Hubbell DuVall PLLC has compiled its pro bono and low income services numbers for the second quarter of 2009. From June 1, 2009 through September 30, 2009, attorneys at the firm logged over 80 hours of free or substantially reduced-cost time representing underpriveledged, low-income, or indigent clients. This represents a 9% increase from the previous quarter.

Our standard fee agreement, which includes a free consultation preparation of the bankruptcy petition, statements and schedules, representation at the meeting of creditors, a consumer liability report and analysis, filing motions to redeem secured collateral, answering motions for relief from the automatic stay, preparing and filing reaffirmation agreements, and executing amendments, as necessary, will still fall under our normal pricing. A standard individual filing is $800.00, exclusive of the credit counseling and filing fees.

Our new fee schedule involves a low-cost bankruptcy option, which is ultra-competitive, and responsive to our clients’ needs. For $500.00, we offer a free consultation preparation of the bankruptcy petition, statements and schedules, representation at the meeting of creditors, a free consumer liability report, exclusive of the credit counseling and filing fees. This more affordable option is for clients who have no need for the additional services included in the standard Chapter 7 representation.

Since cost seems to be the motivating factor for many seeking the advice of a lawyer, we are responding by making low-cost options available. It is no longer out of your reach to have an attorney by your side. We continue to honor our pledge to beat any price quoted in writing by any attorney or bankruptcy petition preparer. If you bring us your quote, we will charge you less. Call us today.

Please visit Human Rights Watch’s Website for more.

What seems to have given this bill some pause was 16-year old Jonathan Belton being charged with open murder in the shooting death of 28-year-old Oak Park Police Officer Mason Samborski, which shooting occurred on December 27, 2008. Citizens responding to the news made comments such as: “fry the little puke,” and “kill him—at least he doesn’t leave a wife and child behind like Ofc. Samborski,” and “I hope he gets the death penalty.” Clearly these comments are born of rage, justified anger, and rietous indignation. Unfortunately, they are also born of ignorance, vengeance, pain, and fear.

One main purpose of the criminal justice system is so that the types of punishment that would be inflicted by an angry mob are replaced by ideas like due process, trial by jury, a defense, and a neutral judge. The system, however, is bound to apply the laws handed down by the representatives of the people of the state. What the state currently says is that juveniles convicted of certain crimes shall be imprisoned without the possibility of parole. MCL 750.316. Until the peoples’ representatives act to undo this policy, justice continues to unravel in Michigan.

Here is one example of a failure of the mandatory JLWOP sentencing policy. On December 14, 1993, a murder occurred in Detroit. Michael Scott, MDOC no. 240464 was sentenced to life in prison on November 30, 1994 after pleading guilty as the principle to the murder. Another man, Cortez Davis, MDOC no. 237818, was present for the murder and robbery, but maintained through trial and to this day that he was not the shooter. Davis was convicted by a jury after improper jury instructions were given at his trial concerning the interplay between accomplice liability and felony murder, a legal fiction, and a failure of his defense to hit on the fact that principle liability had been previously established. He was convicted of felony murder, having not actually committed any murder. Liability for the murder was admitted by the principle to the crime, Michael Scott. Nonetheless, the judge having commented in an order that she had serious doubts about Mr. Davis’s liability, the nature of the jury instructions, and the possibility of rehabilitating Mr. Davis, sentenced him to JLWOP. Thus the law failed—a sixteen year old with at worst secondary liability, and at best no liability, was sentenced to die in prison.

Such failures disgrace our system and embarrass our state, and perhaps more importantly, our credibility on the world stage. The United States continually censures foreign countries for various abuses, which it paternalistically styles “human rights violations.” See U.S. Department of State defending U.S. policy as “consistent.” But, it seems to me at least a little absurd to contend simultaneously that children should be free from oppression, sex abuse, and unjust imprisonment, when we subject children to those very things here at home. The only difference between the two being that oppression, sex abuse and unjust imprisonment are justified here by convicting the children of certain enumerated crimes. If you disagree, and don’t find it absurd, then you can at least appreciate the inconsistency.

