In a historic judicial review process, the SCOTUS has been hearing oral arguments this week on the constitutionality of the Affordable Care Act that narrowly passed Congress last year.  The health care bill became law largely due to the personal lobbying efforts of President Obama himself.

Today, the nine justices, in order of seniority, will cast their initial vote to decide the case.  If he is among the majority, Chief Justice John Roberts will assign a justice, probably himself, to write the opinion for the majority.  If the Chief is not among the majority, the most senior justice in the majority will assign the lead opinion.

In a case this complex, sub-issues may be assigned to justices voting in the majority; dissenters often write separate opinions.

Among the issues framed for the High Court to decide: the constitutionality of the "individual mandate" making health insurance coverage mandatory and implementing a penalty tax for going "naked"; and the constitutionality of the provision expanding the federal and state health care partnership for the poor, known as MEDICAID.  The latter issue affects states' rights to the extent the federal requirements become overbearing and unconstitutionally encroach upon the autonomy of the states.

There has been a steady stream of high-quality intellectual blogging among the high-brow court watchers dissecting the marathon arguments.  By all counts, many of the Justices have been actively questioning the lawyers.  For example, in the final session yesterday afternoon, the four liberal Justices peppered Washington attorney Paul Clement with a series of questions presumably designed to get Clement to identify when federal government requirements, the spending clause limits, become onerous to the point of coercion.

Mr. Clement's worthy opponent, Solicitor General Donald Verrilli, Jr., had his hands full earlier in the week getting grilled by the conservative Justices.  As usual, however, Justice Clarence Thomas sat silent throughout the historic arguments, as is his custom.

Like so many crucial SCOTUS votes, this case may come down to Justice Kennedy.  He seemed to warm to the coercion theory propounded by the challengers of the ACA.

Near the end of the marathon session, in response, the Solicitor General urged the High Court to step back from the Medicaid expansion and the individual mandate arguments, and view the issues in more humanistic terms, equating affordable health care coverage among our "blessings of liberty".

We will probably not know how the Court has voted until early summer.  Stay tuned.

www.clarkstonlegal.com

info@clarkstonlegal.com

Former Piston &
Hall of Famer Dennis Rodman

Just last August, I waxed nostolgically when I read that former Detroit Piston Bad Boy Dennis Rodman had been inducted into the NBA's Hall of Fame.  He earned that distinction by contributing to five NBA championship teams; two with the Pistons, and three with the Bulls.

Fast forward a few months, and here was Rodman's pro bono lawyer explaining to a family court judge, then to the press, that the man was broken down, sick, unable to earn the millions he did in the days of yore and thus, unable to pay his child support obligations.

According to the LA Times, his child support arrearage for two children is fast-approaching one million dollars.

As a Special Assistant Attorney General assigned to prosecute felony child support cases, I've seen a few professional athletes pop-up as criminal defendants with eye-popping arrearages.  These cases highlight the peaks and valleys characterizing the income history of many star athletes.

The basic problem is that these superstars show multi-million dollar income, but for a very short period of time.  Many of them spend the dough on a lavish lifestyle rather than save and when it all comes to a crashing end, they fail to seek an adjustment of their support obligation in the family court; hence the whopping arrears.

Rodman's case was different; he was able to take his insane schtick to the bank for years following his NBA earning years.  Now that he has aged and is reportedly ill, all that has gone away.

Here in Michigan, child support is controlled by the Michigan Child Support Formula; literally an algorithm taking into account the relative income of the child's parents, as well as the overnight parenting schedule.

Like Michigan, some states have adopted support formulas that "top-out" for high earners. Here in Michigan, for example, child support can only be calculated for an annual income of $422,916 or less.

In addition, the MCSF takes away most of the court's discretion in setting child support. Absent compelling factors, support is determined through a straight-forward application of the MCSF.

In the case of some high-earning payors, litigants have cried foul, asserting that when a parent earns millions of dollars, his children should share in that wealth. This is particularly the case where the high income is short-lived; like with most professional athletes.  Rodman's income went on for much longer than most.

Like Michigan, Florida, Nebraska, Virginia, West Virginia and Wyoming all use a straight formulaic approach [with a cap] to the calculation of child support. Other states utilize a percentage approach where the child support obligation just keeps going up; keeping pace with the parent's high income.

Recognizing this problem, some states have specific statutes that address high income households. These statutes usually provide the family court judge with some good old-fashioned "discretion" to determine the child support obligation in accord with the "best interests of the child."

