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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Friday, August 15, 2014

Sixth Circuit Considers Same-Sex Marriage Cases

The DeBoer same sex marriage and adoption case made big news in Michigan last spring when, following a bench trial, federal judge Bernard Friedman invalidated Michigan's ban against same-sex marriages.  The Michigan Attorney General filed an appeal to the United States Sixth Circuit Court of Appeals and had the ruling stayed, almost immediately.

A series of 6 cases from each of the states within the geography of the Sixth Circuit were argued on the same day before a 3-judge panel to determine whether banning same-sex marriage is constitutional.  Interestingly, and as a matter of legal convenience, Michigan, Ohio, Kentucky, and Tennessee each have a state constitutional provision banning same-sex marriage.

The cases have pitted states rights and conservative groups against those that believe the right to marry is a fundamental right under the United States Constitution.

According to news reports from those present at the nearly 4-hour session, the judges wore their politics on their robes.  Judge Martha Craig Daughtrey, a Clinton appointee, seemed to favor the gay marriage advocates, while Bush appointee Judge Deborah Cook sparred with her left-leaning colleague.  As is often the case with 3-judge panels, one jurist stays poker-faced; this time, it was Bush appointee, Judge Jeffery Sutton.

Since the SCOTUS decision in United States v Windsor, nearly every state's federal court system has cultivated a same-sex marriage case, usually challenging the constitutionality of a state law that bans or limits the rights of same-sex couples.  Many of these cases are now on appeal in the federal Circuits.

A common legal thread to the cases is whether the so-called "heightened scrutiny" should be brought to bear on a statutory classification based on sexual orientation or preference under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.  The Supreme Court left this question open in its seminal Windsor decision.

This blogger was down in Cincinnati in June arguing a civil rights appeal, I have yet to receive a decision on my case.  So it could be the end of the year before we hear how the Sixth Circuit is going to decide the matter.

It looks to us over here at the Law Blogger that the SCOTUS will have to grant certiorari on one or more of these cases percolating up through the appellate courts.

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Sunday, August 10, 2014

Can A Seat on Our High Court Be Purchased?

Plaintiffs' Lawyer Richard Bernstein
This Sunday's NYT carried an article about a well-funded right-wing challenge to three justices on the Tennessee Supreme Court.  Despite surviving the retention election [where a justice essentially runs against herself] all three targeted Tennessee jurists saw their margin of electoral victory eroded by the well-orchestrated conservative campaign.

The sins of the jurists?  Appointing a Democratic Attorney General in 2006 [Tennessee has not gone Republican in a presidential election in decades, and that includes Tennessean Al Gore in the 2000 election]; being "soft-on-crime"; and being anti-business.  Still, there was a general feel of an overall outright political attack on the jurists in the election last week based on their voting record in key cases.

Usually, High Court justices come under fire for single issues.  In 2010, for example, all the justices on Iowa's Supreme Court that voted one year earlier to approve same-sex marriages were ousted in the non-partisan Iowa ballot.  The same thing happened in California to three High Court jurists during the death penalty debate: none of the pro-death penalty justices were retained.

Nowadays, a jurist's vote to approve same-sex marriage is common place; happens all the time, as routinely reported in this law blog.

Here in Michigan, the personal injury plaintiff's bar has been accused of attempting to buy a seat on the Michigan Supreme Court for the past quarter Century.  Our High Court has held onto a precarious 4-3 "conservative" majority for that decades-long stretch and then some.  This so-called conservative majority is crucial in cases that decide not only personal injury issues, but also constitutional issues relating to criminal defense, law enforcement, privacy and business.

Now, personal injury lawyer Richard Bernstein recently announced he is seeking a nomination from the Michigan Democratic Party for a seat on the Michigan Supreme Court.  In November, two Governor Snyder appointees are facing re-election, and a third seat is opening-up via the retirement of Justice Michael F. Cavanaugh.

Aside from the relative oddity of a lawyer running for a seat on the High Court [as opposed to a sitting judge] there is the fact that Bernstein is the wealthy scion of personal injury luminary Sam Bernstein.  Also, we take note that the Democrats declined to nominate Bernstein in his bid to be the Democratic candidate for Michigan Attorney General in 2010.

