The Law Blogger

200 Posts in Two Years

2012-01-21T07:13:00.001-05:00

Thanks to our readers, this blog has over 62,000 page views in the nearly two years of its existence. Since March 2, 2010, we have posted 200 times on legal topics of interest to readers of the Oakland Press' e-paper.

There are literally millions of blogs now on the Internet. Of these, hundreds of thousands are devoted to legal topics. The competition for 15-seconds of a reader's attention is keen these days.

We will continue to scour the web, fine-tuning our news feeds for interesting and useful legal information for your regular consumption.

When walking the halls of the various courts in Southeast Michigan, colleagues and judges occasionally mention one of our posts. Grateful to claim a professional readership component among our followers, we will do our best to post relevant legal content on an ever more consistent basis.

Our view is that as the 21st Century begins to take full root, information, especially legal information, will flow at an ever faster pace. Legal information is available to the people; it is how that information is managed that counts.

Thank you readers; check back soon.

www.clarkstonlegal.com

info@clarkstonlegal.com

Military Divorces for Returning Soldiers

2012-01-13T07:18:00.001-05:00

As our soldiers return from war in the Middle East, many cases of post traumatic stress disorder are becoming manifest. Often, the PTSD shatters an already fragile marriage, strained to the break point from years long separation.

Many soldiers, having survived the war, come home only to be placed in a trick bag: struggling with PTSD while their marriage falls apart. To complicate things even more, there are special rules that apply to military divorces.

The psychology of both partners to the marriage is affected by the homecoming. The state-side spouse absorbed 100% responsibility for managing household tasks, child rearing, education, and all other domestic issues. A sense of independence may have seeped into the spouse's "mindset" that often requires an adjustment when the other partner returns from war.

For his part, the returning soldier needs time and some space to decompress from war; especially if the individual is not only returning state-side, but also discharging from the armed forces.

If the soldier's deployment was for several years, a spouse may have developed an "interim relationship" which must now be dissolved if the marriage is going to survive. Many do not.

The Servicemembers Civil Relief Act (SCRA) [formerly known as the Soldiers' and Sailors' Civil Relief Act] is a federal statute that governs issues of defaulted servicemembers and the related stay of proceedings in divorce actions. One feature of SCRA is that divorcing servicemembers are entitled to have the judge appoint them an attorney in the family court. Interestingly, however, the statute is silent as to the scope of the appointed attorney's duties and her right to compensation for services rendered.

In a military divorce, support is also governed by federal regulations; each branch of the armed services has promulgated policies in the form of regulations that require the servicemember to provide adequate support for family members. To calculate support, the servicemember's "leave and earnings statement" must be obtained and deciphered.

To enforce a support order, the support payee must turn to the Defense Finance and Accounting Service. The DFAS website has references to garnishment resources and information on designated agents.

Custody issues are resolved, for now, in accord with the state laws governing this issue within a divorce proceeding. Many states have specific provisions within their custody statutes that deal with a servicemember.

Congress, however, has been considering various amendments to SCRA that would federalize custody issues arising within military divorces. The ABA has prepared a "white paper" on the subject.

www.clarkstonlegal.com

info@clarkstonlegal.com

Federal Government Calls for Total Ban on Distracted Driving

2012-01-06T08:34:00.001-05:00

Unanimously, the 5 members of the National Transportation and Safety Board called for all states to impose a complete ban on texting, emails, and even cell phone use (hand held or hands free) while operating a vehicle. The NTSB's little-noted but highly significant recommendation came out before the holidays last month in the wake of a series of deadly car crashes involving distracted drivers.

In one of the crashes, a Missouri teenager caused a death accident after texting 11 times in as many minutes. There seems to be a correlation between youth and distracted driving which is compounded by the youth's relative inexperience on the road.

Now the question is whether the state legislatures have the political will to outlaw what has become ingrained behavior for most driving Americans. Even if distracted driving is banned, there is also a question of enforcement.

With all the OEMs producing vehicles outfitted with navigation systems and sophisticated communication software built right into the car, state legislatures will soon have lunch dates with automotive industry lobbyists; for sure. And then there is the cell phone industry; not likely to stand on the sidelines and watch this type of prohibitive legislation develop.

Here is the legislative breakdown so far, with new laws appearing on the books every year: 35 states and the District of Columbia have banned texting while driving; 30 states have banned all cell phone use by a beginning driver; 9 states have banned hand-held cell phone use while in a car.

The NTSB's firm position is simply that use of electronic communication devices is too dangerous to be allowed anywhere in the United States. When the NTSB announced the recommended ban early last December, it chairwoman, Deborah Hersman, said, "We're not here to win a popularity contest. No email, no text, no update, no call is worth a human life."

You got that right sister; you sure got that right. We will be monitoring the state legislation on this topic and will report back to you with significant developments.

www.clarkstonlegal.com

info@clarkstonlegal.com

Child Obesity as a Custody Factor in Family Court

2012-01-03T07:12:00.000-05:00

Yesterday, the NBC Today Show featured a segment on family court cases where a parent was mounting a child custody challenge based on obesity. This past year, I recall hearing much about the subject of childhood obesity, perhaps due to the First Lady's "Let's Move" campaign.

According to a recent report by the Center for Disease Control, childhood obesity affects 17% of our nation's youth; a figure triple what it was just a generation ago. Now that this is a recognized condition putting on the cloak of yet another national crisis, should family court judges take childhood obesity into account in the custody calculus?

