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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Saturday, August 30, 2014

Digitizing Guardianships and Conservatorships

It took us three months, but we managed to do it; input pertinent vital information into a private database for nearly 100 individuals over whom we have responsibility in our capacity as a professional fiduciary.

The Oakland County Probate Court has seen a steady increase in the number of open guardianship and conservatorship files.  A guardianship and or a conservatorship becomes necessary when a person becomes incapacitated in some way and is no longer able to take care of their own affairs.

Here is Michigan's legal definition of an incapacitated individual as set forth in the probate code known as EPIC [Estates and Protected Individuals Code]:
Incapacitated individual means an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.
The affairs to which a fiduciary must attend are varied and often unlimited.  Tasks include paying bills, managing income, benefits and services, keeping the ward within a budget, administering medication, maintaining a safe residence, accounting for all income and expenses in the process to the probate court, and many of the other of life's routine yet collateral matters.  Since April, a guardian can also be called upon to execute a DNR for the ward.

Guardianships involve the incapacitated individual's medical issues and living arrangements, while a conservatorship is for the marshaling and conserving the individual's assets.

As one of 8 Public Administrators taking direct probate court appointments, my office staff and I manage over 100 fiduciary accounts.  While it is not rocket-science from a legal perspective [although every case is different], it is very challenging to keep track of more than 100 lives, serving as professional fiduciary and overall substitute decision maker.

Our office has implemented and trained on a software tool we learned about at a recent annual meeting of the Michigan Guardianship Association.  This software allows us to input and manage our ward's vital information in an organized efficient and digitized fashion; vital information at our fingertips needed to prosecute that fast-paced probate docket.

Our associates do not need to leave their work stations to retrieve a physical file, although, sadly, those files are still with us; we're not paperless yet, just paper redux.  We can quickly and efficiently retrieve information from our database that a hospital or doctor needs to complete an important, sometimes critical, procedure for one of our wards.

We can monitor the constantly changing details of the wards' health; of their living situation; and their physical needs.  Despite our recently accomplished digitization, we here at Clarkston Legal are mindful that our most important task is the face-to-face contact maintained with our wards.

If you have a loved one, family member or friend that is in need of fiduciary protection and would like to learn more about the process, consider contacting our office for a free consultation.  Our associates Beth Schlosser and Christopher Kelly are ready to assist.

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Friday, August 22, 2014

SCOTUS and the Same-Sex Marriage Civil Rights Movement

Colasanti and Ryder outside
Oakland Circuit Court in March
We here at the Law Blogger could not help but notice that same sex couple Frank Colasonti, Jr. and James Ryder were in federal court yesterday before U.S. District Judge Mark Goldsmith seeking injunctive relief to force the state to recognize what they say is a 25-year marriage.  The Oakland County couple were one of more than 300 to get married in Michigan immediately following federal judge Bernard Friedman's March 21st ruling that struck down our state constitutional ban of same-sex marriage.

The gay couple's attorney, University of Michigan Law Professor Julien Mortenson, was quoted in the Freep as saying, "the state cannot mandatorily divorce you."  Professor Mortenson asserted that the couple was properly married following Judge Friedman's ruling and that status cannot be undone, even if the SCOTUS reinstates Michigan's constitutional ban on gay marriage.

Ever since the 5-4 SCOTUS ruling in United States v Windsor in 2012, same-sex marriage advocates and the ACLU have argued in lower courts across the nation that the case applies to states' power to ban same-sex marriage; the argument is that Windsor's holding should be applied to the states such that any state constitutional ban or other law based on a sexual preference classification, is unconstitutional under the United States Constitution.

Problem:  the Windsor case did not apply to state laws; only federal benefits that were being denied to Ms. Windsor due to a sexual preference classification.  Most of the post-Windsor cases involve state constitutional bans against same-sex marriage.

In the case of the Oakland County couple, Colasanti, a retired school administrator, is unable to name his partner of more than a quarter-Century as the surviving spouse on his state pension.  Other Michigan same-sex couples have filed suit because the ban on same-sex marriages has affected couples' rights to obtain insurance benefits, to adopt children, and other rights enjoyed by heterosexual Michiganders.

Inevitably, this civil rights issue is heading to the SCOTUS.  But the High Court is being very selective about which case(s) it will select for briefing and argument.

In recent weeks, SCOTUS has denied pleas from Virginia and Utah same-sex marriage couples who, like here in Michigan, were legally married in the short period between the issuance of a pro-same-sex marriage decision in federal court and the issuance of an injunctive stay pending appeal.  The cases from Utah may be ready for a full SCOTUS review in the next term.

The High Court  -in denying the emergency injunctive relief requests to recognize the marriages of those couples lucky enough to squeeze through the county clerks' offices before the appellate stays were issued-  is clearly signaling a desire for an orderly appellate review process.  Everyone knows that right case is on its way to that Court.

Each of these cases pit our civil right to marry the person of our choice against a state's power to legislate such matters, often via voter-approved referendum or initiative.  That is why this blog describes it as the civil rights struggle of our time.

