Motion to Vacate and Remand

7/25/2019 Motion to Vacate and Remand

http://slidepdf.com/reader/full/motion-to-vacate-and-remand 1/20

STATE OF MICHIGAN

IN THE COURT OF APPEALS

IN THE MATTER OF CONSERVATORSHIP OF Docket Number: 331405

ANN GRIMM,

Protected Individual.Lower Court Docket Number:

11-87628-CA

Related Cases:326240, 327012

MOTION TO VACATE AND REMAND

Appellants Eric Grimm and Michael Grimm, who both are interested parties in the probate

court, along with the Protected Individual, Martha Ann Grimm, herself, all respectfully move to

vacate the two orders under appeal in Case No. 331405, and to remand these specific issues, to be

heard anew by the Hon. Mark Feyen, who now has been assigned by the State Court Administrative

Office to preside over the Martha Grimm conservatorship. Please also be advised, based on the

consensus of medical professionals working with Martha Grimm (including a re-evaluation by The

Memory Clinic in 2016), that her condition and cognition have improved dramatically since August,

2011. She no longer meets the legal standard of“incapacity.” Accordingly, she already has sought

termination of her own guardianship. And papers should be filed soon to address a host of problems,

in relation to her conservatorship, involving actions of court “insiders” since December, 2014.

ISSUE PRESENTED

Reviewing the latest reference manual on judicial disqualification in Michigan, see

MICHIGAN JUDICIAL I NSTITUTE, JUDICIAL DISQUALIFICATION IN MICHIGAN (2016), Michigan state-

law precedent does not appear presently to address the question whether a judge, on the same day

he or she disqualifies or recuses himself or herself from a case, nonetheless retains authority or

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jurisdiction for what amounts to a final “parting shot” against the party who is the target of the

judge’s bias, ire, prejudice, and personal animosity, by ruling on highly controversial pending

substantive motions (as well, in this case, as one ambush ruling on a matter not properly raised by

motion under the Court Rules), on his or her way off the case – even though those matters could and

should instead be heard and decided (without any question about bias) by the newly-assigned judge,

post-disqualification, so as to avoid both the reality and the appearance of impropriety.

This case presents that issue, as well as the question whether the rulings embodied in the two

orders under appeal were erroneous (they were).

Appellants do not necessarily need to seek a published appellate decision addressing the

“parting shot” question, however. Moreover, we do not necessarily need to seek to have the

improper orders that are the subject of this appeal addressed on the merits by this honorable Court

(rather than merely vacated by this court, so they may be addressed with fresh eyes by Judge Feyen).

On further reflection and review, Appellants are far less interested in securing a precedent

from the Court of Appeals, deciding on the merits whether the two orders under appeal were

erroneous or not (they were in error, but that’s beside the point), than Appellants are eager to have

the issues heard – in an unbiased hearing at which Appellants’ case can be presented fairly and

without undue interruption, interference, and threats of contempt – before a fair and impartial

adjudicator. Due Process, as the Supreme Court repeatedly has recognized, is not satisfied merely

by giving parties fair notice of a hearing, and the opportunity to be heard. Rather, Due Process also

affirmatively requires a fair and impartial adjudicator. Caperton v. A. T. Massey Coal Co., 556

U.S. 868 (2009); In re Murchison, 349 U. S. 133, 136 (1955).

PERSUASIVE AUTHORITY

Fortunately, this honorable Court is not required to proceed entirely in a vacuum, without

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even persuasive published decisions to offer analysis and guidance. To the extent that the “parting

shot” issue might be reached (although, we do not believe that this court needs to issue an opinion

addressing this subject, in order to issue a terse ruling stating simply that the orders under appeal

are vacated and remanded), some helpful guidance is available, it turns out, in the form of the

uniform procedural rule developed and recognized in federal appellate decisions about whether a

judge – on or after the date that an intention to disqualify himself or herself is announced – should

continue issuing gratuitous orders on substantive issues that could instead be addressed by a new,

substitute judge. See Doddy v. Oxy USA, Inc., 101 F.3d 448, 457 (5th Cir. 1996) (holding that

district judge erred in vacating her disqualification order after disqualifying herself); El Fenix de

Puerto Rico v. The M/Y Johanny, 36 F.3d 136, 141 (1st Cir. 1994) (“[A] trial judge who has

recused himself ‘should take no other action in the case except the necessary ministerial acts

to have the case transferred to another judge.’”) (emphasis added); Moody v. Simmons, 858 F.2d

137, 143-44 (3rd Cir. 1988) (after disqualification, judge is limited to “the ‘housekeeping’ duties

necessary to transfer a case to another judge”); Arnold v. Eastern Air Lines Inc., 712 F.2d 899,

904 (4th Cir. 1983) (“Patently a judge who is disqualified from acting must not be able to

affect the determination of any cause from which he is barred.”).