The father featured in the Today Show segment was shown cooking a vegetarian meal for his two preteen children. He succeeded in his custody ploy to the extent the family court judge modified custody such that the children stayed at dad's house during the weeks of the school year.

In Michigan, the Child Custody Act sets forth several factors which a family court judge must consider when deciding a custody dispute. One of these factors is the capacity of a parent to provide food, clothing, medical care or other remedial care. Arguably, this factor could include how a parent manages a child's diet; particularly if that child is at risk for obesity or is, in fact, obese.

The relative physical health of the parents and the reasonable preference of the child (particularly if older than age 12) could also come into play in a childhood obesity custody case. A parent's unhealthy lifestyle may factor into the family court judge's calculus.

In come cases, it may strike the judge as unfair to basically penalize a parent for the child's eating habits. This is a particularly close case where the obesity may be genetic and thus, hereditary. Also, how far does the family court go?

The optimal situation, of course, is where both parties co-parent with the child's best interests in mind. Diet, exercise and lifestyle, however, often do not mesh between divorced parents.

As our nation continues it's struggle against the bulge, the cases of the type featured on the Today Show may pop up with more regularity in the county family courts across the state. We all want the best for your young children. Certainly, a good diet is an important component to a good healthy upbringing.

www.clarkstonlegal.com

info@clarkstonlegal.com

By the Numbers: Clarkston Legal Production 2011

2011-12-31T08:16:00.004-05:00

In my law practice, I drive from various courts across Michigan in a 2009 Ford Explorer. That vehicle has 110,000 miles burned into it over the past 3-years. That's a lot of court appearances.

Here are the numbers behind those miles for this past calendar year.

Michigan Court of Appeals. Although I had not argued before the Court of Appeals in more than two years, I had 4 arguments before the intermediate appellate tribunal in 2011. Also filed 25 briefs in that court; most of them applications for leave to appeal guilty pleas. In the first week of 2012, I have two arguments.

Oakland County. This is where we hold a "home field" advantage. In 2011, I appeared in the circuit court, including the family court division, 118 times. An additional 86 appearances were made in the Oakland County Probate Court. Getting to know the judges pretty well over there.

Getting to know the Friend of the Court Referees as well with 30 trips to the FOC for early intervention conferences, or evidentiary hearings.

Macomb County. Went "East Side" for 24 court appearances in 2011, all of them in the circuit or family courts; no East Side probate court appearances this year. Many of these were for the Attorney General.

Wayne County. In 2011, we made 20 court appearances in the "D"; fifteen were in the circuit and family courts, while the remaining 5 were all in the Wayne County Probate Court.

Genesee County. Just to the North of our offices [we can be in Flint in less than a half hour], I made the dash to the Genesee County Circuit Court 10 times in 2011. In addition, we made 4 trips to the Genesee Friend of the Court for hearings.

Livingston County. Only five appearances in Livingston County Circuit Court this year; all on a single divorce case.

District Courts. In 2011, we appeared in many of the various district courts placed throughout the counties in which we appear. 80 district court appearances to be precise; most of them for criminal matters.

Administrative Hearings. Only three of these this year; for drivers license restorations and an implied consent refusal.

Keep in mind folks, these statistics are for but one attorney in the Karlstrom Cooney law firm; my partners have many other court appearances in these courts. They do have, however, more "transactional" law practices than mine. Along with Kay Caruso, Stuart Cooney, and Peter Keenan, we are the firm's litigators.

So these are my numbers for this year; it was a productive one. We have our clients to thank for keeping us well engaged.

www.clarkstonlegal.com

info@clarkstonlegal.com

Valid Prenuptial Agreements Require Full Asset Disclosures

2011-12-28T07:38:00.000-05:00

Prenuptial agreements, contracts executed in the anticipation of a marriage, have long been validated in Michigan courts. Generally, there are two contingencies covered in a typical prenuptial agreement: a) the divorce of the contracting parties; and b) the death of one of the parties.

A primary requirement to enforcing a prenuptial agreement is the "special duty" of full disclosure of all assets by both contracting parties. This requirement was recently examined in a key (but unpublished) decision of the Michigan Court of Appeals.
The case, In the Matter of Kenneth Waller, originated right here in the Oakland County Probate Court. The case illustrates the risk of executing a "do-it-yourself" prenuptial agreement.

The contract at issue in the Waller case waived the Wife's interest in a statutory share of her husband's estate in favor of the Husband's adult children. The Wife challenged her Husband's estate at his death, despite her execution of the antenuptial agreement.

The contract was upheld by the probate court judge. In reversing the probate court, the Court of Appeals focused on the asset disclosure and lack of evidence that any proper disclosure had been made by either party:

Accordingly, fair disclosure is required under statute and caselaw in the context of
determining whether a prenuptial agreement can be deemed valid and enforceable. The record indicates that there was no formal disclosure of assets by either decedent or Waller at the time of or before the execution of the prenuptial agreement, such as through the presentation or exchange of written asset lists or through a verbal communication or declaration electronically recorded so as to preserve proof of disclosure. The prenuptial agreement itself did not contain an itemization of assets and values, nor did it indicate that disclosure of assets had taken place.

