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.
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Monday, January 27, 2014

Judge Disqualified After Sending Divorce Litigant Facebook Friend Request

A Florida judge has been disqualified from remaining on a case in her family court docket after sending a party in a pending divorce a friend request on Facebook.  According to the appellate panel that reviewed the matter in Chase v Loisel, the family court judge's social media activity has led to her disqualification in other cases.

In the Chase divorce, the wife received an ex parte communication from Judge Linda Schoonover in the form of a friend request on Facebook.  The wife did not take the bait, conferred with her attorney, and ignored the request.

In the subsequent judgment of divorce, the wife took great offense to the manner in which Judge Schoonover decided the case, complaining that she was apportioned with too much marital debt.  When the family court judge denied the inevitable motion to recuse herself from the divorce proceeding, an appeal followed resulting in the afore-linked decision.

In disqualifying the family court judge, the Florida appellate court was troubled by the judge's attempt to reach out to a litigant in a pending case in a jurisdiction where judges are prohibited even from "friending" attorneys involved in the judge's caseload.   The appellate court held:
The trial judge's efforts to initiate ex parte communication to a litigant is prohibited by the Code of Judicial Conduct and has the ability to undermine the confidence in a judge's neutrality.  The appearance of partiality must be avoided.  It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case. 
We here at the Law Blogger think that this is a pretty darn good idea.  In the past few years in Michigan, this blog has detailed many of the transgressions those elected to the judiciary have made through the social media.

Quite simply, judges must rise above the urge to participate in social media.  Perhaps a judge can lurk on social media sites, but active engagement is probably not the best idea.

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Saturday, January 25, 2014

Virginia Abandons Same-Sex Marriage Opposition

This time, the Commonwealth of Virginia is trying to get it right.  Perhaps tired of seeing his state being on the wrong side of history, Virginia Attorney General Mark Herring announced a stunning about face that is quite rare in the law: Virginia will not only drop its opposition to litigants seeking to overturn Virginia's constitutional ban on same-sex marriage, it has joined forces with the challenging litigants.

Constitutional scholars will recognize the significance of Virginia's about face.  The Commonwealth has lost a series of landmark civil rights cases over the past half-century.

For example, in the wake of the landmark 1954 decision in Brown v Board of Education, desegregating all public schools, the Commonwealth responded first, by refusing to comply with the decision, then taking the unusual step of closing their public schools from 1959 to 1964, until the SCOTUS righted the ship in Griffin v Prince Edward County.  Then in 1967, SCOTUS decided Loving v Virginia striking down the state law prohibiting interracial marriages.

Even in announcing that his office will no longer oppose the pending legal challenge to the Commonwealth's ban on same-sex marriage, AG Herring stated that Virginia would continue to enforce the ban until the federal court rules on the case next week.  The expected outcome in the case, considering United States v Windsor, is that the Commonwealth's ban will be declared unconstitutional.

In announcing the policy reversal, AG Herring applauded the litigants even though as a state legislator, he voted for the ban.  This goes to show how civil rights struggles progress over time and how our constitutional jurisprudence continues to evolve.

02/14/2014 Post Script:  Now it's official.  Federal Judge rules in a strongly-worded opinion that Virginia's ban on same-sex marriage is unconstitutional.

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Thursday, January 16, 2014

Privacy and a Tale of Two Courts

The Federal Bench.  Judge Richard J. Leon serves on the bench of the United States District Court in the District of Colombia; Judge William Pauley III serves on the bench of the United States District Court in Manhattan.  These judges have issued opinions in two cases that impugn tactics employed by our National Security Agency that were brought to light last summer by the now-expatriated Edward Snowden.

Judge Pauley's decision gives the NSA a pass to continue gathering evidence despite the effect on our collective or our individual rights to privacy; Judge Leon's decision reigns the NSA in on their tactics.

What the NSA is Doing.  Legal expert and law blogger Johnathan Turley put it bluntly and accurately in his recent post analyzing Judge Pauley's recent privacy decision in ACLU vs Clapper.  He characterizes these cases as challenging the NSA from collecting, "telephony meta-data from almost every phone call or any other electronic communication you'd care name in this country in the seemingly limitless war on terror."

Since Edward Snowden, the former NSA contractor, dropped the bomb on the world last summer that NSA was tracking not only cell phone meta-data, but emails and all other forms of electronic data, it has become common knowledge that anything anyone does on-line or electronically, anywhere in the world, can and is being stored.  And if your electronic fingerprints are being stored, they can be tracked by the NSA.