While we here at the Law Blogger realize that one justice cannot re-write our jurisprudence, we do have to wonder about the propriety of electing a lawyer so viscerally aligned with a specific area within the law: i.e. prosecuting plaintiffs' personal injury tort suits.

Our judicial system does depend on a jurist's neutrality in all cases.  So let's stay away from the well-funded single-issue juggernauts.

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Friday, August 8, 2014

Retired Judges Urge Michigan Legislature to Retroactively Apply Rescission of Juvenile Lifer Law

Retired Oakland Circuit
Judge Edward Sosnick
By:  Timothy P. Flynn

As a young lawyer in the early 90s, I accepted an unusual professional gig.  In order to become an adjunct law professor at my law school alma mater, University of Detroit, they wanted me to first teach law and prisoners' civil rights to female inmates at the now-closed Scott Correctional Facility in Plymouth, MI, under a federally mandated education program.

What struck me about the inmate students back then were the number of women convicted of the so-called "drug lifer law".  If you were convicted of delivery of more than 650 grams of cocaine or heroin, your sentence was life without the possibility of parole.

In the late 90s, former Governor John Engler, a pretty conservative governor, signed the rescission of that law.  In doing so, the Legislature and the Governor made the rescission retroactive to the hundreds of convicts that were racking-up decades of prison time in the MDOC.  Soon after the law was executed, all of the drug-lifers were paroled with time served.

Fast forward to this week, and we see a group of retired circuit court judges calling for our state legislature to take action on the juvenile lifer law; specifically, to pass legislation making the rescission of the law retroactive to the nearly 350 inmates doing life sentences for capital convictions when they were juveniles.

What really caught my attention was that Retired Oakland Circuit Judge Edward Sosnick was among the judges signing the Freep editorial.  Judge Sosnick was a good judge.  Whenever I had a client standing before Judge Sosnick at a sentencing hearing, I always walked away thinking my client received a fair sentence.

Here is issue framed in a nutshell: SCOTUS ruled in 2012 that state juvenile lifer laws violated the Eighth Amendment's prohibition against "cruel and unusual" punishment.  In their wisdom, however, the High Court was silent as to the retroactive application of their ruling, leaving the states to figure out what to do with their aging populations of the juvenile-convicted.

Here in Michigan, the Attorney General won a legal battle a few months back at the Michigan Supreme Court in a case holding that the rescission of the juvenile lifer ban does not apply retroactively.  In arguing the case, the Michigan AG focused on the rights of the victims; most often, the families of individuals that were murdered by the juvenile lifers now so desperate for parole.

As the retired trial judges know, however, not all of those 350 convicted juvenile lifers were cold-blooded juvenile murders; some of those convictions were based on sketchy evidence; some of the juveniles had highly attenuated involvement in the murders for which they were convicted.  Also notable in the legal battle were the 110 former prosecutors and trial judges that filed an amicus brief in the Michigan Supreme Court case calling for retroactive application of the rescission.

Here at the Law Blogger, we'd bet that each of the judges that signed the Freep editorial calling for retroactive application of the rescission of the juvenile lifer ban presided over some of the trials of the convicted lifers.  We'd also bet that the retired judges occasionally saw juveniles charged, tried, and acquitted on capital offenses, dodging the bullet of a life sentence without the possibility of parole.

If the group of 350 juvenile lifers, believed to be the largest in the nation, have any chance at parole, it will have to come from the Michigan Legislature as the highest courts have spoken.

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Monday, August 4, 2014

Lawyers Without Law Schools

Over the past half-decade, the entire concept of going to law school has received strict scrutiny, even here in this law blog.  The idea of acquiring a 6-figure debt for a professional credential strikes most graduate students and their families as ludicrous.

Four states have a little-known alternative for those college graduates committed to becoming lawyers.  In California [of course], Vermont, Washington, and Virginia, a college graduate can qualify to sit for the bar exam without attending law school.

The process is called an apprenticeship - by studying in the office of a real lawyer or judge, by "reading the law", the apprentice gradually learns the law and, at least in 4 states, is deemed qualified to sit for the bar exam.  There are guidelines in each of the states, and the apprentice must take exams along the way.

