If your Halloween plans for today include any heavy drinking, think twice before getting behind the wheel.

Persons caught operating a motor vehicle after bing-drinking, or with a high tolerance for alcohol, will face stiffer penalties starting today.  If a driver's blood alcohol (BAC) is measured at more than .17 grams per 100 milliliters, (more than double the legal limit) then the new enhanced penalties will apply.

Those penalties include a one-year license suspension for first-time "super drunks"; an increase in the potential maximum jail sentence from 93-days to 180-days; higher fines; and mandatory use of an "ignition interlock" device.  The new law also features the longest alcohol rehabilitation treatment requirement on the books; one-year.

Once a conviction under this new law is abstracted to the Secretary of State, the driver's license will be suspended for one-year.  After a 45-day "hard suspension" where all driving privileges are suspended, a person can apply for restricted driving privileges for the balance of the year provided, however, that an " ignition interlock" device has been installed in the vehicle.  Under the old law, the hard suspension was only for 30-days and there was no interlock requirement.

Installing an interlock device will cost you about $50 and up to $100 per month to maintain.

Also, there are new penalties created under the Super Drunk law relative to operating an "interlocked" vehicle with a BAC of more than .025.  If a driver's probation is violated in this fashion, the Secretary of State will double the driver's license restriction by imposing a new 365-day suspension from the date of violation.

Beware if you lend your vehicle to a convicted Super Drunk on probation.  The new law requires impoundment and immobilization of any vehicle driven by a person under interlock restriction that is caught operating a vehicle without the device.  The owner of the vehicle is responsible for impoundment and storage costs.

Only time will tell whether this new law results in safer roadways.  There is no doubt that the tougher drunk driving laws implemented over the past 20-years have reduced (but not eliminated) drunk-driving related injuries and deaths.

One concern from within the trenches is how county prosecutors will use the new law in their charging decisions at district court.  Last year, the Oakland County Prosecutor stopped offering the lesser included offense of impaired driving to those charged with drunk driving.  This blog wonders whether a Super Drunk first offender will be offered a plea under the standard "Operating While Intoxicated" law, thereby avoiding the new interlock costs and restrictions as well as the other enhanced penalties.

If such plea reductions are not tendered under appropriate circumstances, the new law could result in many unnecessary jury trials.

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One of the saddest things in a divorce proceeding is when a parent moves the family court for permission to change the domicile of the minor children.  When that occurs, not only is the family rocked by the initial shock of divorce, the future relationship with the parent left behind is placed in jeopardy.

A case from Clarkston, MI is instructive on the factors considered when such a motion is brought before the family court judge.

In Sunde v Sunde, mother petitioned the court to change domicile.  After considering evidence presented during a hearing on the issue, Family Court Judge Mary Ellen Brennan denied the motion.  Although mother's application for  leave to appeal was denied by the Court of Appeals, the Michigan Supreme Court issued an order remanding the case to the family court for further evidentiary proceedings.

Specifically, the Supreme Court found that the lower court record was incomplete because evidence of domestic violence was not proffered.  Domestic violence is one of the five statutory factors the family court must consider when deciding a domicile motion.  The high court also instructed the lower court to consider "up-to-date information or evidence of other changes in circumstance arising since the trial court's most recent order."  The first time around, the parents' attorneys did not make these requisite offers of proof.

Essentially, the Supreme Court has allowed mother a second evidentiary bite at the "domicile" apple.  The fate of the Sunde children continues to hang in the balance.

As in all family court cases that are brought to trial, the family court judge is charged with deciding what is in the children's best interest rather than weighing the competing interests of the parents.  Hopefully, after hearing all the evidence on each statutory factor, the path becomes clear to the judge.

This case pits long-time Clarkston-area attorney Lawrence Russell against Ann-Marie Okros, also from the Clarkston area.

Our firm has an excellent track-record of prevailing in domicile trials.  If you or a family member would like a free consultation on this, or any other family law issue, use the contact information below to schedule an appointment.

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One of our concerns here at the Law Blogger is that the Michigan voting public does not know much, if anything, about the candidates for the Michigan Supreme Court.

Supreme Court Justice Robert P. Young, Jr.'s seat is up for grabs in this election.  This is one of the most important races in this Tuesday's election.