The SCOTUS Precedent.  Turley has a point; it was not 9/11 that began the erosion of our rights to electronic privacy, it was the 1979 SCOTUS decision in Smith vs Maryland.  In that case, the SCOTUS ruled that individuals do not have a reasonable expectation of privacy in the details  of our telephone calls, [i.e. call points, call destinations, time of calls, etc.] and that law enforcement can obtain this data from third parties like the telephone company.

Judge Pauley's Opinion.  This case is ACLU vs Clapper.  The opinion cites to the Smith vs Maryland precedent to basically grant NSA a pass to continue collecting our meta-data because none of us really can reasonably maintain an expectation of privacy in anything we do electronically, at least in the form and manner of a communication.  So the 4th Amendment lost out in this case; the question is, did we?

Judge Leon's Opinion.  The other case is Klayman vs Obama where Judge Leon took a stand for privacy by enjoining the federal government from further data collection of the two named individuals and their cell phone calls and other electronic transmissions.  Then, he promptly stayed his injunction to provide the feds the opportunity to appeal his ruling.  See, this is what happens in federal court in the District.

Two cases involving government snooping with disparate results.  One or both of these cases will grind onward in the appellate courts as the notion of privacy in our post-modern world continues to evolve.

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Wednesday, January 15, 2014

Federal Judge Strikes Oklahoma's Constitutional Ban on Same-Sex Marriage

As predicted here at the Law Blogger, 2014 will be a banner "floodgate" year relative to same-sex marriage cases.  Yesterday, federal judge Terence Kern issued a 68-page opinion that struck Oklahoma's constitutional provision limiting marriage between a man and a woman.

The effect of Judge Kern's ruling is stayed pending appeal to the 10th Circuit.  As our nation's marriage law jurisprudence deepens with a collection of cases spread across the 11 appellate circuit courts, there is no doubt that one of these cases will make it to the SCOTUS to supplement United States vs Windsor.

The Oklahoma case, Bishop vs United States, pending long before the Windsor decision was handed down, challenged the marriage definitions of the Defense of Marriage Act and the Oklahoma state constitutional provisions expressly prohibiting same-sex marriage.  Oklahoma's constitutional provisions were passed by voter initiative in 2004 and provide:
A. Marriage in this state shall consist only of the union of one man and one woman.  Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
B.  A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.
C.  Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.
Well, you can probably kiss these restrictive prohibitions good bye for good if the momentum of our federal marriage law continues apace from the SCOTUS Windsor decision.

The Bishop case has been kicking around for nearly a decade.  The two lesbian couples that make up the plaintiffs in the case already have been to the 10th Circuit once on appeal, successfully challenging a summary judgment, changing lawyers upon remand, and amending their complaint to include finely-tuned constitutional allegations and bringing the case against the United States as well as the State of Oklahoma.

The now-struck constitutional provisions set forth above have counterparts in many states, including here in Michigan.  Each of these states have lawsuits, or will soon have lawsuits, seeking declarative relief that such provisions are unconstitutional under our federal constitution.

At some point along the way, another case or two will be granted certiorari by the SCOTUS so that the matter can be settled across the nation, presumably along the lines of Loving vs Virginia; the decision that struck Virginia's state law proscribing inter-racial marriage.  This case could come in the next term, or it could be a decade out.

In the meantime, this blog will continue to chronicle the state-by-state struggle for same-sex marriage that has become the civil rights struggle of our time.

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Sunday, January 12, 2014

Jailing the Nutty Blogger as Cyberbully

Alabama Blogger Roger Shuler
On Sundays, the NYT often supplies this blog with grist for our content mill; this Sunday's edition did not disappoint.  There it was, referenced on bottom of the front page, ranked as the 6th most read article at mid-day on the NYT's web site:  "Blogger's Incarceration Raises First Amendment Questions".

Apparently, Mr. Roger Shuler, through his blog titled Legal Schnauzer, does not know when to shut-up, or to stop posting.  At least that is the opinion of the local judge who jailed him back in late October for his contempt of court arising within the context of a defamation tort lawsuit filed in Shelby County, Alabama against Shuler by the son of a former Alabama Governor.

Now, to be fair, Mr. Shuler is litigious.  When he is the plaintiff or the petitioner in a law suit, he rarely wins.  In fact, one thing at which Shuler excels is getting creamed in civil law suits; to the point where it has cost he and his wife the ownership of their private residence.

