2017-06-18 / Front Page

The gloves are off

Konschuh case heats up
BY ANDREW DIETDERICH
810-452-2609 • adietderich@mihomepaper.com


Judge Byron Konschuh filed suit against Lapeer County and five officials on May 15. Judge Byron Konschuh filed suit against Lapeer County and five officials on May 15. LAPEER — Myriad legal documents filed last week in the lawsuit brought by Lapeer County Judge Byron Konschuh against Lapeer County and five others clearly reveal one thing: no one is backing down anytime soon.

Konschuh filed suit May 15 against Lapeer County, John Biscoe, county administrator, Tim Turkelson, former Lapeer County prosecutor; John Miller, a former assistant prosecutor; Dana Miller, county treasurer; and Cailin Wilson, former assistant prosecutor.

The suit relates to a multiyear ordeal that included felony charges filed against Konschuh regarding certain monies he received and spent while serving as Lapeer County prosecutor. After he pleaded no contest, he was cleared of all charges.

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 last week, three more counts were added. Konschuh seeks more than $100,000 in damages.

“I’ve been an attorney for 40 years and have never seen this kind of out of control lynch mob trying to string a guy up,” Konschuh’s attorney, Tom Pabst, told The County Press.

Pabst maintains that the lawsuit filed May 15 on behalf of Konschuh is all about clearing his client’s name by establishing that he was the target of a group effort to keep him off the bench, and that he ultimately suffered damages as a result.

The amended complaint filed Thursday came three days after attorney James Acho, representing all of the defendants, filed an answer to Konschuh’s lawsuit. They deny all of Konschuh’s claims.

Acho also filed motions to get the case moved to Oakland County and disqualify Pabst from representing Konschuh. Concurrently, Pabst filed a motion to disqualify Lapeer County Circuit Court Judge Nick Holowka from hearing the case.

The three motions are set to be heard in court first thing Monday.

Acho did not return a phone call from The County Press by press time.

The answer he filed on behalf of the defendants marked the first offensive the group took in court since Konschuh filed suit.

Among other things, the answer claims Konschuh essentially has “unclean hands” and only himself to blame for anything that resulted from when he “committed crime(s) as an elected official.”

Pabst says such claims are nonsense and that it was simply an accounting error.

In July 2014, Konschuh was charged with five counts of embezzlement by a public official of more than $50 following a Michigan State Police investigation into his handling of checks from a bad check recovery vendor and a law enforcement training program.

During a pretrial hearing in October 2014, an MSP investigator testified 42 checks totaling $1,802 were deposited during the 2009-2013 period into personal checking accounts controlled by Konschuh.

The investigation came about after questions were raised about the money not being reported to county authorities, and how it was used to finance purchases not allowed under state law, such as staff gifts, drinks at a local bar, and even doughnuts.

A court battle waged for 20 months, during which Konschuh was on paid administrative leave.

“The plaintiff’s actions were such that prosecuting him was not only reasonable, but necessary pursuant to laws, rules, regulations that assure the security, health, safety and welfare of the general public,” claims the defendants’ answer filed Monday. “None of the defendants’ acts about which plaintiff complains were malicious, wanton or in reckless disregard of plaintiff’s rights in any way.”

An agreement was reached to dismiss the felony counts and have Konschuh enter a no contest plea to a misdemeanor charge. In April 2016, Holowka reinstated Konschuh to the bench.

“Many citizens of Lapeer County are upset that plaintiff is now suing Lapeer County, after receiving such a generous and lenient result in the felony case,” Acho said in one of the filings from last week.

The defendants’ answer claims any injuries or damages suffered by Konschuch were “in whole, or part, the proximate result of plaintiff’s own actions and statements.”

It further asserts Konschuh has failed to state a cause of action, that none of the defendants were grossly negligent, and that they are entitled to statutory immunity.

Acho also alleges Konschuh has “failed to mitigate his damages,” which generally means someone shouldn’t be able to collect money through damages if he/she could have prevented the damages.

“Plaintiff’s filing is in bad faith, entitling defendants to exemplary damages and attorney fees,” the answer states.

In addition to the answer, Acho also filed a motion to get the case moved to Oakland County Circuit Court in Pontiac.

“Given plaintiff’s current position as a Lapeer County Circuit Court Judge, and his prior position as the Prosecuting Attorney for 20 years, defendants cannot possibly have an impartial trial in Lapeer County,” the filing claims.

Acho points out that his firm (Cummings, McClorey, Davis & Acho PLC of Livonia) is based in Wayne County.

As The County Press reported May 28, Acho was appointed through the Michigan Municipal Risk Management Authority (MMRMA) because Konschuh seeks damages, which makes it an insurance matter.