Indeed, there is no evidence of even an informal, off-the-cuff discussion between Waller and decedent regarding the nature, extent, and value of each other’s assets prior to the execution of the agreement. The probate court essentially found that Waller was sufficiently familiar with the assets held by decedent, making it unnecessary for decedent to redundantly disclose his assets to Waller before the agreement was signed, where the assets had already been effectively “disclosed” to her simply through the evolution of their relationship in which familiarity with each other’s property naturally occurred. We agree with the principle that if a party challenging a prenuptial agreement was fully aware of the other party’s assets and their value at the time of execution, an argument that there was a failure to fairly and formally disclose assets should fail; the purpose of a disclosure is to make a party aware of what he or she may be giving up in signing a prenuptial agreement.

The Court of Appeals held that under such a record, the (rebuttable) presumption of non-disclosure should have been applied to invalidate the prenuptial agreement in that case.

Also, the Court of Appeals placed significance on the lack of a financial statement or schedule of assets. These are typically attached to the antenuptial agreement. This way, there can be no claim, as in the Waller case, of a failure to disclose, or a triggering of the presumption of nondisclosure.

www.clarkstonlegal.com

info@clarkstonlegal.com

Disparate Sentences for NBA Stars' Drunk Driving Convictions in Oakland County

2011-12-27T06:54:00.000-05:00

A well-respected blog on sentencing picked-up on the infamous NBA drunk driving cases coming out of the 48th District Court in Bloomfield Hills, MI. The blog noted the difference between Jalen Rose's straight-forward OWI conviction [he did 14-days in the OCJ]; and the weapons charge component to Big Ben Wallace's OWI charge, recently resolved in the Oakland County Circuit Court before Judge Shalina Kumar.

Here is what the blog had to say about the two cases:

On the surface, it would appear that Wallace committed a (much?) worse offense but ultimately got a (much?) lighter sentence than Rose. Of course, maybe there are some specific differences in the cases not obvious on the surface that justify this seeming disparity. And, perhaps more importantly, the mere fact that can be (and often is) a lot of "low-level" sentencing disparity in this arena does not, in an of itself, necessarily establish that the applicable sentencing law is either unjust or ineffective.

Reading this blog post and being a local criminal defense attorney, I could not resist posting the following comment:

Great blog, DAB. This comment is from a criminal defense attorney in Oakland County, MI, where this Ben Wallace and Jalen Rose stuff went down. First, it is a suburb of Detroit; not in the "D", as we say. Also, Bloomfield Hills, where the district court is seated for that area, is a posh tony burb. (i.e. there are NBA stars driving around partying).

This comment seeks to shed some light on the "disparity" in the sentencing for the two NBA stars. Rose had the misfortune of driving drunk within the jurisdiction of the 48th District Court and to have his case randomly assigned to Judge Kim Small. Judge Small has made national headlines over the years for her drunk driving sentences; they often involve some jail time, even for first offenders with no criminal history. Currently, a group of high-end defense lawyers have challenged Judge Small, seeking to have her disqualified from all drunk driving cases on the basis that she is not fair or impartial, and that her "one-size-fits-all" sentencing policy (i.e. jail for all offenders), violates the "individualized sentencing" mandated by Michigan statute.
This is why Jalen Rose went to jail last summer.

In the case of Ben Wallace, the big fella was OWI while packing some loaded cold steel in his Cadillac, upping his game to the felony level, and thereby "just passing through" the 48th District Court. Fortunately for him, although he too was randomly assigned to Judge Small, his attorneys executed a "fast break", waiving the preliminary exam, and binding Wallace over to the trial court. Once there, probation was available all day long. Good bye Judge Small; hello Judge Shalina Kumar.

Unlike Rose, however, Wallace will have a felony weapons conviction on his record. Last year, Wallace spoke of going to law school. This probably puts the kabosh on that notion.
Here is a link to our local blawg coverage of Big Ben.

Sometimes an accused's notoriety helps his cause; sometimes it hurts the case.

www.waterfordlegal.com

info@waterfordlegal.com

Nursing Home Liability: Who Owns the Facility

2011-12-26T16:40:00.001-05:00

A recent 2.35 million dollar Macomb County jury verdict shines a light on the ownership and practices of a nursing home in St. Clair Shores. Bankruptcy and missing records clouded the identity of the real party in interest in a negligence law suit resulting from the 2008 choking death of a resident.

Turned out to be the Nightingale East Nursing Center, owned in part by a now-defunct company, and eventually traced to SavaSeniorCare, an LLC located in Atlanta, GA.

In the litigation, St. Clair Shores attorney John Perrin experienced an evidentiary mistrial and a mishandled document request in clawing his way to the jury verdict. For their part, the defense attorneys claim that the botched corporate disclosure was not intentional. Looking for the upside, defense attorneys Plunkett and Cooney (Jenny Andreou) claimed a partial victory through limiting the "non-economic" damage component of the verdict; a motion for remittur has been filed.

This death resulted from a resident choking on a golfball sized meatball; a largely unforeseeable event. The jury found other liability factors in awarding plaintiff millions of dollars. Obviously, we want to avoid this fate for any of our families and loved ones that are placed in a nursing home.

Serving as the guardian for more than 100 individuals, many of whom have been placed in nursing homes, I have learned that you can never pay close enough attention to the ward's care. Complaints against licensed facilities are common and serve the purpose of compelling care improvements.

Nursing homes, assisted care facilities, and adult foster care residences provide a dizzying array of care choices and regulations. Making the right placement for a family member or loved one is a critical decision.

In Macomb County, follow this link for skilled and basic care nursing homes. In Oakland County, follow this link for the same information.

www.waterfordlegal.com

info@waterfordlegal.com

6 Holiday Tips for Divorced Parents

2011-12-23T07:48:00.003-05:00

Often, tensions escalate over the holidays as divorced parents struggle with the demands of scheduling the children to accommodate two households. Holiday schedules are already difficult without the complications of a divorce judgment or divorce proceeding.

