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: info@clarkstonlegal.com

Sunday, December 26, 2010

100th Post - Thank You Readers!

We here at the Law Blogger would like to thank the Oakland Press, and our readers for the opportunity to disseminate our posts on the developing legal issues of our day, as they occur.

On average, this blogs receives 75 daily page views.  Sometimes, readers are motivated to comment.  The comments tendered often provide a fresh look at the subject from a completely different point of view.  They also provide insight into how we've treated a subject.

We value your comments.  Please keep them coming.

Interestingly, in our two-year history of 100-posts, the one about Cooley Law School's sponsorship of the former Oldsmobile Stadium received the most comment from readers.  Although posted back in February, we still receive the occasional comment on that post.

This blog first posted on March 30, 2009.  The topic was a Michigan Court of Appeals decision to address a parenting dispute between a lesbian couple.  Since then, the blog has featured many posts on the same-sex marriage issue.  Other recurring themes have included the Michigan Medical Marijuana Act, decisions of import (in our opinion) from the Michigan Supreme Court and SCOTUS, the Second Amendment, the Fourth Amendment's search and seizure case law over the past two years, family law issues, and many other topics we hope that you find useful, or at least interesting.

In the posts, which we try to keep relatively brief but of a varying length, we link to original documentation whenever possible.  Also, we make every effort to get out at least two posts each week; three posts if possible.  Some of your comments have expressed approval of this model.

There are a sea of blogs out there on every topic imaginable; particularly legal topics.  We hope that the fleeting time you have to spend checking your various news feeds throughout the day is worthwhile when you alight upon our blog.

With the lighting-fast pace of developments on the Internet, -newsfeeds, social media, aggregated search tools, mirco-blogs- some of the pundits now wonder if blogs have been relegated to the "old school".  Not so, says one of the premire law bloggers, Kevin O'Keefe.  His recent post emphasizes the importance and value of a good law blog.

Most law students and legal professionals now keep current with developments via subscriptions to various law blogs.

As always, if you have any suggestions or comments, we welcome you to post your ideas to this blog, or by contacting us electronically.

Above all, thanks again for taking a moment to read our posts.  Without you, the reader, this blog is nothing.

For our part, we aim to keep the fresh, relevant legal content posted to this blog.

info@clarkstonlegal.com

www.clarkstonlegal.com

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Tuesday, December 21, 2010

Michigan Supreme Court Affirms Father's Child Support Obligation Even When Parental Rights Terminated

There has been some buzz among family law practitioners this week concerning the Michigan Supreme Court's decision in the DHS vs Beck case.

Earlier this year, we posted on the Michigan Court of Appeals decision that held a father, whose chronic drugging resulted in the complete neglect of his children and termination of his parental rights, nevertheless remained obligated to pay child support for his two children.  The published Court of Appeals decision was just affirmed by the Michigan Supreme Court.

This case arose from the Oakland County Family Court; it was Judge Martha Anderson that initially terminated Mr. Beck's parental rights while also affirming his obligation to pay child support.  Both parents had been abusing drugs so their two children were placed with grandparents.  For her part, the mother  got straight, and otherwise complied with a DHS parenting plan; she now has the children.

The Supreme Court's Beck decision is remarkable in that it is the first decision to be issued by the Court in the current term.  Also, although the decision affirms the holding of the Court of Appeals, it does so on grounds different then those relied on by the intermediate appellate court.

The father in Beck did not appeal the termination of his parental rights; only the family court's ruling that he remained obligated to pay support for his children.  On appeal, the father argued that he was denied due process because he was arbitrarily deprived of his property (i.e. his support payments).  Like the intermediate appellate court, the Supreme Court was not convinced, ruling that the father failed to articulate how, exactly, his due process rights were implicated.

One of the issues to arise in the Beck case was that the parental termination provisions of the Juvenile Code are silent as to the corresponding "parental responsibilities".

The Court analyzed the rights and duties implicated by a family court's decision to terminate parental rights while continuing to obligate support payments.  Michigan common law has long established a minor child's right to support from both parents.  The appellate courts also recognized a parent's right to the "companionship, care, custody and management of his or her children."

