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.
For more information email: tflynn@clarkstonlegal.com

Saturday, August 26, 2017

Ousted Arizona Sheriff Pardoned by Trump

That an outlier POTUS like Trump would pardon a firebrand like former Maricopa [Arizona] County Sheriff Joe Arpaigo should surprise no one; they're views are tightly aligned on the illegal immigration issue. It's just that, in this case, the pardon comes right on the heels of the conviction, and at the beginning of the President's term rather than in the traditional eleventh-hour of an administration.

More than a decade ago, a civil rights lawsuit was filed against the ousted Sheriff, alleging that he systematically violated the U.S. Constitution by profiling Latinos and arresting suspects based solely on their nationality in violation of the 4th Amendment's probable cause requirement. Like Trump, former Sheriff Arpaigo has had his differences with federal judges.

In Arpaigo's case, two judges enjoined the sheriff from detaining Latinos based solely on their appearance, and in the absence of any specific evidence that a law had been violated. The sheriff kept up the practice anyway.

Last month, Arpaigo's defiance resulted in a criminal contempt of court misdemeanor conviction. The swiftness of the presidential pardon made it one-of-a-kind.

Normally, presidential pardons are granted only after the appellate process has been exhausted and the convict has been in the penitentiary for several years, if not decades.

In Arpaigo's case, although federal judges Susan Bolton and G. Murray Snow issued an injunction against Arpaigo back in 2011, Snow followed-up with a series of subsequent orders. Thumbing his nose at the judiciary just like Trump has done over the past 18-monts, the sheriff insisted his law enforcement tactics were legal and he kept-up a rigorous campaign of Latino arrests until his ouster.

Article II of the U.S. Constitution grants the president the power, "to grant reprieves and pardons for offenses against the United States..." The SCOTUS has interpreted this power to extend to all federal crimes thus, its scope certainly includes Sheriff Arpaigo's contempt conviction.

One of the problems with wielding the presidential pardon power in real-time is that it seriously intrudes into the realm of the other branches of government. In the Arpaigo case, this pardon lessens the effectiveness of the Constitution as well as our civil rights laws. Also, the case obviously impedes the effectiveness and the powers of federal Article III judges.

Trump [being Trump] might realize just how much power he really has under the Constitution relative to the legislature and the judiciary. Wielding this power from the 4-corners of the document on a real-time, case-by-case basis to prosecute his political agenda could quickly burgeon into a constitutional crisis.

One of the legal challenges arising from this pardon is whether a chief executive can pardon a government official whose illegal conduct affects the constitutional rights of others. For her part, Judge Bolton has invited briefs on this legal issue rather than simply dismissing Arpaigo's case prior to the sentencing hearing.

There is no question Trump has the power to pardon at any point during his term. The constitutional/legal/political question is, should a chief executive exercise his Article II pardon powers to undo a recent conviction based on the political agenda of his administration, especially where the state actor's conduct affects individuals' constitutional rights.

No doubt, there are well-articulated answers on both sides. We here at the Law Blogger would like to hear from our readers on this one. Should Joe Arpaigo have been pardoned? And so soon after his conviction?

Post #604
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Thursday, August 17, 2017

Cancer Survivor Sues Apartment Complex Over Second-Hand Smoke

Phyllis Davis is an asthmatic cancer survivor who has many other serious health conditions. She filed a lawsuit last month in federal court claiming that the second-hand cigarette smoke from a neighbor's apartment is making her sick.

The lawsuit, naming the owners of the Farmington Hills apartment complex as defendants, was filed in the United States District Court for the Eastern District of Michigan. Prior to filing the suit, Davis' lawyer sought to have the apartment complex do something about eliminating all second hand smoke from the facility.

In her suit, Davis alleges violation of both federal [Fair Housing Act] and state law [Persons with Disability Housing Act]. Davis says she suffers from both "chemical sensitivity disorder" and "environmental illness"; she says these co-occurring conditions have rendered her disabled.

For her basic theory of the case, Ms. Davis alleges that the connected units of the complex have a shared ventilation system. She says her adjacent neighbors smoke on a regular basis causing "hazardous, toxic, carcinogenic and irritating gases" to enter her apartment unit through the shared ventilation system.

