THE COURT: With respect to that now. If the court finds that the prosecution, reading the statute 750.50(3), if the prosecution-—if the court finds that the prosecution has met the burden, the court shall order immediate forfeiture of the animal to the animal control shelter or animal protection center or a licensed veterinarian, unless the defendants within seventy-two hours of the hearing, submit to the court clerk cash or other form of security in an amount determined by the court to be sufficient to repay all reasonable costs incurred and anticipated to be incurred by the shelter, shelter or veterinarian in caring for the animal from the date of initial impoundment which would be March twentieth, to the date of trial. If that cash or other security has been submitted and the trial is continued at a later date, I think that’s referring to the criminal trial if I’m reading that correctly, any order of continuance shall require the defendants to submit additional cash or security in the amount determined by the court to be sufficient to repay all additional reasonable costs anticipated to be incurred. Then if it is submitted, then the forfeiture stands in abeyance.
MR. HURST: So we need to have a discussion with the court about how much that figure is. Correct, Your Honor?
THE COURT: Yes.
MR. HURST: And it would be my understanding, the reading of the statute, that this would not include the figures for the expenditures by the 501C corporation, the Leelanau Horse rescue who testified that they did not expect to be repaid. And also they are not defined in the statute as an animal control shelter or an animal protection shelter or a licensed veterinarian.
THE
COURT: Well, that’s certainly an
interesting question in that respect and a legitimate question. I don’t know if they received any money from
MR. HURST: Well, the testimony of-—
THE COURT: As any itemization of any expenses—-
MR.
HURST: --Miss Steenrod was that they received, that Leelanau Horse Rescue
receives their money from charitable contributions through a 501C3 up north in
THE
COURT: And I think that’s a fair
summarization of her testimony. However,
as things changed I don’t know whether or not something was submitted by
Lenawee to
MR.
HURST: I agree, Your Honor, that if
THE COURT: Yes.
MR. HURST: And of course I see that our county administrator was here this morning but I believe he’s departed.
THE COURT: Yes, he left.
MR. HURST: So the bean counter is actually out of the room.
THE COURT: Should have ordered him to stay. All right. I haven’t done one of these things before, I don’t think anyone here has done these things before. Have you, Miss Lamp?
MS. LAMP: Well, we’ve only had bond posted in one case, so that was only an issue before and it was involving a dog.
THE COURT: Wouldn’t be nearly the expense here.
MS. LAMP: I do have figures.
THE COURT: How was that handled?
MS. LAMP: I, I-–
THE COURT: Bond, surety bond?
MS. LAMP: I think we gave a bond, Your Honor, for the reasonable care of the animal and I think that the gentleman that owned the animal was unable to post it within seventy-two hours. So the, it ultimately was forfeited.
THE COURT: But it was cash?
MS. LAMP: He wasn’t able to submit-—
THE COURT: No, that was here. I remember that.
MS. LAMP: I think it may have been in your courtroom, yes.
THE COURT: Yeah, it was two hundred fifty dollars or something as I remember.
MS. LAMP: Something like that, yes, for the care of the animal control.
THE COURT: So the dog was for-—I remember that. I’ll think of his name here this morning and I’ll call you.
MS. LAMP: Okay.
THE COURT: Okay. But that’s it. That’s not experience that we have here. I don’t have the experience here and the background, so I’m open to suggestions from you folks as how to do this. It does say cash or other form of security sufficient to repay.
MR. HURST: Reasonable costs incurred.
THE COURT: Yeah.
MR. HURST: Or to be anticipated to be incurred before the circuit court trial.
THE COURT: Oh, no question it’s severe because there’s going to be, Judge McBain, you’ll have motions, remands maybe--
MR. HURST: Although we are pushing for a quick trial.
THE COURT: Pardon me?
MR. HURST: We are pushing for a quick trial.
THE COURT: Oh, absolutely.
MR. HURST: That’s why we asked for the quick arraignment.
THE COURT: Absolutely. And I certainly would hope that that would happen, just because it should, but also because of the importance of this case, the horses and to the two gentleman and to the prosecution and Animal Control, but that one case we talked about here which was a dog, it was two hundred fifty dollars for reasonable costs incurred. And I--
MR. HURST: Well, the cash-—
THE COURT: Certainly if I rule today at seventy-two hours, I would find it severe to include Saturday and Sunday.
MR. HURST: Yes, Your Honor.
THE COURT: For the gentlemen. That’s not, I don’t think that’s fair and I guess somebody could-—
MR. DUNGAN: No. I would think too that we, I understand we’re probably going to get a number, but I think we should also be entitled to look at where that number comes from and how it was arrived at.
MR. HURST: In order to determine if it’s reasonable.
THE COURT: Well, a hearing is necessary on it.
MS. LAMP: Your Honor, we’re prepared to proceed with that hearing. I have both Director Luce here and if the court chooses to hear any testimony as to the costs incurred by Leelanau Horse Rescue, we also have Ms. Steenrod--
UNIDENTIFIED PERSON: She had to leave.
MS. LAMP: Oh, okay.
