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.
For more information email: tflynn@clarkstonlegal.com

Saturday, July 29, 2017

Judge Gorcyca Censured But Not Suspended by Michigan Supreme Court

Oakland County Family Court Judge Lisa Gorcyca has to be feeling partly vindicated this morning in the wake of the Michigan Supreme Court's disposition of her judicial tenure matter. Judge Gorcyca challenged the findings and suspension recommendation of the Judicial Tenure Commission last year, appealing to the state's highest court.

The well-known case against Judge Gorcyca arose from her July 2015 decision in a post-judgment divorce matter involving the Tsimhoni family. Frustrated with a patent case of parental alienation and contempt of her court orders, Judge Gorcyca ordered the three Tsimhoni children confined to Children's Village.

Her fateful decision to incarcerate the Tsimhoni children, well within her powers as a family court judge, precipitated the judical tenure complaint. Yesterday, the Supreme Court summarized her predicament in Justice Brian Zhara's 54-page opinion:
The record is clear that as early as August 2010 these children embarked on a concerted effort to thwart meaningful interaction with their father and continued to do so despite respondent’s orders to the contrary. Regardless of their age, there is no question that during the intervening years, each child knew they were supposed to have visitation with their father. And any person old enough to engage in this deliberately defiant behavior over a five-year period must appreciate that they could be called before the court to account for their actions.
Finding that she performed due diligence and acted in good faith in the Tsimhoni divorce, the Michigan Supreme Court declined to suspend Judge Gorcyca, opting to censure her instead. Here is the crux of the High Court's rationale:
In this case...respondent’s decision to hold the children in contempt was an isolated instance of legal error. But we find it more significant that the errors—holding LT in contempt and giving the father the keys to the jailhouse— could have been remedied on appeal, that the errors were made with the parties’ knowledge, and that the parties failed to object to the orders. Further, in this tense court hearing, the children each had a lawyer present as well as the LGAL. The record also reflects that an FOC counselor was in the courtroom as well as an assistant prosecuting attorney. None of the lawyers or trained professionals in the courtroom suggested that respondent’s actions crossed the line nor did they offer alternative actions for the court’s consideration. For these reasons, we cannot conclude that respondent’s decisions are fairly characterized as “willful failure[s] to observe the law.” Respondent had the statutory authority to hold any contemptuous person in contempt of court, and it certainly appears that at least RT and NT blatantly defied the court’s order. As previously discussed, respondent may even have had authority to hold LT in contempt for encouraging his younger siblings’ contemptuous behavior, but we need not decide that question because even if that was not the basis of respondent’s contempt order, it is clear that respondent did not act in willful disregard of the law.
Justice Zahra is perhaps the ideal jurist to author this opinion. He is, as far as we know, the only justice on the High Court bench with judicial experience on the family court.

In several of our previous posts on this topic, here, here, and here, the Law Blogger has maintained that, at worst, Judge Gorcyca's decision in this fateful case amounted to legal error. Legal error can and should be addressed by the Michigan Court of Appeals, not the Judicial Tenure Commission.

If you are in Judge Gorcyca's camp on this issue -and the overwhelming majority of the family court bar is- then this opinion comes as a relief. Oral arguments in the case did not go particularly well for Tom Cranmer, Judge Gorcyca's lawyer; it really looked like the Supreme Court was leaning into a suspension to resolve the case.

In our opinion here at the Law Blogger, the Supreme Court made the correct ruling. Judges like Lisa Gorcyca are valuable members of the family court. Family Court judges cannot prosecute their dockets by looking over their shoulder to see whether a good faith legal ruling will wind-up entangling the judge in a judicial tenure matter.

Post #601
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Tuesday, July 25, 2017

Clarkston Legal Videos Over the Past 10-Years

In the past ten-years, my law firm has produced a few short video clips to promote our mission statement. We have enjoyed just a few very slim slices of public exposure during this decade.

This 600th post publishes some of our best clips from the past 10-years. Take a look...

The very first clip features a closing argument following a three-day trial in a drunk driving case before the legendary Oakland Circuit Judge Steven Andrews way back in 2009. This poor-quality video was purchased from the Oakland County Circuit Court Administrator prior to the Court's ban on disseminating such videos of court proceedings.



This second clip features a panel discussion involving my first case before the Michigan Supreme Court back in 2006. Probably for the legal professionals among our readers.



Then we produced our first marketing video in 2010, designed for social media distribution. The colors were good, and the "actors" are actual clients. We really got a lot of mileage out of this short little clip.





Here is another throwback to the Oakland Circuit Court from 2009; a sentencing hearing for one of our few homicide cases. Now-retired and long-serving Oakland Circuit Judge Ed Sosnick can be seen presiding over the hearing. Our client pled to leaving the scene of an accident resulting in death; she was sentenced to 6-months in the "work-release" program.