In addition to violations of federal and state housing laws, the complaint advances a breach of covenant theory against the apartment complex. Davis claims that permitting smoking increases the cost of insurance that the tenants have to secure. Also, she claims that smoking violates the covenant to maintain a safe, clean and sanitary condition for all apartment units.

Smoking is legal. So it will be interesting to see how the defendants respond to this litigation. Plaintiff seeks injunctive relief [no more smoking in the units] and money damages.

If a tenant, albeit an ill tenant, can enjoin a property owner from allowing legal activities on their property, does that interfere with the owners use and enjoyment of private property? If this lawsuit survives a motion for summary judgment and results in relief for the plaintiff, other potential plaintiffs could be encouraged to file their grievances against property owners.

Tenants have been suing landlords for decades for a wide-variety of reasons. This case, however, is particularly compelling due to the fragile health of the tenant.

We here at the Law Blogger can see a medical marijuana version of this case coming down the pipe [forgive the pun] at some point. So we will monitor the procedure in the case, paying particularly close attention to the summary judgment break point.

Post #603
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Friday, August 4, 2017

Teenage Assisted Suicide Texter Sentenced to Jail

Photo courtesy of the NYT
We've been tracking this sad but interesting case for over a year. The case involves a series of texts [literally thousands] a teenager sent to her friend who was contemplating suicide; the decedent was on-the-fence, but the young girl's texts put him over the edge.

Michelle Carter was sentenced to 15-month county jail term yesterday in Massachusetts for involuntary manslaughter of her friend, Conrad Roy. In June, she was convicted following a bench trial.

Ms. Carter was found to be "virtually present" when Roy committed suicide through carbon monoxide poisoning. She encouraged him -some would say badgered him- to complete the act by sending a series of text messages to his cell phone.

Last year, her defense lawyer moved to quash the indictment; this maneuver went all the way to the Massachusetts Superior Court. The High Court made the following ruling:
It is important to articulate what this case is not about. It is not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life. Nor is it about a person offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life. These situations are easily distinguishable from the present case, in which the grand jury heard evidence suggesting a systematic campaign of coercion on which the virtually present defendant embarked — captured and preserved through her text messages — that targeted the equivocating young victim’s insecurities and acted to subvert his willpower in favor of her own. On the specific facts of this case, there was sufficient evidence to support a probable cause finding that the defendant’s command to the victim in the final moments of his life to follow through on his suicide attempt was a direct, causal link to his death.
Rather than take the matter before a jury, Ms. Carter's lawyers opted for a bench trial; a trial where the judge makes all the findings of fact.

Of course, her conviction and sentence will be appealed. Carter's lawyers assert that the lack of a state law banning assisted suicide and the First Amendment to the U. S. Constitution form the basis of their appeal.

Prosecutors sought a lengthily prison term. They asserted that Carter wanted the attention that she thought would come from being the grieving girlfriend.

Some legal experts applaud the relatively light sentence, pointing to the teen aged angst and drama constantly swirling about the Internet. This was an electronic communication crime involving two very young and emotionally challenged individuals.

Both victim and perpetrator struggled with mental illness in this case. The judge apparently sentenced Carter to local confinement -rather than to the state penitentiary- in order for her to be close to her family support network.

One the one hand, Carter was very far away from the decedent on the night he took his own life. On the other hand, when he got out of his truck during the act, texting Carter all the while, she called him and talked him back into the truck.

We will let you know if Carter's appeal gets any traction. What a sad case.

Post #602
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Saturday, July 29, 2017

Judge Gorcyca Censured But Not Suspended by Michigan Supreme Court

Oakland County Family Court Judge Lisa Gorcyca has to be feeling partly vindicated this morning in the wake of the Michigan Supreme Court's disposition of her judicial tenure matter. Judge Gorcyca challenged the findings and suspension recommendation of the Judicial Tenure Commission last year, appealing to the state's highest court.

The well-known case against Judge Gorcyca arose from her July 2015 decision in a post-judgment divorce matter involving the Tsimhoni family. Frustrated with a patent case of parental alienation and contempt of her court orders, Judge Gorcyca ordered the three Tsimhoni children confined to Children's Village.