In his blog, Shuler rails -conspiracy style- against an assortment of conservative local and state politicians.  All manner of sexual and criminal escapades are alleged against the public figures in the blog, without attribution or reliable verification.

Not content with simply being  a noisome cyberbully, Shuler has filed law suits against the following persons and entities:
  • his neighbor; 
  • his former employer; 
  • the local police department; 
  • the county sheriff; 
  • the lawyer that won the case against said neighbor; 
  • judges that have ruled against him; and
  • the State Bar of Alabama, among others.
This nutty blogger is now on the short-list of imprisoned journalists maintained by the Committee to Protect Journalists; he is the only, er, "journalist" from the Western Hemisphere and shares company on the list with journalists from Iran, China and Egypt.

We here at the Law Blogger think Shuler likes the attention that his jail stint for contempt has garnered.  Through his inflammatory and defamatory posts, Shuler may have purposely set-out to be the blogosphere's poster-boy for free speech martyrdom.

By jailing the nutty blogger, the local county judge has attracted criticism from First Amendment scholars from across the nation who contend that his harsh remedy is a form of prior restraint; a content-based muzzle rather than a matter of judicial enforcement of orders and decorum.

On the other hand, Shuler blogs about the former governor's son, Robert Riley, Jr., petulantly leveling bald wholly unsupported allegations that Riley impregnated a lobbyist and paid for a secret abortion. In the blogosphere, you had better be ready to back-up such words in the inevitable defamation suit.

Here at the Law Blogger, one of our lawyers had a probate case that attracted media attention when the Wayne County Probate Judge assigned to the matter jailed one of the interested parties for contempt during live proceedings.

The party found in contempt by the probate judge had been blogging about the attorneys and the judge in the case.  While one of the interested parties, also a target of the blog, was presenting oral argument for an injunction and a contempt finding against this thrash-blogger, one of the judge's clerks was printing pages from the blog and feeding them to the judge for his review.

In this case, it sure did not aid the cyberbully's cause that her blog roundly trashed the presiding judge that was conducting the hearing.  She was sent to the courthouse lock-up for contempt until such time as she could prove to the probate judge that the offending pages had been removed from the Internet.

Now that was a judicial overreaction and a clear-cut case of prior restraint in possible violation of the declarant's First Amendment right to free speech.  As a result, the woman was featured in an above-the-fold article in the Detroit Free Press the next day, holding her cat, broad grin spread across her mug.  The article was not favorable to the judge's contempt ruling.

Perhaps justice would have been better served in the Shuler case if the local judge stuck to the merits of the defamation case and just let the nutty blogger keep paying the high-cost of his ridiculous conduct in the form of damages, fines, costs, attorney fees, liens, and all the other stinging components of adverse rulings in the civil courts.

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Friday, January 10, 2014

Motor City ACLU Sues Feds on Behalf of Insane Clown Posse Fans

Detroit's Insane Clown Posse
Juggalos: those zombie-like fans/groupies/followers devoted to the aging Detroit-based rap duo Insane Clown Posse.  Like them or not, ICP has a long tortured history, having been hatched in Detroit's service drive music scene back in 1987; an eternity in the music world.

According to Wikipedia:
The group is composed of Joseph Bruce and Joseph Utsler, who perform under the respective personas of the "wicked clowns" Violent J  and  Shaggy 2 Dope.  Insane Clown Posse performs a style of hardcore hip-hop known as horrorcore and is known for its elaborate live performances.  The duo has earned two platinum and five gold albums.  
The songs of Insane Clown Posse center thematically on the mythology of the Dark Carnival, a metaphoric limbo in which the lives of the dead are judged by one of several entities.  The Dark Carnival is elaborated through a series of stories called Joker's Cards, each of which offers a specific lesson designed to change the "evil ways" of listeners before "the end consumes us all."
Thus is the stage set for hordes of Juggalos.  With the band's history of assault convictions in the late 1990s, every concert retains its recipe for a suburban cult disaster.  And guess what, although the band-mates deny it, there have been incidents of violence, drugs and exhibitionism at many ICP concerts; law enforcement is on to "them".

Yet not all Juggalos are committing crimes at concerts.  And not all Juggalos are bad; misunderstood and perhaps sorely misguided, but not all law breakers.  So over here at the Law Blogger, what we're wondering is whether such extreme yet collective bad taste should be criminalized?

Some time ago, the FBI glommed onto this game for bored suburbanites.  Back in 2011, the FBI's National Gang Intelligence Center designated "Juggalos" as a "loosely organized hybrid criminal gang."  In and around the 313, law enforcement has been on the lookout for Juggalo types, especially at ICP concert venues like the Royal Oak Music Theater.

