By: Timothy P. Flynn

Last Tuesday, Governor Rick Snyder signed a new adoption law designed to accommodate a biological father's standing to establish his parental rights and suspend pending adoption proceedings.  In such cases, the child is returned to the Mother, and remains under the jurisdiction of the county family court.

 Most family court professionals will recognize this procedure as the path to take in nearly all cases.  A recent case from Ottawa County, however, resulted in a 13-page published [and thus binding] appellate opinion that resulted in awarding Father full custody of an infant when he challenged Mother's adoption petition. In Johnson v Byron, Father successfully utilized the "she was giving-up the baby anyway" argument, a commonly un-persuasive assertion, but one that prevailed in both the Ottawa Family Court and the Michigan Court of Appeals, presumably due to the unusually dysfunctional parental dynamics [i.e. a concealed pregnancy, expedited adoption, heroin, marijuana, pills, booze, the works].

The new law calls for the child to be returned to the Mother upon Father's filing of a timely challenge to the adoption proceedings.  In such cases, the temporary adoption placement is terminated and Mother's petition is dismissed; custody of the child is then determined by the county family court, with Father's parental rights intact.

The local Friend of the Court then gets involved in the custody determination through the application of the Child Custody Act, rather than through a "best interest" hearing under the now-revised adoption law.

Members of the Republican caucus in the Michigan House were apparently sufficiently moved by outcomes in Byron and cases like it to reach out to the Adoption Committee of the State Bar of Michigan's Family Law Section; the Committee authored HB 4648.

In the wake of the new law's passage, many family law professionals commented in the legal news media that the amended adoption law removes a potential trump card from the hands of a previously disinterested and perhaps irresponsible biological father; it levels the field for both parents, giving the Father a voice in lieu of punishing Mother for her decision to seek adoption.

We here at the Law Blogger believe that this law makes good sense.

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Attorney General Bill Schuette

By:  Timothy P. Flynn

Yesterday, the U.S. Supreme Court issued a seminal opinion deciding the constitutionality of Michigan's 2006 voter-initiative law, known as Proposal 2, that prohibited public colleges and universities from granting preferential treatment to racial minorities when making admission decisions.   The case, Schuette vs Coalition to Defend Affirmative Action, was a big win for Michigan Attorney General Bill Schuette.

In announcing the SCOTUS decision, Justice Anthony Kennedy insisted the High Court was not ruling substantively on the race issue but rather, only on whether courts have the authority to "disempower" voters from making decisions on such substantive, and admittedly divisive, issues.  Justice Kennedy's so-called swing-vote controlled the outcome in the 6-2 decision [Justice Elena Kagan abstained due to her earlier involvement in the case as the U. S. Solicitor General].

SCOTUS legal scholar and blogger Lyle Denniston noted that conservative Justices John Roberts, Jr. and Samuel Alito, Jr. would have gone further than the majority by declaring:

that no policy that takes race into account can be upheld if it is not a direct remedy for intentional racial discrimination — in other words, they would not allow race-conscious remedies for programs that have a more negative effect on minorities when discrimination was not intended.

Justice Sonya Sotomayor, on the other hand, issued a lengthily 58-page dissent which decried that the majority decision would make it far more difficult, if not impossible, for racial minorities to prosecute legitimate affirmative action programs like the public university admission programs at issue in the Schuette case.  Well, the problem with her analysis is that this case now holds that, if Michigan voters properly affirm an initiative, the courts cannot interfere.  While Justice Sotomayor may believe the public university affirmative action admission policies make sense, are just and fair, Michigan voters have decided otherwise.

From time to time, this blogger finds himself in the company of Bill Schuette like last May, where we discussed this case on the occasion of oral arguments recently conducted in Washington, D.C..  Mr. Schuette was confident of the AG's legal position, commenting that, "what's more equal than equality?"

He makes a compelling point folks.  And the AG's position has now prevailed through SCOTUS endorsement.

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Veteran Research Attorney
Karen Geibel

Well, the the field is now set.  In November, it will be Lisa Langton vs Karen Geibel for the open seat on the Oakland County Circuit Court.

Ms. Langton is a deputy court administrator for the Oakland Circuit Court.  Ms. Geibel is the long-serving research attorney for Oakland Circuit Judge Rudy Nichols.  Incidentally, Judge Nichols is also up for re-election, running with a block of six other sitting judges.

Last month, this blog speculated that Ms. Langton could wind-up with the seat unopposed, unless someone else filed the requisite 5000 signatures.  That someone is Karen Geibel.

Normally, a half-dozen candidates vie for any open seat on the Oakland Circuit bench.  The top two vote-getters advance from the August primary to the general election in November.

Because this year's non-partisan election has a paucity of candidates, the judicial hopefuls will not have to ruin their summer with endless campaign appearances since they will both automatically advance to the November ballot without spending a dime.  Nevertheless, you will probably see the judicial candidates at various farmers' markets, municipal gatherings and parades over the next six months.

As the new judge will be installed in the family court division, the divorce lawyers out there will slowly begin to take note of the now-official judicial candidates.  For our part, we will be monitoring the election to inform our readers of any relevant developments; stay tuned.