In addition to Justice Young who is trying to remain among Michigan's top jurists, three trial judges are vying for the spot.

The Detroit Free Press has posted interviews with all 4 of the judicial candidates.  The interviews are linked below for the convenient reference of our readers.

This post ties into our post from last week, discussing whether our judges should be elected at all. Presently, our state constitution calls for all judges to be elected on a non-partisan ballot.  Our concern is that voters do not have any idea for whom they are voting when it comes to the non-partisan ballot.

This also was the concern of our fellow Oakland Press blogger and political pundit, Tim Skubick, in his recent post to Skoop's Blog.

Therefore, we thought it would be a good idea to try supplementing the publicity of the Freep interviews of the four Supreme Court candidates.  Please listen to the candidates before you vote on Tuesday.

Judge Denise Langford Morris

Judge Mary Beth Kelly

Judge Alton Davis

Justice Robert Young, Jr.

These links are supplied courtesy of the Michigan Lawyer; the excellent blog of the Michigan Lawyer's Weekly, a law-related newspaper.

This is a post from the State Bar of Michigan's official blog.  The post is the original content of University of Indiana School of Law Professor Gerard Magliocca.

Not that this would ever happen in Michigan, but Prof. Magliocca guest blogs at Balkinization on the constitutional implications of a state going into default, in "Too Big To Fail" States".  He says we better get ready, especially for a default by a big state:

The prospect that a state like California might default or need a bailout raises two interesting constitutional questions. The first is whether Congress can attach conditions to a bailout that would require a state to undertake substantial reforms of its constitution. I think the answer is yes. Under South Dakota v. Dole, Congress has broad authority to place strings on the receipt of federal money so long as there is some relationship or germaneness between the money and the terms. After all, the state is always free not to take the funds.

 

The much harder question is what happens if a state threatens to default unless it gets a bailout. In the case of a small state, this is not much of a threat. A default there would not cause any systemic problems. If California or another large state defaults, however, that's a different story. These states may be "too big to fail." What's worse, they know this. It is clear that Congress cannot just order a state not to default--that would run afoul of New York v. United States and the Tenth Amendment. Thus, if California comes to Congress for a bailout, the state is the one with the leverage. ("Give us a bailout on generous terms or else.") In effect, this would create the possibility of a "reverse unfunded mandate"--the federal government picking up the tab for a profligate state.

 

What can be done to address this issue? One possibility, I suppose, is that Congress could declare that a state in default is not "a republican form of government" under the Guarantee Clause and then order them not to default. That's a pretty heavy lift though, especially since states that defaulted in the past were never considered "not republican." The other thought is that Congress could threaten to withhold other federal spending from a renegade state. Would this be constitutional? I'm not sure. There's a difference between saying to a state, "Here's a gift with some conditions. Take it or leave it" and saying "Here's a gift. Take it or else we are going to kick you in the teeth." Nevertheless, that might be the only way to make a default so costly for the state that it would have to accept a bailout under stringent terms.

 

One reason we got into trouble in 2008 is that there were no default rules (or analysis) in place when "too big to fail" financial institutions started to fail. We'd better not make the same error when it comes to state governments.

This content is the original content of the Michigan Lawyer, the official blog of the weekly law-related newspaper, Michigan Lawyer's Weekly.  The title of their post is, "A Lamentable State of Affairs". 

When it comes to the workings and personnel of the third branch of government, the Michigan Supreme Court in particular, people who should have at least a rudimentary grasp of the subject don’t. And folks who attempt to keep up are frequently confused.
Three vignettes for your consideration:
Jack Lessenberry, a commentator for Michigan Public Radio, recounted this story last Friday:

Rick Snyder, the Republican nominee for governor, was asked on television if he knew who the chief justice [of the Michigan Supreme Court] was. He said he didn’t know how to pronounce their name.Their name happens to be, by the way, Marilyn Kelly.