THE COURT: Let’s do this.
MS. LAMP: And I have a breakdown of expenses as well, Your Honor, that I could provide to everybody, but I need to copy it.
THE COURT: What I’d like to do, is if you have--do you have that in some form that these gentlemen can look at that, maybe talk, the director is a nice person, she’ll be happy to share any thoughts informally, and go to the great hall of halls next door and see what you guys can talk about. I got to do some other stuff because I think there are some people here waiting to do some other stuff.
MR. HURST: I’m sure there are.
THE COURT: I just need to stand up too as well, so if you guys can do that and then come back and you might have reached an agreement as far as how to go about doing it, if not the dollar amount.
MR. HURST: Okay. And Your Honor, I do want to indicate to the court and I recognize the court hasn’t had lunch and I haven’t had lunch either, I am hypoglycemic, low blood sugar, so I don’t have an awful lot of time left in my body to do these things.
THE COURT: I’ve got a True Green bar in my desk.
MR. HURST: Well, and I’ve got a lunch waiting in my office thanks to my legal assistant.
THE COURT: You need more than that.
MR. HURST: But if I’m unable to make a rather quick agreement with Jennifer, I just want the court to know that physically I am not really able to stay here for the balance of the afternoon.
THE COURT: I understand, and I, you know, I appreciate that and I’m not saying we have to necessarily have it done today because I want to be fair to myself to make sure I make a fair ruling, I want to be fair to the prosecution that we have all the dollar amounts, but since we have the director here to testify, I’d like to--
MR. HURST: If there’s going to be a bond posted by, first of all, our clients have to make the decision they’re going to post the bond.
THE COURT: Yes.
MR. HURST: And if they do post the bond, they’re not going anywhere. I mean, they’re going to be around, they’re going to be available. So I don’t see this-—
THE COURT: Well, it’s a different type of bond.
MR. HURST: Yeah, but I don’t see the seventy-two hours as being a terribly important--
THE COURT: Well, the statute says that.
MS. LAMP: Your Honor, we have waited four months to get to this point and--
THE COURT: I know.
MS. LAMP: --and I, it was, I know and I just want to--
THE COURT: I want to get to some point today.
MS. LAMP: Mr. Hurst, yeah, he’s on notice in the statute that within seventy two hours that this issue would have to be addressed.
THE COURT: Yeah, and I understand that, but you might have some figures here that don’t work and you bounce back and forth. That’s why I’m suggesting the informal conference.
MS. LAMP: I agree with that, Your Honor, absolutely.
THE COURT: And with your talents you guys’ abilities, you may not work it out but you’ll at least have a good clear discussion of where you guys are headed.
MR. HURST: And Your Honor-—
THE COURT: Then come back here.
MR. HURST: Are we kind of agreeing that the Saturday and Sunday would not be appropriate to include that in the seventy-two hours?
THE COURT: I don’t think you’re supposed to count holidays and days of the weekends when you have seventy-two hours. But if there’s case law that says otherwise, then I, or a court rule, I’ll take a look at that. Let’s point for three o’clock. Let’s point for three o’clock.
MS. LAMP: Thank you, Your Honor.
THE COURT: If it’s longer, okay. Let me return exhibits. I don’t know if these are all yours, or..
MS. LAMP: I think most are mine, but some are Mr. Dungan’s. I’m just, if I may, Your Honor, do you mind if I leave my stuff here on the table?
THE COURT: No, no, no.
MS. LAMP: Okay. So we can sort through this later.
(At 1:57 p.m. recess)
(At 3:12 p.m. proceedings reconvened; court, counsel, parties present)
THE COURT: We’re here for Henderson-Mercier again, 073372FY, 073773FY. And we’re back to discuss the procedure relative to the forfeiture. And Miss Lamp, what’s the status?
MS.
LAMP: Your Honor, I have, it’s my
understanding there may be some expenses that Mr. Mercier and Mr. Henderson
would be willing to stipulate to and some that they would not be willing to
stipulate to. The total amount that
we’re requesting for expenses to date would be for the record, $77,342.20 to
the
THE COURT: Five hundred ninety?
MS. LAMP: $27.590.64.
THE COURT: Okay.
MS. LAMP: For the expenses incurred by Leelanau Horse Rescue. Additionally, we figured out a monthly amount, and I understand there may be some, that may be subject to some dispute, as to $22,031 as an estimated amount of expense for the next two months, that would be times two, so a total of $44,062, and that grand total of expenses that we’re seeking today would be $148.994.84. However, with the heightened amount of excitement in this case and some of the incidents that we’ve already had happen, we would also be requesting expenses to cover security at the farm at night and that would be as I understand it at a rate of $125 per day, for a total of $7500 for two months, bringing the amount of expenses that we’re requesting to $156,494.84. I have those outlined--
MR. HURST: What was that last figure, Miss Lamp?
MS. LAMP: $156,494.84.
MR. HURST: Thank you.