In affirming the Court of appeals, the Supreme Court not only separated parental "rights" enumerated in the juvenile code, from the duties set out in the Child Custody Act, it also held that parental rights contained in the Custody Act were distinct and thus independent from the duties created by that same Act.

Of note in the dicta of the Court of Appeal's decision was an express acknowledgment of the current "times of difficult financial circumstances."  The Beck panel realized that in such difficult economic times, public policy is served by not shifting all support and maintenance obligations onto the custodial parent or, in some cases, the state.

This is the right decision.  If getting high is more important to a father than parenting, the rest of us should not have to pick-up the slack for that father and supply public benefits for such a man's children.  He should pay as well, even if he can no longer see his children.

Such are the choices we make in life.

info@clarkstonlegal.com

http://www.clarkstonlegal.com/

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Saturday, December 18, 2010

Bloomfield Hills' Medical Marijuana Ordinance Challenged in Lawsuit

Bloomfield Hills passed an ordinance in October requiring card-carrying certified medical marijuana users to register with the Bloomfield Township Police Department. The ordinance also requires the submission of a form to the police disclosing the “patient’s” drivers license number and date of birth, whether the patient owns or rents their home, and identifying how many other patients share their home.

In addition, the ordinance limits the number of medical marijuana patients that can live at one address and prohibits growing medical marijuana anywhere in Bloomfield Township. Violation of the ordinance is a 93-day misdemeanor carrying a $500 fine.

Bloomfield Hills is among several municipalities that have passed ordinances that restrict the provisions of the Medical Marijuana Act, criminalize conduct authorized by the Act, or both.

Now the ordinance is the subject of a lawsuit filed against the township by two crafty [their “clients” are John and Jane Doe] veteran criminal defense attorneys: Tom Loeb and Neil Rockind. The lawsuit, undoubtedly heading to the Michigan Supreme Court, does not seek money damages but rather, declarative and injunctive relief.

Township by township, the MMA is coming under fire for a glaring flaw: it is a ruse for recreational pot users. Yes, there are legitimate medical marijuana users out there, in spades, for whom the MMA was designed to help. There are also many “patients” whose medical records were reviewed with a passing glance by a physician more interested in the high-volume review fees than in determining whether the person has a genuine chronic medical condition of the sort required by the MMA. The LawBlogger wonders how many certified users, among the tens of thousands of backlogged applicants, are under the age of 25; or are college kids whose only chronic condition is their desire to party down.

As these legal challenges grind through the court system over the next two or three years, the MMA will be subject to death-by-ordinance on a township-by-township basis. Attorneys Rockind and Loeb remarked in their press conference announcing their lawsuit that the ordinance in Bloomfield Hills cannot stand to the extent it contradicts a valid Michigan law.

While it may not be the best example of tightly drafted legislation; while it undoubtedly suffers from problems of perception and misconception, the MMA is a valid state law. The appellate courts will have no choice but to invalidate ordinances that limit the scope of the Act, or criminalize it’s legitimate purposes.

Once again, we pose the question: should marijuana just be outright legalized in Michigan?  We are interested in your view on this subject.  To weigh in, simply comment on this post or register a comment on the discussion board of our FaceBook fan page.

For more information about the MMA and its certification process, click on this link.

Ludington Update:  Bloomfield Hills is not the only municipality seeking to restrict the use of medical marijuana; check out the moratorium proposed in Ludington.

Royal Oak Update: Feb 3, 2011.  Now, Royal Oak is getting in on the act of restricting patients' rights under the MMA by proscribing grow operations within the city limits.

Ann Arbor Update:  Of all places, Ann Arbor is also getting in on the ordinance dance.  For its part, however, there seems to be a delay in bringing the issue to a vote, as the AA City Council continues to revise the proposed ordinance.  Compared to other municipalities, the ordinance proposed in Ann Arbor seems much more in-tune with the MMA.  As the city attempts to properly define the terms of its ordinace, one medical marijuana entrepreneur is challenging the ordinance in a law suit before it has even passed, claiming unconstitutional vagueness.