More recently, I was able to generate a clip resulting from one of my rare appearances before the Michigan Supreme Court in People v Robertson; a case involving the "search and seizure" clause of the 4th Amendment to the United States Constitution. Boy, am I ever getting grey...



Finally, last year, we got it together and produced this gem with a pair of our best clients ever.


Time really does fly when you are having fun; this is certainly true in the professional setting.

If you or a loved one are facing the rough waters of a divorce or criminal charge, give us a call to discuss your options in a free  consultations.

Post #600

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Thursday, July 20, 2017

Juice on the Loose

First, it was White Boy Rick; now the Juice. Jeeze, everybody who's anybody is getting out of prison this month.

I happened to be traveling to Flint for a court date in Genesee County Circuit Court right when OJ's parole hearing was broadcast live, so I was able to listen to the entire proceeding.

The story of OJ's conviction is well known. Although he dodged a double murder conviction in Los Angeles in the mid-1990s, OJ was convicted of armed robbery in Las Vegas, Nevada in 2007, when he bum-rushed a hotel room with several accomplices in a misguided attempt to recover some of his infamous property and memorabilia.

As a criminal defense lawyer listening to the parole hearing, I was well aware of the number one rule when standing in front of a judge at sentencing, or when pleading for release before the parole board: be contrite, be humble, be remorseful.

A parole hearing is not the time to re-argue the facts of your case. But that is exactly what OJ did today during his parole hearing.

After listening to his eldest daughter Arnelle, now 48, extend the traditional message of remorseful contrition toward the three-member parole board panel in Nevada today, I winced as OJ allocuted on his own behalf.

He dove right into his defense, asserting that he had no idea anyone in the room possessed a weapon, much less brandished one. It is now common knowledge that OJ had directed one of his accomplices to "bring the heat".

Although he was visibly intoxicated during the robbery, when asked whether he availed himself of alcohol treatment in the prison -as he promised to do at his last parole hearing in 2013- he confidently stated that he had no problem with alcohol; and further asserted that he led a "conflict-free" life.

These gross misstatements alone can be sufficient to scuttle an inmate's opportunity for parole. In the end, however, OJ's advanced age, -70- his lack of any prior felony convictions, and the fact that he completed his judgment of sentence, was sufficient to obtain an order for his release on October 1, 2017.

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Post #599


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SCOTUS to Rule on Same-Sex Wedding Cake Case

With rumors flying about Justice Anthony Kennedy's imminent retirement, and with Justice Ruth Bader Ginsburg determined to hang-on through the Trump Administration, an interesting same-sex case involving a wedding cake has made its way to the SCOTUS.

The case, Masterpiece Cakeshop -v- Colorado Civil Rights Commission, pits gay rights against religious freedom. An otherwise amiable cake shop owner was sued under Colorado's public accommodation law when it refused to accommodate a same-sex couple's request for a gay-themed wedding cake. The shop owner's refusal was based on his sincerely held religious beliefs against gay marriage.

We've seen these cake cases percolating through the legal systems of various states for the past half decade. This one from Colorado was just recently granted certiorari by the SCOTUS after a lengthily delay.

Asserting his First Amendment right to freedom of religion, the shop owner and petitioner, who characterizes himself as a "cake artist", claims that the Colorado law is unconstitutional to the extent that it forces him to accommodate customers in the violation of his religious beliefs. The lower court decision of the Colorado Court of Appeals held that the baker illegally discriminated against a gay couple under the Colorado law.

SCOTUS denied a similar petition for cert three years ago and watchers of the High Court, seeing the extended delay in acting on the petition, anticipated another rejection from the SCOTUS. Surprisingly, the Court granted certiorari and the case will be argued this fall, with a decision on the merits expected next spring.

The case received the four votes required to grant certiorari. This fall, it will be interesting to see how the newly-configured Court will handle this civil rights dispute. Depending on the judicial fates of Justices Kennedy and Ginsburg, President Trump may have the opportunity to bolster the conservative wing of the High Court.

Meanwhile, these gay-themed cake cases are gaining traction within our culture. Currently, a play in Los Angeles, "The Cake", has adopted the theme of these cases: pitting a shop owner against gay customers who ask the owner to do something with which the owner disagrees on moral and religious grounds.

With all that we have swirling around Washington at the moment, some of our legal friends have already commented on this post that SCOTUS has way more on its plate than to decide this case. On the other hand, religious beliefs run deep and affect our souls.

So, we will do what we always do here at the Law Blogger: keep you posted...

www.clarkstonlegal.com
Post #598


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