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: info@clarkstonlegal.com

Monday, January 30, 2017

Federal Judge With Michigan Ties Blocks Deportations

New York federal judge Ann Marie Donnelly was born in Royal Oak, MI and attended the University of Michigan in Ann Arbor. She went to law school at Ohio State.

Over the weekend, her previously low-key tenure on the bench of the United States District Court for the Eastern District of New York blew-up. That is because of a two page order granting an emergency injunction, brought by the ACLU, blocking deportations of refugees and visa holders pursuant to an executive order signed by President Trump late Friday afternoon.

In issuing her order, Judge Donnelly found, after conducting a hearing in Brooklyn, that the emergency petitioners, and other similarly situated individuals, would likely prevail on the Due Process based challenge to the deportations. Further, the judge found that the petitioners would suffer irreparable harm without the stay, while the respondent -the United States government- was not likely to suffer any harm during the period of stay. Shortly after her ruling, another federal judge, in Alexandria, Virginia, also issued a stay.

Now, the matter will come back before Judge Donnelly for a full hearing on the merits of the petition [although the court order does not provide for this] and President Trump's executive order eventually will be subjected to judicial review. No doubt, whatever ruling Judge Donnelly makes on the merits will be appealed to the United States Court of Appeals for the Second Circuit.

Of the approximately 175 people who were in-transit and thus affected by President Trump's Friday afternoon order, over 80 persons received waivers based on their green card status following case-by-case reviews.

After serving as a state court prosecutor for 25-years and as a state court judge in New York, President Obama appointed her to the federal bench in late 2014.

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Saturday, January 28, 2017

Oakland County Family Court Judge Gets Amicus Assist

Legal professionals have mixed views of what the Michigan Supreme Court will do with the Judicial Tenure Commission's misconduct finding and suspension recommendation regarding Oakland County Family Court Judge Lisa O. Gorcyca. Here at this blog, we've asserted the position that the JTC was not the appropriate forum to conduct what amounted to a review on the merits of one of Judge Gorcyca's decisions in a highly-contentious child custody case.

The case gained world-wide media attention in the summer of 2015 when Judge Gorcyca held the three Tsimhoni children in contempt of her court and put them in jail for refusing to spend time with their father pursuant to her orders. Judge Gorcyca has since recused herself from the case, but her contempt ruling has burgeoned into a challenge to her professional standing as a family court jurist courtesy of the Michigan Judicial Tenure Commission.

Last fall, a special master made a series of findings regarding how Judge Gorcyca handled the matter; several of those findings addressed Gorcyca's decision to use her contempt powers. Based on the special master's findings of misconduct, the JTC has recommended Judge Gorcyca be suspended.

As is her right, the judge has requested a trial -really an oral argument- before the Michigan Supreme Court; the argument has been scheduled for March. Last week, the Michigan Supreme Court granted the request of the Oakland County Bar Association and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file an Amicus Curiae brief.

In the introductory paragraphs to the Amicus brief, the OCBA states:
It is often said: “In criminal cases, judges see bad people at their best; and in family law cases, judges see good people at their worst.” In family law, where emotions often run high, judges require both broad authority to issue orders and a full arsenal of powers to implement their orders. They cannot and should not be burdened by “political correctness”. Indeed, one of the cornerstones of our judicial system is the recognition that judges provide justice for all, including, when appropriate, supporting the minority or unpopular causes.
The Amicus brief highlighted points of contention with two of the JTC's findings: 1) the alleged intemperate comments made by Judge Gorcyca; and 2) the alleged error in the mechanics of her contempt ruling.

Characterizing the proceedings as a "disingenuous prosecution", the Amicus concluded, and we here at the Law Blogger wholeheartedly agree, that Judge Gorcyca, in the worst case, made an error of law; she did not transgress judicial norms or canons; she did not commit judicial misconduct.

At the heart of the Amicus brief is the rationale that if judges are subjected to punishment based on their substantive rulings, then a chilling effect will seep into the judicial fabric of our county court system like a damp cold fog. This chilling fog will distort the mechanism of justice for many families at the very time they need the county family court the most.

This blogger recently experienced the chilling effect of the Gorcyca case first hand. During argument in a parental alienation case, we represented the target parent, attempting to break through a stubborn wall of parental alienation. In her reluctance to enforce the terms of a previously entered parenting order, the family court judge specifically referenced Judge Gorcyca's case.

For all of these reasons, we here at the Law Bogger sincerely hope that the Michigan Supreme Court is persuaded by the OCBA's amicus brief. Errors of law belong in the Court of Appeals, not before the Judicial Tenure Commission.

Post #577

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Wednesday, January 25, 2017

The Price of Jury Duty

Just before the holidays, I spent time carefully arranging my calendar for March. Booked a trip to Chicago for the ABA's fabled Tech Show one week, and booked a trip to Washington DC for the Big Ten basketball tourney with some college friends I had not seen in a few years.

Then, last week, a jury summons showed up in the mail. Not just any summons; this one was for federal court. The only other time in my life that I was called for jury duty [2002] was also for federal court in Detroit.

Here's how federal jury duty works: the summons advises that you are on call for two weeks. The prospective juror is required to call a number every night and listen to a recording advising whether you have to appear at the Theodore Levin federal courthouse in Detroit the next day.

In my case, the two weeks overlapped with both trips for which I had just completed payment. As I thought about how to go about postponing my commitment, a sinking feeling overcame me as I dialed the number on the summons.

After entering my juror number and following the recorded prompts, I could tell the court's administrative office was waiting for prospective jurors like me. Who among us doesn't have something significant in any given week that, in our minds, constitutes good cause to avoid reporting for jury duty? I hung-up the phone.