Obviously, the two orders under appeal were neither necessary, nor merely ministerial. The

new judge was fully capable, and remains capable, to hear and rule on these issues without help from

the judge who recused himself. Under the circumstances, the guiding wisdom from the federal

judiciary comports with simple common sense. If a judge personally thinks he or she should not be

on a case, and announces an intention to disqualify himself or herself, then the judge’s duty is to

ensure that the case is transferred expeditiously to a new judge whose impartiality cannot reasonably

be questioned. The judge’s duty is not to indulge the tempting impulse to maintain control, by

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continuing to pre-decide contested issues as a precaution against the possibility or likelihood that

the new judge might – precisely as a result of not being biased – view things differently.

PRAYER FOR RELIEF

Accordingly, the moving parties respectfully pray that the two orders under appeal simply

be vacated (without any suggestion by this honorable court about how the newly-assigned judge

should decide them, one way or the other), and that this honorable Court remand this matter for

further proceedings consistent with law, the Court Rules, and impartial justice.

The Court of Appeals has accepted this case for mediation on the question of vacatur and

remand (only this one appeal is to be mediated, not any related cases). However, it is actually more

efficient – and conserves both scarce judicial resources, as well as all the parties’ own resources,

much better – for the court merely to issue a vacatur order, and to remand the case, before taking

up time mediating what really amounts to a relatively simple question of law, not of fact.

Dated: May 16, 2016 Respectfully submitted,

/s/ Eric C. Grimm

Eric C. Grimm (P58990)ERIC C. GRIMM, PLLCCounsel for Appellants, andProtected Individual1330 West Summit AvenueP.O. Box 41Muskegon, MI 49443-0041734.717.4900

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STATE OF MICHIGAN

IN THE COURT OF APPEALS

IN THE MATTER OF CONSERVATORSHIP OF Docket Number: 331405

ANN GRIMM,

Protected Individual.Lower Court Docket Number:

11-87628-CA

Related Cases:326240, 327012

BRIEF IN SUPPORT OF

MOTION TO VACATE AND REMAND

Appellants Eric Grimm and Michael Grimm, who both are interested parties in the probate

court, along with the Protected Individual, Martha Ann Grimm, all respectfully move to vacate the

two orders under appeal in Case No. 331405, and to remand the subject-matter of these two orders,

to be heard anew my the Hon. Mark Feyen, who now has been assigned by the State Court

Administrative Office to preside over the Martha Grimm conservatorship. The principal difficulty

here is that on January 7, 2016, the same day he announced his intention to recuse himself, and made

clear on the record the magnitude of his personal dislike and loathing for one or more persons

appearing in court, Judge Pittman did not confine his actions solely to self-recusal, plus only those

necessary, ministerial, functions required to accomplish reassignment to an impartial adjudicator.

Instead, the prior probate court judge sought continue using his authority in ways that were

directly harmful to the interests of the Protected Individual, and contrary to the purposes for which

the Estates and Protected Individuals Code itself was written into law (namely, to protect the

interests of those who cannot protect themselves – not to exploit them, for the financial benefit of

insider “professionals,” through the needless manufacture of fees and depletion of estate assets).

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It probably also bears mentioning that Martha Grimm has been re-evaluated by The Memory

Clinic, and has been determined (in early 2016) not to have Alzheimer’s Dementia, based on a

significant and measurable improvement in cognition and other measures of well-being. This also

is confirmed by a Wellness Assessment prepared in early 2015, a copy of which is attached as

Exhibit A. Precisely because Martha Grimm does not presently meet the legal standard to be treated

by the Probate Court as “incapacitated,” papers already have been filed with the Probate Court

seeking to terminate and dissolve Martha Grimm’s guardianship. Similar papers will be filed in the

very near future, seeking to remove her from what has turned out (since December 2014) to be a

predatory and harmful conservatorship by Muskegon County Probate Court “regulars” / “insiders.”