This is the "road less traveled" to be sure.  According to the National Conference of Bar Examiners, of the more than 80,000 bar exam takers last year, only 60 were law office "readers".  The legal profession is constantly being called to task for using law schools as sentinels guarding entry into our once-noble profession.

Until law schools began to proliferate in the late 19th Century, "reading the law" was the manner in which students became lawyers.  Think, Abraham Lincoln and Chief Justice Thurgood Marshall; neither of these luminaries went to law school.

Out in California, the United Farm Workers union has developed a long-standing tradition of training lawyers through apprenticeships.  Those mentored by the union's staff attorneys have, as attorneys, assisted migrant farm workers and similar causes.

The obvious advantage of the apprenticeship model is that, with no crushing student loan debt to repay, the newly-minted lawyer can bring more focus to bear on doing good, than on making money to repay the loans.

With many law schools giving lip-service over the past quarter century to the concept of training students by providing them with the practical skills they really need, some have moved aggressively toward converting the third and final year of law school into an "externship", i.e. spending time in a law office.

While the practical aspects of a lawyer's training is a good beginning point for improvement, other significant obstacles remain.  For example, of the small group of apprentices that sat for the bar last year, only 28% passed compared to 73% of exam-takers that graduated from ABA-accredited law schools.

The bar exam, also a subject of previous Law Blogger posts, has its own set of critics.  All of this concerns the "secret sauce" that makes up the process of becoming a lawyer.

So long as lawyers remain viable on our nation's professional landscape, the lawyer-making process should be critically examined.

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Thursday, July 31, 2014

When Should Judges Be Liable for their Decisions?

Former Judge Wade McCree, Jr.
Generally, judges have broad immunity relative to their decisions from the bench.  Judges cannot be sued and held liable for how they decide a case.  Such sweeping immunity is necessary to maintain a fair and impartial judiciary.

This week, the concept of judicial immunity is being put to the test in various courts.  One case involves a disgraced Wayne County trial court judge; the other involves a sitting Michigan Supreme Court Justice.

There are two types of decisions to which judicial immunity applies: decisions in a case on the judge's docket, and administrative decisions made "off the bench", such as hiring or firing personnel.  The former is protected by judicial immunity while the latter is not.

An illustration of judicial immunity is playing out in the civil lawsuit against former Wayne Circuit Judge Wade McCree; he had an affair with a woman who had a custody case in his court and the father is now suing McCree.  The now-disgraced [and married] judge had the bad judgment to preside over the case, when he was secretly involved with the mother of the minor child; the entire family was subject to McCree's jurisdiction in the case.

The case against McCree was tossed out of federal court and appealed to the Sixth Circuit Court of Appeals which held that, although reprehensible, Judge McCree's conduct nevertheless fell within the scope of judicial immunity.  How far is too far then, if having sex with a litigant in your chambers is still protected?

Although Michigan has no case on record where a judge is held liable for his decision or conduct while on the bench, Tennessee has a rare example of a juvenile court judge held liable for violating the civil rights of three women by sexually assaulting them under the threat that he would take away their children if they did not comply with his demands.  So there you have it; having consensual sex is not sufficient to attach civil liability to the judge, but sexual assault may get a plaintiff some money damages.

Not all of a judge's decisions involve litigants on their docket.  In the case of Michigan Supreme Court Chief Justice Robert P. Young, Jr., the former administrator of the Michigan Attorney Grievance Commission is suing him in the Wayne County Circuit Court for an allegedly wrongful and retaliatory firing.  The former AGC administrator, Robert Agacinski, reported a series of bizarre staffer emails he discovered to the Attorney Grievance Commission and, he claims, instead of looking into it, the members of the Commission went to the Chief Justice of the Michigan Supreme Court [the High Court is charged with oversight of the Commission] to have Mr. Agacinski, a 14-year veteran of the AGC, very unceremoniously dumped.

Agacinski alleges that Justice Young's decision to terminate his employment violates Michigan law.  For its part, the Michigan Supreme Court merely noted that Agacinski was fired through a court order signed by all seven Supreme Court Justices.

Both the litigant suing former Judge McCree and Mr. Agacinski have hired Detroit lawyer Joel Sklar, who claims in both cases that his clients are merely seeking to hold those in positions of power accountable for their actions.

We shall see how it all turns out for Mr. Sklar's clients.

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