STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OA
State of Michigan,
Plaintiff,
48th Dist. Ct
vs. No. 11-20227
Kevin Aaron landau, Cir. Ct.
Defendant No.
Arthur H. Landau (P 16381) Oakland County Prosecutor
Attorney for Defendant-Appellant Attorney for Plainöff-Appellee
29777 Telegraph Rd. Ste. 2500 1200 N. Telegraph Rd.
Southfield, Michigan 48034 Pontiac, Michigan 48341
EX PARTE MOTION FOR STATY OF PROCEEDINGS
NOW COMES the Defendant-Appellant, KEVIN AARON LANDAU, by and through counsel, ARTHUR H. LANDAU, and hereby movies this Honorable Court pursuant to MCR 7.10(H), to grant the Ex Parte Motion To Stay Proceedings, and states:
1. On or about March 26, 2011, Defendant was arrested by an officer of the
Bloomfield Township Police Department for Operating While Intoxicated.
2. Mr. Landau filed several motions that required an evidentiary hearing and presentation of expert testimony.
3. Following that hearing, the Court issued its ruling on January 30, 2012, which resulted in partial denial of Mr. Landau’s motion; to wit, 48th Dist Ct. denied Mr. Landau’s motion to dismiss based upon an unlawful stop and unlawful arrest.
4. The Michigan Court Rules require that a request for stay be filed before this Court, and authorizes this Court to order a stay of proceedings as justice requires. MCR 7.101(H)(4) and (5).
5. Defendant requested such a stay of proceedings orally following the partial denial of his motion to dismiss and motion to suppress, and 48th Dist Ct directed Defendant to file a written motion requesting a stay of proceedings, which was filed with the 48th Dist Ct. on or about February 10, 2012, but the Motion filed in 48th Dist. Ct. has not yet been decided.
6. The following factors are to be considered in determining whether a stay pending appeal is warranted:
The factors to be considered in determining whether a stay is warranted are: (1) the likelihood that the party seeking a stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. WMATA v. Holiday Tours. Inc., 182 U.S. App. DC 220, 559 F.2d 841, 843 (DC Cir 1977). To justify the granting of a stay, a movant need not always establish a high probability of success on the merits.
Cuomo v. United States Nuclear Regulatory Comm’n, 772 F. 2d. 972, 974 (DC Cir. 1985). A stay may be granted with either high probability of success and some injury, or vice versa. Id. This is akin to the same standard employed by courts to determine whether a preliminary injunction ought to issue:
In determining whether to issue a preliminary injunction, a court must consider four factors: (1) harm to the public interest if the injunction issues;
(2) whether harm to the applicant in the absence of temporary relief outweighs the harm to the opposing party if relief is granted; (3) the likelihood that the applicant will prevail on the merits; and (4) a demonstration that the applicant will suffer irreparable injury if the relief is not granted. Ins. Comm’r v Arcilio 221 Mich App. 54 77-78; 561 NW2d 412 (1997). Other considerations surrounding the issuance of a preliminary injunction are whether it will preserve the status quo so that a final hearing can be held without either party having been injured and whether it will grant one of the parties final relief before a hearing on the merits.
Campau v McMath, 185 Mich App 724, 729; 463 NW2d 186 (1990), Thermatool
Corp v Borzym, 227 Mich App 366, 376 (Mich Ct App 1998)
7. In this case, Mr. Landau’s vehicle was stopped for weaving within its lane of travel following a 911 call from a person who cannot be located and may be fictitious. The officer specifically denied and disavowed stopping the vehicle on the basis of weaving within the lane of travel, and Mr. Landau supplied case law to both 48th Dist Ct and this Court, that establishes guidance on this issue. See
Memorandum Regarding Motion Hearing Regarding Stop. Probable Cause for arrest, HGN Suppression and PBT suppression.
8. The arresting officer also claimed that Mr. Landau’s vehicle was following the vehicle in front of him too closely, in violation of an unspecified statute that the officer admitted was entirely subjective. He based his decision to stop the vehicle entirely upon this infraction that he could not identify, claiming that he had learned in driver’s education as a teenager that a car should provide an entire car length for every 10 miles per hour. This meant that every vehicle on the roadway was in flagrant violation of the office’s fictitious law, since every vehicle was travelling within a hundred feet of each other. See. Id.
9. Michigan courts have ruled several times regarding the provisions of MCL 257.643, which Mr. Landau identified as the statute requiring a motorist to ensure a safe distance between vehicles, but no case has ever held that the officer’s unreasonable interpretation of that statute provides a basis for stopping a motor vehicle; thus, Mr. Landau’s appeal on this issue will be de novo since the appeal is an issue of law and a matter of first impression. On this basis, it is likely that Mr.
Landau’s application for leave to appeal will be granted.
10. Mr. Landau will face irreparable harm without the issuance of a stay pending appeal because he will be forced to proceed to a jury trial that could result in a conviction even though he was subject to an unlawful traffic stop.
11. The police and prosecution in this case will face no harm whatsoever by issuance of a stay, and frankly it is in all parties’ best interests that these legal matters be resolved without resort to a jury trial that may prove unnecessary.
12. Judicial economy is best served through resolution of these legal issues prior to a jury trial which will require an extraordinary amount of time, including juror participation.
13. Because the legal issues presented in this case are a matter of first impression, the public’s interest weighs in favor of a stay pending appeal. This will provide authority for future police conduct, protection of the public from unreasonable search and seizure, and (even in the event of an adverse decision) guidance to other motorists regarding the meaning and construction of the provisions of MCL 257.643.
WHEREFORE, Defendant-Appellant respectfully requests that this Honorable
Court grant this motion for stay pending appeal, providing Defendant with adequate time to pursue review from this Court on the matters herein presented.
Respectfully submitted,
Arthur H. Landau (P16381)
Attorney for Defendant-Appellant
29777 Telegraph Rd., Ste. 2500
Southfield, Michigan 48034
Dated: February 21, 2012
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND
State of Michigan,
Plaintiff,
48th Dist Ct.
vs. No. 11-20227
Arthur H. Landau (P 16381) Oakland County Prosecutor
Attorney for Defendant-Appellant Attorney for Plaintiff-Appellee
29777 Telegraph Rd. Ste. 2500 1200 N. Telegraph Rd.
Southfield, Michigan 48034 Pontiac, Michigan 48341
Kevin Aaron Landau, Cir. Ct. Defendant. No.
ORDER REGARDING
EX PARTE MOTION FOR STAY OF PROCEEDINGS
At a session of said Court, held in the City of Pontiac, Oakland County, State of Michigan on
PRESENT: HONORABLE
CIRCUIT COURT JUDGE
This matter having come before the Court upon ex parte motion of the Defendant-Appellant for Stay of Proceedings, the Court having received and reviewed Defendant’s Motion for Stay of Proceedings, and the Court being advised in the premises;
NOW THEREFORE:
IT HEREBY ORDERED AND ADJUDGED that Defendant-Appellant’s motion for stay of the proceeding is
GRANTED DENIED
CIRCUIT COURT JUDGE