Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Tuesday, September 29, 2015

Governor's Appellate Appointments Affect Oakland Circuit Court

Judge Colleen O'Brien
This afternoon, long-serving Oakland County Circuit Judge Colleen O'Brien was appointed by Governor Rick Snyder to the Michigan Court of Appeals. Tomorrow, the Governor has a scheduled news conference to announce his appointment to fill the vacancy on the Michigan Supreme Court created by Justice Mary Beth Kelly's surprise resignation in August.

Judge O'Brien has run for a seat on the Michigan Supreme Court in past elections and has been a persistent name mentioned whenever the discussion arises about appointments to the intermediate appellate court. She will be sorely missed by those of us who practiced before her in the Oakland County Circuit Court. A true "judge's judge", O'Brien is currently serving as the President of the Michigan Judges Association

Vacating her spot on the bench now leaves two seats open on the Oakland County Circuit Court that need to be filled soon. Judge Rudy Nichols retired over the summer and his seat has been filled temporarily by a visiting [retired] judge.

One rumor that proved true is that Oakland Family Court Judge Cheryl Matthews will move from the family court to the court of general jurisdiction. The family court is where new judges are usually assigned upon their election or appointment to the circuit court.

Judge Mathews follows former family court judges James Alexander and Martha Anderson to the general civil court. Could Judge Lisa Gorcyca be far behind?

Governor Snyder therefore now has his work cut out for him in filling these seats. Political influence will be spent in the upcoming weeks; the State Bar of Michigan will compile a list; and many a district court judge will angle for a promotion.

Some of the names we've heard over here at the Law Blogger we liked; other judicial hopefuls we're not so sure would make good judges. But we've come to accept that experienced litigators -lawyers that actually see the inside of a courtroom- are usually never considered for judicial appointments and rarely run for judge on the non-partisan ballot; go figure.

One lawyer that fits the non-litigator description on the Governor's short list for the Supreme Court is University of Michigan Law Professor Joan Larsen. Professor Larsen graduated from Northwestern University Law School and has recently served as a special counsel to the UM Law School Dean. If Professor Larsen is appointed to the High Court, she will be going from one ivory tower to another.

These recent events, and the Governor's imminent appointments to the Oakland Circuit Court, will have an important impact on Oakland County residents planning to file for divorce in the upcoming months. If you are involved in proceedings before the Oakland County Circuit Court, consider hiring lawyers that have experience in this town.

Our lawyers have seen judges in this town come, and we've seen judges go. We're still here; open for business at 8:00 tomorrow morning.

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Thursday, September 24, 2015

Threatening Your Family Court Judge

Judge Kathy Viviano
Our lawyers appear in front of Macomb County Family Court Judge Kathy Viviano on a regular basis. Her father was a long-serving family court judge from Macomb; her brother sits on the Michigan Supreme Court.

Earlier this summer, a father with a custody case before Judge Viviano began emailing threats to court staffers that he was going to blow-up her car with a pressure cooker bomb. The 55-year old man, Keith Rebar, also made threats to shoot the judge if things did not go his way in the child custody proceedings.

Rebar's threats came to light a few weeks ago when they were renewed and, ultimately reported to the sheriff.  Atta boy Keith; now your children will get to read about their loose cannon father and may even be deprived of your company while you pay your debt to society for your threats.

Over the years, we have had our share of litigants, both clients and opponents alike, who have taken a dim view of the family court system. These folks talk a lot about taking matters into their own hands when they feel helpless within the system.

Often, such folks have visceral disagreements with the family court professionals assigned to their case. These people feel that no one can decide matters, or can make parental decisions, better than they can.

When they see their case taking a few turns in a direction they do not support, they tend to overreact. In the case of Judge Viviano, Macomb County Prosecutor Eric Smith took Rebar's threats seriously, charging him with making a false report or threat of terrorism; a 20-year felony.

Because family court judges make decisions that hit so close to home, they are faced with situations on a daily basis where one party in every case views the judge's decision as a vital threat to the very existence of their family.

A trip through family court is a rough road for the hot head. Good legal counsel is the best bet to keep things moving in the right direction.

Making threats to the family court professionals is never a good move. It amazes us here at the Law Blogger how often that occurs.

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Saturday, September 19, 2015

Juggalos Win Federal Appeal

Not a gang, just family.
The good news from Cincinnati is that Juggalos are not gang members. Whew; now I can get a good night sleep.

Juggalos are groupies of the Farmington Hills-originated rap duo, Insane Clown Posse. Think: hard-core, off-color drug-addled rap version of Jimmy Buffet's "parrotheads".