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Friday, August 15, 2014

Sixth Circuit Considers Same-Sex Marriage Cases

The DeBoer same sex marriage and adoption case made big news in Michigan last spring when, following a bench trial, federal judge Bernard Friedman invalidated Michigan's ban against same-sex marriages.  The Michigan Attorney General filed an appeal to the United States Sixth Circuit Court of Appeals and had the ruling stayed, almost immediately.

A series of 6 cases from each of the states within the geography of the Sixth Circuit were argued on the same day before a 3-judge panel to determine whether banning same-sex marriage is constitutional.  Interestingly, and as a matter of legal convenience, Michigan, Ohio, Kentucky, and Tennessee each have a state constitutional provision banning same-sex marriage.

The cases have pitted states rights and conservative groups against those that believe the right to marry is a fundamental right under the United States Constitution.

According to news reports from those present at the nearly 4-hour session, the judges wore their politics on their robes.  Judge Martha Craig Daughtrey, a Clinton appointee, seemed to favor the gay marriage advocates, while Bush appointee Judge Deborah Cook sparred with her left-leaning colleague.  As is often the case with 3-judge panels, one jurist stays poker-faced; this time, it was Bush appointee, Judge Jeffery Sutton.

Since the SCOTUS decision in United States v Windsor, nearly every state's federal court system has cultivated a same-sex marriage case, usually challenging the constitutionality of a state law that bans or limits the rights of same-sex couples.  Many of these cases are now on appeal in the federal Circuits.

A common legal thread to the cases is whether the so-called "heightened scrutiny" should be brought to bear on a statutory classification based on sexual orientation or preference under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.  The Supreme Court left this question open in its seminal Windsor decision.

This blogger was down in Cincinnati in June arguing a civil rights appeal, I have yet to receive a decision on my case.  So it could be the end of the year before we hear how the Sixth Circuit is going to decide the matter.

It looks to us over here at the Law Blogger that the SCOTUS will have to grant certiorari on one or more of these cases percolating up through the appellate courts.

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Sunday, August 10, 2014

Can A Seat on Our High Court Be Purchased?

Plaintiffs' Lawyer Richard Bernstein
This Sunday's NYT carried an article about a well-funded right-wing challenge to three justices on the Tennessee Supreme Court.  Despite surviving the retention election [where a justice essentially runs against herself] all three targeted Tennessee jurists saw their margin of electoral victory eroded by the well-orchestrated conservative campaign.

The sins of the jurists?  Appointing a Democratic Attorney General in 2006 [Tennessee has not gone Republican in a presidential election in decades, and that includes Tennessean Al Gore in the 2000 election]; being "soft-on-crime"; and being anti-business.  Still, there was a general feel of an overall outright political attack on the jurists in the election last week based on their voting record in key cases.

Usually, High Court justices come under fire for single issues.  In 2010, for example, all the justices on Iowa's Supreme Court that voted one year earlier to approve same-sex marriages were ousted in the non-partisan Iowa ballot.  The same thing happened in California to three High Court jurists during the death penalty debate: none of the pro-death penalty justices were retained.

Nowadays, a jurist's vote to approve same-sex marriage is common place; happens all the time, as routinely reported in this law blog.

Here in Michigan, the personal injury plaintiff's bar has been accused of attempting to buy a seat on the Michigan Supreme Court for the past quarter Century.  Our High Court has held onto a precarious 4-3 "conservative" majority for that decades-long stretch and then some.  This so-called conservative majority is crucial in cases that decide not only personal injury issues, but also constitutional issues relating to criminal defense, law enforcement, privacy and business.

Now, personal injury lawyer Richard Bernstein recently announced he is seeking a nomination from the Michigan Democratic Party for a seat on the Michigan Supreme Court.  In November, two Governor Snyder appointees are facing re-election, and a third seat is opening-up via the retirement of Justice Michael F. Cavanaugh.

Aside from the relative oddity of a lawyer running for a seat on the High Court [as opposed to a sitting judge] there is the fact that Bernstein is the wealthy scion of personal injury luminary Sam Bernstein.  Also, we take note that the Democrats declined to nominate Bernstein in his bid to be the Democratic candidate for Michigan Attorney General in 2010.

While we here at the Law Blogger realize that one justice cannot re-write our jurisprudence, we do have to wonder about the propriety of electing a lawyer so viscerally aligned with a specific area within the law: i.e. prosecuting plaintiffs' personal injury tort suits.

Our judicial system does depend on a jurist's neutrality in all cases.  So let's stay away from the well-funded single-issue juggernauts.

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Friday, August 8, 2014

Retired Judges Urge Michigan Legislature to Retroactively Apply Rescission of Juvenile Lifer Law

Retired Oakland Circuit
Judge Edward Sosnick
By:  Timothy P. Flynn

As a young lawyer in the early 90s, I accepted an unusual professional gig.  In order to become an adjunct law professor at my law school alma mater, University of Detroit, they wanted me to first teach law and prisoners' civil rights to female inmates at the now-closed Scott Correctional Facility in Plymouth, MI, under a federally mandated education program.

