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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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Sunday, January 31, 2010

Oakland County's "Virtual" Work Release is Ready

This post is copied from and is the original content of the DUI Blog of drunk driving Attorney Patrick Barone.

The Oakland County Sheriff’s Office is scheduled to implement a new “virtual” work release program by early February, 2010. Virtual work release will consist of an ankle tether using a satellite and radio global positioning system (GPS) monitored by the Oakland County Sheriff. It will give the Sheriff’s Office the ability to carefully track an inmate’s location twenty-four hours a day, seven days a week. The radio technology will even allow a defendant to be tracked inside a home or workplace.

In preparing for the upcoming start date the Sheriff’s Office is meeting with the Oakland County judges to orient them to the virtual work release program. The Sheriff has already met with the Oakland County Circuit Court judges and will be meeting with the District Court Judges in early January.

The eligibility for the new program has not changed. Accordingly, a judge must authorize participation prior to enrollment in the virtual work release program and offenders sentenced on any CSC (Criminal Sexual Conduct) charge are not eligible. Also, there may be no outstanding warrants, holds, or unpaid bonds.

Eligible inmates will be referred to the Jail’s Program Services Unit for an interview. The inmates address will be verified, and they will be oriented to the program. Inmates must provide written documentation verifying employment/school. The vendor for the GPS tether will provide staff to install the tether and Sheriff’s Office Booking staff will process the release. Inmates will be placed on the GPS tether as soon as they have been screened for eligibility and orientated to the rules.

The GPS tether selected by the Oakland County Sheriff is cutting edge technology that will allow authorized individuals such as a judge, probation officer or deputy sheriff to track the defendant’s whereabouts via a password protected web site operated by the manufacturer G4S Justice Services, Inc. Tamper, equipment failure and violation alerts will be sent out by G4S according to Sheriff’s Office parameters.

While on work release the defendant will be subject to certain appropriate “exclusion zones,” and will be allowed to leave their home only for clearly and specifically defined and approved work or school purposes. Exclusion zone violations will typically involve a warrant being issued. The offender is then picked-up and will serve the balance of their sentence confined in jail.

According to the manufacturer’s web site “using a standard web browser from any computer, officers can view and exchange monitoring and tracking data for enrollment, curfew schedules, caseload reviews, agency reports and termination. This information is also stored and monitored by specially trained personnel at our monitoring centers.”

Furthermore, the G4S tether “does not require a base or docking station due to the ability of the device to determine the location from both GPS satellites and cellular phone towers. This enhanced dual monitoring feature allows reliable location tracking from a single device even in impaired environments where RF and GPS alone do not work. The device incorporates a cellular modem and communicates information to the monitoring center over the CDMA network.”

Oakland County Undersheriff Michael McCabe said that the new virtual work release is a child of the new economy. Everyone is looking for ways to cut expenses without cutting services, and the new work release program is a much less expensive way to incarcerate non-violent offenders.

There are also many benefits to the new program. For example, the defendant bears nearly all of the costs of incarceration including the costs associated with tether.

Also, in this very tough economy fewer non-violent offenders will lose their jobs because there is almost no delay between the date of sentencing and the date the offender is actually back at work. With the old program this delay was as much as five to seven days. Now the delay is as short as one to two days tops. There is also no limit to the number of offenders that can be on the program at any one time.

Furthermore, violent offenders are not eligible to participate, and public safety will be further enhanced through random drug and alcohol testing conducted through the Sheriff’s Office Results Program.

As a consequence of these changes and improvements, offenders will be better able to pay back their fines and costs, including restitution and costs of prosecution. Additional savings may come in more defendants deciding to forgo trial in favor of a plea of guilty. When a defendant realizes that they will be able to keep their job and even stay at home during non-work hours the incentive to go to trial is significantly lessened. This will undoubtedly save the costs associated with trial for those individuals who know they are guilty but could not plead guilty for fear of losing their job, their car or even their home.

For all of these reasons, nearly all of the judges have been very receptive to and even excited about the new program. According to Undersheriff McCabe only a small minority have expressed reservations. He expects many of these reservations to diminish once the new program becomes better know and its benefits more fully realized by the participants.