Here are some practical tips in dealing with holiday parenting time gleaned from divorce lawyers around the state.

Reduce an alternating holiday schedule to a court order. It is always best for the children when the parents can agree on a schedule. Alternating holidays is most common when drafting the parenting schedule. When both parents live close to one another, many families utilize a shared holiday model where the children spend time with one parent until noon, and the other parent for the balance of the day; then the next year, they switch. This works for Thanksgiving, Christmas, New Year's Day and other holidays.
Discuss the schedule with the children. One solid co-parenting tactic is for both parents, once an agreement is reached, to communicate the schedule to the children. This way, the children know in advance what to expect. This can best be accomplished when both parents commit to rational communication and reasonable compromise for the children's sake.
Keep the activities simple. This tip is particularly essential when the children are relatively young and if the divorce is still fresh. The wounds of the once-whole family have yet to heal; holidays are particularly painful for both children and parents. Therefore, it makes sense to tone down the activities and avoid rushing hither and yon during your now-scheduled parenting time.
Let your child express her feelings to you. It is important to allow your children the opportunity to express their feelings of loss and disappointment and for you, as the parent, to validate those feelings. What the child once experienced as an intact family unit has been fractured by divorce. Therefore, pretending that everything is fine, or over-scheduling a whirlwind of activities to the point of distraction, will only add to the stress of your holiday parenting time.
Involve your extended family. The more love the child feels during the years immediately following a divorce, the better. Therefore, schedule some quality family time with members of your extended family. Certainly, this would be a great opportunity for your children to spend time with their grandparents, aunts, uncles and cousins. If your extended family is highly dysfunctional then, er, not-so-much.
Avoid including a new "significant other". This is the last thing you want to do at the holidays; not the time or the place. Including your "significant other" too soon is a selfish thing to do to your children. Upon reflection, you would probably agree that you would be doing that for yourself, certainly not for your children. Children of divorce already struggle with guilt, a sense of loss, and insecurity. They often perceive the introduction of a stranger, especially one that is close and intimate with their parent, as a threat, not a benefit from their parents' divorce.

Of course, the above holiday parenting tips must be adjusted to be age-appropriate. There is no one-size-fits-all approach to this touchy subject.

Finally, a positive parental attitude over the holidays does wonders for a child's comfort and confidence. Be the adult, not the child.

www.clarkstonlegal.com

info@clarkstonlegal.com

Michigan's Parole Process Explained

2011-12-17T09:36:00.004-05:00

From time to time, our appellate clients asking about the parole process. One way or another, incarceration and parole affects all of us; adding significant costs to maintain our freedom.

An effective criminal justice system depends on the ability of that system to reintegrate the overwhelming majority of convicted felons that have served their bit, back into some semblance of productive society.

The purpose of this post is to explain Michigan's parole process to our readers. Whether you are a tax paying citizen, or someone with a direct connection to the MDOC, the costs and procedures affect everyone.

Here are the basics...

The Parole Board.
The Parole Board in Michigan was recently reduced in 2011 from 15 members to the current 10 members. The parole board members are appointed by the Director of the Michigan Department of Corrections (MDOC). The Board is the sole paroling authority for felony offenders committed to the MDOC. Members serve 4, 3, and two year terms. Regular meetings are convened by the board to assess and decide parole applications.

The Parole Eligibility Report.
A felony offender must serve the minimum sentence with the MDOC prior to becoming eligible for parole. A Parole Eligibility Report (PER) is prepared on behalf of the applicant by a staff member of the MDOC. This report informs the parole board of the background of an inmate-applicant, and makes sure the applicant's parole file is complete.

The PER also makes recommendations to the parole board for each applicant, taking "misconduct" tickets and the prior criminal record into account. The generation of this report is a critical step in the parole process.

If an applicant has not completed all of the requirements set forth in the judgment of sentence, or if his file is otherwise incomplete, this is noted in the report and parole will be denied.

The Parole Board's staffers use the PER to score a prisoner's parole guidelines. These statutorily-mandated parole guidelines form the backbone of the parole process.

The Parole Interview.
Upon submissions of a prisoner's PER, the prisoner is eligible to participate in an informal and non-adversarial interview with one or more Parole Board members assigned to the prisoner's parole panel. After this interview, a Case Summary Report is generated for the Parole Board's review.
This interview is an excellent opportunity for the prisoner to address members of the board, face-to-face, in order to make a positive impression on his candidacy for parole. The prisoner can address major misconduct tickets, and explain how and when he plans to complete any missing training requirements in order to enhance his eligibility for parole.

Of course, in a perfect world, the prisoner will have completed all required components set forth in his judgment of sentence. This is why good lawyering is so important at the trial phase of the accused's case. Corrections to the presentence investigation report must be made in the lower court as this is the “bible” relative to the prisoner as far as the MDOC is concerned. An inmate will be forced to live within the confines of any errors unless they are corrected on appeal within the timelines set out in the Michigan Court Rules.

Transition Accountability Plan.
Under the Michigan Prisoner Reentry Initiative, the Parole Board and the MDOC are required to formulate a Transition Accountability Plan (TAP) for each prisoner facing parole eligibility.
The TAP serves the dual goals of assisting the prisoner with re-entry into our society, as well as assisting the Board with its parole decision. The TAP identifies specific risk factors for a particular inmate, sets goals relative to minimizing the identified risks, and sets forth a specific plan to help the inmate meet the established goals.