Absolutely unpronounceable.
***
Friday evening, I was at a neighborhood party. I was introduced to a Lansing City Council member. We exchanged pleasantries and discussed a recent brownfield development potboiler that’s received some play in the local media.
I was asked what I do. I explained in general and commented about the upcoming Michigan Supreme Court election and the irony of a constitutionally mandated nonpartisan judicial ballot and the highly charged political atmosphere that goes along with it.
My comment drew this response: “Election? Aren’t they [the MSC justices] appointed for life?” I explained that federal judges are appointed for life and that in Michigan, many judges start their judicial careers via gubernatorial appointment but then face election if they want to keep their seat on the bench.
“Oh, of course. Of course,” was the muted reply.
Of course.
***
Saturday afternoon, I and a family member took a break from household chores to catch some collegiate football on the tube. (How ’bout those 7-0 Spartans?)
During a break in the action, on came an ad touting Robert Young and Mary Beth Kelly for the Michigan Supreme Court. It featured sound bites from ordinary-looking folks explaining why the two will be getting their votes.
When it was over, I said, “We’ll be seeing a lot of that for the next two weeks.”
“Wait a minute. What’s she doing running with him?”
“What do you mean?” I replied.
“Well, Kelly’s a Democrat and Young’s a Republican. What’s going on here?”
“Marilyn Kelly is a Democrat, and she’s already on the court. She’s the chief justice. She’s not up for election this time around. Mary Beth Kelly is a Wayne County judge. The Republicans nominated her.”
“Well, that’s pretty confusing.”
Just as intended.
***
Some years back when Michael Cavanagh was the MSC’s chief justice, he was fielding reporters’ questions following a budget presentation to the Legislature. Asked to justify his funding request, he replied with just the slightest tone of exasperation, “Look, we’re not talking about garbage collection. We’re talking about the third branch of government.”
It’s tough to fault someone for not knowing the names of the guys who pick up the trash, or exactly how the refuse truck works or where the landfill is located.
It’s less easy to forgive those in the political arena for not having at least a high school civics class understanding about the judiciary and who populates it at the highest level.
And pity the poor voter. Except for the most motivated, the average voter makes choices on the judicial ballot, if at all, armed with a fund of information gleaned from the media.
And, for the most part, what’s available are ads, commentary and editorials chock-full of banalities, sound bites and half-truths.
It’s tough to know whether to laugh or cry.

In this era of tightening fiscal budgets, more municipalities are chopping their police forces.  Last summer, it was Clarkston; this fall it's Pontiac.

Oakland County has one of the more developed law enforcement organizations in the state.  Although the Sheriff too has undergone cuts, it continues to pick-up coverage area.

In the case of Pontiac, Chief Val Gross has been ordered to provide a transition plan by this Tuesday.  Apparently a memorandum of understanding has been executed between the Sheriff and the City of Pontiac.

According to Michael Stampfier, Pontiac's emergency financial manager, the primary law enforcement shift will save the city over $2 million annually.  The shift is slated to take effect for all services, including police dispatch, in January 2011.

In 2009, the Sheriff axed its Marine Division to cut costs.  Picking-up coverage of the City of Pontiac will further stretch the Sheriff's budget.  It is unclear what, if anything, the Sheriff will get out of the arrangement other than increased coverage responsibility within the County.  What is clear, however, is that the move appears necessary for Pontiac in order to stave-off financial ruin.

Some Pontiac residents oppose the move, calling on the Pontiac Police Department's union to block any further cuts in manpower.  They prefer the close relationship that is possible between residents and a municipal police force.

The City just recently completed the process of calling back many of officers and personnel laid-off last year.  The officers have made significant concessions over the years; they have not had a raise, for example, since 2003.  Unfortunately for the officers, the coverage shift will put the onus back on a force-reduction status.

Working for the state or local government in this era of Great Recession does not afford police officers, or other workers with job security.  Hopefully, this adjustment to the delivery of law enforcement services to the residents of Pontiac will not affect the quality of service.

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Last March, we posted on the ACLU's constitutional challenge to Michigan's court-appointed attorney system. Duncan v Michigan was then heading for oral argument before the Michigan Supreme Court and it looked like the challenge was going to acquire some legs.  Here is an update.

After hearing arguments in the case in April, the Supreme Court at first affirmed the 2-1 decision of the Michigan Court of Appeals, sending the matter back to the Ingham County Circuit Court (the trial court) for further trial proceedings to determine whether our court-appointed criminal defense system supplied criminal defendants their constitutional right to legal counsel. The Supreme court held that it was too early to dismiss the case below and the Ingham Circuit Judge did so prematurely.