Beginning in January 2010 the “old” non-virtual work release program will be phased out. Inmates sentenced to the old work release will be required to complete their sentence. Their sentencing judge will be contacted for approval to convert the sentence to a tether custody Work Release. If granted, the inmate will be placed out on tether. If not, the inmate will complete their sentence in the Work Release facility. However, there will be an effective date set whereby after that date all Work Release sentences will be a tether sentence. Only inmates finishing up an old Work Release sentence that a judge did not approve tether will be housed in the Work Release Facility.

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Monday, January 25, 2010

What's In A Name? Detroit Injury Lawyer Sues His Own Firm

Detroit personal injury lawyer Lawrence Charfoos has sued his former law firm, Charfoos & Christensen PC, in the Oakland County Circuit Court.

In his complaint against the firm he helped build, Charfoos seeks injunctive relief to prevent the continued use of his well-known name, as well as money damages for fees he claims are owed.  The case was filed on Friday and assigned to Judge Wendy Potts.

Since 1991, the personal injury firm has owned and occupied the historic Hecker-Smiley Mansion on Woodward Avenue, pictured above.  The law firm has represented personal injury clients since 1929, when Charfoos' father hung a shingle in Detroit.

In the 1970s, Charfoos, having followed his father's footsteps, gained prominence for winning a series of multi-million dollar jury verdicts in product liability and medical malpractice lawsuits.  According to pleadings filed in the case, Charfoos teamed-up in the late 1970s with his now-former partners, David Christensen, and Dennis Archer.  When Archer left the firm to accept an appointment to the Michigan Supreme Court in 1986, the official name became Charfoos & Christensen, PC.

Under this name, one of the firm's partners, J. Douglas Peters, co-authored a widely-used practice manual on birth trauma cases featured in monthly full-page advertisements in the Michigan Bar Journal over the past several decades.  Christensen's name is also associated with the book, along with the name of the firm.

Last fall, Charfoos announced to his partners that he was leaving the firm that he helped build in his own name. Crain's Detroit Business reported in October 2009 that the firm's name would not change despite their founder's sudden departure.

Apparently, the Detroit personal injury lawyer has now teamed-up with former Wayne County Circuit Court Chief Judge William Giovan and immigration attorney Robert Birach.  The problem arises now that the group of well-seasoned attorneys has announced the name of their new firm:  Charfoos, Giovan & Birach LLP.  Thus for the time being, two Detroit-area law firms bear Charfoos' good name; hence his lawsuit.

In addition to Charfoos' litigation, there are also ethical considerations for the Christensen firm to consider.  The name of the firm cannot mislead the public.  With two law firms bearing the Charfoos name, the public is understandably confused, if not misled.  Simply click on the links in this blog post to see for yourself.

What's in a name?  Stay tuned to find out how valuable a well-known name can be...

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Saturday, January 16, 2010

Supreme Court and the NFL: Court Examines the Business of Football

With play-offs now underway, the National Football League also is involved in litigation over how it can license NFL team logos. The case, American Needle v NFL, is in federal court and has gone all the way to the U.S. Supreme Court.

Following oral argument last week, it was painfully clear that the nine justices on the high court do not spend much time watching football; not necessarily a bad thing. High court observers believe the Supreme Court may remand the case back to the federal district court in Chicago to clarify the issues in the suit.

The dispute arose in 2004 when the league switched companies, from American Needle to Reebok, granting the latter a non- exclusive apparel license to sell hats, jerseys and other apparel. The NFL has had a history of utilizing only one company at a time relative to apparel production. Until 2004, American Needle had the contract.

The issue on appeal is whether the NFL (and the 32-teams making up the league) is a “single entity” under the Sherman Antitrust Act, and therefore immune from that Act’s ban on monopoly-style pricing. American Needle asserts the NFL’s move to Reebok violates the anti-trust law because it is a network of separate business entities (individual teams) that have conspired to stifle competition and raise prices.

