Detroit's Jailin Judge told by appeals court to amend terms, then he's free to jail away again
A state court of appeals has overthrown the jailing of two top officials of the Ambassador Bridge, Matty Moroun and Dan Stamper by Wayne County Court judge last month. The majority ruled that county judge Prentis Edwards jailing term until "full compliance" was unlawful because it was unclear what the two officers needed to do to comply with the court's order in this civil contempt case - brought as a breach of contract case by the state of Michigan (MDOT) against the Ambassador Bridge company (DIBC) two years ago.
"On remand, the trial court shall craft an order, with particularity, of what 'act or duty' appellants are required to perform both to ensure that DIBC will begin and continue compliance with its February 1, 2010, order as well as enabling appellants to purge themselves of the contempt finding against DIBC," reads the majority ruling of the three judge panel.
Beyond that the bridge company people received precious little from the court of appeals.
Judge Kurtis Wilder reprimanded Judge Edwards for confusing a contempt ruling against the bridge company with penalties against individual officers of the company: "(N)o contempt finding was made against Moroun and Stamper. Only DIBC was found to be in contempt. Thus, any act to be performed by Moroun and Stamper was not to purge themselves of some unstated act in defiance of the trial court’s order, but instead was to purge DIBC of contempt."
Wilder also said there was insufficient notice given to Moroun and Stamper to satisfy due process fairness.
He continued: "(N)either the June 9, 2011, ex parte motion filed by MDOT, the trial court’s June 13, 2011, order to show cause, nor the show cause proceedings commenced on July 7, 2011, identified what conduct of Moroun or Stamper contributed to or caused DIBC to be in contempt of the trial court’s February 1, 2010, order. In addition, the show cause order did not make Moroun and Stamper parties to the contumacious conduct of DIBC. I would conclude that these are due process errors requiring the trial court’s sanctions against Moroun and Stamper to be vacated."
But Wilder was one of only three judges seeing serious "due process" problems in the Jailin Judge's handling of the case.
Judge Karen Fort Hood fully supported Wayne County Judge Edwards: "I conclude that the trial court did not abuse its discretion with regard to the propriety of the penalty for civil contempt, I would affirm the lower court’s decision in its entirety….the facts and circumstances justified the order of confinement pending completion of the Ambassador Bridge Gateway Project….According to the factual findings of the trial court, it not only failed to comply with the trial court’s order, but engaged in a process designed to render the project stagnant. This comes at a great cost to MDOT as well as the local community where the construction commenced, and the trial court must be entitled to utilize the ultimate sanction within its arsenal." (Don't you love the euphemisms deployed to avoid the terms jail and jailing?)
Majority sees DIBC obligations in 2007 performance bond agreement and map C-1
The majority ruling written by Judge Kirsten Frank Kelly was that the detailed obligations of the bridge company were set in a March 12 2007 performance bond agreement and especially Exhibit E titled "Plans for DIBC portion of the Ambassador Bridge/Gateway Project (Part A, DIBC portion) per MDOT/DIBC agreement as amended.”
A master plan map titled C-1 (see bottom of this page) apparently was the key document. It has the notation "FOR INFORMATION ONLY - NOT FOR CONSTRUCTION".
The bridge company and its lawyers have always maintained C-1 is preliminary and subject to proposed changes by either side before becoming a matter of contract. They have viewed the original as therefore not binding in its details, a concept map or kind of sketch plan.
All this covers bridge company construction on its own private property!
By contrast Michigan DOT has insisted that C-1 be followed in complete detail, that the department has the unfettered right to say yea or nay to even the smallest variations, or else the company may be interpreted as breaching contract.
County court judge Prentis Edwards who has the Gateway plaza court case sides 100% with the state.
Their lawyer Robert Mol advocated jailing energetically though he was at odds with the official statement of MDOT that they did not want to see anyone jailed.
By issuing a 'summary judgment' in February 2010 and claiming there was no room for legitimate arguments of fact Judge Edwards gave MDOT virtually arbitrary control over the bridge company's detailed design of its own plaza area.
On the bridge company's request to take Edwards off the case for prejudice and unfairness, the court said there was no formal motion to disqualify Edwards, and no ruling to review. (CORRECTION)
In court again Thursday
The Jailin Judge has another contempt hearing scheduled for Thursday to which the younger Matthew Maroun, vice-president and now majority shareholder in the bridge company is summoned along with the two jailed January 12 - his father Manuel 'Matty' Moroun and Dan Stamper president of the company.
The two Morouns freedom is in Edwards hands, plus of course Dan Stamper, already a 2-time jailee at Edwards' hand.
The appeals court has in effect given Edwards free rein to go back to jailing bridge company officials, so long as he writes his commands more clearly.
Release of the secret reports
The appeals court did say there was no justification for withholding a court monitor's reports, but Edwards anticipated that and said at a hearing last week he would release them. So the secret reports issue as yet another denial of due process in the Edwards court was rendered moot.
The seven reports by the court monitor Charles Scales were all released today.
They are generally written from a Michigan DOT/Judge Edwards perspective in that they work from the premise that plan C-1 constitutes what the bridge company must do. Most of the reporting is in terms of where the bridge company's construction differs from C-1, and the issues involved in bringing them into compliance.
The Scales reports do undercut the narrative that the bridge company has "done nothing" to try to comply with MDOT and the court's orders. They report at some length where there has been progress toward agreed completion, and where not. Maybe the reason the Jailin Judge initially wanted them kept secret was because they undercut his own cavalier dismissal of even the slightest move by company officials to settle differences with him and the state.
The Scales reports also document scores of efforts by the bridge company to gain acceptance by MDOT of changes from C-1, and MDOT's record of almost invariably rejecting compromise or change, and of insisting their interpretation is the only interpretation of C-1.
Scales reports go from January 2011 through January 2012, but be careful of the printed dates as Scales could improve his monitoring what year he's in. The Scales reports do provide some valuable documentation of issues in dispute and how they have been handled by both sides in this bitter, seemingly never-ending, saga.
Majority Court of Appeals ruling: