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, May 30, 2015

When a Judge is Mentally Ill

Judge Brenda K. Sanders
36th District Judge Brenda K. Sanders could be the first judge in Michigan history to be removed from the bench due to mental illness. In March, a special master [appointed by the Michigan Supreme Court] conducted a hearing after which he concluded that Judge Sanders was "psychotic".

The case, initially lodged through a complaint filed by the Judicial Tenure Commission, contained allegations that Judge Sanders suffered from paranoid delusions about a conspiracy to remove her from the bench in Detroit. She detailed her irrational fears in a letter to U.S. Attorney Barbara McQuade.

Following an investigation by the Master, findings of fact were made which resulted in the Judicial Tenure Commission recommending removal of Judge Sanders from the bench based on her mental disability and judicial misconduct.  To date, however, Judge Sanders has refused to resign or retire.

Among her other reported problems, Judge Sanders had a 400 case backlog, took an extended medical leave found to be fraudulent, stated to the U.S. Attorney that she was being framed as a suspect in what she characterized as the suspicious deaths of other 36th District Court Judges, and claimed that she was evicted from her home in Detroit by the Michigan Supreme Court.

The case brings into focus the problem of mental illness among members of the bar and the judiciary. Lawyers and judges do operate in a stressful environment, fraught with adversarial proceedings, client and public expectations, with every decision subjected to continuous review.

Over here at the Law Blogger, we work with veteran litigators all day every day. It's just not an easy road.

Sometimes, the pressures of the job catch-up with the judge or the lawyer. What should be done when the legal professional starts to unravel mentally?

In the case of Judge Sanders, her lawyer has acknowledged his client's mental illness. Nevertheless, he has advocated for allowing her to retire on her own accord, with dignity.

As of this date, the case remains pending at the Michigan Supreme Court. Previously scheduled oral argument has been canceled and no argument is on the High Court's docket. The Supreme Court could simply decide the case based on the file it currently holds, or it could order oral argument.

When a judge or a lawyer is having trouble with mental illness, alcoholism or substance abuse, the Lawyer and Judges' Assistance Program is available to them through their required membership in the State Bar of Michigan. Also, the American Bar Association has established the Judicial Wellness Initiative.

In some cases, however, like the case of Judge Sanders, the legal professional will not take the necessary first step to recovery: accepting personal responsibility. Then the next step: accepting professional help.

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Thursday, May 28, 2015

Ireland, the Pope, and a Justice

Last week, in a country-wide referendum, Ireland legalized same-sex marriage by a convincing 62% of the heavy voter turn-out across the Emerald Isle. Of the 19 countries that have marital equality, Ireland stands alone in legalizing same-sex marriage via voter referendum.

The result was somewhat surprising considering that Ireland is overwhelmingly Catholic and only recently [1993] decriminalized homosexuality.

The Vatican's Secretary of State, Cardinal Pietro Parolin, presumably speaking on behalf of the Prelate, equated the vote to a defeat, not only of Christian values, but for humanity as a whole. The result of this referendum will, of course, continue to widen the chasm between Ireland and the Holy See.

The result of the referendum in Ireland is also unusual to the extent that wherever there is marital equality, it comes about through litigation or some form of civil rights struggle; rarely through an old fashioned plebiscite.

Here in the United States, for example, 39 states have legalized same-sex marriages; usually as the result of civil rights law suits challenging state laws that prohibit same-sex marriage. Next month, the SCOTUS is expected to decide Michigan's DeBoer case along with the companion cases arising from the United States Sixth Circuit Court of Appeals decision upholding state law bans on same-sex marriages and adoptions.

The DeBoer case could come down to the swing vote of Justice Anthony Kennedy, an Irish Catholic. Obviously, we would not expect the Justice to be swayed by events completely unrelated to the case. To us here at the Law Blogger, however, it does seem ironic that as Justice Kennedy writes his opinion on this civil rights case, events that involve the head of his church and the land of his forefathers focus the world's attention on the issue of marriage equality.

The SCOTUS decision in the DeBoer case is expected by the end of the term in late June. Stay tuned.

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Thursday, May 21, 2015

The Presumption of Joint Custody

Recently, we came across an interesting editorial in the Detroit News that addresses how family courts approach the issue of custody in a divorce or family court proceeding. The editorial points-out that Wisconsin is one of only two states with a statutory presumption of joint custody.

Michigan's Child Custody Act does not contain this presumption; it does, however, have language stating that joint custody must be considered. For years, however, there has been legislation proposed that would adopt a true joint custody presumption.

The organized family law bar [the Family Law Section of the State Bar of Michigan] has long-opposed the statutory presumption of joint custody. The argument is mostly based on the theory that custody must be decided on a case-by-case basis, and that frequent cases of domestic violence and abuse make the operation of the joint custody presumption too risky.

While the organized family law bar's opposition has never let the above-referenced House Bill 4141 see the light of day, there is always some opposition to the opposition.  But there is no "trend" or rush to a joint custody presumption.

In Wisconsin, the family courts are now bound to follow the "shared parenting" model; in Michigan, it is known as "co-parenting". As we always advise our clients, the custody label [joint, sole, legal, physical] is less important than the court-ordered parenting schedule and, whenever possible, maintaining communication between two parents that are willing to make parenting compromises that are in the best interests of the minor children.

It is true, however, that in some cases, the co-parenting model is simply not possible. Any divorce lawyer worth her salt can tick-off half a dozen recent cases where one parent or both refused to cooperate with any form of co-parenting, adopting a scorched-earth policy instead.

When this happens, the children pay the price; usually for the rest of their lives. So regardless of whether a state has a joint custody presumption, in all cases, without exception, it is the
p-a-r-e-n-t-s that have to get it together.

If you have a parenting or custody issue, contact us for a free consultation to discuss your options.

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Tuesday, May 19, 2015

Anonymous Instant Messaging App Pushes Ethical Boundries

YikYak, like most other social media start-ups, emerged as the brain-child of two recent college grads that borrowed money from their parents as their first mode of venture capital. Fast forward just 24-quick months, and we have a company valued at $200 to $300 million, receiving venture capital from the big boys of Silicon Valley.

The YikYak app allows localized user groups within a mile and a half radius to post anonymous instant messages to other users on any subject they want. The user agreement is designed to keep the user's identity private, short of a court-issued subpoena or court order.

You see the potential, for harm, embarrassment, harassment and abuse, we're quite sure. Think: Twitter without the profile.  If you have the inclination to being a cyberbully, this is your app.

Due to its short microcell radius, YikYak is ideal for the college campus. In one recent episode highlighted by family law blogger Jeanne Hannah, a philosophy professor at Eastern Michigan University was horrified when a teaching assistant with a YikYak account showed the professor what her students thought about her and the subject matter she presented that day.

The professor was so distraught over what she characterized as defamation, verbal abuse, even sexual harassment, she is pondering hiring legal counsel. Forevermore, this professor will be thinking about what her students are up to on their phones as they sit, presumably listening, to her lectures.

The NYT describes YikYak as the "go to" social media feed among college students. Taking the bad with the good, however, the Times also claims the app has been used to issue threats of mass violence on more than a dozen college campuses, including at Michigan State University.

Reaction to the app's basic function of anonymous hyper-local communication has been mixed; among the several petitions floating around on the Internet,'s petition has garnered over 70,000 signatures. This number pales in comparison to the millions of satisfied users claimed by YikYak's board of directors in response to criticism of the company mission.

For our part, we here at the Law Blogger have to wonder about the utility of an app designed to deliver anonymous communication within a hyper-local community. We are all for free speech, but if you decide to communicate threats, real or imagined, should you be able to hide behind the software-engineered walls of privacy?

The real chilling aspect to this is the high value put on such a company by Silicon Valley, knowing that the hyper-texting youth of today cannot wait to spew venom from behind  such walls.

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Saturday, May 16, 2015

Cold Case Murder Trials

Convicted murderer
Matthew Jones
When murder cases grow cold, they erode our confidence in the criminal justice system. The implication is that someone, somewhere has gotten away with murder; something that we do not want to ever happen, happens again and again.

Prosecutors and law enforcement of every stripe have cold murder units that are staffed and funded in a variety of ways. Prosecuting a cold murder case is one of the more difficult tasks a prosecuting attorney is called to perform. Getting a conviction in such cases is never a "slam dunk".

Just ask the Manhattan district attorney's office in the Etan Patz case. Last Friday, after 18-days of deliberations book-ending months of trial, the jury reported to Justice Maxwell Wiley of the New York Supreme Court [Gotham's trial court] that they were deadlocked.

Etan Patz disappeared in Manhattan in 1979; the murder trial did not feature a dead body because the boy was never found. A former store clerk, Pedro Hernandez, was charged with Etan's murder based on a confession his lawyers say was coerced by police.

Jurors in the Patz case deadlocked due to a lone hold-out who refused to give-up his firm conviction that the confession was not genuine. Because all other 11 jurors were clamoring for a conviction, a second trial will likely result.

Closer to home, over roughly the same period, the Michigan Attorney General successfully prosecuted brothers Matthew and Paul Jones for the 1989 murder of Shannon Siders. Toward the end of April, the Jones brothers were tried by separate juries in Newago County who deliberated for less than an hour to reach their first of two murder convictions following the 15-day trial.

In the Siders murder case, prosecutors had to overcome the inability of local law enforcement to build a contemporaneous case that could stick against the Jones brothers. Their convictions rested, in part, on the eyewitness testimony of a convict that claims he saw the Jones brothers in July 1989 on a remote two-track with the body of a young woman alongside their vehicle.

The witness, sporting an MDOC orange jumpsuit at trial, testified that he did not immediately report what he saw because he was on probation, driving drunk, with a 14-year old girl in his front seat. Jones' convictions, however, were also based on their own statements made to a family member over the years.

No doubt, there will be an appeal in the Jones' cases and, in the Patz case, New Yorkers get to live through a whole new trial. We here at the Law Blogger believe that it is a price worth paying to wrap-up these cold cases.

As Michigan Attorney General stated in a press conference announcing the Jones' convictions, justice for Shannon Siders, although delayed, was not denied.

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Sunday, May 10, 2015

Divorce Rate Debate

University of Michigan economics professor Justin Wolfers has been publishing reports for years claiming that reliable data indicates the U.S. divorce rate peaked in 1979, and has been in significant decline since. In fact, Professor Wolfers concludes based on current statistical trends, approximately 2/3 of all currently married couples will never experience divorce.

That is a weighty claim. If accurate, then why does the urban legend persist that over half of all marriages will end in divorce?

Relevant to this analysis is the fact that fewer young people are deciding to get married, those who do are waiting longer to tie-the-knot and, at least according to Professor Wolfers, on average, marriages are stronger and more stable today than 30-years ago.

The traditional bread-winner model [husband works outside the home; wife works inside the home] of the 1950s and 60s broke down, causing temporary upheaval reflected in the spiked divorce rate. Now, there is the so-called "love marriage" where couples, imagine this, actually love each other and get married solely for this reason, not for economics.

Of course, the factors involved in this calculus are sociological and thus, the subject of much debate. Academic researchers note that, significantly, two-thirds of all divorces are filed by women. The rise of feminism in the 1970s is offered as one chief plausible explanation for the so-called "spike" in the divorce rate of the 1970s and 1980s.

Professor Wolfers also has his statistical critics who claim that, given enough time, the divorce rate for those couples married in the 1990s and 2000s will "catch-up" with the 50% benchmark. These critics point to the fact that people married in the late 1990s and 2000 are not yet "empty nesters"; a common jumping-off point for weak marriages.

We here at the Law Blogger also wonder how the millennials, with their 30-second attention spans, will handle the challenges of long-term marriage. Rather than spike a divorce rate, the millennials may contribute to a sharp decline in the rate of marriage; electing just to stay single and connected to their own electronic private Idahos.

Federal funding allocated to the collection of data from the 44 states that maintain divorce statistics was eliminated in 1996, so national trends are more difficult to statistically verify unless the university gets involved; they are, to be sure. Nevertheless, states that collect divorce data do so reliably.

Here in Michigan, for example, when we complete a divorce proceeding, a Record of Divorce is required to be filed with the county clerk at the time the judgment of divorce is filed. The clerk then forwards the record of divorce to Lansing.

Let's hope that Professor Wolfers is correct that modern marriages are longer-lasting because they are stronger and forged out of love. There will always be a failure rate when two people tie-the-knot.

Divorce does not carry the same stigma that it did 30-years ago. If you are facing these tough decisions, a qualified divorce lawyer can ease the pain; our law firm offers free consultations to discuss your options.

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Tuesday, May 5, 2015

Hands Free Vehicles Legal For Now

Over the years, we have reported on the self-driving Google vehicles and the telematics associated with removing a human driver from the highway experience.  Now, several vehicle manufacturers are bringing hands-free driving options on-line in the upcoming months.

Tessla, Audi and Cadillac are all rolling-out serious hands-free options within the next model year. Mercedes-Benz and Infiniti have had limited versions of hands-free driving for the past few years.

As these options expand, the question becomes: is operating a vehicle "hands-free" legal?  So far, the answer is "yes".

Only New York has a state law, dating back to 1967, that requires that drivers keep one-hand on the wheel. Most other states have no regulation whatsoever regarding the specifics of the steering wheel.

The manufacturers are careful to market the hands-free options merely as temporary relief from the tedious components of our daily drive and not as a way for drivers to completely unplug from the road. This blogger, however, immediately sees the potential to switch on the hands-free option in order to, say, text or email the drive away and get things done.

If this happens, the law will move in; especially as soon as folks start getting seriously injured or killed.  For now, however, the manufacturers are easing these hands-free options into a regulatory void.

Industry professionals consider hands-free driving just the next step in the design evolution of the automobile. Like past innovations such as cruise control and anti-lock brakes, there are no specific government regulations affecting the technology.

But there is a personal injury bar. Once folks start clicking on the hands-free option, tuning out from the road, and picking-up their cell phones, things are bound to go South.  And when they do, the personal injury lawyers will be there to pick-up the pieces.

While the federal government regulates the design and crash-worthiness of vehicles, the states regulate the drivers. Here in Michigan, the home of the automobile, there are specific state laws allowing autonomous technology under certain limited circumstances.

In addition to negligent design product liability lawsuits, there is also local law enforcement standing by to temper the hands-free driving experience.  The road patrol officer will decide, on a case-by-case basis, whether the driver in a crash was at fault [careless or reckless] due to hands-free operation of the vehicle.

Once these vehicles begin rolling out, and crashes start happening, we will know more about the utility and cost-effectiveness of this next step in the evolution of the automobile.

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Friday, May 1, 2015

SCOTUS and the Same-Sex Marriage Cases: Now What?

Justice Anthony Kennedy
Earlier this week, the Supreme Court heard oral argument on a landmark case that had consolidated a group of same-sex marriage cases from the Sixth Circuit Court of Appeals. The decision in the Sixth Circuit -encompassing the states of Michigan, Ohio, Kentucky and Tennessee- upheld state laws banning same-sex marriages.

In all the states in the Sixth Circuit, and in nearly all the other states in the Union, these state law bans have been challenged by well-organized and often well-funded same-sex litigants. The Sixth Circuit case upholding the state law bans was unusual to the extent that it was the first federal circuit court of appeals to rule this way; all the other federal circuits that considered the issue struck down the state law bans against same-sex marriage as unconstitutional.

This is exactly the type of case that is accepted by the United States Supreme Court. Now that the High Court has heard oral argument in the case on Tuesday, following the submission of nearly 100 briefs, that august body is actively considering how to decide the matter.

There has been and will be much legal analysis forthcoming on this case. Most of the speculation focuses on whether the Supreme Court will issue a sweeping constitutional ruling like it did in the 1967 Loving v Virginia case [invalidating state laws that prohibited interracial marriage].  Some legal scholars predict the Court will find a fundamental constitutional right to marriage.

If so, all state laws prohibiting same-sex marriage will be voided. The High Court, in granting certiorari in the 6th Circuit cases, gave itself a compromise exit. It certified a second issue: the question as to whether states are required to recognize valid same-sex marriages from other states.

Thus, even if the Court does not find a fundamental right to marry, it can still require states to recognize valid marriages from other states. For example, although Michigan's law against same-sex marriage would remain on the books as a valid state law, a same-sex couple that was married in Massachusetts could move to Michigan as a married couple and their marriage would be legally recognized here in Michigan.

Of course, there is also the possibility that the Court rules against marriage equality on both issues, leaving the matter to be determined by the states through their respective legislatures and referenda. Depending on how Justice Anthony Kennedy [the so-called swing vote] sees the case, this is a real possibility.

The SCOTUS is expected to issue their decision in late June, probably just before they close their session for the summer. Then we, as a society, will know whether we are free to select our marriage partners for ourselves, or whether the government will tell us who to select.

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