The raw numbers reflect the values of the angry mob, and not of the interests of justice. In its report of May 2008, entitled The Rest of Their Lives: Life without Parole for Youth Offenders in the United States in 2008, Human Rights Watch studied the JLWOP phenomenon and made several disturbing findings. Today, Michigan is third to Pennsylvania and Louisiana in terms of the number of juveniles sentenced to life in prison without parole, with 316 incarcerated as of May, 2008. The majority of youth sentenced to life without parole are first offenders. An estimated 26 percent of these offenders were convicted of felony murder. Many youth get into fights with other prisoners in order to defend themselves from physical violence, including rape. Once in prison, youth offenders sentenced to life without parole believe that society has thrown them away, and their loss of hope can result in self-harm and suicide.

Perhaps the most important conclusion of the report is that lawmakers do not face a choice between being “soft on crime” and supporting life without parole for teen offenders. They can protect community safety, save on incarceration costs, and still save youth from a lifetime in prison. Giving youth offenders a second chance would align U.S. sentencing practices with the rest of the world and with the goals of criminal punishment, which are rehabilitation, retribution, deterrence, and incapacitation.

Retribution against youth offenders is unjust. Based on medical evidence, while teens can commit the same acts as adults, by virtue of their immaturity they are not as blameworthy or culpable. They do not have adults’ developed abilities to think, to weigh consequences, to make sound decisions, to control their impulses, and to resist group pressures; their brains are anatomically different, still evolving into the brains of adults. Exacting retribution upon a youth offender is akin to vengeance of the strong against someone weak and partially incapacitated.

The deterrent effect of JLWOP is almost completely absent. As the report points out, young people are less likely than adults to pause before acting, and when they do, research has failed to show that the threat of adult punishment deters them from crime. Deterrence is also unlikely given research showing that adolescents cannot really grasp the true significance of the sentence.

There is no doubt the current laws incapacitate youth offenders insofar as locking them up forever makes it less likely that they will ever commit a crime again. But at what cost? And once an offender has been rehabilitated the need to incapacitate them dissolves. Mr. Davis, anecdotally, assures this author that he is rehabilitated, and that if he were to be released that he would engage in community education about crime—particularly of youth—and also that he would never again entertain the possibility of breaking a law.

Rehabilitation should be the stick of choice for lawmakers on the fence. In the language of the report, youth are not all irredeemably violent people. JLWOP sentences send an unequivocal message to youth offenders that they are banished from the community forever, no matter how they change or grow. Some may say that they can change and grow in prison all they want. This writer’s question to those folks, is whether that comment is born of justice, or born of anger, ignorance, vengeance, pain, or fear.

Consider this a plea with the Michigan Senate Judiciary Committee to put SB 173 to a vote, and endorsing the letter sent from HRW to the Michigan Sente Judciary Committee on December 8, 2008.

Recently, the firm has supported Knights of Columbus Cardinal Mercier Council 2723 in its latest Golf Outing,which directly helped local families in need.

We have pledged a sponsorship for Jennifer Hartlep, a Michigan attorney and runner in the 2009 Chicago Marathon, set to take place on October 11, 2009. Jennifer is running for PAWS Chicago, the City’s largest no-kill humane organization. We’re with you all the way, Jen!

Finally, Hubbell DuVall has donated to the South Oakland County Fraternal Order of Police Lodge 130.

We are committed to being active members of the community in which we live. It is a tenant of our firm that we constantly strive to work with local and regional organizations that directly confront the very real needs in our community. We will continue to post about our community involvement with the hope that we inspire others to do the same.

Many who know me know that I initially wanted to practice environmental law in some capacity.  Instead, bankruptcy fell onto my plate and gave me the chance to start my own law firm and help those hardest hit by Michigan’s financial conditions.  Nonetheless, I still try to keep up with some of the goings on in the area of environmental law.

Recently in The National Cotton Council of America, et al. v. EPA, File Name: 09a0004p.6, 2009 (slip opinion),  the Federal Court of Appeals for the Sixth Circuit addressed the question of whether the application of pesticides over “waters of the United States” requires a permit under the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. 

To be regulated under the CWA, a substance must meet two requirements; (1) it must be a pollutant, and (2) it must be released from a point source.  The CWA provides a broad list of pollutants, 33 U.S.C. § 1362, so that determination usually involves basic statutory interpretation.  The CWA also defines “point source” but in a broader manner; a point source is “any discernable, confined, and discrete conveyance.” 33 U.S.C. § 1362.