MS. LAMP: Yes. And then Your Honor, I have, Animal Control has prepared a spreadsheet of expenses and Leelanau Horse Rescue has also a sheet of expenses, and if we were to proceed in a hearing I think that it would probably be the most expeditious thing to admit those into evidence if Mr. Hurst is willing to stipulate and then we can go through them and if there’s, item by item, and go through them I guess that way and I have receipts and I’ve got exhibit markers ready to mark them quickly and efficiently so we could move through it quickly if we need to.
THE COURT: Okay. Mr. Hurst, any comment? Just on the procedure.
MR. HURST: Yes, Your Honor.
THE COURT: We talked about the dollars.
MR. HURST: My clients are willing to do certain things with regard to posting this bond, but they just think that the figures presented by the prosecuting attorney are just simply excessive. They also believe that some of the things that are being suggested are unnecessary. So as a result, they’re willing to stipulate to certain things and I can put on the record what it is that they’re willing to stipulate to that I have discussed with Miss Lamp. But the largest share of the stuff is probably going to have to be argued about, and in order to argue about it my clients would like to have a hearing. And in order to have a hearing I’d prefer not to have the hearing today because I’ve got other things that I have to do for a living and it is three fifteen right now and I’m not sure that the hearing could even be concluded today. Plus Mr. Henderson has indicated to me that he has experts available to him that would indicate that these expenses that have been proposed by the county are very unreasonable and that he would like to bring some of those experts in to testify that these are very unreasonable expenses. So that having been said, I recognize that the statute says that the court has to make a decision and that a bond has to be posted within seventy-two hours of the hearing, I guess I’m just a little concerned about rushing through this thing and not, my clients not being adequately protected.
MS. LAMP: And Your Honor, alternatively, the prosecution would be willing to stipulate that if the defendants are willing to post $156,494.84, that we would certainly be willing to hash out the details at a later date, but except for that we would prefer to proceed today and it’s indicated right in the statute and everybody should be well aware that this would be the next step to proceed to, if in fact the horses were forfeited, which in fact they have been.
THE COURT: So if they agree to pay, they pay a bond in that amount and you hash it out later, then some’s returned or, or that once we get done hashing out, where do we end up?
MS. LAMP: Well, your Honor, I, what I was suggesting is and I anticipated that we would hash this out like Monday or Tuesday of next week, immediately thereafter if there are some expenses that are not, that the court deems are not expenses that are appropriate for a bond, then the court could order it returned I guess, but I was expecting, contemplating we would do that within a short period of time.
MR. HURST: Your Honor, I can probably resolve that issue by indicating to the court that my clients simply cannot post a hundred and fifty-six thousand dollars with the court, and so since they can’t, simply cannot do that, we probably don’t even have to have a discussion about that. Although I do sincerely appreciate Jennifer’s offer in that regard. I do agree with her that it would be nice if we had a little bit of time now that this criminal case has been resolved or at least bound over and the forfeiture’s been resolved, where Jennifer and I could actually sit down and go through some of this stuff without being under the pressure of having to have it done by five o’clock today.
MS. LAMP: I missed part of what Mr. Hurst said, Your Honor, but I think it’s imperative that we proceed in this matter. It’s been four months that the county has been carrying the expenses for caring for these horses. We’ve had twenty-seven thousand dollars worth of donations expended to care for these horses, and I know the court’s been very patient with all of the, you know, making sure that we had enough time. This was contemplated, Your Honor, and at the last minute to bring it up as if this were something that we shouldn’t be addressing today is a bit disingenuous. If there were experts that needed to be here to testify, then I suppose Mr. Henderson could have brought them with him today.
THE COURT: Well, I--
MR.
HURST: Your Honor, I’m confident that
Miss Lamp is not referring to me when she says disingenuous, but I do want the
court to know, to remember even though the statute says that this was
contemplated, I only just got this material just at two thirty this
afternoon. So I haven’t even had a
chance to really study it and go over it with my clients who are the horse
aficionados, and not me. So I just want
the court to know I just learned of this.
The only other thing we knew is the articles in the newspaper that were
published about
MS. LAMP: Your Honor, the figures that I have presented to the court are dated through yesterday for both of these, actually the one on Leelanau at the top should be dated through yesterday, but it’s not. But these are the current documents. They’re provided for me today and Mr., neither Mr. Hurst nor Mr. Dungan have had any discussions with me and I would have been more than willing to sit down and discuss any of the matters as to the possible forfeiture. Nobody ever broached that subject with me. We have checked into, you know, there’s only one similar case that I’m aware of, Your Honor, in the Leelanau horse case up in Leelanau county, I know that the bond that needed to be posted in that case was ninety thousand dollars and that was only for fifty horses and here we’re talking about sixty-nine plus all the foals that have been born. So I think that, you know, if we need to delay this matter, then that bond should be posted and if we want to hash out the details on Monday or Tuesday, that would be fine.