Montana Update:  For it's part, the Republican-controlled state legislature is poised to pass a bill repealing the MMA in that state.

info@clarkstonlegal.com

http://www.clarkstonlegal.com/

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Thursday, December 16, 2010

California's Same-Sex Marriage Ban Grinds Along in the Ninth Circuit

This Law Blog has been tracking the same-sex marriage case out of California.  We covered Perry vs Schwarzenegger in an earlier post detailing the players and the issue framed in the constitutional law suit that originated in a federal court in San Fransisco.

Since our last post on this topic, the trial court judge issued a lengthily opinion last August, ruling that California’s Proposition 8 was unconstitutional, enjoining further enforcement.  Proponents of the marriage ban appealed to the Ninth Circuit.

The U.S. Ninth Circuit Court of Appeals has stayed the trial court ruling, however,  while the appeal is pending.  Recently, televised oral arguments were conducted on the case before a 3-judge appellate panel.  


Federal appellate arguments are rarely, if ever, televised; testament to the national interest in the case.

The federal appellate court appears to be trying to figure out what, exactly, should be the scope of their ruling.  Most federal judges, particularly appellate judges, eschew rulings that become broad constitutional pronouncements.

According to the SCOTUS analyst Lyle Denniston, the Ninth Circuit’s Perry panel seems likely to nullify the ban against same-sex marriage, “provided they could do so without having to write a sweeping opinion that established a national constitutional right of gay marriage.”

The initial arguments in the case before the Ninth Circuit concerned whether the appellants even had proper standing to appeal Judge Vaughn Walker’s ruling.  California’s top government officials, the governor and the attorney general, have refused to defend Prop 8, or to appeal the trial court’s ruling.

At least one of the judges on the appellate panel was troubled that no state actors showed up to argue the case.  The appellate judge suggested that perhaps the issue could be posed to the California Supreme Court for a determination as to whether California law would allow any entity to stand in as a legal “proxy” for the suit.

Perry’s well-heeled lawyers stated in response to the suggestion that even if California law allowed a proxy-style legal fight, the proxy would be unable to demonstrate how they were harmed by lifting the ban against same-sex marriage.


Scholars of the appellate courts compare this case to the famous SCOTUS decision in Loving v Virginia, which struck down state laws banning marriage between African Americans and whites.  We wonder how the Loving case would have been decided if Mr. Loving's "bride" was a man instead of a woman.

This Perry case could be our chance to find out the 21st Century answer to that question.  As a decision from the appellate court is expected soon, perhaps by the end of the year, we must ask that you to stay tuned in on this case.


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Tuesday, December 14, 2010

Felony Child Support Cases Get Review by Michigan Supreme Court

Last week, the Michigan Supreme Court granted leave on three cases challenging the constitutionality of the Felony Non-support Act; the statute criminalizing the failure to pay timely child support to the custodial parent.

This blog has covered the felony child support issue relative to the People v Likine case from Oakland County Circuit Court.  That case, along with People v Harris (from the Muskegon Circuit Court) and People v Parks (Ingham County), were granted leave for further appeal. 

A decision from the Supreme Court is expected sometime in 2011.

In Harris, Justice Robert Young, Jr. dissented from the majority of his colleagues in granting leave on the grounds that the appellant pled guilty in the trial court, cutting a deal on his child support payments to avoid jail.

One of the defenses that will be addressed in all three pending cases is whether a child support payor charged with this felony can raise the issue of his or her “inability to pay” in the criminal court.  Of course that defense is often raised in family court. 

Once you’ve been charged with felony child support, however, the “inability to pay” defense is unavailable per the Michigan Court of Appeals holding in the published case of People v Adams.  In granting leave for further appeal, the High Court expressly directed the parties to address the constitutionality of the Adams holding.

Generally, if you are having difficulty keeping your child support obligation current, you should immediately seek relief in the family court before you build an arrearage. 

An arrearage, if significant, can lead to a felony charge.  Technically, a day late and a dollar short is all that is required by the prosecutor to charge a case.

If you’ve already been charged, then you can still attempt to seek relief from the family court in the form of a reduced ongoing monthly obligation and, with the payee-parent’s consent, a waiver of interest and service fees.  There must be some basis for modification other than you simply ignoring your obligation.

We will keep our readers updated on this strand of cases.