The Parole Board’s Broad Discretion.
In making decisions on parole, the Parole Board has very broad authority to decide the inmate's fate. Nevertheless, the legislature has imposed some restriction on the Board's parole decisions.
For example, the Board must follow the regulatory framework summarized in this post. Also, in no case will a prisoner be granted parole unless and until the Board is satisfied the prisoner will not become, "a menace to society or to the public safety."

In exercising its discretion, the Board takes into account a prisoner's remorse for having committed the offense for which he is incarcerated, his overall mental health, and his "social attitude". A healthy positive attitude is what it takes to achieve parole status; but that is a difficult attitude to acquire and portray from within the grim walls of a prison. The inmate seeking parole must toughen his resolve to acquire and maintain the proper attitude, shutting out all competing negative factors.

Returning to Society.
A prisoner's fate lies squarely within the hands of the Parole Board. At a minimum, the process described above must be followed to the "T". The most important factor beyond having all of one's required sentence components completed, including the payment of restitution, is the adoption and maintenance of a strong positive attitude.

Recidivism is a plague to our society and costs all of us dearly. The Parole Board's job is to identify likely re-offenders and keep them locked-up for the duration of their sentence. This is the cost to society for safety and the enjoyment of our freedom. If the parole process works, prisoners can attain parole, complete parole, and re-join the ranks of law abiding citizens.

Resources.
The Michigan Court of Appeals published an opinion last month, People vs Haegler, explaining the nuts and bolts of the parole board in the context of the appellant-prisoner's CSC conviction and failed attempts at parole.

Some attorneys specialize in parole and probation consultations, assisting clients with the preparation and correction of their initial presentence reports, as well as with the parloe process. Professional Parole Consulting is such an outfit located in Detroit, MI.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Anonymous Internet Critics

2011-12-12T21:30:00.001-05:00

This blog has covered the defamation lawsuit filed by the Cooley Law School against one if it's more vocal critics; one of the legion of graduates that has trashed the law school in a blog titled "The Thomas M. Cooley Law School Scam". This post brings our readers up to date with some important recent developments in the case.

Cooley's defamation suit, pending in the Ingham County Circuit Court, was assigned to Circuit Judge Clinton Canady III. Cooley is represented by the Miller Canfield law firm and the anonymous blogger, using the pseudonym "Rockstar05", is represented by Berkeley, MI attorney John Hermann.

For their part, Miller Canfield has been vigorously prosecuting their cause of action, issuing subpoenas in two states [Michigan and California] to the Rockstar05's Internet service provider, seeking to rip the lid off the blogger's identity.

In September and October, hearings were conducted on Rockstar05's motion to quash Cooley's subpoenas. Somewhere along the way, the internet service provider in California apparently made an inadvertent disclosure of the blogger's identity to the Miller Canfield firm, who immediately moved the court to amend the complaint, seeking to add the now-disclosed individual to the suit.

Judge Canady initially sequestered the pleadings and documents that referenced Rockstar05's identity while it considered supplemental briefings on this First Amendment issue. In October, however, the lower court denied Rockstar05's motion to quash the subpoena, providing time for defendant to lodge an interlocatory appeal, and allowing an amicus [various media organizations] to intervene in the case.

Rocktar05 has appealed Judge Canady's decision relative to the subpoena. The media has filed a hard-hitting amicus brief. Miller Canfield's response on behalf of Cooley Law School is expected to be filed any day now.

This blog predicts that the Michigan Court of Appeals will grant leave for this issue to be decided; apparently one of first impression here in Michigan.

At stake is the ability of vocal critics of a "public figure" to express their opinion anonymously, without the fear of having their mask pulled off, and their identity disclosed.

You'll have to stay tuned for the results on this important case. It could likely take a few years to wind its way through the court system.

www.clarkstonlegal.com

info@clarkstonlegal.com

Preparing for a Second Marriage

2011-12-11T08:32:00.002-05:00

Many factors affect whether a second marriage will last: the relative age and incomes of the partners, whether either party has children, cohabitation prior to the second nuptials, and the education level of the parties.

And, of course, how could we forget the personality of the ex-spouse; perhaps the most important factor of all.

According to statistics published by the National Institute of Health, approximately 15% of second marriages end within 3-years; and 23% end within 5-years. Overall, however, the divorce rate for second marriages has drawn even with that of first marriages; about 40%. Also, in its 2009 report Marital Events of Americans, the Census Bureau claims first marriages last, on average, about as long as second marriages: about 8-years.

Here are some things to think about, and some steps to consider, before tying the knot for the second time.

Prenuptial Agreement.
For those with assets, this document is a must. To be enforceable, the prenuptial agreement largely depends on two things: a) full disclosure by both parties of all their respective assets; and b) legal representation of each party by separate lawyers. If your partner does not want to sign such an agreement, then you should seriously consider cohabitation rather than marriage. This is a harbinger of trouble in the event of a split.

Couples with only modest estates going into second marriages generally do not need the complication of a prenuptial agreement. If a marital estate grows during the second marriage, that estate will be subject to an equitable property division in the event of divorce.

Solid Estate Planning.
Prior to a second marriage, assets may be transferred into a trust for the benefit of the owner's children. Also, retirement asset rollovers (from a 401(k) plan into an IRA, for example) can operate to protect the new spouse with survivor benefits, or not, as the case may be.