MR. HURST: Just briefly respond to that and of course I know you’re going to put an end to this pretty quickly, Judge, but I actually am intimately familiar with the Leelanau County horse case that led to the creation of Leelanau County Horse Rescue, because the prosecuting attorney in office at the time was an associate of mine and he lost his job on election day because of that Leelanau Horse Rescue case. And the reason why it cost the county so much, which is why the prosecutor unfortunately got unceremoniously removed from office on election day, was because it took a year and a half to get to trial and the expenses were the expenses for a year and a half getting to trial and the voters were enraged with the expense. Also, the, the man in that case that tortured those horses was found guilty of all charges and he truly did severely neglect those horses. This is a different situation.
THE COURT: Well, a couple of observations. First of all, the statute says reasonable costs. I hate to suggest that the Legislature doesn’t understand, but once you have the hearing the statute seems to read that the court must set the bond immediately. And then there’s seventy-two hours to post it, but when do we determine reasonable costs. If we do it today, I don’t know if we can finish today if the clock starts running on the seventy two hours, but I haven’t, the court hasn’t set the bond yet. I think it’s also somewhat fair that Mr. Dungan and Mr. Hurst did not talk with the prosecution because I think they argued that they would prevail and then none of this would be necessary. A second question I have is we’ve talked about the Leelanau Horse Rescue. The statute talks for animal control shelter, animal protection center or licensed veterinarian. Is it the prosecution’s position that Leelanau Horse Rescue falls under animal protection center? Because it’s not an animal control shelter.
MS. LAMP: No, it’s not, Your Honor.
THE COURT: Or licensed vet. So does it fall under animal protection shelter?
MS. LAMP: Well, Your Honor, I haven’t actually sat down to think of a creative to construe it. But regardless, what it ultimately comes down to, is these expenses were incurred to care for the horses that Mr. James and Mr.-—Mr. James Henderson and Mr. Matthew Mercier were not caring for, and--
THE COURT: I understand that part-—
MS. LAMP: Yes. And they were--
THE COURT: Why they were incurred. But the statute leans towards in effect reimbursing taxpayers’ dollars.
MS. LAMP: Right.
THE COURT: Leelanau Horse Rescue may-—if it fits the definition, then it doesn’t make any difference if it’s taxpayers or not. I doubt there’s any notations on that.
MS. LAMP: Well, Your Honor, and if the court doesn’t order it here, certainly we would seek that restitution on an unjust enrichment theory at a later point. But I think that, I think that Mr. Mercier and Mr. Henderson should not benefit from the, and be unjustly enriched by the, at this point, that they ought to be able to post that-—
MR. HURST: Your Honor, I wholeheartedly agree with Jennifer that Mr. Henderson and Mercier should not be unjustly enriched for anything. But at the same time I agree with the court that we have to follow the definitions in the statute. Leelanau Horse Rescue is not defined within that statute as I see it and also the reasonable costs provision requires us to make a reasonable cost determination and I guess my position was, it’s just throwing the stuff out there at two thirty this afternoon is just a little bit quicker than we’re prepared to do. I would like a little bit of time. But I recognize that the court has to set a bond and then my clients have seventy-two hours to post it.
MS. LAMP: Your Honor, alternatively we could request that a bond be set in the amount of a hundred thousand and we could hash this out by Monday or Tuesday next week to get the exact amount. If Mr. Hurst wants to delay that.
MR. HURST: Your Honor-—
MS. LAMP: And I understand why, I understand why he’s asking for that. I’m just saying that, you know, our position is, Your Honor, that we’ve waited four months to get to the point where we can get the hearing and recover the costs that the county has expended for this very reason.
MR. HURST: Your Honor, I would love to actually stipulate to a nice round figure, but I’m not prepared to stipulate to a hundred thousand dollars. I happen to think that that’s unreasonable as well when the county is only requesting a total of seventy-seven thousand three hundred and forty-two dollars for the past expenses up until yesterday’s date, not all of which I agree are reasonable.
THE COURT: Well--
MR. HURST: And also the twenty-two thousand per month between now and the date of trial sixty days from now is more than the cost from March twenty-seventh to July nineteenth, which included lots of things like construction of nice lean-tos and barns and garages and all kinds of other fancy stuff.
THE COURT: What’s the amount, Miss Lamp?
MS. LAMP: I’m sorry, Your Honor?
THE
COURT: What’s the amount, you said there
was an amount as of yesterday the end of day, July nineteenth?
MS. LAMP: Yes.
MR. HURST: Seventy-seven thousand three hundred forty-two dollars.
MS. LAMP: For Animal Control.
MR. HURST: For Animal control.
THE COURT: That’s the Animal Control.
MS. LAMP: And Your Honor--
THE COURT: Then you had two months, you’re estimating a monthly expense then of twenty-two thousand thirty-one?
MS. LAMP: Yes.
THE COURT: The statute moving on to the second page, a bond sufficient to repay incurred and anticipated to be incurred. Are you anticipating just two months before this is over?
MS. LAMP: Your Honor, the statute provides-—
MR. HURST: Jennifer and I agreed that we could try the case in sixty days.
THE COURT: I understand that, but, you know, crazy judges get in the way of that sometimes.
MR. HURST: Well…
THE COURT: No disrespect to myself and upstairs, but, you know, you guys are experienced. In sixty days we can say, well, we got to have it done in sixty days. But if the judge has two murders, no disrespect to the horses, but the murders might be more important.