It will be interesting to see whether the family court judge will give Rodman a break and reduce his child support.  But arrearage is arrearage; due and owing to his two children.

We cannot help but wonder, over the past several years, whether Rodman spent his fortune on himself rather than taking care of his children.

http://www.waterfordlegal.com/

info@waterfordlegal.com



On numerous occasions over the years, I've represented criminally charged shooters from Detroit over in the Frank Murphy Hall of Justice. Rough ride folks.

Last week, the SCOTUS issued a very significant 5-4 decision in a shooting case straight outta Detroit. In Lafler v Cooper, and it's companion case, Missouri v Frye, the High Court held that the 6th Amendment guarantee of the effective assistance of counsel in a criminal proceeding, applies to the plea bargain process.

In the Lafler case, the defendant tossed a shot toward the head of his victim, but missed.  She fled, he pursued, spewing lead.  In the end, he caught her in the buttock and abdomen; she survived the assault.

Charged with attempted murder, Lafler faced the music over in the FMHJ; the "Murph" as we defense attorneys refer to that meat-grinder of a court house.  [Some may recall the building as the old Detroit "Recorders Court".]  As is very common in Wayne County murder and attempted murder cases, he was offered a deal: plead guilty and do less time.

His criminal defense lawyer believed he could beat the case on the theory Lafler did not attempt to murder his victim, because he shot her in the butt.  Yeah, good luck with that buddy.  Based on this legal advice, Lafler rejected the plea offer and went to trial.

The jury wasn't having it, convicting Lafler on all counts.  He was sentenceed to a term of imprisionment that far exceeded what the prosecutor offered.

The Michigan Court of Appeals rejected Lafler's "ineffective assistance of counsel" argument, and the Michigan Supreme Court declined further appeal.  Next, Lafler filed a habeas corpus petition in federal court. 

The Sixth Circuit Court of Appeals held that the 6th Amendment guarantee of effective assistance of legal counsel in all critical phases of the criminal process applies to the plea bargain process.  This decision was affirmed by a sharply divided Supreme Court, with Justice Anthony Kennedy writing for the majority, and with the conservative Justice Antonin Scalia reading his dissent from the SCOTUS chamber when the opinion was announced.

SCOTUS held that the right to effective assistance of counsel does indeed attach during the plea process; almost always THE critical point in the criminal prosecution according to Justice Kennedy.  He's right on that count.

The High Court ultimately held that when an accused "misses out" on the plea bargain process, or rejects a plea due to bad legal advice, as in Lafler, then the 6th Amendment is violated.  Justice Kennedy remanded the case to the lower federal court with instruction for that court to mandate the state court to re-offer the plea bargain, or to leave the defendant's conviction and sentence undisturbed.  The sentencing judge over at the FMHJ must perform a "balancing test" to decide which way to go.  See why we need lawyers...

Justice Scalia did not agree that the plea negotiation process was within the scope of the 6th Amendment's right to counsel.  Along with the other Justices in dissent, Scalia also crituqued the majority's failure to properly define the government parameters in this newly created constitutional right of plea bargaining.  The dissent sees years of additional litigation over plea bargains gone bad.

So pay attention to those plea offers all you criminal defense lawyers out there, or your representation may be deemed, er, ineffective.

www.clarkstonlegal.com

info@clarkstonlegal.com

Attorney David Shook

This is the first in a series of guest blog posts from Clarkston-based Attorney David Shook, who has a law practice focused on consumer and small business bankruptcy.

As dad said, you can do that, but be prepared for the results.  Folks are terrified they are going to “loose everything” in a bankruptcy. 

The fact is the Bankruptcy Code allows the debtor to keep assets with no equity or up to a fixed dollar amount, through a process of exemptions.  The vast majority of bankruptcy cases are no asset cases where the debtor loses nothing. 

While the billboards I see proclaiming, “lose the debt, keep your stuff”, are rather extreme, this proclamation is more accurate than the misconception that the bankruptcy court takes all your possessions. 

In spite of the facts, too many people transfer assets to friends and family as the creditors begin to circle; in some cases with bad results. 

The Bankruptcy Code makes the results of transferring an asset very clear. “Transfers made with the intent to hinder defraud or delay creditors,” within one year of filing a bankruptcy is a basis to deny or revoke the discharge of a debtor.  In addition, transfers made in up to 6-years prior to filing the bankruptcy petition, regardless of the intent of the Debtor, may be avoided by a creditor or bankruptcy trustee, and can be liquidated to benefit creditors. 

I tell clients on a regular basis, people do things in the normal course of life that are not an issue, until you file a bankruptcy.  There may be legal defenses, in addition to practical considerations, but the graduation gift of $10,000 five years ago could very well be an issue in today’s bankruptcy filing.

The most extreme result of transferring an asset is rather nasty.  The Debtor’s discharge may be denied, and the person you transfer the asset to may very well be sued.  If the Trustee is successful, the asset is returned to the Estate, and sold for the benefit of the creditors. 

Thus every debt included in the bankruptcy is ruled non-dischargeable in the case, and any future cases.  The brother (or son) is on the bad side of a federal lawsuit, and if the Trustee wins, the Corvette is sold and the proceeds paid to creditors. This is not what I would call a good outcome.

Payments to creditors on legitimate debts may also cause issues in a bankruptcy case. Payments within 90 days to any creditor, or 1 year to “Insiders” (think family, and business associates), called preferences in bankruptcy-speak, may be avoided and used to pay all creditors.  Thus, using your tax refund to pay off the $3,000 loan from your sister, on the eve of bankruptcy, is never a good move. 

To add to the penalty for voluntary preferences, or any other transfer for that matter, normally a debtor can exempt and keep (I will address exemptions in a future post) the same $3,000.00 as part of a bankruptcy proceeding and pay the family after the case has completed.  However, if the same amount is voluntary transferred (vs. garnishment or other creditor action), and then recovered by the Trustee, the Debtor is not allowed an exemption in the recovered asset.     

                   

The issues surrounding the return of preferential payments to the estate are normally much less of concern to a client.  Most Debtors have little concern over the fact any one credit card company is forced to return the $1,000 payment made within 90 days of filing.  However, having to wait 7 months to allow the year to run on the money paid to mom, or any other close family member, can rattle the nerves.

Involuntary transfers (again think garnishment of wages) made within the 90 days may also be recovered, quite possibly to the benefit of the debtor.  In certain circumstances, a bankruptcy will not only force the creditor to stop garnishment, but allow the debtor to recover and keep the amount taken by the creditor.

As with any legal issue, get professional advice from an attorney who practices in your area of concern.  No matter how skilled the practitioner, the web is no substitute for a legal consultation.

www.clarkstonlegal.com

info@clarkstonlegal.com

Once again, the highly controversial national law school rankings have been published by the US News & World Report. Although you have to pay to see them in full, University of Cincinnati Law Professor Paul Caron has published a segment of the rankings; peer reputation vs "overall" rankings.

Some movement was observed at the top of the rankings.  The University of Michigan Law School, for example, fell three spots from 7th to 10th.  Harvard also fell a spot.  To the USN&WR editor: really; what changed at UM and Harvard to merit the drop?  Go figure.

Proving that it never hurts to associate with a huge public university, Michigan State University's "College of Law" [formerly the unaffiliated Detroit College of Law] is now ranked #82 overall.  Not happening in the law school's "stand alone" days.  Not yet 1st tier, but improving.

MSU bested Wayne State, which now sits at #112 overall; that never would have happened in the 1980s.

While my law school alma mater, University of Detroit Mercy, did well in the NCAA men's basketball tournament seeding, in the law school rankings, er...not so much; stuck at #178 in the peer reputation category with an "overall" ranking simply noted as "tier 2" and trending downward from its whopping 169 rank back in 2009.  Guess that means, "second rate".  What's going on over there?

Finally, we would be remiss if we did not at least mention Michigan's other perennial basement dweller in these confounded rankings: the mighty, albeit somewhat narcissistic, Thomas M. Cooley Law School; ranked at #184. 

If you care enough to drill into Cooley's own website, however, you will see that they persist in publishing their own law school ranking which places them second [to Harvard] based on a variety of class-size factors.  And perhaps that is as it should be, with a whopping 3727 Juris Doctor candidates currently enrolled [yes folks, that's Three Thousand Seven Hundred Twenty Seven students; can you say, you are just a number...].  The next highest enrollment is Georgetown University, with 1982 students.

Again, we have to ask, do we really need that many lawyers out there on the street?  Really?

                                                                      www.clarkstonlegal.com

                                                                     info@clarkstonlegal.com

In an unpublished decision released toward the end of last week, the Michigan Court of Appeals found fault with the Wayne County Family Court in a divorce case that touched on the application of Shariah law.

Specifically, the Hammoud case involved the imposition of spousal support in a realaitively short-term marriage. The Court of Appeals was troubled that the family court conditioned the duration of the "open ended" support on wife obtaining an "Islamic divorce" decree, noting:

As structured by the trial court, plaintiff has no incentive to become self-sufficient or to vigorously pursue an Islamic divorce as she is assured an ongoing income ad infinitum.  The trial court also failed to address or seek further clarification of plaintiff’s contention that she was in possession of a document that would permit others to assist or assure her the attainment of an Islamic divorce without defendant’s consent.  Plaintiff indicated that an agreement existed that would permit her brother and brother-in-law to authorize the Islamic divorce, potentially rendering it within plaintiff’s control to prolong her receipt of spousal support.

The implication, as held by the Court of Appeals, was that the family court pressured the husband into agreeing to an Islamic divorce when, under the establishment clause, it had no power to do so.

The Court of Appeals was not impressed with the lower court, the litigants, or their attorneys.  The case also featured an [untranslated] Arabic language prenuptial agreement proffered by husband to support his position that his wife agreed to forgo any spousal support.

The Hammoud case received national attention with a reference in Law Professor Eugene Volokh's law blog; the Volokh Conspiracy.

We here at the Law Blogger agree that family court is not the place for the implication or enforcement of religious laws; that is for the house of worship and is a private matter between the litigants.

www.clarkstonlegal.com

info@clarkstonlegal.com

It took some time, but now the cases are starting to pile-up.  This week's WSJ treats us to a summary of recent "social media" eruptions in the jury trial context.

The basic problem: a jury trial is conducted in accord with the applicable rules of evidence, court rules, and statutes.  When jurors log onto the Internet to obtain additional information [about the parties to the suit, the lawyers, or the judge], or to comment, they are exposed to data and opinion beyond the scope of the applicable rules.  This can and does affect the outcome of a trial.

The case highlighted in the WSJ was a 2010 murder conviction overturned, in part, because a juror ignored the admonishment of the judge, and tweeted the jury's verdict to the public prior to it being read in court.  Now, the defendant will stand trial again this summer.

In other courtrooms, despite explicit instruction from the trial judge that jurors must not discuss the case among themselves until the proofs are complete and they are formally deliberating, jurors have been known to exchange contacts and begin texting one another.

A Florida juror recently spent 3-days in jail for "friending" a defendant on Facebook so he could either get a date with the woman, or get out of jury duty.

A case in the California appellate courts hinges on whether a juror in a case must now disclose his social media activity to defense attorneys in a gang-beating case so the attorneys can determine whether to challenge their client's conviction based on the juror's social media activity.

Judges have a range of options when juror misconduct mars an ongoing trial.  Those options include: punishing the juror for contempt (i.e. jail or a fine); removing the objectionable person from the jury (there is always at least one alternate); and declaring a mistrial and starting the trial over.

The WSJ article cites to a potential test case: the Drew Peterson case in Illinois.  In that case, defense attorney Joel Brodsky is considering ways to prevent jurors from acquiring information about the case outside the courtroom.  One idea under consideration is for the jurors to disclose their IP addresses and social media handles so they can be monitored.  Along these lines, technicians are suggesting the installation of cookies so that if a juror accesses the Internet about the case in any way, the juror's foray is reported to the trial judge.

Can the centuries-old jury trial system withstand such developments?  Is there any effective way to prevent seated jurors from accessing the media about the case to which they have been entrusted?

As litigators, we here at the Law Blogger realize this truly is a "Brave New World".  When you ramp-up for a trial, and focus on the scope of the evidentiary issues in the case, it is very unsettling to think that, with a few points and clicks, a juror can unearth a veritable treasure trove of [inadmissible] information about you, your client, or your case. 

In almost every case, such additional information will sway the juror's opinion and somehow affect the outcome.  Turning a trial into a popularity contest is not a fair way to administer justice.

www.clarkstonlegal.com

info@clarkstonlegal.com

In happier times, the Stratfords, Jude and Jayane, did what an increasing number of marital couples are doing; they froze one of Jayane's eggs that had been fertilized by Jude's sperm; i.e. they cryopreserved an embryo.  When the dust settled in their subsequent St. Clair County divorce proceeding, the now-divorced couple realized they had forgotten to address their frozen embryo in the consent judgment of divorce.

Jude went back to the family court seeking permission to allow an anonymous couple to utilize the single fertilized and frozen egg.  Jayane objected, asserting her desire to donate the embryos for research.

After carefully balancing the respective interests of the parties following an evidentiary hearing, St. Clair County Family Court Judge Elwood Brown concluded that Jude held a "superior interest" in the embryo, and promulgated a thoroughly-researched opinion and order on this ground-breaking topic that has no precedent in Michigan's statutory or common law.

Judge Brown ruled that: "[Father] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple."  Jayane appealed Brown's ruling to the Michigan Court of Appeals.

The MCOA reversed the family court in an unpublished and thus non-binding per curiam decision, holding that the lower court erred by obligating the fertility clinic, not a party to the Statford divorce, and further held that the family court order was too vague relative to Father's right/duty to donate the fertilized egg to another "willing couple".

The appellate court was particularly troubled by the lack of a contract between the divorced parties and the fertility clinic.  Addressing the family court's creation of duties to a non-party, the MCOA stated:

Aside from the permissive nature of the order, the order imposed upon the clinic several obligations that the clinic may be unwilling to accept or unable to perform.  For example, the record does not indicate whether the clinic is able to make the embryo available for adoption.  Similarly, the record contains nothing to demonstrate that the clinic is willing or able to accept the order’s apparent restriction that the embryo be adopted only by a willing couple.  In addition, the record does not identify who, if anyone, is currently paying for any of the clinic’s costs arising from cryogenic preservation until a “willing couple” is available for adoption.  We are further left to assume from this record that there is preservation in fact, viability, and, non-abandonment of the embryo.  Moreoever, in the event plaintiff opts not to donate the embryo, the record does not indicate whether the clinic is willing or able to continue to preserve the embryo indefinitely.

In so ruling, the MCOA compared the Statford's circumstances with an earlier "zygote" case from 1999, Bohn v Ann Arbor Fertility Clinic, which involved a similar family court "custody" dispute, along with a companion "breach of contract" cause of action.

In each case, the Court of Appeals focused on the agreement, or lack thereof, between the biological donors and the fertility clinic.  In deciding each case, the MCOA emphasized the poor quality of the lower court record relative to upholding the plaintiff's claims or, in the Stratford case, the lower court's rationale.

Nor did the Stratford panel endorse the lower court's "balance of interests test", ruling that such was within the purview of the legislature and not the courts.  We here at the Law Blogger heartily agree.

Stay tuned to see whether either party applies for leave to further appeal or whether there will be additional proceedings in the family court.

Also stay tuned to see whether our state legislature passes legislation to address the proprietary rights of zygotes, oocytes, and other pre-embryonic cells.

www.clarkstonlegal.com

info@clarkstonlegal.com

By now we've all been shocked by how much information the major search engines collect and store about each of us. The reach now extends into our cell phones and possibly even into our contacts.

On March 1st, Google implemented a new, single privacy policy, replacing it's patchwork of more than 50 separate policies spread across its product line and services. In the wake of Google's new privacy policy, the Attorneys General in a majority of states are calling foul.

Speaking for at least 35 state attorneys general, the National Association of Attorneys General complains that the new policy violates consumers' privacy by sharing personal information across Google's services without providing an explicit "opt in" or a meaningful "opt out" option.  NAAG sent a letter to Google's Chief Executive Officer, Larry Paige, requesting a sit down.  The NAAG letter states, in part:

Google’s new privacy policy is troubling for a number of reasons. On a fundamental level, the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products. Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy. It rings hollow to call their ability to exit the Google products ecosystem a “choice” in an Internet economy where the clear majority of all Internet users use – and frequently rely on – at least one Google product on a regular basis. 

For its part, Google claims the new policy will be easier for all to understand.  For our part, this Blog adheres to a simple basic principle: when conducting search and post activities on line, we keep in mind that we are creating a searchable and reviewable record.

Everyone seems to know the difference between posting content on sites like Google+ and YouTube and having their deepest darkest searches tracked.  In the former context, the user usually intends for the content to be discovered.  For example, we here at this blog wish our Clarkston Legal video on YouTube had more than 45 views in two years; my son thinks that's lame.

In the latter context, on the other hand, folks are sometimes embarrassed by what pops-up in the form of advertisements that the mighty and all-powerful web spider has determined to be relevant to a particular individual.  Such ads are displayed based on the aggregated content and personal information collected by the service provider.

This chapter just lets us know that privacy law is a fast-growing area of law that will take on increasing significance.  Stay tuned for the flow of developments as the lawsuits start to pile-up.

www.clarkstonlegal.com

info@clarkstonlegal.com