The Supreme Court reversed course in July, granting the Attorney General's motion for reconsideration, vacating its previous order, and expressly adopting Judge William C. Whitbeck's 35-page dissent in favor of dumping the case at the summary disposition level.

What changed? What happened?

The high court was divided 4 justices to 3 on this reversal, with Justices Corrigan and Young joining Justice Markman's statement of concurrence. The majority simply pronounced that their prior order was wrong.  Four justices held that allowing the case to proceed further would amount to having the judiciary inappropriately determine Michigan's system of local funding and control of legal services to indigent people.

Justices Cavanagh and Hathaway joined Justice Marilyn Kelly's dissent, claiming that the certified class of litigants did have a "justiciable" action; that nothing new had been raised on reconsideration to justify reversing the high court's prior order; and that, "[t]oday's order slams the courthouse door in plaintiffs' face for no good reason."

Among others, we here at the Law Blogger eagerly anticipated seeing how the proofs would have developed regarding the delivery of legal services to the poor people of neighboring Genesee County. For the moment, however, and probably forever, the appellate courts have passed on deciding the issue.

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Judge Wendy Potts has been conducting an interesting pilot program on the jury process in Oakland Circuit trials.  She maintains the only courtroom in one of Michigan’s busiest venues where jurors are encouraged to submit written questions to witnesses, take notes during the trial, and discuss the case during their morning and mid-afternoon breaks.

Once the jury is empanelled, each juror is provided a notebook with all the jury instructions and, in civil cases, a set of stipulated trial exhibits for their convenient reference (or distraction) throughout the trial. 

The jurors welcome the opportunity to interact with the input of proofs.  Judge Potts instructs jurors to avail themselves of the opportunity to submit written questions to each witness called to testify.   

These are significant modifications to the “classic” jury trial in Michigan.  In other county trial courts, jurors are expressly instructed not to discuss the case with anyone during the trial (which may take several days, even weeks).  In the classic jury trial model, jurors must keep the facts of the case to themselves until they retire to the jury room for deliberations with their chosen colleagues.  Nor are jurors usually given notebooks to write down their thoughts.

In Judge Potts’ court, however, jurors are encouraged to take a stab at figuring out just what is really going on by writing out their own questions at the conclusion of examination by the attorneys.  Judge Potts fields the written questions and discusses them with the lawyers in a bench conference to determine whether the question(s) should be posed to the witness.  

This has an obvious effect on how the proofs of the case are submitted to the jury.  Once the attorneys complete their scripted examinations, the jurors have the opportunity to follow-up.

Instead of keeping what they have just seen and heard to themselves for the duration of the trial, they are permitted to discuss the testimony, as it unfolds; including the answers to their own questions. 

No such a thing as a “dumb question”, right… 

On Thursday and Friday of this week, I had the opportunity to sample Judge Potts’ experimental jury trial method in a criminal felony case.  At least one juror had a question for every witness.  Judge Potts asked the attorneys at the bench whether we wanted the question posed to the witness.  

While I did not mind the (benign yet telling) questions posed by the jurors, it concerned me, as defense attorney, that the jurors were free to discuss the case while the proofs were going in.  

But would jurors, so encouraged, seek other means of obtaining information about the case?  Perhaps they would Google the names of witnesses or the attorneys.  Judge Potts expressly warned them not to do this.

It is in the nature of trial attorneys to want control of the information being submitted to the fact finder.  After all, ours is a results-oriented business.  

In the jury trial that concluded today, my client was acquitted.  It was difficult to tell weather the innovations had any effect on this outcome.

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Honorable Edward Sosnick

Since we last addressed this topic, some things have changed.  Although former 51st District Court Judge Phyllis McMillen is now installed at 1200 N. Telegraph, she was assigned to a general docket courtroom (civil matters and criminal felonies) rather than the Family Court Division, as we previously reported.

Also, Oakland County Family Court Judge James Alexander did not take over departed Judge Mark Goldsmith's docket but rather, is scheduled to "swap dockets" with long-time Oakland County Circuit Judge Edward Sosnick.

The last time Judge Sosnick handled a divorce was prior to the statutory creation of the Family Court back in 1998.  As a seasoned jurist, however, he will acclimate quickly to the divorce docket as he rides-out his last two years on the bench.