MR. HURST: You’re absolutely correct.
THE COURT: Maybe ninety days--
MR. HURST: But we anticipated we could do it in sixty days.
THE COURT: Ninety days, if we add another month to it. Well, what do you think?
MS. LAMP: Ninety days would be reasonable.
THE COURT: Well, I didn’t want to mess up the two month thing, but I wondered why it was just two months and you’ve explained that because you think you can try it in two months. But I—-
MS. LAMP: Well, and I also can seek, you know, further expenses as time goes on, Your Honor, so if in sixty days it wasn’t tried then I would approach the court and ask for the appropriate amount at that time. But I certainly don’t think that ninety days is an unreasonable amount of time considering the, you know, how long this case might up end going for, even though Mr. Hurst and I will be pushing for a very near trial date.
THE COURT: Well, the statute does provide for a continuance requiring the defendant to submit additional cash from time to time.
MR. HURST: Yes.
THE COURT: Okay.
MR. HURST: So, Your Honor, because I cannot stipulate to a hundred thousand dollars without my clients approval, I would suggest that perhaps we have testimony today on the Animal Control costs of seventy-seven thousand dollars and their proposal for twenty-two thousand dollars a month. Unless we could come up with some other negotiated figure, which I would be more than happy to do.
MS. LAMP: Your Honor, and I think one creative way of construing the costs of Leelanau Horse Rescue would be in that the costs were, you know, Leelanau Horse Rescue is not, you know, the people that are there providing the round the clock care for it, rather it’s Animal Control, and so while those amounts of money that are listed that have come from Leelanau Horse Rescue, those have been expenses that have been incurred by the county as a result of caring for those horses and that money has been posited by Leelanau Horse Rescue, so I think if the court wanted to do it that way---
THE COURT: I’m sorry. Do that again.
MR. HURST: Your Honor—-
THE COURT: If Leelanau hasn’t received any money, the county hasn’t incurred the cost.
MR. HURST: That’s correct.
MS. LAMP: No. The county has incurred the costs for example of needing to repay the, you know, get the shelters up to date or whatever, as an example. And if the county had incurred that and had to do that, indirectly-—
THE COURT: Did they pay it?
MS. LAMP: Indirectly, because it had to have been done and that Leelanau is the one that—-
THE COURT: The way I read the statute to repay means they’ve already been paid to somebody, so repay all reasonable costs incurred, which means I think repay to the county what they’ve actually expended, because then they can go on to say and anticipate to be incurred. I’m not saying Leelanau doesn’t, I just don’t know why the Legislature came up with the phrase animal protection center and what that means. I don’t know the Legislative history as far as this, did they figure on rescue teams?
MR. HURST: I agree with the court that—-
MS. LAMP: Well, they are an animal protection organization, Your Honor.
MR. HURST: The court anticipated, or the Legislature anticipated and I’m sure as the court has seen through the drafting of the legislation, that it would be the government and the animal control people that would be stepping in to take care of these things.
THE COURT: Well--
MR. HURST: And at the same time I think Leelanau Horse Rescue should be congratulated for the fact that they were formed because they were formed to step in and take care of problems that maybe governmental agencies can’t afford to take care of. But at the same time, the statute does not include them in the repayment reimbursement. So maybe if Leelanau Horse Rescue which is a charitable 501C3, if they do want to start getting reimbursed in these matters, maybe they should approach the Legislature so that the statute would provide for that. Which it presently does not.
THE COURT: Do you have a witness or witnesses?
MS. LAMP: I have two witnesses, Your Honor. I have Director Kim Luce and I have Laura Steenrod.
THE COURT: Okay.
MR. HURST: Can I address the issue of witnesses?
THE COURT: Mm-Hmm.
MR. HURST: My client agrees to a lot of things, and only objects to a few. I was thinking rather than going through, have the prosecutor’s witnesses get on the witness stand and saying, explain what all of these things are on all these readouts, that perhaps my client could take the witness stand and just tell the few things that he objects to.
THE COURT: Well, we don’t even need to do that. You can do it for him, can’t you? Just say, you two talk and say line out, circle, this, circle this, and then we can have testimony on just the ones that-—
MR. HURST: Actually because he’s a horse person and I’m not, it would be a little bit easier for him to explain it to the court. But I can also place the objections on the record, but some of this stuff like feeding horses is something that’s out of my area of expertise. And it wouldn’t take that long if the court decides it wants to take testimony.
THE COURT: Well, the problem that presents is that the county says it’s reasonable because we expend it. I don’t know what the purchasing process was or anything like that, I don’t know whether or not the county gets a discount price for horse feed at some place, and then to turn around and say the defendant, uh-uh, it wasn’t reasonable, I don’t think we’d get anywhere there.
MR. HURST: Okay.
THE COURT: What…. This is what we’ll do. The court at this time would order that a bond as follows, an interim bond as follows: one hundred forty-three thousand four hundred thirty-five dollars, twenty cents, cash. That does not include Lenawee Horse Rescue-—Leelanau Horse Rescue. And I’ll schedule a hearing on this interim bond Tuesday, July twenty-fourth at one p.m. At that time---
MR. HURST: What time on July twenty-fourth?