A Qualified Terminable Interest Property trust (QTIP) typically provides for interest income going to a surviving (second) spouse, with the principle going to the settlor's children from her first marriage upon the death of the second spouse.

Children from a prior marriage can also be provided for using an Irrevocable Life Insurance Trust. This way, the new spouse can be designated as the beneficiary on the person's retirement assets and the children are designated beneficiaries of the death benefit from the life insurance policy.

Another common practice is to create a separate trust to provide for the distribution of separate property to the children from the first marriages and to create a joint trust to provide for the distribution of the marital estate of the second marriage.

Good Premarital Counseling.
One of the best things a couple can do prior to tying the second knot is to participate in joint counseling. This should include religious counseling or premarital couples therapy, financial advice, and (separate) legal consultation. Once separate legal counsel is received, the couple can certainly compare notes in order to get on the same page.

Going into a second marriage with your eyes open improves the chances of a successful nuptials. When selecting an attorney to assist you with the necessary planning, find one that truly listens to your expressed wishes and pays close attention to the characteristics of your estate.

www.clarkstonlegal.com

info@clarkstonlegal.com

Miss Michigan "Super Drunk" Candidate in Highland Park

2011-12-07T07:49:00.002-05:00

Former Miss Michigan Rima Fakih

Oops, busted. Former Miss Michigan and Miss USA Rima Fakih, 26, of Dearborn, MI, allegedly was cited at 2:15 am in Highland Park for driving with a blood alcohol content of .20.

Unfortunately for the beauty queen, this qualifies her for a charge under Michigan's relatively new "super drunk" law. While Fakih, like most other motorists, will be initially charged with a standard "operating while intoxicated" offense, there is the potential for the "super drunk" charge if her BAC is greater than .17.

This "super drunk" charge subjects drivers to stiffer penalties. Those penalties include a one-year license suspension for first-time "super drunks"; an increase in the potential maximum jail sentence from 93-days to 180-days; higher fines; and mandatory use of an "ignition interlock" device.

The super drunk law also features the longest alcohol rehabilitation treatment requirement on the books; one-year.

If convicted as a "super drunk", Fakih's driver's license will be suspended by the Secretary of State for one-year. After a 45-day "hard suspension" where all driving privileges are suspended, she can apply for restricted driving privileges for the balance of the year provided, however, that an " ignition interlock" device is installed in her vehicle.

If allowed to plead to an ordinary "operating while intoxicated" charge, the hard suspension may only be for 30-days, depending on Fakih's master driving record, and there will be no interlock requirement.

Installing an interlock device will cost her about $50 and up to $100 per month to maintain.

So we will just have to wait and see whether this beauty queen's celebrity [perhaps "infamy" is a better word] will aid her cause, or hurt her case. It is unknown at this time whether she was charged under local ordinance or state law; or whether the local prosecutor will elect to charge her under the "super drunk" law or with just plain old ordinary OWI.

www.waterfordlegal.com

info@waterfordlegal.com

The Dragon Suicides

2011-12-03T06:23:00.011-05:00

This Tuesday, I will be heading to Detroit to present oral argument to a 3-judge panel of the Michigan Court of Appeals. The appeal is from a summary disposition of my client's wrongful death claim against the parents of a Lake Orion High School senior.

The LOHS senior hosted an impromptu graduation party in May 2008 while his parents were out dining and socializing until nearly 1:00 am. The parents returned to a teenage house party meltdown; students puking, passing out, the furious father of a drunk freshman girl on the phone demanding answers and threatening to call the police.

Early the next morning, one of the good friends of the student that hosted the house party hung himself in the basement of the Lake Orion home. The decedent's estate raised claims of negligence in the failure to supervise the LOHS students and wrongful death. The defendants in the law suit, the homeowners, have been represented by a law firm hired through their homeowners insurance.

The lawsuit was dismissed from the Oakland County Circuit Court; from this summary disposition, the decedent's parents have appealed to the Michigan Court of Appeals; oral arguments in the case are scheduled for Tuesday morning in Detroit.

My clients are the parents of the decedent, apparently one of 9 LOHS students or graduates to have killed himself within the last four years. Two of the suicides occurred just last month.

This rash of LOHS-related suicides has led to the initiation of an on-line petition through Facebook sponsored by Lake Orion Reach Out. The Reach Out group also seeks the formation of a suicide prevention class to be taught at the high school.

What is it about LOHS and the surrounding community that could be causing students to take their own lives? Is there any connection between the cases?

One of the many comments to the Oakland Press article linked above suggests that bullying occurs at the school. While there is a correlation between teen-age bullying and suicide, I doubt it can explain this Oakland County phenomena.

Nevertheless, to its credit, the Lake Orion Community Schools is implementing a district-wide bullying prevention program.

Here is a recent editorial on this sad subject from the Lake Orion Review, published following this post.

And here are some resources if you, a family member, or a friend or loved one is at risk for suicide:

Suicide crisis lines

Common Ground: 24-hour crisis hotline 800-231-1127
Oakland County Community Mental Health Authority Crisis Hotline: 248-456-1991
Suicide Prevention Resource Center: 800-273-TALK (800-273-8255)

Jason Foundation: 800-SUICIDE (800-784-2433)

Suicide prevention, education and treatment

MINDS mental health awareness and education program 248-644-8003
University of Michigan Depression Center: 800-475-MICH (800-475-6424)
Joseph J. Laurencelle Memorial Foundation: 248-258-6693
Oakland Schools: 248-209-2000
Easter Seals: 800-75-SEALS (800-757-3257)
Havenwyck Hospital: 800-401-2727
Community Network Services: 800-273-0258 or 866-493-6797
Training & Treatment Innovations: 800-741-1682
Oakland County Suicide Prevention Coalition: e-mail administrator@ocspc.org.

