beth Kelly. This is the first oral argument of the new year." With that, defense attorney Douglas W. Baker began his argument on behalf of his client in People v. Hailey, an ineffective counsel case involving a multiple-carjacking suspect out of Wayne County. Baker argued that since Hailey's attorney at trial did not ask the defendant's brother and a friend to testify in the case, the representation was inadequate. The defendant claimed his brother and the friend actually committed one of the carjackings. Justice Markman asked why the client did not speak up at trial. Baker responded that the defendant was not as proactive in his defense as others may be and relied on his lawyer. Markman further asked why it was reasonable to believe the brother would have testified in the case and incriminate himself. He also asked if the brother's attorney would have advised him to not testify at any rate. Zahra asked Baker if he were the brother's attorney, wouldn't he advise against testifying? Baker further alleged an improper search of a car in impound. Assistant Prosecuting Attorney David A. McCreedy called the allegations "Monday morning quarterbacking." The high court must decide whether Hailey's original attorney committed error and, if so, whether it meets the Strickland doctrine, i.e., if the error had not occurred, would the results in the trial have been different. Without recess, the Young court moved on to hear arguments in the rapper case, Bowens, et al. v. ARY Inc. (d.b.a. Aftermath Entertainment). Arguing for the defendants, ARY and Andre Young (a.k.a. Dr. Dre), was noted media defense attorney Herschel P. Fink. Glenn Oliver argued on behalf of the plaintiffs, Gregory J. Bowens, press secretary for Mayor Dennis Archer; Paula M. Bridges, Detroit Police Department spokeswoman; and Detroit Police Cmdr. Gary A. Brown. The trouble began on July 6, 2000, when Dr. Dre, Snoop Dogg, Ice Cube and Eminem were scheduled to perform for their "Up in Smoke" tour at Joe Louis Arena. That afternoon, several Detroit officials and police representatives, including the plaintiffs, met backstage with tour organizers to express concern about a sexually explicit video introduction to Dr. Dre and Snoop Dogg's performances. The Detroit officials told the tour organizers that the video violated city ordinances and that the city would take legal action and would literally pull the plug (disrupt power to the arena) if the video were shown. The promoters acquiesced and did not play the video. However, videotaped portions of the backstage discussions between the city and tour organizers appeared as part of a "bonus track" later marketed with a DVD of the tour. The Detroit officials sued, claiming invasion of privacy, fraud and eavesdropping in violation of state statute MCL 750.539c: "Any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both." In 2003, a Wayne County Circuit Court judge granted summary disposition to the defendants, finding in part that the plaintiffs had no reasonable expectation of privacy in the conversation. But in 2005, the Court of Appeals remanded the case, saying there were outstanding questions of material fact as to whether the video was secretly taped and whether the plaintiffs had a reasonable expectation that their conversation would be private. On remand, the trial court again granted summary disposition to the defendants, finding as a matter of law that the plaintiffs had no reasonable expectation of privacy. The Court of Appeals majority affirmed in part, reversed in part, and remanded for further proceedings. The majority held that there was sufficient evidence to allow the plaintiffs to move forward with their eavesdropping claim and that "a jury must make the determination whether plaintiffs' expectation of privacy under the circumstances presented here qualified as a reasonable one." The dissenting judge would have affirmed the trial court in total. He concluded that "[a]n objective view of the evidence establishes no genuine issue of material fact that plaintiffs lacked a reasonable expectation that their conversation with tour officials would be private, let alone that it would not be recorded." The defendants appealed to the Michigan Supreme Court, seeking summary disposition. Hyperbole aside, Fink told the justices, "This case has nothing to do with eavesdropping on judges in their chambers." He said there is a larger issue in this case: "We argue that public officials can never have an expectation of privacy in the course of their jobs." The defense attorney pointed out that even plaintiff Brown, then a police commander, admitted that the purpose of putting video cameras in squad cars was to maintain accountability of police officers. Justices Markman and Young questioned Fink's "larger issue." "I'm concerned about the breadth of that," Young said. "The principal of accountability is