THE COURT: One p.m. Hundred forty-three thousand four hundred thirty-five dollars and twenty cents. I arrived at that with the seventy-seven three forty-two twenty---
MR. HURST: But Your Honor--
THE COURT: And I took the twenty-two thousand plus and times it by three, which is three months, ninety days, which I think is more fair and I subtract-—I did not include in this amount the twenty-seven thousand for Leelanau Horse Rescue because I’m not, I need to know a little bit more about, about their program and animal protection shelter. I, just, it doesn’t have to be a public agency, because they also have licensed veterinarian which could be a private practitioner, so it doesn’t have to be public, but…
MR. HURST: May I address the court? Your Honor, if you were going to impose a bond of a hundred forty-three thousand dollars, then I would probably be in a position before you do that to stipulate to the prosecutor’s offer of a hundred thousand dollars which is certainly better for my clients than a hundred and forty-three thousand. The other thing is, if we impose a bond of a hundred and forty-three thousand dollars without a hearing, then that means that the court hasn’t had an opportunity to even review these documents because the attorneys—-
THE COURT: Well, I was going to have a hearing on July twenty-fourth because, to be perfectly honest with you, I don’t think Mr. Henderson or Mr. Mercier, I mean they could testify, well, I don’t think this is reasonable, I don’t think this is reasonable and I don’t think this is reasonable. If there are some dollar amounts that you and Miss Lamp can agree on and eliminate that way and then maybe she’s got a, the director can testify and someone from Leelanau can testify about the reasonableness of all those costs.
MR.
HURST: Are you saying then that if we
have a hearing on Tuesday, that the clock, the seventy-two hour clock would
begin to run at the end of that hearing?
THE COURT: Yes.
MS. LAMP: Your Honor, I thought that the, you were imposing the interim bond so that the seventy-two hours could begin at this time, of course excluding the weekend as I understand the court would be, and that would satisfy all parties and then it would allow Mr. Henderson and Mr. Mercier--
THE COURT: It would certainly cause people to bring it to a head, that’s for sure, if I do it that way.
MS. LAMP: Well, that would allow the opportunity to start assembling that amount of money and have at least a figure in mind and then-—
THE COURT: Well, and then I think, Dennis, she’s right. I don’t know that I have a choice because it says I must—-
MR. HURST: It says within seventy-two hours of the hearing.
THE COURT: --order immediate forfeiture. Well, unless they post within seventy-two hours of the hearing.
MR. HURST: The hearing is tentatively scheduled for Tuesday, July twenty-fourth.
THE COURT: Well, that’s another way of looking at it, I’m not so sure that’s how the hearing here is. I know it talked about the hearing before the judge, the hearing to establish this, preponderance of the evidence and so on and so forth. Implicit in that is that the judge then holds a hearing to do that. I was-—
MR. HURST: Well, Your Honor, with all due respect-—
THE COURT: --trying to give an opportunity to both sides.
MR. HURST: Yes.
THE COURT: To bring the Leelanau because I’m not convinced the Leelanau fits, but I’m not bound by, I’m not wedded to that, I’m willing to hear some testimony on that. But you know, then we start doing what reasonable costs are, you know. If we’re going to narrow this down to ten items, that’s one thing. But if Mr. Mercier and Mr. Henderson just say we don’t think this is reasonable because we bought hay that said this and we bought hay that said this and we built structures that only cost this much, we’re really not getting any--
MR. HURST: I don’t sense that that’s where we’re going. Yes, I agree.
THE COURT: Well, I don’t know, I don’t know. But I…
MR. HURST: So can you start the seventy-two hour clock at the end of the Tuesday hearing and will the prosecution be willing to do that?
THE COURT: Let me see the list. I haven’t seen the list, first of all.
MS. LAMP: And Your Honor, with all due respect. I mean, the statute says immediate forfeiture and—-
THE COURT: Well, that’s not at issue.
MS. LAMP: Yeah, I know, and then it moves on to, it seems to me that it’s contemplating that within seventy-two hours of that immediate forfeiture that we have some bond posted here.
THE COURT: Well, nobody’s done any except Leelanau and I don’t know how they came up with ninety thousand.
MS. LAMP: No, Your Honor, Animal--
MR. HURST: Leelanau was twenty-three thousand.
THE COURT: Twenty-three thousand.
MR. HURST: Twenty-seven.
MS.
LAMP: Twenty-seven.
THE COURT: Then when Leelanau was all done it was ninety? I thought you said ninety thousand.
MR. HURST: No. Twenty-seven thousand in this case.
THE COURT: I know this case, but…
MR. HURST: Oh, are you talking about up north?
THE COURT: Yeah.
MS.
LAMP: Oh, ninety thousand is what the
bond was was on the Leelanau Horse, on the fifty horses in
MR. HURST: Yeah. That case was an absolute mess.
THE COURT: Well, how did they reach the ninety thousand?