The band and its followers are making headlines again from a lawsuit that is grinding along in the federal court system. A small group of Juggalos appealed the dismissal of their federal civil rights lawsuit and the United States Sixth Circuit Court of Appeals reversed the dismissal and remanded the case back to Detroit for further proceedings.

The beef arose in 2011 when a much-publicized FBI report characterized Juggalos as a loosely-organized hybrid gang; whatever that means. The Sixth Circuit's opinion states that, "Juggalos are easily spotted because they display, on person or property, insignia representative of the band."  [Yes, in fact, they do  r-e-p-r-e-s-e-n-t, and the "insignia" most commonly displayed is a crazy man running with a hatchet, pictured above.]

The rap group's devotees cried foul in the wake of the FBI report, claiming their civil liberties were impinged through such heavy-handed law enforcement tactics. Juggalos are not a gang, they proclaim, just one big happy sloppy family.

The Sixth Circuit's opinion details the specific transgressions claimed by each of the six plaintiffs, two of whom claim their ICP-themed tattoos caused them grief with the U.S. Army because of their perceived association with a gang on the "government gang list."  Accordingly, plaintiffs claim violations to their First and Fifth Amendment rights under the United States Constitution.

In reversing the federal court in Detroit, the Sixth Circuit held that Juggalos did have proper standing to sue in the federal court under the Administrative Procedure Act and the Declaratory Judgment Act. The appellate ruling, however, also directed the lower court to now consider the governments claim-based motion to dismiss the case.

So this litigation will be around for awhile. If you are a Juggalo, it certainly does not hurt to have Michigan's largest law firm, Miller Canfield, representing your interests along with the ACLU.

Nevertheless, Juggalos beware. This was merely a [small] procedural victory. For his part, the local cop on the beat will always view you a part of a crime gang.

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Monday, September 14, 2015

The First Amendment Defense Act

For the past two years, conservative legislators have been proposing a tricky piece of legislation in response to the marriage equality civil rights movement. The First Amendment Defense Act, which has across-the-board Republican support, would, among other things, bar the federal government from taking any discriminatory action against those who oppose same-sex marriage on religious grounds.

For example, if this bill was enacted, someone like Kim Davis could have used it as a shield in her federal court contempt proceedings when she refused to issue a marriage license to same-sex couples. Essentially, this proposed law would negate the anti-discrimination laws that are already on the books and it would use federal tax dollars to do so.

The scope of the proposed legislation would also include protections for private companies. This increases the potential for discrimination against gays and lesbians in the work force.

Although this bill has no real chance of passing Congress -even if it did, President Obama would veto the measure- there are state versions out there already on the books in Indiana and Arkansas. The swift passage of marriage equality in state legislatures across the country, and via the SCOTUS in two recent landmark decisions, does not mean same-sex marriage is now accepted in the traditional households of the nation.

To be sure, there will be struggles ahead for gays and lesbians relative to their new-found marriage equality. We here at the Law Blogger have predicted that the Obergefell decision, while a good start, has merely signaled a new-era where the entrenched opposition to marriage equality will rear its head in the workplaces, schools and governments throughout the land.

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Wednesday, September 9, 2015

Back to School: Students and Privacy

Yesterday, students across the nation trudged back to school along with their teachers and administrators who've been back for weeks. This raises questions for us over here at the Law Blogger about whether students have any expectation of privacy; especially in their cell phones, school email accounts, and on social media platforms.

Privacy in public schools is an issue the SCOTUS has addressed many times before. Years ago, the High Court ruled that while students did have a 4th amendment right to privacy [i.e. to be free from unreasonable searches and seizures that are not based on probable cause], that right is not absolute in light of the need for safety and order in the public schools.

School administrators can, however, go too far despite the leeway they have under the law. In 2009, the Supreme Court, for example, made strip searches of students difficult to justify in most cases. But what about searching a student's cell phone data or social media platforms?

In the handful of cases addressing a student's right to privacy within the data contained on their cell phones, the SCOTUS has consistently held that such searches are not necessarily unreasonable. The basis of these holdings is the substantial governmental interest in having teachers maintain order and control of their classrooms.

The High Court has also held, however, that once a student's cell phone has been seized, the phone can be examined by administrators [i.e. state actors] to view the student's contacts and call or text history. On the other hand, one case held that using the student's phone to send text messages -presumably to set-up another student and to cement the case against the detained student- is an unreasonable search.

Although some cases involving students' and teachers' use of social media have percolated through the court system, the SCOTUS has not accepted "the case", yet. We here at the Law Blogger believe that case is out there and will be making headlines soon as it makes its way through the court system.

If you or a family member have an issue involving a teacher's seizure of a cell phone or have experienced discipline relating to a student's use of social media, contact our law firm for a free consultation.

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