Both the trial court and the Seventh Circuit Court of Appeals sided with the league in ruling that the NFL was a “single entity” that could forge exclusive licensing deals, regardless of the effect on pricing.

Implications for the high court’s ultimate decision have less to do with headwear than with how the league could treat players’ unions and how other leagues can leverage their power as a “single entity” over their respective players. Both the NBA and the NHL have filed amicus briefs in the case.

While the nine justices may not be aware of what is at stake for teams like the New Orleans Saints and the Indianapolis Colts this weekend, at oral argument they seemed to suggest the adoption of a “rule-of-reason” inquiry, whereby each specific anti-trust challenge is tested in court. Of course, the NFL would prefer a bright line, outright immunity that would spare it the expense of future lawsuits.

The high court’s decision on the case is expected shortly. While most NFL fans will be oblivious to the outcome of the litigation, they will purchase hundreds of thousands of caps and jerseys this month and next.

Update:  05/24/2010 - As SCOTUS winds down its session, it decided American Needle v NFL in a 9-0 decision against the NFL.  Here are some links to immediate analysis of the decision from the Los Angeles Times and the SCOTUS Blog.

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Thursday, January 14, 2010

What are they Smoking?

This post is the original content of The Michigan Lawyer which is the official blog of Michigan Lawyers Weekly:

What are they smoking?  That’s what Detroit-based Cannabis Counsel lawyer Matthew Abel is asking of the Michigan Senate Judiciary Committee, who is meeting next week to discuss a package of bills which would amend the public health code so that medical marijuana must be dispensed by pharmacists, and to classify medical marijuana as a schedule 2 controlled substance.

“It seems that if the legislature ever passed these bills, they would be in conflict with the medical marijuana statute,” Abel said. “So they’d need a 3/4 vote to supercede the law, and you know that they can’t even get 3/4 of the legislature to agree on lunch, let alone this.”

Southfield-based lawyer Michael Komorn, who also serves as the treasurer for the Michigan Medical Marijuana Association, said the bills are similar to bills introduced last year; last year, the bills which also would have allowed for 10 marijuana growing facilities to be affiliated with a pharmacy, got no traction.

This year’s incarnation of the bills would essentially make all production of medical marijuana illegal, though use would still be protected by law, Komorn said.

“It’s like the stamp act, arcane and without any understanding of what really is going on with patient needs,” Komorn said. “Bottom line, this is an attempt ot repeal the Michigan medical marijuana act.”

It’s impossible, Abel said, to require dispensing of medical marijuana through pharmacies.

“They don’t have a supply, and no way to get it. There’s just no way for them to do it,” Abel said.

Still, he’s resting easy with the idea that the bills are going nowhere, and are really more about grandstanding for political popularity than they are about the Michigan medical marijuana law.

The committee will take up the bills Jan. 19, 1 p.m., in room 210 in the Farnum building in Lansing.

Law Blogger Note: The Michigan Medical Marijuana Act is the subject of a post in the electronic criminal lawyer blog.

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Sunday, January 3, 2010

2009 Michigan Child Custody Update

This post summarizes some of the more interesting 2009 family law decisions from the Michigan Court of Appeals dealing with child custody.

In 2009, the Court of Appeals looked at the interplay between the juvenile code and the child custody act in two important cases.  The first case discussed was published and thus binding precedent; the second case is unpublished and does not bind subsequent courts in Michigan.

In a case from Wayne County, In the Matter of A.P., Mother had sole custody of her child from a paternity action.  She was accused of abusing the child.  The resulting juvenile proceedings re-introduced the child’s biological father into the child’s life.  In the lengthily proceedings, the juvenile court’s rulings intersected and conflicted with prior orders from the family court.

The Court of Appeals held that the juvenile court supersedes the family court:

Once a juvenile court assumes jurisdiction over a child and the child becomes a ward of the court under the juvenile code, the juvenile court’s orders supersede all previous orders, including custody orders entered by another court, even if inconsistent or contradictory. In other words, the previous custody orders affecting the minor become dormant, in a metaphoric sense, during the pendency of the juvenile proceedings, but when the juvenile court dismisses its jurisdiction over the child, all those previous custody orders continue to remain in full force and effect. 
 DHS v Gunther is significant as it also addresses jurisdiction via the juvenile code over children that are already under the jurisdiction of the family court.  In this case, Mother had “physical custody” of the parties’ children resulting from a divorce judgment.