MR. HURST: I think it was due to the fact it took a year and a half to get--
THE COURT: No. I don’t mean how they reached that, I mean how did they, the numbers, it says reasonable costs.
MR. HURST: Oh, you mean like what categories, like wages and fees, stuff like that?
THE COURT: Reasonable costs.
MR. HURST: That, I don’t know the answer to that. And that would be helpful if we did know the answer to that frankly. But I don’t think that that matter was, it was challenged either, was it, Jennifer?
MS. LAMP: I don’t know.
MR.
HURST: Because the guy in
MS. LAMP: And frankly, Your Honor, I don’t believe he ever repaid the county for the horses.
MR. HURST: He didn’t.
MS. LAMP: And that’s one of our concerns.
MR. HURST: He did not repay the county.
THE COURT: Okay. We’ll meet here Tuesday, July twenty-four, 2007, at one p.m. The court’s going to set the interim bond, cash, at one hundred forty-three thousand four hundred thirty-five dollars and twenty cents. That does not include the Leelanau Horse Rescue amounts at this time. I call it interim because the court’s reserving the right to amend it up or down. And we’ll start the seventy-two hours exclusive of Saturday, Sunday, now.
MR. HURST: Now, or on Monday morning?
THE COURT: So seventy-two hours will finish at the end of Wednesday. That’s why I want it Tuesday so that we can…
MR. HURST: End of Wednesday?
THE COURT: That will be when the seventy-two hour, that’s the seventy-two hours as far as the court’s concerned because I don’t think I can count Saturday and Sunday.
MR. HURST: Okay. So Wednesday, five p.m.
THE COURT: Yes.
MR. HURST: What’s the court’s schedule look like at Wednesday at five p.m.? Just so I’m aware.
THE COURT: You never know. We’ve got stuff scheduled in the afternoon.
MR. HURST: Do you? Okay.
THE COURT: Up through at least at this time two thirty, but that all depends on how long the one o’clocks take.
MR. HURST: Okay. So you’ve got matters scheduled through two thirty at least.
THE COURT: Yeah.
MR. HURST: And what is it that you’re going to, what is it that the court’s going to find satisfactory as a bond? Cash? Titles to real estate?
THE COURT: Well, I can be convinced that part of the hundred and forty-three thousand is now reasonable.
MR. HURST: Yes. Well, we’ll be arguing that Tuesday.
THE COURT: Other than that we have Director Luce and from Leelanau Miss Steenrod, and I’m not saying that Mr. Henderson and Mr. Mercier can’t testify as far as reasonable costs, but I can see what’s coming there, you know, we’re just going to sit there and dicker away at this as far as reasonable costs. So we could have bought it for this, you know, well, you know, sure. That can always be argued. I don’t know what, I guess Director Luce probably would have to start by saying why we did this, why we did that. But I want to get the bond started, and it could go up or down.
MR. HURST: You think this hearing could be concluded in one afternoon on Tuesday?
THE COURT: That’s not the history, but I’m sure willing to try.
MR. HURST: How many witnesses will the prosecution have, just two?
MS. LAMP: At this time, Your Honor, we’re just prepared to call two witnesses.
THE COURT: And you said there are some experts lingering?
MR. HURST: My client’s got a witness that can come in so that would be basically just two on this side as well. So I would certainly like to wrap--
THE COURT: We can finish Tuesday.
MR. HURST: I’d like to wrap the matter up in one day.
THE COURT: We’ll finish Tuesday. I’ll try the midnight thing again.
MR. HURST: And was that one o’clock on Tuesday?
THE COURT: One, yeah.
MR. HURST: And can I address one more issue on the criminal bond?
THE COURT: Yes.
MR. HURST: Thank you, Your Honor.
THE COURT: I’ll return these to you, Miss Lamp.
MS. LAMP: Thank you, Your Honor.
MR. HURST: And now, Miss Lamp? What’s the volume of the receipts that you’re referring to? Is it just in that folder?
MS.
LAMP: As I understand it,
MR. HURST: Okay. Could-—Jennifer, would you be willing to stipulate to provide my office with a copy of what’s in that folder?
MS. LAMP: I’d be happy to leave them at the front desk for you to come over and get when you’re in the courthouse if that’s all right.
MR. HURST: And what time would you want me to do that?
MS. LAMP: It’s going to have to be Monday morning.
MR.
HURST: Monday morning?
MS. LAMP: Yeah.
I’m going to anticipate because you’re not going to be around much
longer.
MR. HURST: Yes that’s correct.
MS. LAMP: Okay, all right.
MR. HURST: Monday morning, all right. And Your Honor, about that criminal bond. My client Mr. Henderson indicates to me that the prosecuting attorney has listed as witnesses almost all of his neighbors and that this is creating a little bit of a problem for him because his neighbors are all approaching him and wanting to talk to him about the case and he’s in great fear that someone’s going to talk to him and then he’s going to be violated and incarcerated or violated on his bond. He’s also indicated to me that some of these same neighbors are going to be listed in the circuit court witness list as witnesses for the defense. So it’s creating kind of a problem for him and I wanted to see if the court could come up with some kind of a creative resolution. I do agree that Mr. Henderson should obviously not be harassing witnesses, he shouldn’t be annoying witnesses, he shouldn’t be asking witnesses what they’re going to testify about or anything like that unless they were his own witnesses, but I think the court can see that if all your neighbors are listed as the prosecutor’s witnesses and he’s not supposed to have contact or communication with them, that that creates a, it’s creating a dangerous situation for Mr. Henderson.
