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

Monday, November 25, 2013

District Judge Sees the Devil's Harvest

In 1936, marijuana was vilified as the harvest of the Devil; the gateway drug to the hard stuff.  Reefer Madness was a propaganda campaign that swept the country in the years following prohibition.

Fast forward to the post-modern era of the second decade in the 21st Century, and we see marijuana legalized in a growing number of states, at least for its, er, medical use; the Justice Department ignores significant manufacturing and distribution operations, as directed by the U.S. Attorney General; and the SCOTUS is considering whether to hear a case this term to remove marijuana from Schedule 1 of the Controlled Substance Act.

While the Michigan Medical Marijuana Act has attracted much attention in the courts and the media all over Michigan, it has had a disturbingly polarizing effect on Dearborn District Judge Mark W. Somers.  The Dearborn judge has petulantly declared the MMA unconstitutional, and has referred to marijuana as: "Devil's weed", "Satan's surge", and "Satan's weed".

Judge Somers has lectured defendants wrongly convicted in his courtroom on the topic of Mexican drug-cartel-related child deaths and how the medical marijuana industry is directly related to this scourge.  In an infamous case, People -v- Brandon, Judge Somers ruled that, "the MMA is rendered unconstitutional in its entirety by operation of the Supremacy Clause of the United States Constitution."

Now he has been disqualified by the Michigan Court of Appeals from deciding any more cases involving the MMA on the basis that he has pre-judged individuals accused of marijuana possession and distribution, despite the availability of valid defenses.

We here at the Law Blogger find it disturbing indeed when a judge takes matters into his own hands, and substitutes his own world view for the law.  In disqualifying Judge Somers, we applaud the Court of Appeals that ruled the probability of actual prejudice at the hands of this rogue judge was too high to pass constitutional muster.

Perhaps it is time for the Judicial Tenure Commission to take a serious look at whether Mark Somers is fit and qualified to be a judge.

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Illinois Becomes 16th State to Legalize Same-Sex Marriage

Springfield, Illinois, the Land of Lincoln, was the site of the execution of a law making Illinois the 16th state in our Union to legalize gay marriage.  Last week, Democratic Governor Pat Quinn, writing on a desk said to be used by President Abraham Lincoln, used 100 pens to ink the law into full force and effect.

The law, officially known as the Religious Freedom and Marriage Fairness Act, takes effect June 1, 2014.  Illinois recognized "civil unions" prior to the crucial votes putting the bill over the top by state legislators earlier this month.

34 states still prohibit same-sex marriage under the law.  The practice is far from universally accepted, despite the momentum that the civil rights has garnered over the past 24-months, especially in the wake of the SCOTUS's seminal United States v Windsor decision.  The local Catholic Bishop near Springfield, IL lamented the execution of the new law with a feigned exorcism.  Really?

It will not be too long before the movement picks-up a few more states by judicial decree thanks to the Windsor decision.  Some state legislatures, on the other hand, are not planning to stray from the traditional view of marriage any time soon.

Politics and politicians being fickle, we suggest you stay tuned for further developments.

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Sunday, November 24, 2013

Step-Parent Adoption Goes to the Michigan Supreme Court

By: Timothy P. Flynn

Sometimes, in the post-judgment phase of a divorcee's life, things can go haywire.  The divorce process can push good parents "off-the-grid".

There is a statute in Michigan that provides for the termination of a divorcee's parental rights if that parent neglects to pay child support and fails to communicate with the children for two years.  For this to occur, the other parent must re-marry and the new spouse must petition for the termination of parental rights as part of a step-parent adoption proceeding.

In a case just recently accepted for briefing and argument by the Michigan Supreme Court, the concept of legal custody within the context of the step-parent adoption statute will be decided.  It could come down to the High Court's interpretation of how the legislature used the words, "a" and "the".

The Kent County case, In Re: ARJ, takes a look at whether the re-married parent must have sole legal custody in order for the step-parent adoption petition to be granted.  The case is significant to the extent that it will interpret this important statute as well as possibly provide additional meaning to the phrase "legal custody"; a phrase over which many a battle have been fought in the family courts throughout Michigan over the decades.

The Kent County Family Court terminated the father's rights after a two day trial.  This termination was reversed by the Michigan Court of Appeals which basically held that the parental termination was done in error because both parents had joint legal custody.

So here we have a parent that has basically disappeared for the requisite two years  -no support, no contact-  but who clings to his parental rights through the label in the judgment of divorce awarding him joint legal custody.

In its order granting leave to appeal the Court of Appeals' decision, the Supreme Court specifically identified one of the issues to be briefed, argued and decided as:
Whether the phrase 'legal custody' in [the step-parent adoption statute] is synonymous with the concept of joint custody in the Child Custody Act, whereby 'the parents share decision-making authority as to the important decisions affecting the welfare of the child...
Our High Court also expressly invited the State Bar of Michigan's Family Law Section and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file amicus curiae briefs in the case.

Stay tuned to see how the Michigan Supreme Court interprets this crucial phrase; we will track the case for you.  The decision will likely have important implications for divorce proceedings that involve the custody of minor children.

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Friday, November 22, 2013

Oakland County's Ax-Murdering Housewife Seeks Clemency

Sorry about that headline.  But this case was all-over your evening news back in 2004, when kindergarten teacher Nancy Ann Seaman axed her long-time husband to death on Mother's Day.

Earlier this month, Ms. Seaman filed for clemency consideration with Governor Rick Snyder.  You might recall [but probably not] that 3-years ago, a federal judge granted Seaman's petition for Habeas Corpus.

Ms. Seaman was jury convicted of first degree murder before retired Oakland Circuit Judge John McDonald.  Seven-months after her trial, Judge McDonald reduced Seaman's conviction from first to second degree murder.

Both Seaman and the prosecutor appealed.  The Michigan Court of Appeals reversed the trial court and reinstated Seaman's first degree murder conviction.  [The linked MCOA opinion contains a fascinating in-court colloquy about premeditation between the prosecutor and trial judge at the hearing on Seaman's motion for a new trial, beginning on page 5.]

The Court of Appeals found (by 2-1) that the trial court abused its discretion by acting as a "thirteenth juror" in reducing the conviction to second degree murder.  The intermediate appellate court also held that premeditation has no set time-frame but rather, can be established in the fleeting moment that it takes to have a "second look" at an imminent homicide.

Dissenting Judge Karen Fort Hood was troubled by the apparent "disconnect" between Seaman's self defense theory and testimony regarding "battered spouse syndrome".  Evidence relative to the latter theory was limited by the trial court.  Judge Fort Hood also commented on what she perceived as a confusion of jury instructions on the two concepts.  See the last two pages of the above link for her concise dissent.

The Michigan Supreme Court declined further review of Ms. Seaman's conviction; the Habeas petition still lingers with the United States District Court for the Eastern District of Michigan grinding through cases filed in 2009, before turning to those filed in 2010.

Carol Jacobsen, a University of Michigan Law Professor, is the executive director of the Women's Justice and Clemency Project.  They are seeking clemency for Seaman and 9 other convicted women, many of whom were tried prior to a change in the law allowing accused women to present evidence of domestic abuse.

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Saturday, November 16, 2013

Stop and Frisk in Gotham

By:  Timothy P. Flynn

When a police officer has good reason to stop someone on the street to ask a basic question like, "what is your name?" or, "what are you doing?", he has a right not to receive a bullet for an answer.  In some places in our country, here in the 313 or, say, Gotham, police are often viewed as the enemy, especially by the thugs on the streets patrolled by those officers.

Police officers are trained to identify and stop crime.  Their training and experience translates into certain tactics used on the streets in the course of their daily job duties.

One such tactic endorsed by the SCOTUS 45-years ago, in a case called Terry vs Ohio, is the "stop-and-frisk".  A stop-and-frisk is where a police officer with a "particularized suspicion" [something less than probable cause] that a person may be involved in criminal conduct, can stop the person  -briefly detain the individual- in order to ask them some basic questions.

In the process of stopping the individual and asking some basic questions, the officer may pat down the outer clothing of the individual in order to ensure no weapons are present and to facilitate the safety of the officer, the stopped individual, and innocent bystanders.  Think Sheriff Andy Williams strolling through Mayberry.

In theory, this pat down search must be brief and minimally intrusive, limited to the outer clothing of the individual; it cannot be a search for evidence.  How a particular officer conducts a basic pat down search says a lot about his personality; where a pat down search takes place is a huge factor in whether there will be trouble, or not.

On the mean streets of NYC, like here in the "D", officers have their hands full.  Routine stop-and-frisks can become a full-on fleeing, eluding and shooting in a matter of seconds.

In recent years, much grumbling has percolated up from the streets of Gotham due to the manner in which the NYPD handles its stop-and-frisk maneuvers.  The NYPD has been criticized for using racial profiling techniques in the prosecution of this law enforcement tactic.

In turn, this has led to a recent series of strident rulings by a federal judge in Manhattan.  Judge Shira A. Scheindlin has ordered sweeping changes to the NYPD, including a suspension of the stop-and-frisk policy as well as the appointment of a monitor for the department.

These rulings have been appealed to the United States Court of Appeals for the Second Circuit by the legal department of the outgoing Bloomberg administration.  Last month, the Second Circuit stayed Judge Scheindlin's rulings pending resolution of the appeal.

Of course, nothing ever being simple in Gotham, Judge Scheindlin put her thumb print all over these cases through a questionable maneuver to steer all the "stop-and-frisk" cases into her courtroom, and by granting media interviews about the cases while they were still being prosecuted in her Manhattan courtroom.

Now, however, some City bureaucratic leaders, and law-enforcement oriented folk, fear that the new administration of mayor-elect Bill de Blasio will withdraw the City's appeals of Judge Scheindlin's so-called anti-NYPD rulings.  NYC is the only entity with standing to appeal the rulings.

We shall see how these cases turn out in Manhattan.  While there could be some implication for all big-city police departments, here in Detroit, the DPD has a host of other problems distinct from how they conduct their stops and frisks.

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Thursday, November 14, 2013

350th Blog Post

By Timothy P. Flynn

Since March 2009, our law firm has been steadily contributing content to this blog.  Here we are, coming-up on our 5-year anniversary, and we would like to take a moment to thank the Oakland Press, our loyal followers, and readers that have taken a moment to scan a post or to post a comment to this blog.

Our 350 posts have garnered nearly a quarter million page views and thousands of comments.  We are looking forward to the next 5-years. What will blogs look like in 2018?

We here at the Law Blogger have imparted law-related content that we hope our target audience has found informative and interesting.  Keeping up with the law is what we do.

Every so often, one of our attorneys is asked, "how do you know what to post?"  Invariably, we respond that, in the continuous perusal of our legal news feeds, we "know-it-when-we-see-it".

Here is a sample of what we've served-up on tap over the past half-decade:
  • First post on California's same-sex marriage case that went all the way to SCOTUS, decided last June.  We saw this issue early on and have been tracking the collection of cases ever since; 
  • Medical Marijuana; since September of 2009, we've been tracking this interesting law here in Michigan and across the country [note: we utilized the funky spelling adopted in the MMA -marihuana- but have since dropped that convention for obvious serarch-related reasons];
  • The occasional tip or topic related to divorces and family law; we've even tried to make probate law worth the read.
We sincerely hope that you enjoy this blog and get some useful information from our posts from time to time.  Thanks again for taking a moment to peruse our content.  We would love to hear from you about what you find most interesting.

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Wednesday, November 13, 2013

Hawaii 15th State to Allow Same-Sex Marriage

Twenty years ago, a state court ruling from Hawaii sparked the same-sex marriage movement that has now become the civil rights struggle of our time.  Today, a Hawaiian state court ruled that same-sex marriage was legal in the 50th state to join the Union.

Hawaii now joins 14 other states to legalize same-sex marriage.  Just last month, it was the New Jersey Supreme Court adding their state, at least temporarily, to the growing list of states recognizing gay nuptials.  Illinois will become the 16th state later this month at a ceremony where the now-passed legislation will be formally signed by the Governor.

In the case of Hawaii, their Supreme Court ruled back in 1993 that a guarantee of legal equality could eventually lead to legalized gay marriage.  Largely due to the manner in which that High Court's ruling came down, it never developed any legal traction and was effectively overruled in 1998 by that state's voter initiative amending their state constitution to restrict legal marriage to opposite-gender couples.

Many of our readers will recognize this Pacific constitutional amendment as the precursor to the federal Defense of Marriage Act [DOMA]  -marriage is legal as only between a man and a woman-  recently struck down by the SCOTUS.  Legal scholars have suggested that DOMA was a federal legislative reaction to the surprising initial same-sex decision by the Hawaiian Supreme Court; the first such ruling in the coutry.

Like racial equality and gender equity, this ground is not easily gained.  There is nothing like a civil rights struggle to demonstrate the evolution of our federalist system of government.

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Saturday, November 9, 2013

Former Prosecutor Jailed for Withholding Exculpatory Evidence

Disgraced Former Judge
& Prosecutor Ken Anderson
We saw this in the 313 a few years back in the Judge Waterstone case; a prosecutor getting jail time for failing to disclose exculpatory evidence that could set an innocent accused individual free.  This post profiles a case, the worst we've ever seen here at the Law Blogger, that comes from Texas.

Here in Michigan, as in Texas and all other states, prosecuting attorneys have a duty to disclose evidence that is exculpatory -that is, favorable- to the accused.  Failure to disclose exculpatory evidence subjects the prosecutor to contempt of court for which a violator can be jailed.

Michael Morton was accused, tried and jury-convicted of killing his wife Christine back in 1987.  Ken Anderson was the prosecutor assigned to the case.  After convicting Morton, Anderson rode a "tough-on-crime" wave onto the county circuit court bench where he has been serving as a judge until resigning in disgrace just last September.

The source of his disgrace was that justice was finally served-up in Morton's re-opened murder case.  DNA blood evidence from another individual proved Morton did not murder his wife; the blood was from a local drifter who was later convicted of murdering another woman in Texas two years after Christine Morton's death.