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Sunday, December 12, 2010

Nun Indicted in Gotham for Embezzling Nearly Million From Catholic College

Nunsense!  Earlier this week, Marie Thornton, a nun known around Westchester County, New York's Iona College as "Sister Susie" was indicted for embezzlement in the U.S. District Court in Manhattan.  She was charged with stealing nearly a million dollars over a decade from the private Catholic college which she served as a vice president for financial affairs.  

Thornton pled not guilty to the charges.  Apparently, the college found out about their CFO's sticky fingers some time ago, but declined to report the crime or press charges.

The missing funds were only recently disclosed on the college's 2008 tax forms which indicated that an unnamed employee misappropriated $80,000 each year in small amounts over a ten-year period.  The tax filing stated that the monies were garnered via fraudulent checks and a college credit card.

When it discovered the shortfalls, Iona did fire Thornton (and another employee), stating only that she was on a permanent leave of absence.  The Inspector General for the U.S. Department of Education connected the dots, arresting Thornton last Thursday.

Sister Susie left the Manhattan federal courthouse on her own recognizance.  She is believed to be staying with her cloister, the Sisters of Saint Joseph, in Philadelphia, where she is known by another alias: "Sister Marie".

Sister Marie's lawyer, Sanford Talkin, was not talking about the case, or his client's whereabouts while the matter remained pending; promising only a hard-fought trial down the road.

Iona College's former basketball coach has commented publicly that Sister Susie spent most of the embezzled funds gambling in nearby Atlantic City.  A good bet is that she's now heading for the confessional.

Michigan Connection:  Iona College is run by the Christian Brothers of Ireland, the same denomination that founded Brother Rice High School in Bloomfield Hills, MI.

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Saturday, December 11, 2010

Lake County to Absorb 2500 California Felons

In 1998, the Michigan Department of Corrections opened the Michigan Youth Correctional Facility in Baldwin, Michigan; right smack in the middle of the Manistee National Forest in Lake County.  The facility, known as the “punk prison”, closed in 2005 and was subsequently sold to GEO Group, Inc., a Texas-based conglomerate.

Lake County has suffered unemployment as high as 20% as a direct result of mothballing the youth facility.  The situation is about to change, however, due to California’s chronic prison overcrowding.

This blog has been tracking the landmark prison overcrowding case recently argued before the SCOTUS.  In a proactive effort to alleviate the situation, California recently contracted with the GEO Group to house more than 2500 inmates in the newly-renovated facility.  

California’s contract with GEO is worth a reported 60-million per year to the private detention management services company.  The contract begins in 2011 and runs through 2014.  Given California’s fiscal woes, you have to wonder how they can afford it.

Nevertheless, Lake County Michigan is ready to absorb the collateral benefits associated with accepting thousands of Californian felons, expecting to add as many as 500 jobs to the local economy.

This development hammers home the idea that in our democratic society, the constant tension between law and freedom results in a massive resource allocation for prisons, jails and law enforcement apparatus.

So when you are driving Up North this summer along M-37, just remember not to pick-up any hitchhikers.



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Friday, December 10, 2010

Child's Aging Held to be Sufficient Change of Circumstance to Justify Parenting-Time Modification

Very recently, the Michigan Court of Appeals published their decision in the parenting time modification case of Shade v Wright.  That case, and its effect on our "family law" jurisprudence, is the subject of our fellow Oakland County law blogger, Cameron Goulding, Esq.


Cameron produces the North Oakland Divorce Blog.  This post is his original content; thanks Cam.


Altering child visitation time (technically parenting time modification) just became easier in Michigan. Many judges and friend of the court referees believed that in order for a person to obtain more parenting time with their child or to limit the parenting time of the other party, one had to provide proof equal to that which would be required to change custody. I have long argued that this did not make sense because parenting time and custody are two very different things. 

There was really no published Michigan Court of Appeals case or Michigan Supreme Court case that dealt directly with this issue directly. There have been unpublished opinions from the Court of Appeals, however, unless a case is published it is not precedent. What this means is that the trial courts and friend of the court referees do not have to follow what the Court of Appeals has said in a case regarding any given issue unless it is a published case. The Michigan Court of Appeals issued a new published decision on December 3, 2010, Shade v Wright, Mich. App Docket No. 296318 (2010) which held that it should be, and now is due to this case, easier to change the parenting time schedule than it is to alter custody. 