THE COURT: Miss Lamp?
MS.
LAMP: Your Honor, if I may. As I understood it, the court’s order was
we’ve had so many problems up at
MR. HURST: That last sentence I agree with.
MS. LAMP: It’s only caused us problems in the past and I’m sure we’re only going to have, I anticipate more problems in the future.
MR. HURST: Your Honor, why-—
THE
COURT: Sooner or later this just, it
gets beyond what the intent of the court was, was to bring to an end what was
going on at the time with the witnesses that were here to testify because the
contact alleged occurred in the courthouse with Director Luce. It wasn’t to say, well, we’re going to
subpoena everybody, we’re going to list everybody from
MR. HURST: I think it is.
MS.
LAMP: The court will remember we also
had the problem up at
THE
COURT: Refresh me on
MS. LAMP: We had Mr. Mercier show up and he was actually interfering with the treatment of the horses up there at Michigan State when they had to transport I believe it was Seven up there and had to be asked to leave by the veterinary staff. I believe that’s when the court put the order in for him to not have contact with the witnesses and that the attorneys could do that, because—-
THE
COURT: Well, to be perfectly honest with
you, I wouldn’t have been as concerned about
MR. HURST: Right.
MS. LAMP: Well, and they did call the state police.
THE COURT: But touching the director or grabbing depending on, that’s a little bit different when you touch the witness and make a remark like that. But certainly it wasn’t the intent to have, well, I don’t know who was listed to be here, we ended up with thirty-two eventually witnesses, twice the gentlemen and then the rebuttal, so I don’t, it wasn’t the intent to have that concept.
MS. LAMP: Well, Your Honor, and if I may. I also inform the court that I’ve had several witnesses who are afraid of the repercussions that Mr. Henderson may inflict upon them and are reluctant to be involved for that reason, and that’s why I would ask the court to continue the order and allow Mr. Dungan or Mr. Hurst who I’m sure will be nothing more than gentlemen to make those phone calls and interview the witnesses if necessary. Or somebody else could do that other than the two of them.
THE COURT: All right. Tuesday we’ll look at the potential prosecutor’s list and we’ll play with that too.
MR. HURST: Okay. And one last thing, Your Honor, if I could. The bond prevents--
THE COURT: The order stands as it is right now.
MR. HURST: Okay.
THE COURT: We’ll take a look at it. Because if we’re going to get right down to names and stuff like that and have to find out what all these people are testifying about that’s getting out of hand as far as that, to subpoena all the neighbors and stuff like that, I certainly understand why, but then we got these two gentlemen driving down the road and a neighbor says he looked at me.
MR. HURST: Yeah. And these are neighbors they’ve had for years.
THE COURT: Next thing you know we’ve got a hearing and you can bother the heck out of John McBain if you want to, but..
MS. LAMP: Your Honor, I can assure you-—
THE COURT: At some point the prosecution has to draw the line and say, they may look at you.
MS. LAMP: Well, we would draw the line there, I can assure you.
THE COURT: Now, if they’re saying comments out in the hallway about well, you’re wasting the taxpayers’ money, then I think they need to be spanked.
MR. HURST: Actually, Your Honor, the concern my client has is these are people who are friends of his and they’re coming up to him and wanting to engage him in friendly neighborly conversation. They’re not talking about staring at them and stuff like that or being afraid of him. He’s--
THE COURT: We’ll talk about it Tuesday then.
MR. HURST: All right. Your Honor, on the out of state travel issue. The court has commonly included a provision that Mr. Henderson is barred from out of state travel. And even though he no longer--
THE COURT: Did this come up before though? I thought…
MR. HENDERSON: It came up, Your Honor, but I think you only changed it for that one time. It wasn’t clear to me that you lifted it that I may travel as—-
THE COURT: It had come up before and I think at this particular point it’s--
MR. HURST: He’s not a flight risk and he’s doing consulting work.
THE COURT: I want you to understand where he is though.
MR. HURST: Absolutely.
THE COURT: So you, he has to, his requirement is he can leave out of state subject to information to you.
MR. HURST: That would be fine, Your Honor.
MS. LAMP: Would that be just for employment purposes, Your Honor?
THE COURT: Well, yeah.
MS. LAMP: As would normally be.
THE COURT: Yes.
MS. LAMP: Okay.
THE COURT: For the employment. I think that’s fair. He’s busy and needs to have employment at the same time.
MR. HURST: Thank you very much, your Honor.
THE COURT: Tuesday at one.
MR. HURST: Tuesday at one.
MS. LAMP: Tuesday at one. Thank you, Your Honor.
(At 3:47 p.m. proceedings concluded)