SUMMARY OF FACTS AND CONTROLLING ISSUE

On January 7, 2016, the Hon. Gregory C. Pittman recused himself from presiding either in

Martha Grimm’s conservatorship or in her guardianship. The order of recusal (which is not on the

standard SCAO form, and is somewhat cryptic about the reasons Judge Pittman cannot be fair or

impartial), has not been appealed and is now unappealable. From the transcript on January 7, 2016,

however (not to mention several prior transcripts), it is more than evident that Judge Pittman has had

some very strong personal feelings about one or more Interested Persons in this case, that probably

were clouding his impartial judgment quite some time prior to January 7, 2016.

Disqualification always is required when a judge is biased or prejudiced for or against a party

to the proceedings or an advocate appearing in the proceedings. MCR 2.003(C)(1)(a); MICHIGAN

JUDICIAL I NSTITUTE, JUDICIAL DISQUALIFICATION IN MICHIGAN, Page 1-6 (2016).

The order of disqualification, by its very issuance, makes abundantly clear that at least the

objective appearance of bias or prejudice was present. Thus, the self-recused judge could not be

viewed objectively as impartial, with respect to ruling – on the same day the judge disqualified

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himself – on important, controversial, and contested substantive issues involving the dissipation of

more than $50,000.00 of the Protected Individual’s scarce remaining assets, on services she never

needed in the first place, and that did her no good whatsoever.

If a judge’s fairness and impartiality reasonably can be questioned (and if at least an

appearance of impropriety exists, whether or not any actual impropriety exists), to such an extent

that a judge voluntarily self-disqualifies, then should the judge also make substantive rulings on

contested matters, on the same day the judge announces he or she is self-disqualifying?

Appellants, and the Protected Individual, respectfully answer that question in the negative,

and respectfully pray that this honorable Court does so too, by vacating the two orders under appeal,

and remanding the matter to the newly-assigned judge, to decide these issues in a manner consistent

with law. This approach certainly is consistent with how other courts in the United States handle

the same and similar issues. See Doddy, 101 F.3d at 457; El Fenix de Puerto Rico, 36 F.3d at 141

Moody, 858 F.2d at 143-44; Arnold, 712 F.2d at 904 (“Patently a judge who is disqualified from

acting must not be able to affect the determination of any cause from which he is barred.”).

This approach also is consistent with basic common sense and the public interest in

maintaining confidence in courts, by ensuring that they scrupulously maintain both the reality and

the appearance of impartiality. This public interest is particularly salient, in Michigan, in 2016. See

Mark Brush & Rick Pluta, Where does Michigan rank in a “State Integrity Investigation?” Dead

l a s t . , M I C H I G A N R A D I O ( N o v . 9 , 2 0 1 5 ) , <

http://michiganradio.org/post/where-does-michigan-rank-state-integrity-investigation-dead-last >;

ELIZABETH A. WEAVER & DAVID B. SCHOCK , JUDICIAL DECEIT: TYRANNY & U NNECESSARY

SECRECY AT THE MICHIGAN SUPREME COURT (Peninsula Press, ed. 2015).

Presumably, much greater actual and apparent impartiality are maintained by making sure

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that a new judge, who is not under the same cloud of apparent or actual bias or prejudice, can make

the substantive rulings instead of the judge who has voluntarily self-disqualified.

The very controversial, and questionable, substantive rulings that are the subject of the two

orders being appealed, were made on the same day Judge Pittman disqualified himself, and ought

therefore to be vacated and remanded (without any signal from the Court of Appeals how these

issues ought to be decided by the new judge) for consideration anew before an impartial adjudicator

– precisely because the prior judge disqualified himself from making such rulings.

CONTEXT OF THE ENTIRE CASE

A guardianship and conservatorship for Martha Grimm was established by the Muskegon

County Probate Court on August 29, 2011. At Martha’s behest, her son Eric Grimm (one of the

Appellants) was named guardian and conservator. Her views on who should be tasked with

protecting her interests have not changed at any time since then.

Prior to 2011, Martha had received inpatient psychiatric treatment thirteen different times

over the course of about 30 years. Since August 29, 2011, she has been stable and has taken her

medications regularly, and reports either complete or near-complete relief from prior depression and

anxiety. See Psychosocial Wellness Report, Exhibit A. She has not required anything remotely

resembling inpatient treatment, at least since 2011. She has not been hospitalized, now, for mental

health issues, in nearly a decade. And, as disclosed in the Wellness Assessment, her improvement

has ben extraordinary and exceeds all expectations, in many other respects, too.