Finally, long-time Oakland Family Court and Probate Judge Eugene Moore is retiring from the bench at the end of the year.  His replacement will be determined via the November 2 election between candidates Kathleen Ryan and Dana Hathaway.

If you lose track of your newly assigned judge, reassignments can be tracked by using the Oakland County Circuit Court's Court Explorer.

Be sure to vote on November 2, and don't forget to make your selection for judge on the non-partisan ballot!

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The United States Supreme Court (SCOTUS) opens it's 2010-2011 term Monday morning, October 4, 2010, with a new justice in its chamber, and one of the more politically charged dockets in recent times.

The SCOTUS bench will feature three sitting female justices for the first time in it's storied history.  Seems like just yesterday that President Obama installed Sonya Sotomayor on the bench.  On Monday, Elena Kagan takes the bench for the first time.

One of the more electrifying cases selected by the Court for argument this term is Snyder v Phelps.  This case addresses free-speech under the First Amendment in the context of protesters picketing near the funeral of a Marine killed in Iraq.

The father of the slain Marine from Maryland, Albert Snyder, won an $11 million jury verdict against the Westboro Baptist Church of Topeka, Kansas.  The case wound-up in federal court on the basis of diversity jurisdiction (all parties being from different states).  The verdict was reversed on appeal to the 4th Circuit on First Amendment grounds.

The Westboro Baptist Church, "practices a 'fire and brimstone' fundamentalist religious faith" according to the 4th Circuit.  The church asserts that God hates gays, and is punishing America for its tolerance of gays; particularly in the United States military.   Hence, the protests at military funerals.

The determined crusaders from the small mid-American church are mostly the family and friends of the church's founder and only pastor, Fred Phelps, Sr.  His daughter will be arguing before the SCOTUS on Wednesday.  Meanwhile, Mr. Snyder is represented by Craig Trebilcock, a University of Michigan Law School graduate whom I had the pleasure to know as a fraternity brother at the UM in the early 1980s.

Both positions in this case are supported by an impressive array of amicus briefs.  More than 40 U.S. Senators and the Veterans of Foreign Wars supported Petitioner Snyder with their briefs, while the ACLU and the NYT, among many others, filed briefs on behalf of Pastor Phelps and his lawyer daughter.

Other interesting cases include Schwarzenegger v Entertainment Merchants Association, also involving the First Amendment in the context of selling violent video games to minor children.  In another case from California, Schwarzenegger v Plata raises the issue of the horrible overcrowding of the penitentiaries which led a panel of federal judges to release nearly 40,000 inmates.

The LawBlogger will be tracking these cases and we will be providing updates in the weeks and months to come.

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A new version of a "New York minute", or just another sign of the times? A law firm in New York City is offering clients divorce in under an hour, and for less than $500, not including filing fees, courier expenses, and other fine print.

For the low fee, clients meet with a paralegal and lawyer at the NYC firm to provide their personal information.  The details of their settlement are also, briefly, discussed.

The clients are next provided a ten dollar gift certificate to either McDonald's or Starbucks to burn-up the last hour of their ill-fated marriage while the law office prepares the canned document package for a "one-size-fits-all" divorce.

You cannot have issues, however, or it will cost you extra. The basic premise is that the divorce has to be absolutely 100% "pro confesso" (i.e. uncontested). Basic input is collected from the client and a set of pleadings are prepared within the alotted hour. A judgment is generated and executed for entry and filing with the court at the appropriate time, usually six months.

Hopefully nothing changes during the statutory wait period, or all bets are off. Also, under general rules of legal ethics, the firm could not represent both parties to the divorce; but they've apparently figured out which one is their "client".

If the divorcing couple has children, property, or needs support, these issues can be handled in an hour; but will cost more than double. A Prenuptial agreement would all but disqualify the client from the discount program, although a "conventional" divorce would still be available.

Perhaps the firm is onto something; anyone facing the stress and uncertainty of divorce will appreciate speed of service combined with an affordable price package.  The potential for a conflict of interest, however, is troubling.  Also, when something this important is done this fast, regrets are par for the course, and in some cases, missteps will be taken by either the client or the firm from Gotham.

If you are facing the stress and uncertainty of divorce, our law firm provides excellent service for reasonable fees.  We would be happy to provide a free legal consultation.

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