This case stated that in order to decrease or increase child visitation with a parent there is a more relaxed burden of proof regarding a change of circumstances or proper cause as a threshold issue than there is with custody. The court went further and stated that normal life changes such as those described above are properly considered when deciding this issue. 

In the Shade v Wright case cited above, the change that allowed the mother to change the child’s visitation with the father was that their daughter had started high school and her schedule of activities changed. This is exactly the type of change that trial courts specifically can not consider in order to change custody. Many trial courts and friend of the court referees also believed, before this opinion, that this was exactly the type of change of circumstances that they could not consider in order to allow a change to either increase or limit child visitation. Those courts and referees that believed this were wrong and hopefully they will now follow this case when considering these issues because Shade v Wright is binding precedent.

Children do grow older and as they grow older their relationship with each parent will most likely change as they hopefully grow more independent. As much as it may pain a parent, their own child visitation may have to change to allow the child to find his or her own path which may have the child spend more or less time with either parent despite what the court has previously decided or the parent’s previously agreed. One must also consider that as children grow, they are involved in different activities. As their developmental needs change, both parents must be flexible with their parenting time schedule as much as it may pain the parent.


Cameron's email: goulding@camerongoulding.com

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Tuesday, December 7, 2010

Bankrolling the Divorce Settlement

We've all heard about lenders that specialize in loaning to personal injury plaintiffs in advance of their settlement. These firms front the money to the plaintiff, at a significant discount from the amount expected to be realized in the ultimate settlement.

This same principle is being applied to divorce judgments. Get your money now and your divorce later.

Mind you, this is not for folks with middle-class marital estates. Rather, this brand new industry is developing on the left and now the right coasts for married couples that have estates north of 2 or 3 million.

For example, Balance Point Divorce Funding of Beverly Hills, CA was started last year by an attorney, Stacey Napp, with funds she obtained from her own divorce.

In New York City, it looks like it's going to be Churchill Divorce Finance; a firm gearing-up for a mid-winter opening with the promise of, "leveling the legal playing field."

Each of these lending firms will specialize in lending money to parties involved in divorce who are expecting to walk away from the family court with a fair amount of hard cash; millions in fact. Hard to believe here in Michigan, but those folks are out there.

One advantage of such firms is the ability for a "non-earning" spouse to obtain money in order to pay lawyers and forensic accountants to go after hidden assets, or "cooked" books in the family-owned business.

For others, it's simply an opportunity to get the money now in order to fuel that new, post-divorce lifestyle. In many cases, a little money up front goes a long long way.

http://www.clarkstonlegal.com/

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Saturday, December 4, 2010

Satelite Tracking Devices May Constitute a Fourth Amendment "Search"

At the Law Blogger, we often see the use of GPS tracking devices in the divorce context.  What happens when the police use such devices to gather evidence of crime?  Are your movements constitutionally protected?

Two cases percolating their way to the SCOTUS (a petition for certiorari already filed in one) involve police use of high-technology tracking devices.  The High Court will be asked to decide: a) whether the prolonged monitoring of a suspect via GPS technology is a "search" under the meaning of the Fourth Amendment; and b) whether police entry onto private property to plant the device invalidates such a search.

If the petitions are granted, these questions could be briefed, argued and decided in the 2011 term of the Court; the "day-after-tomorrow" on our common law clock.

Brief legal background:  More than 25-years ago, SCOTUS ruled in U.S. vs Knotts that the police could use an electronic "beeper" to track a suspect's movements to and within a drug lab without triggering the warrant requirement of the Fourth Amendment.  Federal courts throughout the various circuits across the country, and the patchwork of state courts, have developed a wide array of conflicting laws governing the extent and duration such monitoring can take before the surveillance becomes a search requiring a warrant based on probable cause.

Now its time for the SCOTUS to clarify things.

In Pineda-Moreno vs United States, petitioner, an Oregonian, maintained a huge pot farm hidden deep within the forests of Southern Oregon and Northern California.  Using a variety of high-tech GPS devices, some as small as a stick of gum, federal agents were able to build a manufacture/distribution case against Juan Pineda-Moreno.

