Over the years, we have observed Fox 2 Detroit's "ambush journalism" in the context of the judiciary. Who could forget the piece that ended former Judge Dennis Powers' career as a district court judge in Novi; or their -unsuccessful- attempt to put egg on Judge Rae Lee Chabot's robes.

The idea is to get some choice undercover footage of the judge or justice outside the courtroom, preferably out-of-doors, at home, or at a restaurant. Then, when they least suspect it, stuff a microphone in their face as they are walking toward their car and ask them why they are not in court.

This time, Fox 2 set their sights on the Michigan Supreme Court and Justice Brian Zahra. The ambush occurred outside his parents' home, apparently in the middle of a Tuesday morning; the allegation is that Justice Zahra only goes into his office once a week.

This story raises the issue of whether a Supreme Court justice is required to maintain regular office hours between 9:00 am and 5:00 pm. To address this issue, you have to know something about what a High Court justice does.

Unlike other Michigan courts, the Supreme Court controls its docket by selecting -through a vote of the 7 justices- which cases it will decide. On average, there are about 3000 cases filed with the High Court each year.

The job entails reading an endless supply of briefs written by the best lawyers in Michigan and other states; the job entails staying abreast of the developments in the law; reading lower court opinions; reading statutes; thinking about how those laws apply to a particular set of facts; and, in their assigned cases, writing the opinion that will become binding law on all the lower courts in Michigan.

These days, all appellate briefs -along with the attachments known as an appendix- are required to be uploaded to the court website. As Justice Zahra said in his interview, he has his entire docket and office on a thumb drive.

No one would seriously argue that reading submissions in electronic format requires someone to be sitting at a desk in an office between the hours of 9 and 5. In fact, an argument could be made that a traditional office setting is a place of distraction when it comes to reading, thinking and writing about the law.

Oftentimes, when this blogger has an appellate brief due, I avoid the office for the peace and quiet of my private study in my home. To have a stream of staff walk in and out of my office when trying to complete a brief on deadline is stressful and counterproductive.

My first job out of law school in 1988 was a law clerk position at the Michigan Court of Appeals. In the pre-hearing division, we were assigned an office with a complete set of Michigan reports and statutes; actual books on the shelves; no computers. Our reports to the judges were written-out long-hand on legal pads and then given to secretaries in a typing pool.

Today, an entire law library, along with all the files in my law practice, fit in my laptop computer with instant access. With smart phones, the expectation is that legal professionals are available 24/7.

So who knows whether Justice Zahra works on weekends, late into the night, or early in the morning in order to complete his opinions in the cases assigned to him by the Chief. Does this really matter so long as his output, as one of seven justices on the High Court, is getting done on time?

We are told by the Chief Justice, Robert Young, that his work is timely and exemplary. He gets high marks from his colleagues on the bench; those in the best position to know whether Justice Zahra is doing his job.

Also, a supreme court justice is different than a trial judge that must be present in her courtroom everyday in order to address her docket through hearings, trials and conferences. When trial court judges run late or are absent, the docket starts to back-up, and expensive legal professionals end-up standing around a judicially empty courtroom.

That's a problem for the trial courts. On appeal, not so much.

Post #537

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It's that time of year when the SCOTUS is awash in oral arguments that will lead to the seminal opinions of this term. So it was yesterday at the High Court in Washington, D.C. for argument in the case of United States v Texas, posing an important immigration policy question that tests the very limits of executive branch power.

This case presented an evenly divided Court -down one justice following Justice Scalia's sudden death in February- with the task of passing muster on President Obama's innovative immigration policy; a series of recent executive directives made through the Department of Homeland Security known as Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).

The objective of DAPA is to provide favorable prosecutorial discretion for otherwise illegal immigrants that satisfy certain express criteria [such as verifiable employment, and having a young adult child that is a citizen of the United States], granting such individuals a limited period of time during which they are deemed to be "lawfully present" in the United States. The term "lawfully present" is at the center of the dispute.

Here are the legal mechanics of the issue, as stated by the SCOTUSBlog:

(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.

We here at the Law Blogger define the issue as: whether the President or Congress should decide who, among the more than 10-million illegal immigrants in the US, gets to stay in-country, and for how long, despite no legal right to do so.

Texas and 25 other states challenged Obama's executive acts relative to DAPA and successfully had the executive acts enjoined by a federal judge in Texas; the injunction was affirmed by the Fifth Circuit Court of Appeals.

The Solicitor General of the United States asserted that President Obama had the constitutional authority to establish priorities for enforcement of the federal immigration laws. Further, the United States argued that Texas, not being harmed by DAPA, lacked standing under the constitution to even bring the suit to federal court.

Texas, on behalf of itself and many other states that joined the suit, asserted that it would suffer significant administrative costs [i.e. providing drivers licenses and other government services] devoted to a group of people who are in the country illegally.

Chief Justice John Roberts, active during the extended oral argument, was skeptical of the federal government's position, giving rise to speculation that he would not likely join the block of 4 liberal justices. Without five justices signing onto a "majority" opinion, the ruling will lack authority as precedent and the Fifth Circuit's injunction of the federal directives will remain in place for the balance of President Obama's term in office.

President Obama's legacy aside, there are countless lives and families in the balance, along with our national security. This case presents a complicated mess, to be sure.

We will be watching for the SCOTUS opinion on this case so stay tuned.

Post #536

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Full disclosure: like many of the over-50 readers of this blog, Led Zeppelin's "Stairway to Heaven" is one of this author's favorite songs. That iconic track, perhaps more than any other, cemented Zeppelin's status as one of the greatest rock bands of all time.