The Environmental Protection Agency (“EPA”) enacted an administrative rule, 71 Fed. Reg. 68,483 (Nov. 27, 2006), (the “Final Rule” at ) declaring that such applications did not require a permit as long as the pesticide was being applied in compliance with the label restrictions required under the Federal Insecticide, Fungicide, and Rodenticide Act (the “FIFRA”).  Beside the EPA, there were of course, two other parties; the “Environmental Plaintiffs” who’s position it was that all discharges should require permits, and the “Industry Plaintiffs” who’s position it was that whether a pesticide is a pollutant should not hinge on whether it is used in compliance with the FIFRA.

There are essentially two types of pesticides that were at issue; chemical pesticides, which are synthetics, and biological pesticides, which are usually fungi, bacteria, or viruses.  The court held that the EPA exceeded their authority in enacting the “Final Rule” because the Clean Water Act’s use of the terms “chemical waste” and “biological materials” as part of the definition of “pollutant” was not ambiguous. 

The court reasoned that “chemical waste” means discarded, superfluous, or refuse chemicals so chemical pesticides applied to water to perform a particular purpose are not “pollutants” and thus do not require a permit.  The court also reasoned though, that if a chemical pesticide enters the water after being applied to land or the air, the need for a permit might arise.  Additionally, if a chemical pesticide leaves a residue in the water after it serves its purpose and effectively becomes a waste, a permit may be required.  The court ultimately left the question of whether the application of a chemical pesticide needs to be permitted to the EPA’s and industry’s experience with that pesticide; if a chemical does not leave a waste product after serving its purpose, its application does not need to be permitted under the CWA, if it does leave a residue, the EPA must regulate its use in accordance with the CWA.

In addressing whether the application of biological pesticides must be regulated under the CWA, the court again looked to the plain language of the CWA and found that the term “biological materials” necessarily includes matter of a biological nature such as biological pesticides since they are biological materials and, when introduced into the water by man, alter its biological integrity.

These lines of reasoning seem straightforward and logical to me and frankly, predictable.  What seems, in my opinion to be the more important argument, is whether the chemical residue that the CWA requires to be regulated is a point source.  The EPA argued that since the chemical pesticide is not a waste at the time of dispersion, it does not come from a point source.  The Court, in a rather bold line of reasoning, countered that there is no temporal requirement in the CWA’s regulation requirement; that is, a substance does not have to be a “pollutant” at the time it is discharged from a point source, it only needs to be a pollutant at some future time.  The Court also reasoned, and the EPA recognized, that Congress intended that pollutants be controlled at the source whenever possible and it is possible to control the use of pesticides in these situations.

So the “Final Rule” was ultimately overturned, what does this mean for us, the public?  First, it means that as long as a chemical pesticide does not leave a residue after it serves its purpose, it can enter the waters of the United States without a permit under the CWA even if it is being used in violation of the FIFRA.  Keeping in mind that there are separate penalties for violations of FIFRA labels, I do not really feel one way or another about this as long as said pesticides truly leave no residue (I’m not a chemist or chemical engineer so I will defer to the experts on this one).  Second, it means that users of chemical pesticides that do leave a residue must be more careful in their application if there is the risk that those pesticides may enter the water.  The upside is that, in theory these pesticides will be kept out, at least in dangerous concentrations, of our waters by the EPA’s permitting requirements.  The downside is that this may have a negative impact on small farmers who must now go through an expensive permitting process or bear the burden of purchasing chemical pesticides that do not leave a residue (I presume these are more expensive, if they are not, everyone who must apply pesticides should use them regardless of permitting requirements). 

Finally, the Court’s ruling helps cement a broader interpretation of a “point source.”  A point source is not only not limited to a non-moveable object, but the court also foreclosed any temporal requirement.  So what you might be asking.  It is my opinion that this opens a whole new group of defendants to liability.  As an example, a county salt truck, spreading road salt (usually magnesium chloride) near Lake Saint Claire, deposits some of its load too close to a stream and some of the salt enters the stream after melting the ice on the road.  The truck is a point source and, while it is serving a purpose when it is discharged, once it has served that purpose and has entered the water, it is a chemical waste and arguably, the initial application of the salt should have been permitted under the CWA.  This is at the far end of the spectrum and will likely never be litigated but it just illustrates how a seemingly narrow holding in the area of pesticide application can effect our every day lives.

It should be interesting to see whether any of the major environmental groups pick up on this aspect of the ruling since they are the ones that initiate most environmental actions these days.  My prediction, though limited by my lack of practice in the environmental arena, is that we have not seen the last of litigation over the temporal aspects of the term “point source.”