This case (but no related appeal) has been assigned to the Court of Appeals Mediation

Program. See Appellate Docket Sheet, Entry No. 38. Appellants’ counsel already has

communicated with Mr. Hermanson (legal counsel for Appellees) and placed a call to Mr. Todd

(legal counsel for the conservator) seeking input on the selection of a mediator.

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However, on further reflection, it would appear that either securing a ruling on the merits by

the Court of Appeals, or the investment in time and resources to schedule and hold a mediation on

the question of whether to vacate and remand by stipulation, would be sub-optimal. Appellants

respectfully propose, and pray, that this honorable Court instead simply will vacate the orders under

appeal and remand for proper consideration by the newly-assigned judge.

Also, the Court of Appeals has been informed and advised of certain irregularities leading

up to the signing of at least one of the two orders at issue in this appeal. See Appellate Docket

Sheet, Entry No. 19. However, the irregularities (although easily corrected), remain uncorrected.

See Appellate Docket Sheet, Entry No. 30. Vacatur and remand also provides a workable, prudent,

solution to these additional problems and irregularities.

The Muskegon County Probate Court includes two sitting judges. Judicial salary and

benefits alone cost taxpayers roughly a third of a million dollars a year. Interestingly, when Hon.

Neil Mullally retires on December 31, 2016, it appears that neither of the two judges serving on the

probate court will actually do any probate law whatsoever. See John S. Hausman, Muskegon

County’s circuit, probate courts to reorganize, MLIVE (April 13, 2016), <

http://www.mlive.com/news/muskegon/index.ssf/2016/04/muskegon_countys_new_probate_j.html

>. And, despite having served on the Bench for over a decade, Judge Pittman will be assigned only

limited administrative responsibility and authority, under the supervision of Judge Marietti of the

Circuit Court. The announcement about re-organization, incidentally, was made only days before

petitions were due in order for judicial candidates to get on the ballot for Judge Mullally’s seat.

The rationale for such changes has not exactly been explained in a transparent way by the

persons making these decisions. But reading the entrails or tea-leaves of what this shakeup means,

does not appear to communicate resounding confidence in Judge Pittman’s acumen by his judicial

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peers in Muskegon County. Judge Pittman, it may be remembered, earned some notoriety

nationwide after he ordered a woman seeking a divorce handcuffed to her husband, against whom

she had obtained a protective order, and the both of them confined in jail. See Eve S. Buzawa, Carl

G. Buzawa & Evan D. Stark, Responding to Domestic Violence: The Integration of Criminal Justice

and Human Services, ch. 5 (5th ed., SAGE Publications, Ed. 2017) (“A Michigan woman who

complained that her husband violated a protective order against her was ordered handcuffed to him

by the judge who is handling the couple’s divorce. . . . “In hindsight, I probably wouldn’t do it

again,” Pittman said, “but in no way would I ever put a person who has been assaulted in that

position.”). Other such episodes involving this particular judge abound, more than one of which

already has been elevated to the attention of the Judicial Tenure Commission.

On December 5, 2014, without any pre-decision hearing on the record, without applying the

applicable statutory standards, and without making any of the required statutory findings, see MCL

700.5106(1), 700.5409(1)(d), 700.5414, the probate court in an off-record, highly improper ex parte

conference in chambers (from which parties were excluded), pre-announced that it was going to

substitute a probate court regular or insider called P.W. Services, for the properly-appointed

conservator. No legal basis existed for such a change in staffing, to the Protected Individual’s

detriment. Indeed, the person who filed what purported to be a “petition” seeking such a change,

then had no actual lawful authority to do anything at all in relation to this case.1

1Under the ESTATES AND PROTECTED I NDIVIDUALS CODE, the procedural requirements

for properly appointing a guardian ad litem clearly require mandatory findings, and entry of anorder containing specific language and reasons (typically, using a specific SCAO form). SeeMCL 700.1403(d). This procedure was followed by Judge Mullally, but only for the initialhearing on whether to appoint Eric Grimm as guardian and conservator on August 29, 2011.

After that time, any GAL appointment necessarily expired. Starting August 29, 2011(especially because findings were made on the record by clear and convincing evidence that EricGrimm could adequately represent Martha Grimm’s best interests), there neither was any

(continued...)