extremely broad." One "fiction" of the case, Fink said, is that the video cameras were hidden. Rather, he said, they were large shoulder cameras, and there was a sound boom with a "fuzzy microphone." One lieutenant who was present at the discussions refused to take part in the suit because he said he saw the cameras and microphones, Fink said. Police are always on duty, he said, and the public has a First Amendment interest in seeing law enforcement take place. Markman wondered why the defense was not focusing on the blatancy of the cameras and on the eavesdropping statute rather than the First Amendment. "Both are in action here," Fink said. He pointed to the citizen taping of the Rodney King incident as an example of the importance of people's First Amendment rights. Justice Mary Beth Kelly pointed out that the Rodney King incident was out in public, not backstage. Fink said it doesn't matter; the defendants still had a right to tape. Young questioned Fink's motion for summary disposition. Under Michigan Court Rules, Rule 2.116(C)(10), summary disposition may be requested when "there is no genuine issue as to any material fact." Fink pointed out that the trial court judge found as a matter of law that the plaintiffs had no reasonable expectation of privacy. He further argued that the cameras were in plain view, the door to the meeting room was open and that people were coming and going. Young pointed out that the plaintiffs claim parts of the "private" conversation were taped. Fink responded that when deposed, no one could say what in the video was to be private. Oliver, for the plaintiffs, said the case involved that which he learned in law school: the "fallacy of equivocation." "What we're talking about here is whether the circumstances, the milieu surrounding the conversation, was private," he said. "The court said it was whether the conversation was intended to be private, not whether what was said was private." Justice Mary Beth Kelly asked whether it was a "private" conversation. "How can you, under the circumstances, say this was a private conversation?" she asked. Young added that he viewed the video and the raw footage, and he found it hard to find where there could be an expectation of privacy. Oliver said it is a fallacy that strangers were wandering in and out of the room. Everyone there was tour or Joe Louis personnel or city officials, he said. Young was not convinced. "I'm struggling to understand how with all the people moving in and out of the room you can have an expectation of privacy." Markman asked, "Stepping back from the trees to see the forest, what parts of the private conversation are on the DVD, as per the statute?" "The statute was violated because both parties agreed to a private meeting," Oliver said. "You say the statute was breached by the very recording of the conversation?" Markman asked. "Yes," Oliver responded. "What I draw from this," Markman said, "you are arguing that it was being recorded. Mr. Fink is arguing it wasn't a private conversation." Justice Cavanagh asked why it was important that the conversation be private. "There was yelling," Oliver said. "It was so cooler heads would prevail. People have a First Amendment right to not speak in public." "Are you saying an officer doing his job has a right not to be speaking publicly?" Young asked. "Not in public, just in a private setting," Oliver responded. Justice Zahra asked if Oliver disagreed with Sullivan. In Sullivan v. Gray, 117 Mich App 472 (1982), the appellate court held that a participant recording of a conversation is excluded from the definition of eavesdropping and a participant had a right to record a private conversation without obtaining fellow participants' agreement or knowledge. Oliver said he did not disagree with Sullivan, but added, "This case is different, because those doing the taping were not part of the conversation." Markman asked Oliver how he knew those taping were not part of the conversation. Young latched on to a possible reason to overturn the appellate court's Sullivan ruling. "Why are you saying Sullivan is correct?" the chief justice asked. "Under the statute, everyone has to agree." Zahra and Young both pointed out that everyone in the room, including the security guards, had to be part of the conversation or else there would be no expectation of privacy. Oliver closed by pointing out that the Michigan Court of Appeals found that there was sufficient questions of material fact for a jury to decide whether there was a reasonable expectation of privacy. Young seemed to agree: "I'm very concerned whether this warrants summary disposition when there are areas of dispute." Fink concluded, "We're going to have an absurd interpretation of the law if this kind of conversation is considered private." Published: Thu, Jan 27, 2011

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