A 2014 copyright infringement lawsuit claims that this track was ripped-off from a lesser known act, Spirit and Randy California, back in rock's heady heyday in 1968 when Zeppelin opened for Spirit.

The complaint, filed in the United States District Court for the Eastern District of Pennsylvania, reads like a rock history documentary of the early days of Zeppelin and Spirit. Alleging that Zeppelin, and its front men Jimmy Paige and Robert Plant, ripped-off many other artists' material for their blockbuster hits, the suit promises to devote all damages recovered to promote the musical aspirations of children in public schools.

For their part, Paige and Plant cannot recall playing with the band Spirit and have never heard of the song "Taurus", the song alleged to have been co-opted by Zeppelin. This lack of memory is due, Plaintiff alleges, to the protracted drug and alcohol abuse of the Zeppelin front men.

Last week, Judge R. Gary Kalusner denied Zeppelin's motion for summary judgment, finding a "substantial similarity" between Zeppelin's "Stairway to Heaven" and Spirit's "Taurus"; similar enough to go to trial. Trial is scheduled for mid-May.

You may be thinking, why did Randy California's trust wait so long before filing suit? Zeppelin has asserted defenses of waiver, abandonment of the claim and laches.

Zeppelin's lawyers are also seeking to preclude evidence in the jury trial of their legendary drug use. Although this lawsuit involves the technical aspects of a song introduction and its specific musical notes, the litigation has a tawdry potential given the super-group's defenses.

Stay tuned for how this interesting litigation unfolds next month.

Post Script: 06/24/2016 - the Led Zeppelin jury asked to hear each song one more time; within a half hour of listening to the songs, they decided for Zeppelin; case over. The trust is now considering whether it will appeal.

Post Post Script: 08/17/2016 - since losing the jury trial, the lawyer for the Randy California Trust has been disbarred for issues unrelated to the Zeppelin case. Led Zeppelin's request for reimbursement for attorney fees of nearly one million dollars was denied by the judge that conducted the trial.

Post #535

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Our readers know this blog has covered the marital equality civil rights struggle over the past 8-years. Although the SCOTUS definitively ruled on the issue in the Obergefell v Hodges decision, the struggle continues.

In the wake of Obergefell -cloaking marital equality with constitutional Due Process protections- a crop of state laws have been proposed collaterally challenging the High Court's ruling. Mississippi comes to mind, with its recently enacted House Bill 1523.

The new law essentially creates a work-around to the constitutional ban on state laws that proscribe marital equality, same-sex marriage and same-sex adoption. This statute allows government employees -including, presumably, state judges- businesses and social workers to invoke their personal religious beliefs in declining to sanction, say, a same-sex marriage or adoption.

Referencing the pluralism inherent in Mississippi's Religious Freedom Restoration Act of 2014, the statute's preamble acknowledges the inherent conflict between marital equality and religious freedom. Here is the pertinent language contained in the new law:

Any person employed or acting on behalf of the state government who has authority to authorize or license marriages, including, but not limited to, clerks, registers of deeds or their deputies, may seek recusal from authorizing or licensing lawful marriages based upon or in a manner consistent with a sincerely held religious belief or moral conviction described in Section 3 of this act. Any person making such recusal shall provide prior written notice to the State Registrar of Vital Records who shall keep a record of such recusal, and the state government shall not take any discriminatory action against that person wholly or partially on the basis of such recusal. The person who is recusing himself or herself shall take all necessary steps to ensure that the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.

The statute also provides a cause of action against the state for those aggrieved. Amazingly, this law sailed through both state houses in February and Republican Governor Phil Bryant, a vocal proponent of religious liberty, signed the bill into law last Tuesday.

Legal challenges to the statute cannot be far behind. Indeed, the preamble to the statute invokes these inchoate lawsuits destined for Mississippi courtrooms.

We here at the Law Blogger believe these lawsuits, filed both against the state as provided in the act, and those challenging the constitutionality of the new law, will be immediate.

Post #534

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As appellate lawyers, we here at the Law Blogger appreciate the importance of solid cogent and logical oral argument. Oral arguments are the opportunity for the lawyers, after filing briefs, to explain their case to the panel of judges.

As SCOTUS watchers, we have noted that conservative Justice Clarence Thomas, since his appointment by George H. W. Bush in 1991, has rarely posed questions to the lawyers during argument. His decade-long stretch of silence was broken during oral argument last month on a Second Amendment case.

Not only did Justice Thomas break his silence, he posed a series of questions to the lawyers on a case that posed the question whether a misdemeanor domestic violence conviction should bar someone from the possession of a firearm for the rest of their life.  The last time Justice Thomas posed a question from the bench, it was February 2006 in a death penalty argument.

Justice Thomas has stated his reasons for not pipping-up from the bench. He believes many lines of questioning during oral argument are inappropriate; adding nothing to the substantive issues of the case and being more about a judge showcasing his or her own jurisprudential world view.

One high-profile justice, a good friend of Justice Thomas with a seat adjacent to his on the SCOTUS bench, the recently-departed Justice Antonin Scalia, reveled in questioning the lawyers during oral arguments. As a fellow conservative jurist, Scalia was the extrovert to Thomas' introvert.

Here in Michigan, many appellate practitioners are vocal about doing away with the oral argument tradition. The primary thrust of the argument is that it really does not add much to the decision-making process while consuming a disproportionate level of judicial and attorney resources.

The counterpoint is that oral argument presents the only opportunity for the judges deciding a case to question the lawyers about their reasoning and legal analysis; to better inform the judges about the case they are going to decide.

Having Justice Thomas ask a question is so rare, the event received front-page treatment on the NYT. His questions also spawned legal commentary about the efficacy of oral arguments in general; here is the link to the SCOTUSBlog post on the subject.

Post #533

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