Juggalos have been harassed, and the band has suffered; now they've stuck back.  The ACLU Detroit has filed a lawsuit in federal court on behalf of the fan base, seeking injunctive relief, i.e. the removal of Juggalos from the FBI gang squad's list of the infamous, and destruction of all Juggalo files and documentation: especially the photos, recording what has to be a rogues gallery of self-deprecation, if not self-mutilation.

After all, criminalizing bad taste is, in the words of the ACLU lawyer assigned to the case, "un-American".  If the First Amendment and its long tortured history means anything to the federal judge assigned to the case, this will be an ACLU victory.

Update:  Here is an update from the Detroit News in April 2014, with the ICP trying to change its image.

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Sunday, January 5, 2014

Snapchat Gets Hacked

By: Timothy P. Flynn

Believed to be the first social media site in 2014 to be hacked, last week Snapchat  had 4.6 million accounts breached, including account names and partial cell phone numbers.  To add insult to injury, the hackers posted the stolen information and an explanation of why the hack was executed on this tech post from TheVerge.

Young peeps, mostly teenagers, have been drawn to the site since its inception in September 2011 because a user can send a pic or video that disappears upon opening in 10-seconds or less.  Imagine the possibilities for regrettable selfies and sexting.

Snapchat reportedly turned down a multi-billion dollar purchase offer from Facebook last year; this episode will not add value to the company or its service.  This is especially true for a company with a founding principle of preserving the anonymity of its users.

From a privacy standpoint, our cell numbers are hugely important for a variety of reasons.  First, a cell number is a basic building block for a cyber thief.  Also, we tend to hold onto our cell numbers for a long period of time; even longer than some of our social media accounts, some of our emails, user names and even residential addresses.

Second, if a hacker has your cell number you can be subject to "smishing"; spam that comes to you in the form of a text message that requests you to click on a link.  When you do, malware is deposited into your cell phone that can retrieve stored data such as photos and contacts.  Third, hackers can use your cell number to side-step some security measures in the world of e-commerce.

We here at the Law Blogger have taken note of the teen-aged "daily use" flight from trusted -and now ancient- sites like Facebook, to newer sites like Snapchat, Instagram, WeChat, and Vine.  Teenagers simply do not appreciate the potential harm posed by hackers lurking on line within the seams of these new platforms.

Last week's Snapchat hacking episode hearkens social media users back to June 2012 and the infamous Linkedin hack [another ancient platform] resulting in 6.5 million compromised LI accounts.  This blogger had to change his username and password on that buttoned-down social media site as a direct result of that crime.

If you have children that are active on such sites, take a moment to emphasize some basic security steps and the importance of not giving away your personal information.

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Friday, January 3, 2014

Le Divorce Sans Judge

This is this morning's headline, picked-up by the major news outlets of the world on the occasion of a new French law that takes effect today.  In France, if a couple meets certain administrative requirements when filing for divorce, which place them into a "no contest" or "pro confesso" category, then they can obtain a divorce decree without a judge ever having looked at their case file; just a clerk.

Boy, the French sure know matters of the heart.  Or do they?  Ms. Dominique Bertinotti, the stylish French Minister of Social Affairs, said today that, with one of every two couples eventually getting divorced, "do we have to make it more difficult?"  She said the new law was designed to simplify the divorce process and that, "simplification is a good thing."

Of course, the new French law is being reviled by critics as the latest harbinger of the destruction of marriage as a viable social institution.  Really?  We here at the Law Blogger, fortunately, don't see married couples going away any time soon.

Here in America, and specifically, here in Oakland County, Michigan, an uncontested divorce barely gets on a family court judge's radar.  If the parties to a divorce proceeding agree on all the issues [more common than you would think] most family court judges are unwilling to get in the way of the agreed upon resolution and basically "rubber-stamp" the proposed divorce decree; especially when prepared by a lawyer with all the requisite bells and whistles.

What's more, in the collaborative divorce model favored by our law firm, all the negotiating is done before the family court even acquires jurisdiction over the parties and their children.  The settlement agreement is negotiated first, then executed; only then is the case "officially" filed with the court.  By then, it's a done deal.

So perhaps this is what the French had in mind when they passed this new law.  So long as a couple agrees on the manner in which they desire to extricate themselves from the marital contract, and so long as the arrangement is fair, does the state really need to butt in?

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