Most often, people on the verge of committing suicide feel hopeless and depressed. They need to be given the hope and the strength to hang on for another day.

They need to understand that suicide is an irreversible decision. We need to identify and assist those among us who are at risk, before they reach the point of no return.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Consumers of Legal Services Force Change in Law School Curriculum

2011-11-21T07:37:00.001-05:00

Last Sunday's NYT had yet another above the fold, law school-related headline: What They Don't Teach Law Students: Lawyering. In a sustained economic downturn, corporations (and individuals) that have reduced their legal budgets want lawyers with practical knowledge; not theoretical brilliance.

The academic template for law schools has been around, with very little change, since Harvard Law School branded the so-called "case method" in the late 19th Century. This traditional legal pedagogy was memorialized in the 1973 movie, The Paper Chase.

The Socratic case method calls for students to read and break down cases that illustrate a particular, albeit ancient or esoteric, legal principle. A law professor calls on students who must answer hard questions about the cases they have briefed. The law students are forced to reason and think on their feet, like a lawyer in a courtroom.

The Socratic case method does not teach the student, however, how to handle contemporary problems faced by real-life clients in today's unforgiving marketplace. Today, the cost-conscious consumer makes every effort to avoid the courtroom.

In our era of sustained economic downturn, the traditional law school model is under attack from two sides: there are very few legal jobs waiting for the legions of debt-burdened graduating law students; and clients generally do not want to see first or second year lawyers' time on their monthly invoices.

In response, many law schools have attempted practical innovations, introducing a "legal writing across the curriculum" component, and developing various legal clinics where students represent actual clients. The effort has been to produce market-tested graduates.

Former Vanderbilt Law School Dean Edward Rubin has isolated the following areas where corporate clients are demanding better training from the academy:

A better understanding of modern litigation which now includes an e-discovery component, diligent fact gathering, and a settlement process designed to avoid court;
Deeper knowledge of transactional law, including how to properly draft, evaluate and challenge a contract;
How to perform basic corporate due diligence in the modern government regulatory context;
Stronger legal writing skills (age-old complaint); and
Getting a clue about the economics of a law practice.

Locally, both the Wayne State University Law School, and the University of Detroit Mercy School of Law (this blogger's alma mater) have robust legal writing programs and have been leaders in developing urban clinics which provide students with practical experience serving real clients.

Like any customer, law clients want excellent service for a reasonable fee. Hiring a law firm that implements cutting edge, cost-sensitive technique is more important than ever in reducing a corporation's or an individual's legal bills.

www.clarkstonlegal.com

info@clarkstonlegal.com

High Income Child Support

2011-11-16T07:53:00.001-05:00

In 1988, the federal Family Support Act required all states to enact presumptive child support "guidelines" in order to preserve federal funding on a variety of family-oriented programs. Since then, Michigan has adopted the Michigan Child Support Formula.

In response to the Act, some states adopted support formulas that "top-out" for high earners. Here in Michigan, for example, child support can only be calculated for an annual income of $422,916 or less.

In addition, the MCSF takes away most of the court's discretion in setting child support. Absent compelling factors, support is determined through a straight-forward application of the MCSF.

In the case of some high-earning families, litigants have cried foul, asserting that when a parent earns millions of dollars, his children should share in that wealth. This is particularly the case where the high income is short-lived; like with most professional athletes.

Like Michigan, Florida, Nebraska, Virginia, West Virginia and Wyoming all use a straight formulaic approach [with a cap] to the calculation of child support. Other states utilize a percentage approach where the child support obligation just keeps going up; keeping pace with the parent's high income.

Recognizing this problem, some states have specific statutes that address high income households. These statutes usually provide the family court judge with some good old-fashioned "discretion" to determine the child support obligation in accord with the "best interests of the child."

But what really is in the best interests of little "Richie Rich"? Some of life's best lessons are learned with less, not more.

www.clarkstonlegal.com

info@clarkstonlegal.com

Oakland County Circuit Court Appoints Ombudsman

2011-11-15T06:47:00.001-05:00

For the first time in its long history, the Oakland County Circuit Court has appointed an Attorney Ombudsman to serve as a liaison between the county's bench and the bar. Southfield Attorney Joel Serlin has the distinction of being the first Ombudsman to the Oakland Circuit beginning December 1, 2011.

In announcing the appointment, Chief Judge Nanci Grant said:

Our bench is excited to participate in the inaugural ombudsman program. We embrace the program, and the opportunity presented, as an illustration of the importance attached to the transparency and accountability of the bench and bar - to each other, of course, but more importantly to the administration of justice in Oakland County.

The role of this ombudsman will be to address the administrative and case management issues raised by the Oakland County bar. The OCBA proposed the notion of appointing an ombudsman over a year ago. When the proposal was formally presented to the Oakland judges, it received overwhelming support.

The purpose underpinning the program will be to provide a discreet forum for attorneys practicing before the Oakland bench to address matters for which there is no other avenue in which to seek redress of their various concerns. The ombudsman is independent of the judiciary and maintains confidentiality relative to the requests made to his office.