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At that time, the individual (who was then acting without any court authorization in the first

place) recommending and seeking the substitution of conservators, also sought to initiate a so-called

“forensic audit” at a cost of “up to $10,000.00.” The individual purporting fraudulently to have

authority to act as a “guardian ad litem” on December 5, 2014, stated on the record that the Protected

Individual “could afford” $10,000.00 because “she has the money” – more than $500,000.00 in

assets, according to the self-appointed intervenor. Subsequently, as a direct result of the improper,

unlawful, change in conservators on December 5, 2014, and subsequent financial improprieties, as

of February 18, 2016 – according to P.W. Services itself – the Protected Individual only has

“approximately $57,000” left in the retirement accounts that she received from her late husband

(a retired judge of the 60th District Court). See Exhibit B (correspondence from P.W. Services).

Such a catastrophic drain of her assets is, quite understandably, alarming.

Moreover, despite numerous requests and demands by the Protected Individual herself, for

information about where P.W. Services is redirecting her money – and to whose benefit – P.W.

Services is long overdue on filing its first year accounting. Or making any other such disclosure.

1(...continued)guardian ad litem, nor any need for the estate to be billed for any such services. In October,2012, and again later, starting in August or September, 2014, an attorney named Michael Walsh – without any court order or proper findings actually to bestow any authority on him whatsoever under section 1403(d) – started fraudulently holding himself out as possessing more authoritythan he actually had. And, not surprisingly (this is common, according to news reports about the

alarming and frequent phenomenon known as guardianship abuse), Mr. Walsh started instigatingconflict with Martha Grimm’s properly-appointed guardian and conservator, and purporting tosecond-guess and over-rule the reasonable decisions that the properly-appointed conservator (notMr. Walsh) had statutory authority to make. At no time relevant to this motion, has Walsh ever lawfully enjoyed either the immunity or the legal authority of an actual, properly-appointed,“guardian ad litem.” Additionally, the Court of Appeals never has appointed Walsh to serve as a“guardian ad litem” for appellate purposes, and no legal basis exists for Walsh to purport toassign himself that function on this honorable Court’s behalf.

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P.W. Services refuses (despite a statutory obligation to do so) to answer the Protected

Individual’s entirely reasonable requests to know where her money is being spent, and for what.

Under the properly-appointed conservator, the relatively minimal change in value of these

retirement accounts principally involved payment of substantial federal income tax liabilities that

Martha Grimm incurred (as a result of manipulation by her two daughters) prior to moving to live

with her son, Eric. In other words, comparing Eric Grimm’s performance preserving estate assets

for three years from 2011 to 2014 (very successful) with the probate court insiders’ performance in

little over one year (hundreds of thousands of dollars in assets have evaporated, due to being

consumed by “churning” the file with unnecessary professional fees), it is completely obvious that

changing conservators was a very bad idea, indeed, and unquestionably harmful to the Protected

individual and her interests. Does this happen in other cases in Muskegon County? Note that

appellate review of shenanigans that occur in Muskegon County tends, for a variety of reasons, to

be the exception rather than the rule. How, in the absence of appellate review and relief, does the

victim of financial abuse, secure any remedy at all?

Guardianship abuse is a real phenomenon in the United States, a growing phenomenon, and

one that does grave harm especially to elderly people who cannot protect themselves. See, e.g.,

Richard Eisenberg, Beware the Con Game of Conservatorships, FORBES (May 15, 2015), <

http://www.forbes.com/sites/nextavenue/2015/05/15/beware-the-con-game-of-conservatorships/

>; Arian Campo-Flores &Ashby Jones, Abuse Plagues System of Legal Guardians for Adults:

Allegations of financial exploitation and abuse are rife, despite waves of overhaul efforts, THE

W A L L S T R E E T J O U R N A L ( O c t . 3 0 , 2 0 1 5 ) , <

http://www.wsj.com/articles/abuse-plagues-system-of-legal-guardians-for-adults-1446225524 >.

See also National Association to Stop Guardian Abuse, An Open Door , <

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http://stopguardianabuse.org/an-open-door/ > (“The courts are known to be biased against the

family. Why? . . . [B]ias is often encouraged by the guardian ad litem and attorneys in the case.

They are the ones who benefit monetarily if they can keep the disagreement going and leading to

a forced guardianship/conservatorship. The judge will appoint a professional or public guardian,

citing the long-standing family dispute as the end that justifies the means. In other words, the Ward

is punished because his/her family “can’t get along.” And the guardian fans the flames to guarantee

that there will be no settlement of the dispute, rationalizing and entrenching his/her function and

continued existence.”). If it walks like a duck, swims like a duck, and quacks like a duck, it

probably is a duck. And in this case, especially since 2012, the probate court insiders systematically

have walked, quacked, swam, and behaved exactly like textbook guardianship financial abuse.