The Gunther children came to the attention of DHS due to school truancy allegations resulting in temporary placement of the children with their father.  Mother moved for their immediate return, asserting that the juvenile court referee could not alter the children’s “established custodial environment” without first conducting a hearing, as required by the Child Custody Act.

Again, the Court of Appeals held that once a juvenile court assumes jurisdiction over a minor pursuant to the juvenile code, the juvenile court’s orders supersede all other previous orders; including those issued from a family court.

In Pobanz v Pobanz, the Court of Appeals decided the issue of whether a 17-year old could be court-ordered to participate in parenting time within the context of a custody challenge.  As in the two other cases discussed in this post, Pobanz also featured a co-occurring neglect petition in the juvenile court. 

The trial court stated that it would not force a 17-year to participate in parenting time when she stated that she did not want to see her Father.  Although the Pobanz panel agreed with the trial court that a seventeen year old’s reasonable custody preference is given wide-deference, it held that the lower court erred by not conducting an evidentiary hearing to determine whether the many other statutory factors supported the decision.  The case was sent back to the Huron County Family Court to conduct the hearing.

Surprisingly, the Court of Appeals allowed the trial court to change judges based on the subsequent juvenile case.  The family court judge was first assigned to the Pobanz family in the divorce proceedings, but the trial court transferred the divorce, and Father’s custody motion, to the judge presiding over the subsequent juvenile proceedings.

This ruling is interesting in that it seems to violate the “one family, one judge” concept set forth in 1996 with the creation of the family courts across the state.  According to the reorganization statute, multiple cases involving the same family were all to be assigned to the first judge in the county assigned to that family.

In Bonner v Bonner, the Court of Appeals decided the issue of whether a child could be compelled to testify at hearing on his parents’ competing change of custody motions.  The case featured the open-court testimony of the parties’ minor child, limited to matters of alleged abuse by the Mother.

The case is most interesting for featuring the testimony of a well-respected psychologist that had observed the parties and child at the court hearing(s).  The psychologist then provided testimony to the family court as to his observations of both parents and the child.  Note: The family court judge did not find the child’s testimony about the conditions of his Mother’s home to be credible.

Also, the case is significant in that a child was compelled to testify in order to satisfy his parents’ right to due process.  Unlike in camera testimony of children called into a judge’s chambers to express their custodial preference under seal, this case featured the open-court testimony of a son against his own Mother.

Next, the Court of Appeals, in Roguska v Roguska, examined whether a family court could reject a settlement agreement on custody reached at court-ordered mediation by both parties and their respective attorneys.  In that case, the Mother subsequently attested that her husband lied during mediation, that she and her husband had serious communication problems, and that she subsequently obtained a PPO against the husband.

The Roguska panel held that such facts freed the family court from having to follow the settlement agreement on the custody issue.  In cases of domestic violence, arbitration and mediation are allowed, but disfavored due to the coercion that can sometimes be brought to bear against the victim of abuse.

The case of Hoeve v Hoeve continues the series of Court of Appeals decisions holding that the parents' school-district decision may be, by itself, proper cause to change custody.  In Hoeve, the pre-school child spent week-on-week-off with mom and dad.  Father sought and was awarded sole physical custody, however, once the child became eligible for kindergarten.

The parents lived about 70-miles apart.  Father's motion to acquire sole physical custody succeeded at trial and was affirmed on appeal.

According to family law appellate attorney Scott Bassett, the Hoeve case suggests that parental school choice disputes is the "new frontier" in child custody litigation.

This is a summary of what came out of the Court of Appeals on matters of custody in 2009.  Many other decisions addressed the important issues of domicile and parenting time which will be addressed in future posts.

Only time will tell what 2010 will bring.

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