VA Counsel held in contempt of court, costs taxpayers $45K

What should have been a mere $200 fine for failing to appear in court, turned into a case that settled for $45,000 in fines.

Judge David M. Murkowski, of the Kent County Probate Court, said that typically when someone fails to appear in court without an excuse, a small fine is imposed. In the case of VA regional counsel Roland L. Bessette, however, the case dragged on, became a “proverbial federal case,” and two years later was settled for $45,000 in attorney’s fees – a burden that US taxpayers as a whole will bear.

How could this happen?

The case began when the VA became involved as an interested party in a veteran’s conservator’s probate filing because there were some inconsistencies in the filing. Bessette filed an appearance with the court as an interested party. In September 2011, Judge Murkowski issued a notice to appear at a scheduling conference, which Bessette failed to attend.

Judge Murkowski said that under federal law, some circumstances allow for VA counsel to not report to the court, typically when the VA is an uninterested party in the case. However, in Bessette’s case, he filed as an interested party. The judge then issued a motion and order for Bessette to appear and show cause as to why he should not be held in contempt.

Instead, in December 2011 Bessette requested the U.S. Attorney in Grand Rapids to seek removal of the contempt proceedings to federal court in Grand Rapids. Bessette claimed immunity as a federal employee, and that the probate court did not have jurisdiction over the VA, and that the federal court should toss out the order to show cause.

In September 2012, U.S. District Judge Robert H. Bell ruled that a government attorney “who voluntarily subjects himself to a state court’s authority” by filing an appearance on the behalf of that federal agency has the same obligations to the court as any other lawyer who files an appearance.

Judge Bell denied Bessette’s motion for reconsideration, saying that while Bessette’s defenses may be viable to the order to show cause, they are state defenses that rely on state law and should be heard in a state court.

Finally, in November 2012 Bessette filed for leave of appeal in the 6th U.S. Circuit Court of Appeals. After mediation with the court, the VA agreed to settle the case for $45,000, which would be for the probate court’s attorney’s fees.

Judge Murkowski noted that he did not want the people of Kent County to bear the cost of this lawsuit, but unfortunately American taxpayers would. Bessette has since retired.

Read more on the case at: http://milawyersweekly.com/news/2014/01/23/case-that-was-worth-a-200-fine-settled-for-45k-in-fees/