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By: Timothy P. Flynn

Oakland County Undersheriff Michael McCabe told the Oakland Press this week that the surveillance device known as Hailstorm, recently acquired by the Sheriff Department for over $350,000, is a legal, constitutionally-sound, legitimate law enforcement tool.  Undersheriff McCabe said specific deployments of the device are supported by particularized search warrants and sworn law enforcement affidavits.

Nevertheless, the surveillance device is giving some of our county legislators cause for concern.  And, of course, the ACLU is looking into law enforcement's use of the device across the nation, including here in Oakland County.

Here is how it works.  The device, about the size of a suitcase, can be installed in a sedan-sized patrol vehicle, and operates essentially like a cell phone tower.  It's sole function, however, is to track and capture the metadata from targeted cell phones.

One of the troubling aspects of this newly developed technology is the highly secretive nature exhibited by both the manufacturer and the purchasers of the device; everyone involved is hiding behind the Homeland Security Act when asked about the details of how this technology works.  According to the ars technica blog:

The Hailstorm is the latest in the line of mobile phone tracking tools that Harris Corp. is offering authorities. However, few details about it have trickled into the public domain. It can be purchased as a standalone unit or as an upgrade to the Stingray or Kingfish, which suggests that it has the same functionality as these devices but has been tweaked with new or more advanced capabilities. Procurement documents show that Harris Corp. has, in at least one case, recommended that authorities use the Hailstorm in conjunction with software made by Nebraska-based surveillance company Pen-Link. The Pen-Link software appears to enable authorities deploying the Hailstorm to directly communicate with cell phone carriers over an Internet connection, possibly to help coordinate the surveillance of targeted individuals.

In addition to the Oakland County Sheriff, the police forces of Baltimore, MD and Phoenix, AZ have also acquired Hailstorm units.  Undersheriff McCabe told the Oakland Press that the Oakland County Sheriff acquired the unit from a federal grant known as the Urban Area Security Initiative [a 9/11 related grant].

Undersheriff McCabe, in his interview with OP reporter John Turk, provided assurances that only specifically targeted individuals would have their cell phone data tracked, and that this targeted surveillance was supported via search warrant.  Oakland County Commissioner Jim Runestad [R-White Lake] and State Rep. Tom McMillin [R-Rochester Hills], however, are not sleeping well at night with the Sheriff's assurances.

We here at the Law Blogger, like legislators Runestad and McMillin, and the ACLU, are concerned about the privacy of law abiding citizens.  More and more, such citizens simply do not have any reasonable expectation of privacy once they plug into the digital sphere and begin to enter data, for whatever purpose.

Apparently, if you are going to avail yourself of the post-modern smorgasbord of digitized conveniences, the price for doing so is your privacy.

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By:  Timothy P. Flynn

You need to be an appellate lawyer to follow the recent high-speed developments in the same-sex marriage jurisprudence coming to a rapid boil across the country.  The principal case here in Michigan has had some complicated procedural developments over the past few weeks; we will break it down for you if we can.

As those that follow the news, and this blog well know, U.S. District Court Judge Bernard Friedman issued an opinion and order declaring Michigan's state constitutional ban to be a violation of the Equal Protection clause of the United States Constitution.

In conjunction with Governor Snyder, Michigan's Attorney General has aggressively pursued the state's appellate options in the DeBoer same-sex marriage and adoption case.  Since losing the case at trial, Attorney General Bill Schuette has done what any state actor appellate attorney would do: a) seek a stay of the trial court's ruling pending a resolution of the inevitable appeal, and b) expedite this inevitable appeals process by requesting what is inconveniently referred to as an "en banc" appeal.

These filings by the Michigan Attorney General make a lot of sense.  And the United States Court of Appeals for the Sixth Circuit seems willing to play along.

First, consider that the Sixth Circuit immediately granted the AG's motion for an emergency stay, so Judge Friedman's ruling is held in abeyance for the time being; no more legal gay marriage licenses can be issued in Michigan.

Second, we here at the Law Blogger happen to think that AG Schuette's latest motion for en banc review makes a lot of procedural sense.  Generally, when a litigant loses a trial, our system of justice provides for a second look; the trial judge is not the final word in any given case.

When a losing litigant becomes an appellant, the case is assigned, in both state and federal courts, to a 3-judge panel to decide the matter via majority vote.  The party that loses an appeal has the option to inveigh the entire appellate court; an en banc appeal.  In the case of the Sixth Circuit, that includes 23 judges.

Most appellate litigants that apply for en banc consideration are rejected.  Rather than suffer this procedural rejection, many appellate litigants elect to push on the the High Court; the United States Supreme Court.

Not so with the DeBoer case; a case that has profound constitutional significance and that has become a symbol of the civil rights struggle of our time.  Attorney General Schuette is correct to seek en banc review rather than intermediate appellate review from a 3-judge panel; why waste the time and resources.

There is no doubt that this case, along with select others from across the nation, will be ultimately decided by the SCOTUS, as in the United States v Windsor decision.  Like the abortion issue that preceded it, the same-sex marriage issue will be a deep and rich jurisprudence that will flesh-out over time.

Cutting to the chase, as the Michigan Attorney General wants to do, makes a whole lot of sense.

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