What struck me about the inmate students back then were the number of women convicted of the so-called "drug lifer law".  If you were convicted of delivery of more than 650 grams of cocaine or heroin, your sentence was life without the possibility of parole.

In the late 90s, former Governor John Engler, a pretty conservative governor, signed the rescission of that law.  In doing so, the Legislature and the Governor made the rescission retroactive to the hundreds of convicts that were racking-up decades of prison time in the MDOC.  Soon after the law was executed, all of the drug-lifers were paroled with time served.

Fast forward to this week, and we see a group of retired circuit court judges calling for our state legislature to take action on the juvenile lifer law; specifically, to pass legislation making the rescission of the law retroactive to the nearly 350 inmates doing life sentences for capital convictions when they were juveniles.

What really caught my attention was that Retired Oakland Circuit Judge Edward Sosnick was among the judges signing the Freep editorial.  Judge Sosnick was a good judge.  Whenever I had a client standing before Judge Sosnick at a sentencing hearing, I always walked away thinking my client received a fair sentence.

Here is issue framed in a nutshell: SCOTUS ruled in 2012 that state juvenile lifer laws violated the Eighth Amendment's prohibition against "cruel and unusual" punishment.  In their wisdom, however, the High Court was silent as to the retroactive application of their ruling, leaving the states to figure out what to do with their aging populations of the juvenile-convicted.

Here in Michigan, the Attorney General won a legal battle a few months back at the Michigan Supreme Court in a case holding that the rescission of the juvenile lifer ban does not apply retroactively.  In arguing the case, the Michigan AG focused on the rights of the victims; most often, the families of individuals that were murdered by the juvenile lifers now so desperate for parole.

As the retired trial judges know, however, not all of those 350 convicted juvenile lifers were cold-blooded juvenile murders; some of those convictions were based on sketchy evidence; some of the juveniles had highly attenuated involvement in the murders for which they were convicted.  Also notable in the legal battle were the 110 former prosecutors and trial judges that filed an amicus brief in the Michigan Supreme Court case calling for retroactive application of the rescission.

Here at the Law Blogger, we'd bet that each of the judges that signed the Freep editorial calling for retroactive application of the rescission of the juvenile lifer ban presided over some of the trials of the convicted lifers.  We'd also bet that the retired judges occasionally saw juveniles charged, tried, and acquitted on capital offenses, dodging the bullet of a life sentence without the possibility of parole.

If the group of 350 juvenile lifers, believed to be the largest in the nation, have any chance at parole, it will have to come from the Michigan Legislature as the highest courts have spoken.

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Monday, August 4, 2014

Lawyers Without Law Schools

Over the past half-decade, the entire concept of going to law school has received strict scrutiny, even here in this law blog.  The idea of acquiring a 6-figure debt for a professional credential strikes most graduate students and their families as ludicrous.

Four states have a little-known alternative for those college graduates committed to becoming lawyers.  In California [of course], Vermont, Washington, and Virginia, a college graduate can qualify to sit for the bar exam without attending law school.

The process is called an apprenticeship - by studying in the office of a real lawyer or judge, by "reading the law", the apprentice gradually learns the law and, at least in 4 states, is deemed qualified to sit for the bar exam.  There are guidelines in each of the states, and the apprentice must take exams along the way.

This is the "road less traveled" to be sure.  According to the National Conference of Bar Examiners, of the more than 80,000 bar exam takers last year, only 60 were law office "readers".  The legal profession is constantly being called to task for using law schools as sentinels guarding entry into our once-noble profession.

Until law schools began to proliferate in the late 19th Century, "reading the law" was the manner in which students became lawyers.  Think, Abraham Lincoln and Chief Justice Thurgood Marshall; neither of these luminaries went to law school.

Out in California, the United Farm Workers union has developed a long-standing tradition of training lawyers through apprenticeships.  Those mentored by the union's staff attorneys have, as attorneys, assisted migrant farm workers and similar causes.

The obvious advantage of the apprenticeship model is that, with no crushing student loan debt to repay, the newly-minted lawyer can bring more focus to bear on doing good, than on making money to repay the loans.

With many law schools giving lip-service over the past quarter century to the concept of training students by providing them with the practical skills they really need, some have moved aggressively toward converting the third and final year of law school into an "externship", i.e. spending time in a law office.

While the practical aspects of a lawyer's training is a good beginning point for improvement, other significant obstacles remain.  For example, of the small group of apprentices that sat for the bar last year, only 28% passed compared to 73% of exam-takers that graduated from ABA-accredited law schools.

The bar exam, also a subject of previous Law Blogger posts, has its own set of critics.  All of this concerns the "secret sauce" that makes up the process of becoming a lawyer.

So long as lawyers remain viable on our nation's professional landscape, the lawyer-making process should be critically examined.

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