“Given that all of the defendants either are currently, or were at one time, employed by Lapeer County, or is Lapeer County itself, and the defendants’ legal fees are being paid at least in part by the taxpayers of Lapeer County, the Oakland County Circuit Court would be the most convenient forum for the defendants,” Acho states.

The filing cites coverage of “the drama of the felony case against plaintiff” by The County Press as another reason the venue should be changed.

“Basically, what the defendants are saying…is ‘we can’t get a fair trial in our own county of Lapeer,” Pabst said. “I just find that stunning.”

In the motion to disqualify Pabst, Acho points out that Pabst represented Konschuh when he was facing the original felony charges, and that Pabst “has specific knowledge about whether the charges against plaintiff were true.”

“Defendants intend to call (Pabst) as a material fact witness,” the filing states, citing Michigan Rules of Professional Conduct that state Pabst “cannot both serve as a witness, and as an advocate for plaintiff.”

“Plaintiff is putting the truth of the charges against him in question, and defendants have the right to defend themselves by calling all witnesses who can testify regarding the truth of the five felony charges against plaintiff , and the circumstances by when the charges were reduced to a misdemeanor,” the motion states.

“By asserting libel/slander (defamation) in his complaint, plaintiff has effectively waived the attorney-client privilege with respect to his attorney, whom plaintiff knew would be called as a witness,” Acho concludes. “Plaintiff has ‘opened the window.’”

Not to be outdone, however, Pabst presented several legal filings on behalf of Konschuh last week.

The first was a motion to prevent Holowka from hearing the case.

The filing is supported by an affidavit from Konschuh, who claims Holowka would not be able to rule in an unbiased manner.

Konschuh cites an encounter he had with Holowka while vying with Turkelson for the judgeship.

“He told me pointblank that he would not support me, and that Tim Turkelson was ‘my guy’, and that he would be supporting Tim Turkelson to get the judgeship,” Konschuh states.

Konschuh also states in the filing that to have Holowka “sit as an alleged impartial arbiter under those circumstances gives rise to an impropriety in my legal judgment (sic) — and I think the legal judgment (sic) of most people analyzing this situation.”

He further cites Michigan law that states a judge should be disqualified if he/she has personal knowledge of disputed evidentiary facts concerning the proceedings.

“The facts that will be developed during discovery of this case will absolutely show that Judge Holowka had personal knowledge of disputed evidentiary facts, and defendants and he both know it,” Konschuh claims.

He concludes his affidavit by stating he is “informed and believe(s) that Judge Holowka had personal meetings with all of the defendants herein about the criminal charges brought against me, and the resolution thereof.”

Pabst followed his motion regarding Holowka with an amended complaint filed three days later, this past Thursday.

The new counts expand Konschuh’s lawsuit to include alleged violations of Konschuh’s First Amendment and Fourth Amendment rights, along with a “class of one equal protection violation,” which generally pertains to a situation where an individual within a group is intentionally treated different from the others in the group without rational basis.

Pabst told The County Press that the amended complaint was driven, in large part, by three letters Acho has sent him since June 7, and in which he demands Konschuh retract certain statements.

“It’s just ridiculous what the defense attorney is doing here,” Pabst said.

The letters were filed with the court as exhibits and part of the public record on Thursday.

“It has been brought to my attention that you authored — or had letters authored at your behest, in the form of press releases, that severely impugned the character of my clients, and has damaged their respective reputations,” Acho wrote. “What you have done was malicious, reckless, and baseless.”

The letter also calls Konschuh’s statements “shameful” and demands a press release be issued within three days to retract the “untrue statements.”

A second letter was sent last Tuesday, this time specifically citing a Dec. 20, 2015 press release issued by Konschuh that accused Biscoe of perjury, among other things. Another three-day limit was given.

A third letter was sent last Tuesday as well, this time accusing Konschuh of being connected with a social media campaign.

Acho claims to be aware “that a certain malicious and defamatory Facebook page called the ‘Lapeer Corruption Page’ exists, and we have reason to believe you are behind this cowardly and malevolent web page.”

“We demand that you retract all defamatory and libelous statements made about my clients on Facebook and any internet-based web pages, and in the same fashion and format in which you made them,” Acho wrote.

Pabst laughed off the letters and said no such action would be taken because his client believes what has been directly attributed to him as the truth. (Pabst said he wasn’t aware of any connection between Konschuh and the Facebook page.)

Further, he said the letters are nothing more than retaliation for the lawsuit Konschuh filed.

“They’re using it as a threat,” Pabst said. “He’s threatening to file a counter claim lawsuit.”

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