In the process of re-opening Morton's case, it was learned that Anderson possessed two pieces of critical exculpatory evidence: Morton's 3-year old son saw the murderer and told his grandparents that it was not his dad but rather, a "monster"; neighbors' statements described seeing a drifter near the Morton residence in the days leading up to Christine's murder.

Unfortunately for Morton, he did a full quarter in the joint before being released in 2011.  The drifter was eventually convicted of Christine Morton's murder and now sits on Texas' Death Row awaiting execution.

As part of a global agreement settling all matters against him, the disgraced judge and former prosecutor was disbarred as a lawyer, and will do [only] 10-days in the county jail for contempt of court; he will not have a criminal conviction on his record.

The civil lawsuit against Anderson brought by the State Bar of Texas will be dismissed.  As part of the resolution, Anderson will not be charged with the more serious criminal charges of tampering with evidence [carrying a 10-year maximum prison term] due to statute of limitations constraints in bringing such a case.

If you were to ask us here at the Law Blogger, as between these two men, we believe Anderson got a far better deal.  He should be tasting prison food for at least a nickel; he got lucky and he knows it.

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Friday, November 8, 2013

Ex-Convict Jailed For Response To Jury Questionaire

There is a little known law here in Michigan that requires residents of any county to completely fill out and return a Jury Questionnaire.  Specifically, here is what we are all obligated to do pursuant to a chapter of our "catchall" statute known as the Revised Judicature Act:
Persons on the first jury list are required to return the questionnaire fully answered to the [County's] jury board within 10 days after it is received. [Bracket Supplied]
Last Monday, a resident of Bay County and ex-convict, reported to the Bay County Jail after have been held in contempt of court by Judge Joseph Sheeran for violating the above statute.

The man was held in contempt for completing his questionnaire with vulgarities and for scribbling things such as:
Leave me alone!! Please. Die in Hell Pigs/Judges/DAs.
He also told the judges to "f-off" and had other choice things to say that we will not print here at the Law Blogger.  The man's redacted handiwork can be viewed by clicking here.

This prospective juror's criminal defense lawyer could not keep the man from a jail sentence, however brief.  As noted by Judge Sheeran, all this man had to do was to disclose his ex-convict status and he would have been excused.

Was this individual as stupid as he accused the judges and county government workers being?  Or does he have the right to redress the government with an inartful complaint?

The interesting thing about this case is whether the citizen was entitled to "editorialize" his responses, incomplete as they were, as a part of his First Amendment right to freedom of expression and to petition the government with his grievances.  Or is his conduct and speech simply subject to the usual "time and place" restrictions relative to things [like census forms, tax returns, and other documents] that the government requires us to fill-out and file with one of their subdivisions?

Mi-Live's coverage of this man's conviction is replete with over 100 comments giving the many flavors, some frivilous, others quite serious, of our collective public view of such conduct, speech and government action.  Here are some of the comments this story has generated among the professionals, courtesy of the ABA.

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Sunday, November 3, 2013

Ohio's Patch in the Same-Sex Marriage Quilt

Since the SCOTUS decisions in United States -v- Windsor and Hollingsworth -v- Perry last summer, the civil rights push for same-sex marriage equality has picked-up momentum throughout the country.

State legislatures and federal bureaucrats have taken action across the land, as we noted at the Law Blogger here, here, here, and here.  State and federal judges are making decisions on a variety of same-sex marriage cases in the wake of the SCOTUS rulings on the issue; check-out our post on the same-sex adoption case pending in federal court in Detroit, here.

Now Ohio has a contribution through a federal judge's ruling on Friday in a case involving who can be named on a decedent's death certificate as a surviving spouse.

The cases involve two gay couples from Cincinnati who were married in states that recognized gay marriage.  Each couple lost a partner; the surviving partner sought to be named on their decedent's death certificate for practical purposes such as burial, as well as for symbolic reasons.

The funeral director was added strategically as a plaintiff; his attorneys requested that the chief of Ohio's health department be ordered to instruct all funeral directors and coroners to list same-sex surviving spouses on death certificates.  Attorneys for the State of Ohio sought to have the funeral director removed as a party to the civil rights litigation.

The federal judge's ruling is significant to the extent that it allowed the funeral director to remain a party in the case thereby making the judge's ultimate decision in the case applicable to all same-sex married couples in Ohio and other states.

Regardless of the final decision of the federal district court judge in this case, like the same-sex adoption case currently pending here in Michigan, these matters will be appealed to the United States Sixth Circuit Court of Appeals and then, possibly on to the SCOTUS.  We here at the Law Blogger see these separate cases, percolating up from adjacent states at the same time, as potential for consolidation when and if they are considered by the SCOTUS in the not-so-distant future.

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