Her fateful decision to incarcerate the Tsimhoni children, well within her powers as a family court judge, precipitated the judical tenure complaint. Yesterday, the Supreme Court summarized her predicament in Justice Brian Zhara's 54-page opinion:
The record is clear that as early as August 2010 these children embarked on a concerted effort to thwart meaningful interaction with their father and continued to do so despite respondent’s orders to the contrary. Regardless of their age, there is no question that during the intervening years, each child knew they were supposed to have visitation with their father. And any person old enough to engage in this deliberately defiant behavior over a five-year period must appreciate that they could be called before the court to account for their actions.
Finding that she performed due diligence and acted in good faith in the Tsimhoni divorce, the Michigan Supreme Court declined to suspend Judge Gorcyca, opting to censure her instead. Here is the crux of the High Court's rationale:
In this case...respondent’s decision to hold the children in contempt was an isolated instance of legal error. But we find it more significant that the errors—holding LT in contempt and giving the father the keys to the jailhouse— could have been remedied on appeal, that the errors were made with the parties’ knowledge, and that the parties failed to object to the orders. Further, in this tense court hearing, the children each had a lawyer present as well as the LGAL. The record also reflects that an FOC counselor was in the courtroom as well as an assistant prosecuting attorney. None of the lawyers or trained professionals in the courtroom suggested that respondent’s actions crossed the line nor did they offer alternative actions for the court’s consideration. For these reasons, we cannot conclude that respondent’s decisions are fairly characterized as “willful failure[s] to observe the law.” Respondent had the statutory authority to hold any contemptuous person in contempt of court, and it certainly appears that at least RT and NT blatantly defied the court’s order. As previously discussed, respondent may even have had authority to hold LT in contempt for encouraging his younger siblings’ contemptuous behavior, but we need not decide that question because even if that was not the basis of respondent’s contempt order, it is clear that respondent did not act in willful disregard of the law.
Justice Zahra is perhaps the ideal jurist to author this opinion. He is, as far as we know, the only justice on the High Court bench with judicial experience on the family court.

In several of our previous posts on this topic, here, here, and here, the Law Blogger has maintained that, at worst, Judge Gorcyca's decision in this fateful case amounted to legal error. Legal error can and should be addressed by the Michigan Court of Appeals, not the Judicial Tenure Commission.

If you are in Judge Gorcyca's camp on this issue -and the overwhelming majority of the family court bar is- then this opinion comes as a relief. Oral arguments in the case did not go particularly well for Tom Cranmer, Judge Gorcyca's lawyer; it really looked like the Supreme Court was leaning into a suspension to resolve the case.

In our opinion here at the Law Blogger, the Supreme Court made the correct ruling. Judges like Lisa Gorcyca are valuable members of the family court. Family Court judges cannot prosecute their dockets by looking over their shoulder to see whether a good faith legal ruling will wind-up entangling the judge in a judicial tenure matter.

Post #601
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Tuesday, July 25, 2017

Clarkston Legal Videos Over the Past 10-Years

In the past ten-years, my law firm has produced a few short video clips to promote our mission statement. We have enjoyed just a few very slim slices of public exposure during this decade.

This 600th post publishes some of our best clips from the past 10-years. Take a look...

The very first clip features a closing argument following a three-day trial in a drunk driving case before the legendary Oakland Circuit Judge Steven Andrews way back in 2009. This poor-quality video was purchased from the Oakland County Circuit Court Administrator prior to the Court's ban on disseminating such videos of court proceedings.



This second clip features a panel discussion involving my first case before the Michigan Supreme Court back in 2006. Probably for the legal professionals among our readers.



Then we produced our first marketing video in 2010, designed for social media distribution. The colors were good, and the "actors" are actual clients. We really got a lot of mileage out of this short little clip.





Here is another throwback to the Oakland Circuit Court from 2009; a sentencing hearing for one of our few homicide cases. Now-retired and long-serving Oakland Circuit Judge Ed Sosnick can be seen presiding over the hearing. Our client pled to leaving the scene of an accident resulting in death; she was sentenced to 6-months in the "work-release" program.



More recently, I was able to generate a clip resulting from one of my rare appearances before the Michigan Supreme Court in People v Robertson; a case involving the "search and seizure" clause of the 4th Amendment to the United States Constitution. Boy, am I ever getting grey...



Finally, last year, we got it together and produced this gem with a pair of our best clients ever.


Time really does fly when you are having fun; this is certainly true in the professional setting.

If you or a loved one are facing the rough waters of a divorce or criminal charge, give us a call to discuss your options in a free  consultation.

Post #600
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