And, most alarmingly, the Probate Court judge (Hon. Pittman), rather than exercising

oversight to prevent financial abuse of Martha Grimm in the first place, actively has sought to shield

the abuse behind court orders, and to interfere with hearings at which reasonable efforts have been

made to put the real facts in the record, so as to protect the victim from exploitation.

Now, we are aware that Mr. Walsh – in an effort to deflect from his own pattern of

misconduct – already is relying upon the ‘my victims are crazy and delusional’ ruse, which is not

uncommon in guardianship abuse cases. For instance, in one untimely filing with this court, Mr.

Walsh (in a manner inconsistent with basic principles of professionalism and civility) opines, “This

is simply a baffling and bizarre manifestation of this man’s delusions that have propagated so much

litigation and such costs,” on page 4 of his prior court submission.

This highly improper ad hominem attack by Walsh, is neither supported by facts or evidence,

nor germane to any issues in this case. We trust this Court can see through the deception.

Attached as Exhibit C is a letter from a qualified mental health professional, offering a

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proper professional opinion (based on proper clinical procedures) that Eric Grimm is not and has

not been delusional in any way. Suffice it to say that no evidence has been taken on this subject, and

no finding has been made in the court below.

As for the improper ad hominem effort by Walsh to engage in name-calling, and label one

of the Appellants “delusional,” in reality, Mr. Walsh is not qualified professionally to make

psychiatric diagnoses. Nor is he qualified under Rules 702-03 of the MICHIGAN R ULES OFEVIDENCE

to offer any professional opinion about the mental health or purported “delusions” of anyone.

Unlike Mr. Walsh, Eric Grimm did not attend Cooley Law School and go into private

practice after a very brief stint as a Newaygo County assistant prosecutor. Eric Grimm graduated

with honors from University of Michigan Law School, completed two (2) prestigious judicial

clerkships, has passed the background investigation required for Department of Justice employment,

and has had a very successful and interesting career for over 20 years.

Delusional?? Implausible!!

Importantly, there is nothing in the Court Rules prohibiting the taking of a lawful appeal,

from improper and erroneous court decisions. Nor is there anything the least bit improper, when a

court repeatedly engages in grave error, in making a detailed factual record, to ensure that the proper

truth-seeking process of the legal system can be protected – at least in an appellate forum. Not a

single rule has been violated by the Appellants (as opposed to Mr. Walsh, who has violated a great

many of them). The only thing driving the skyrocketing costs, is Walsh’s own manufacture of fees

to line his own pockets, and his manufacture of controversy by continuing to attack the properly-

appointed conservator, personally. Importantly, the Protected Individual has not been charged by

either of the Appellants for their reasonable and appropriate efforts to protect their mother from

harm. The only improper and wrongful depletion of her assets on or after April, 2011 (when the

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daughters’ misconduct was halted) has occurred solely at the hands of Walsh, P.W. Services, and

probate court “insiders” churning the file to profit handsomely at the Protected Individual’s expense.

Thus, in reality, there would have been no “costs” whatsoever, no expenses to the Protected

Individual or her estate, and she would have profited handsomely by continuing to hold her North

Muskegon residence – if Mr. Walsh had not actively sought (with the lower court’s active

assistance) to instigate conflict and controversy with the properly-appointed conservator, and to

manufacture un-necessary fees for professional services that the protected individual did not even

need. The root cause of the problem goes back even farther than 2014. In October 2012, while

Judge Mullally still was assigned to this case, he was approached ex parte by Barbara Kleaveland

(neé Hanley), by Barbara’s mother, by Jim Hanley, Barbara’s brother, and by Jim’s wife. Barbara

was the mother of Gabriel Smith, who helped take financial advantage of Martha Grimm (and was

charged criminally for it) from 2009 - 11. Barbara also has published some interesting writings

about how she feels about some pregnancies she terminated. See <

http://www.spiritofmedjugorje.org/oct2009.htm >. It is probably best, under the circumstances, to

allow Barbara’s own words to speak for themselves.

Barbara and her relatives know Judge Mullally through the Catholic Church. Judge Mullally

serves on the board for Catholic Social Services. Shortly after the improper ex parte

communication, Judge Mullally disqualified himself in October, 2012, from hearing the case on

account of his close personal friendship with the Hanleys. It is not entirely clear why Judge Pittman

did not also disqualify himself so the case could be heard by somebody more independent, impartial,

and not similarly subject to the corrupting back-channel influences of local politics.

