2017-08-09 / Front Page

Taxpayers paying for suit against Konschuh

BY ANDREW DIETDERICH
810-452-2609 • adietderich@mihomepaper.com


Judge Byron Konschuh Judge Byron Konschuh LAPEER — Lapeer County taxpayers now are officially footing the bill in a lawsuit filed against one of its own judges in a case that could get costly — and stems from $1,802 spent more than three years ago.

On Thursday, the Lapeer County Board of Commissioners approved paying $2,445 to Livoniabased law firm Cummings, McClorey, Davis, and Acho (CMDA).

The motion was part of a package approved as a result of a July 27 committee of the whole recommendation. During the July 27 committee of the whole meeting — and the Aug. 3 regular board meeting — there wasn’t any discussion about the motions to make the payment.

John Biscoe, controller/ administrator, Lapeer County, later told The County Press the payment was for preparation of a counter-lawsuit filed July 17 by Lapeer County and five current and former officials against Lapeer County Circuit Court Judge Byron Konschuh. CMDA is charging the county $150 per hour, Biscoe said, adding it was a “discounted rate.”

The counter-lawsuit was in response to a suit filed by Konschuh against the county and five defendants in May.

Konschuh’s suit relates to felony charges filed against him regarding $1,802 he received and spent while serving as Lapeer County prosecutor. After he pleaded no contest, he was cleared of all charges, and returned to the bench. Konschuh’s attorney has maintained the new lawsuit is all about clearing his client’s name.

Tom Pabst, Konschuh’s attorney, also said he believes the case could feasibly require at least 500 hours of legal work on the part of both sides. He said that’s 400 more hours than the original lawsuit would have likely required.

“I think it’s the most untenable counter-lawsuit I’ve seen in 40 years,” Pabst told The County Press. “It’s a taxpayer suck of money going down the drain hole in my opinion.”

Biscoe, however, said the defendants’ (now counter-plaintiffs’) collective hands were essentially forced to take legal action, and the only reason a single dime is being spent on the matter is because Konschuh filed his lawsuit first.

“It’s an interesting conundrum,” Biscoe told The County Press. “When a unit of government gets sued, what are the options?

“Unfortunately, when a unit of government gets sued, it’s going to cost my tax dollars and your tax dollars. That’s an absolute truth. No lawsuits, no expense,” Biscoe added.

In addition to the county, other defendants named in the lawsuit filed May 15 by Konschuh are: Biscoe; Tim Turkelson, former Lapeer County prosecutor; John Miller, a former assistant prosecutor; Dana Miller, county treasurer; and Cailin Wilson, former assistant prosecutor.

Konschuh’s suit originally included six counts: malicious prosecution, abuse of process, invasion of privacy, libel/ slander, tortious interference with contractual relations, and gross negligence. Through an amended complaint filed in mid- June, three more counts were added. Konschuh seeks more than $100,000 in damages. In an answer filed by James Acho, of CMDA, the defendants deny all of the claims.

As The County Press reported on May 28, Lapeer County and the five other defendants receive legal representation in the case brought against them through the Michigan Municipal Risk Management Authority (MMRMA).

MMRMA is an organization of governmental entities joined together to secure insurance coverage that is far-reaching and available at lower cost (due to the number of participating entities).

MMRMA’s website states it “is the largest liability and property pool in Michigan and a recognized national leader in the field.” Nearly 400 local government entities utilize MMRMA.

Biscoe said Lapeer County has been part of MMRMA for at least 20 years.

In 2016, Lapeer County paid $460,000 to be part of MMRMA, a figure Biscoe said has stayed relatively consistent over the years.

Through Lapeer County’s participation in MMRMA, Biscoe told The County Press, the legal defense against Konschuh’s lawsuit filed in May is covered because he seeks damages.

“We all pay our property taxes and hopefully they just go to providing services, but an element of the equation in this day and age is you buy insurances and you get ready to defend yourself, because if you’re in business, you will get sued for something,” Biscoe said.

However, Biscoe said MMRMA does not cover the cost of bringing legal action as the county and five defendants/ counter-plaintiffs did on July 17.

The counter-suit levies three claims against Konschuh: conversion, breach of fiduciary duty, and defamation. Two additional claims list Konschuh and Facebook (listed as a third party defendant): defamation and concert of action and civil conspiracy. Among other things, the defendants/counter-claimants seek damages and repayment of about $100,000 that were paid to visiting judges while Konschuh was on paid administrative leave fighting the felony charges for 18 months.

When asked if potential criticisms of using taxpayer money to pay for such legal action was considered, Biscoe said “I don’t think there was any need to discuss them because the simple reality is every time that occurs you’re going to have critics who say you shouldn’t spend taxpayers’ money.”

As The County Press reported Aug. 2, Pabst filed a blistering response to the counter-complaint on July 27, alleging, among other things, the defendants “defamed themselves,” wasted $100,000 of public money, and embezzled public funds.

Pabst said Monday the counter-lawsuit brought against Konschuh essentially widened the scope of the legal dispute. Whereas he originally expected to spend about 100 hours on the case, he said, he now expects the figure to be closer to 500 hours.

As illustration of how the case is growing, he points to his list of 34 potential witnesses (including several that could include large numbers of people, such as “any and all current and former employees of defendants) and 25 exhibits. (The County Press is named as a potential witness.)

Among the witnesses Pabst said he could call are:

• Konschuh;

• Any and all current or former members of the Lapeer • County Board of Commissioners;

• Deanna Finnigan, Shiawassee County Prosecuting Attorney (who handled the state of Michigan’s case against Konschuh);

• Any and all current or former employees of Shiawassee County Prosecuting Attorney’s office;

• Lapeer County Circuit Court Judge Justus Scott.

• Scot Hoskins, CPA, Stewart, Beauvais & Whipple PC (the county’s accounting firm);

• Craig Horton, CFO, Lapeer County

Meanwhile, the process of discovery in the case continues Aug. 31, when Pabst is set to depose Lapeer County Circuit Court Judge Nick Holowka and Judge Justus Scott at a law office in Flint.

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