The federal agents came onto the curtailage (privately-owned surrounding area) of Mr. Pineda-Moreno's manufactured home to place a variety of devices onto his Jeep from June through September back in 2007.  They were even able to replace the batteries on some of the tracking devices.  Juan was oblivious to their efforts.

In his guilty plea (he is currently finishing up a 4-year prison sentence), Pineda-Moreno preserved his right to challenge the fed's "search" of his person; his movements.  The Ninth Circuit Court of Appeals ruled the agents' tracking was not a "search" within the meaning of the Fourth Amendment.

The other case is coming to SCOTUS via a likely government petition for cert in Maynard vs U.S. where the D.C. Circuit has ruled far differently than the Ninth Circuit on a variety of related issues.

SCOTUS has long held that police may closely scrutinize a vehicle; particularly a moving vehicle.  What this technology, and now, these cases, focus the Court on is whether extensive tracking transforms our vehicles from objects of public viewing (without any reasonable expectation of privacy) into purveyors of private information which can only be tapped via a probable cause warrant.

Stay tuned as SCOTUS catches up to, and rules on, the latest law enforcement surveillance techniques.

Sidebar Note to all you certified marijuana users out there, palliative or recreational; federal charges are a real risk, with harsher sentencing consequences.

info@clarkstonlegal.com

www.clarkstonlegal.com

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Thursday, December 2, 2010

Comic Book Explains Arrests and Lawyers to Teenage Children

In New York City, anyone arrested under the age of 16 is now provided an informational pamphlet (four pages) explaining the criminal process from the booking stage right through sentencing.

Is it me, or do others find this one of the latest signs of the apocalypse?  This is a sad commentary.

This comic book does not mention the presumption of innocence or the specific charges facing the youth (although it has the feel of a possession rap).  There is an assumption that the arrest was valid.  Defenses are not referenced.

In the end, the judge finds the urban youth guilty.  Sad but realistic. [This link will download a PDF of the entire comic.]

The concept of this instructional graphic pamphlet was hatched by the Youth Justice Board of the non-profit Center for Court Innovation whose mission is to teach high school students about public policy,  leadership and public speaking.

Khaair, a Justice Board member who did not want his last name published, said they decided on the comic book as their project because, "the youth of New York don't have representation and we really need a voice -especially for the stuff that involves us."

This "stuff" apparently involves cops, arrests, criminal charges, drugs, and lawyers.  All in a day's work over in Queens at the Francis Lewis High School where Khaair is a senior.  BTW: he wants to be the Mayor of Gotham and in our opinion, he's off to a great start.

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Wednesday, December 1, 2010

SCOTUS Grills California's Hired Appellate Counsel in Landmark Prison Case

Justice Sonia Sotomayor
Ok, we've seen this one coming down the tracks.  The ABA Journal is reporting that Justice Sonia Sotomayor told the managing partner of Sydney Austin's Washington, D.C. office, Carter Phillips, to "slow down from the rhetoric", as Phillips began his argument before the High Court on behalf of the State of California in the Schwarznegger -v- Plata  prison overcrowding case.

Justice Sotomayor also had a series of hard questions for California's appellate attorney such as how his client could possibly explain recent prison deaths and why these prisons are choking with dazed, deranged inmates sitting in their own feces.  She wanted to know what California's plan will be.

 As you can imagine, the present Justice-mix soon erupted and the debate was carried on, heatedly, among the jurists themselves.  The high-powered lawyers were rendered oddly silent, as the intra-jurist discussion was occasionally refereed by Chief Justice John Roberts.

According to eye-witness accounts from among the professional-stocked galleries, Justice Samuel Alito was visibly agitated pondering the prospect of newly released inmates cruising the streets of California and, eventually, the nation.

Court watchers once again believe that the Court will line-up along their classic "ideological" lines, neutralizing each other, 4 votes to 4; and setting up Justice Anthony Kennedy to write the tie-breaking concurring opinion.

Even if the Court's opinion amounts to a mere plurality (less binding on subsequent couts), a landmark prisoner's rights opinion is heralded.  We will, of course, update you on the SCOTUS opinion.  You'll know when this decision hits (March/April?) as it will be all over your evening news.

Meanwhile, the SCOTUSblog has posted two fascinating segments from yesterday's oral arguments. 

www.clarkstonlegal.com

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