In any event, within mere days of the case being reassigned to Judge Pittman, attorney Walsh

abruptly re-entered the case, but did so without the proper authorization required by MCL

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700.1403(d). Walsh had no authority whatsoever to command that Eric Grimm (Martha Grimm’s

own preference for conservator) be replaced with David Ellis. But Walsh (in an off-record meeting

to which Walsh was not even invited, and at which he pretended to be, essentially, a roving off-

record surrogate judge) nonetheless pretended to have authority to insist that a different conservator

be appointed. Even if Walsh had been properly appointed as guardian ad litem at that time

(obviously, he was not), he still would not have had authority to overrule the properly-appointed

conservator as to the timing of when to sell Martha Grimm’s house in North Muskegon. The EPIC

clearly assigns that decision-making authority to the conservator, not to Walsh. Nonetheless, Walsh

attempted to purport to have power and authority to command the premature liquidation of the real

estate, right in the middle of the worst real estate depression in nearly a century.

And, to make things worse, Walsh then attempted to trick the conservator into allowing a

“handyman” into the North Muskegon house. The “handyman” did not perform any of the assigned

tasks, but instead (without any professional qualification to do so) purported to offer an opinion of

value about the real estate. The “handyman’s” opinion of value just happened to be $40,000.00 less

than a valuation that already had been provided by a qualified appraiser.

Moreover, Walsh falsely purported to have authority to order “visitation” in an adult

guardianship – even though the ESTATES AND PROTECTED I NDIVIDUALS CODE authorizes no such

thing in any adult guardianship. This, also, involved an obvious effort to escalate expenses (and

billable hours paid to Walsh and confederates), completely without legal basis or authority, and

without regard to the Protected Individual’s autonomy and interests.

Was Walsh in any way acting in Martha Grimm’s best interest? Of course not. He was

instigating conflict with the existing conservator in order to attempt (with the help of the probate

court) to get his own hands on, and to “churn” with manufactured expenses, Martha Grimm’s assets.

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Again, in 2014, Walsh attempted – without any court authorization to purport to act in the

capacity he claimed he was acting – to engineer the sub-market sale of Martha Grimm’s North

Muskegon house. In the process, Walsh introduced one of his personal friends (who also happens

to be on the Executive Committee of the Muskegon County Republican Party, and to share right-to-

life politics with Barb Hanley and her family) into Eric Grimm’s home, to conduct an unlawful two-

hour search of the premises. On threat of contempt (also entirely improper) Eric Grimm was bulllied

into removing both his mother and her dog from the premises while the illegal search in violation

of the Fourth Amendment was conducted. Was there any need for this? Of course not. Nor was

there any benefit to Martha Grimm of imposing such expenses on her, or invading her home.

A dozen qualified medical and social work professionals have reviewed Martha Grimm’s

living environment, and uniformly have determined that it is perfectly suitable for her. See, e.g.,

Exhibit A. Many of them, id., have taken the time to review her medical records rather than making

unsupported assumptions about her capabilities and mobility. But Walsh’s friend – who he

arbitrarily introduced into Martha’s living environment – conveniently reached the conclusion

(based on faulty assumptions that could have been dispelled with proper medical records review)

that Martha needed to be moved to assisted living at once. Of course, this friend of Walsh had no

professional qualifications to make any such recommendation, no factual basis for it, and no court

authorization to make any such assessment in the first place.

Essentially, this unlawful warrantless invasion of Martha Grimm’s living space, in 2014,

involved an active effort – again, by Probate Court “insiders” – to remove the Protected Individual

from her home, in order to drain her assets to the financial benefit of an assisted living facility.

When that ruse failed, the “insiders” next dreamed up a completely un-necessary so-called

“forensic audit” without any benefit whatsoever to the Protected Individual. A better and more

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thorough financial investigation for her already had been done, free of charge to her.

The “forensic audit” was supposed to be finished by April 30, 2015. It still has not been

finished. As reflected in Exhibits D and E, the partial report that has been delivered, is exceedingly

questionable in that it overstates Martha Grimm’s initial assets in 2009, by more than $700,000.00,

and also mis-characterizes a transaction occurring in 2009.

P.W. Services and its lawyer, despite months to answer reasonable questions – never have

responded to the specific questions posed in Exhibits D and E.