Instead of trying to write the requisite missive to the court explaining all of my carefully laid plans and how they conflicted with my prospective jury service and awaiting their response, I set about cancelling my trips.

At first, I thought, what a shame; having to cancel two trips for being on juror call when I would never be sworn in as a juror anyway due to my status as a practicing lawyer. I was really looking forward to getting to Chicago as I had not been in a while. Same thing Washington DC.

Then I got to thinking how important jurors were when selecting them for one of my own trials. How much the Court and the litigators counted on those jurors to arrive at the courthouse on time each morning to pay close attention so we could put on our case without delay; how much we counted on them to "get it right".

Serving on a jury is one of the most important services we can perform as citizens. Our service allows trials to proceed through a verdict that will determine the outcome of a dispute. Jury service is therefore one of the hallmarks of our civil society.

Post #576

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Tuesday, January 24, 2017

Trump's SCOTUS Nominees Down to Short List of Three

Roe -v- Wade critic
Judge William Pryor
The checks and balances of our unique style of Democracy are on display in the federal judiciary where the judges are appointed by the Chief Executive with the advice and consent of the Senate. At the highest level, the POTUS, the SCOTUS, and the U.S. Senate interact in a tightly-choreographed political chess match.

For nearly a year, Justice Antonin Scalia's seat on the SCOTUS has remained vacant since his death. President Obama, having nominated federal appeals court judge Merrick Garland, was already a lame duck and could not get the Senate to provide the advice and consent required by the U. S. Constitution.

During his first week in office, President Trump has reportedly narrowed the field to three nominees -all federal appellate jurists appointed to the bench by President George Bush- and is expected to announce his nominee as early as this week:

  • Thomas Hardiman - 3rd Circuit Court of Appeals Judge, University of Notre Dame and Georgetown University Law Center graduate, appointed to the federal bench by President Bush in 2007 at the age of 31; 
  • William Pryor - 11th Circuit Court of Appeals Judge, Northeast Louisiana University and Tulane University Law School graduate, appointed to the federal bench in 2006; and 
  • Neil Gorsuch - 10th Circuit Court of Appeals Judge, Harvard Law School graduate with experience clerking for two SCOTUS justices [Kennedy and White], also appointed to the bench in 2006.
All three nominees have solid conservative bona fides, yet with a few interesting outliers among their jurisprudence. For example, Judge Hardiman once wrote an opinion reversing summary judgment in favor of an employee's "gender stereotyping" case against his employer [the plaintiff is a transgender woman], ruling that the disgruntled employee's suit could proceed. Another key example is when Judge Pryor -Alabama's Attorney General at the time- removed Chief Justice Roy Moore for his refusal to remove a plaque of the 10 Commandments from his courtroom.

Over their respective careers on the federal appellate bench, all three jurists have come down mostly on the side of the state in death penalty cases and on immigration issues. Judge Pryor has left no doubt where he stands on abortion, calling Roe -v- Wade, "the worst abomination in the history of constitutional law."

For his part, Judge Gorsuch may be the most natural replacement for the irreplaceable Justice Scalia. In his legal writings and scholarship, Gorsuch has exhibited incisive conservative legal analysis combined with a flair for conveying that analysis in a legal opinion. SCOTUSBlog characterizes his opinions as, "exceptionally clear and routinely entertaining." Very rare for an appellate decision.

Although he has not addressed major abortion cases as a sitting judge, Gorsuch's jurisprudence includes several high-profile cases involving the freedom of religion clauses of the Constitution. One was the Hobby Lobby case which challenged the "contraception mandate" of the Affordable Care Act; Judge Gorsuch wrote a concurring opinion in the en banc rehearing that sided with the company and the decision was largely vindicated by the subsequent SCOTUS opinion.

Considering the importance of the SCOTUS functioning with a full compliment of justices, and considering how important it is for conservatives [President Trump arguably not among them] to replace a conservative jurist with a like-minded jurist, we here at the Law Blogger are looking for a SCOTUS nomination this week.

History tells us, however, that not every federal judicial nominee adheres to the script upon which he or she was appointed. Presidents Nixon, Reagan and Clinton have all been burned.

Post #575

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Monday, January 16, 2017

When the University is a Fraud What Becomes of the Student Loans?

Should student loans be forgiven when the university turns out to be a fraud? This is what a small group of students of the now-defunct ITT Education Services and the Corinthian Colleges have asserted.

ITT shut its doors when the U.S. Department of Education denied access to federal student loan and financial aid programs on which most of the schools' students depend to assist with tuition. The school was subject to numerous long-standing complaints that it conducted predatory lending to students, overstated the quality of its programs and overstated employment prospects for its graduates.

Upon its nearly instantaneous disintegration, ITT placed just under $100 million dollars into escrow. The tuition owed by the students was among the bankruptcy petitioner's $389 million asset disclosure, against debts of over a billion dollars.

With the assistance of a Harvard Law School clinic, about 800 students seek to intervene in the federal bankruptcy case the school filed in the Southern District of Indiana. Normally, only creditors of the petitioner are allowed to participate in a bankruptcy case thus, this situation presents a procedural novelty.

Lawyers for ITT will challenge the students' attempt to intervene on the basis they have no standing because they are not creditors of the school but rather, indebted to the school. Prior to filing in the bankruptcy case, each of the students filed complaints with the Department of Education; those complaints, however, have gone nowhere.

The legal argument by the students' lawyers is that ITT violated state consumer protection laws. Therefore, the students argue that their loans should be forgiven and that collection practices against the students should cease.

Bankruptcy Trustee Deborah J. Caruso will have these and other more traditional creditors' claims to contend with in the case. Her job will be difficult to the extent that the students' claims will compete for a very finite pile of escrowed funds with banks and other creditors of the shuttered schools.

Post #574

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