Even worse, the so-called “forensic audit” spiraled wildly over-budget, and P.W. Services

later attempted to secure permission to pay over $46,000.00 for this colossal waste of time (in

contrast to Walsh’s initial estimate of $10,000.00). Further, the “forensic audit” was improperly

used as a pretext to subpoena financial records of two campaign accounts of Eric Grimm, from two

times he ran for Roosevelt Park City Council. No money of Martha Grimm ever entered either of

these campaign accounts, and there is no legitimate reason to have subpoenaed these records.

This improper activity does, however, clearly constitute even more evidence that the actual

motivations behind the systematic mis-treatment of Martha Grimm, go beyond mere greed and

avarice on the part of Walsh and his confederates, but most likely have as much to do with politics

and the “dirty tricks” for which at least one of our two political parties has come to be known.

Especially starting in August 2014, this case has become a classic – and meticulously-

documented – example of guardianship abuse by Michael Walsh, by P.W. Services, and by others

(such as the accountant friend of Walsh who conducted the warrantless search, and the realtor who

manufactured a steep discount on the premature below-market sale of Martha Grimm’s North

Muskegon home – again, under suspect and questionable circumstances).

It is our fervent hope that, with a new judge, the politics and financial abuse will stop, and

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judicial oversight will actually start to be exercised. Even better, justice requires that Martha Grimm

secure a complete financial remedy against the financial predators who have harmed her repeatedly.

Vacating the two orders in question, and remanding for a new judge to exercise proper

oversight, is only reasonable because it offers an opportunity for Martha Grimm to secure justice

(in a manner consistent with the statute) for the persistent financial abuse that has occurred to her

in he Muskegon County courts.

Another reason favoring a vacatur and remand is that a proper record could not be made

during the January 7, 2016, hearing, precisely because efforts to ensure that the actual facts were

presented methodically on the record, repeatedly were met with threats from the Bench that if one

or more persons “say one more word,” then a contempt order would issue.

Calmly and patiently making a proper record emphatically is not the sort of thing that ever

should trigger repeated threats of contempt. As the Michigan Code of Judicial Conduct, states:

A judge should be patient, dignified, and courteous to litigants,

jurors, witnesses, lawyers, and others with whom the judge deals in

an official capacity. . . .Canon III(A)(3). Merely speaking the truth in a dignified way, and attempting to make a proper and

informative record, does not in any way justify such dramatic, repeated, outbursts, and departures

from normal standards of judicial decorum. Likewise:

A judge should avoid interruptions of counsel in their arguments

except to clarify their positions, and should not be tempted to the

unnecessary display of learning or a premature judgment.

Canon III(A)(8). Most importantly:

Without regard to a person’s race, gender, or other protected personal

characteristic, a judge should treat every person fairly, with courtesy

and respect.

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Canon III(A)(10). Judge Pittman is a proud Christian, who is known to reference Bible verses quite

often from the Bench. Transcripts containing examples are available upon request. Indeed, it would

be refreshing if he were to start quoting statutes and the Court Rules as often as Bible verses.

The lawyer against whom Judge Pittman’s ire and bias have been directed personally, is

respectful and welcoming of Christians of all types (and a good friend of many Christian religious

leaders in the community, as well as a supporter and friend of the Cooperating Churches in

Muskegon County), but also has become known in Muskegon County as a public and unapologetic

advocate for religious equality and governmental non-discrimination:

* http://www.mlive.com/news/muskegon/index.ssf/2010/11/roosevelt_park_proactively_stu.html

* http://www.mlive.com/news/muskegon/index.ssf/2010/12/roosevelt_park_city_council_ap.html

* http://www.mlive.com/news/muskegon/index.ssf/2014/12/roosevelt_park_councilman_prop.html

The methods used to advocate in public for equality do not involve any insult toward or

condemnation of Christians or their beliefs, but instead a respectful and patient dialog about the

government’s (especially judges’) obligation not to exhibit favoritism toward one religious point of

view over others. We trust that vacatur and remand, can at least become a long-overdue start toward

putting this case back on track toward the objective of delivering on the promise of equal justice

under law for Martha Grimm, and the two Appellants.

Dated: May 16, 2015

Signature:

/s/ Eric C. GrimmEric C. Grimm (P58990)ERIC C. GRIMM, PLLCPost Office Box 41Muskegon, MI 49443-0041(734) [email protected]

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Documents

Motion to Vacate and Remand