This development is just another example of how practicing law in Oakland County is a distinct professional pleasure. We welcome this development; kudos to the OCBA and all the Oakland County Circuit Judges.

www.clarkstonlegal.com

info@clarkstonlegal.com

Clarkston Legal Presents at ICLE's 10th Annual Family Law Instutite

2011-11-13T21:47:00.004-05:00

On Friday, I presented on the topic of social media in the family law context to 500 Michigan lawyers attending ICLE's 10th Annual Family Law Institute at the Inn at St. John's in Plymouth, MI.

Part of the presentation dealt with the national and local "influencers" in the area of social media and the law; particularly family law. Some of the more dynamic profiles of attorneys utilizing the social media were profiled and discussed.

Lawyers are utilizing sites like Google+, YouTube, Linked In and Facebook to promote their content, expertise and profile. Law-related sites such as JD Supra, Nolo, and Avvo were also profiled.

The second half of the presentation touched on issues of privacy and the expectation of privacy, or lack thereof. The top social media sites referenced above install pieces of tracking software onto users computers. The WSJ shined a bright light on this practice in its 2010 series, "What They Know".

Forensic recovery of electronically stored information (ESI) was one of the areas of primary focus. Many divorce clients now present with information obtained through a violation of the spouse's privacy rights; the attorney must not accept such evidence.

Other clients destroy evidence or illegally scrub electronic information in transit with key-stroke programs such as the "evidence eliminator" which boasts that not even the FBI could recover scrubbed data.

One focus on whether evidence of bad conduct that may be relevant, or critical, to a custody dispute, is the source of the information. ESI on a "family" computer has no expectation of privacy and is thus admissible in the family court.

Finally, the presentation surveyed recent litigation and case law arising from evidentiary disputes in family courts. Some of the cases involved sexting, other cases involved cyber-bullying.

In all, it was a successful presentation made to an interested group of attorneys looking to put it all together in the social media context.

www.clarkstonlegal.com

info@clarkstonlegal.com

Wayne County Circuit Court Rolls Out E-Filing

2011-11-09T07:27:00.002-05:00

Yesterday, the Wayne Circuit Court joined Oakland and a few other select counties that accept electronic case and document filings. For the time being, however, only Wayne County's contract case filings, coded with the "CK" case code, are mandatory e-file cases; the rest of the docket still requires old-fashioned paper.

Oakland County has had e-filing for years; it has personally saved me hundreds of man-hours and my clients thousands of dollars. There are still docket pockets in Oakland County, however, that have resisted the e-filing system. Divorces with children, for example, have eluded Oakland County's e-file requirement.

An attorney must do a few proactive things to successfully get on board with the e-filing requirements. First, invest in a good computer system and Internet connection. Second, go to the training sessions routinely offered by the courts and bring your support staff.

While e-filing is here to stay, some critics assert that e-filing requirements reduce access to the court system for in pro per litigants who lack sufficient computing capital for electronic filing. For these folks, there is still a paper option, but there are additional hoops to jump through. Folks just need to get on board.

There can be no doubt that electronic filing is here to stay. The federal system has been completely electronic via the PACER system for a decade; the Michigan appellate courts have been on an electronic filing system [albeit a different one from the county courts] for years and it works great.

Although we are still several years off from a 100% electronic filing system, it's coming. The next hurdle for attorneys will be to make the commitment to a completely paperless law office.

www.clarkstonlegal.com

info@clarkstonlegal.com

Prisoner Has No Right to Miranda Warning During Prison "Investigation"

2011-11-08T07:11:00.001-05:00

Homemade Prison Shanks

I have appellate clients doing time at the MDOC's Carson City Correctional Facility in Montcalm County. One summer day a few years back, when I had just cleared the facility, a gang fight broke out in the yard which led to warning shots being fired from the gun tower and a 2-day lockdown.

Last month, the Michigan Court of Appeals decided a case involving the MDOC's attempt to get to the bottom of those gang disputes. In the process, the intermediate appellate court touched on the nerve of an accused's right to have legal counsel prior to making statements to police.

In People v Cortez, the defendant, a prisoner at Carson City, underwent a cell shake-down which yielded two shanks from around his bunk. Cortez was removed to a segregation unit and subsequently interviewed by an MDOC official who attempted to obtain information from the inmate relating to where the shanks came from and who was behind the gang violence.

In his statement, Cortez initially denied any knowledge of the shivs, then had a change of heart and told all, providing details about the gangs and the shivs. He was charged with two counts of prisoner in possession of a weapon.

At his jury trial [yes, he utilized his right to crank-up a jury trial], Cortez's lawyer attempted to keep out his statements on the basis they were made during a custodial interrogation but without the benefit of Miranda warnings.

You remember Miranda v Arizona; the seminal criminal procedure and constitutional law case from the 1960s SCOTUS, requiring police to provide an accused suspect of his right to remain silent and to obtain a lawyer prior to answering any questions.

Anyway, the Court of Appeals upheld the trial court's decision to allow the MDOC official testify about his questioning of Cortez; the questioning was characterized by the prosecutor as designed to elicit information about the gang violence within the facility and not to obtain evidence of Cortez's guilt. Cortez's SADO attorney argued that the questioning was clearly intended for use in his subsequent prosecution.

The Court of Appeals held that Cortez was not entitled to Miranda warnings on the basis that he was not in "custodial interrogation" when he was, er, "interviewed" by the prison official; that the prison official was not the equivalent of the state police, nor was he acting on behalf of the state police, who later took over the case; that the MDOC official's sole concern was prison safety, not gathering evidence against Cortez.

So, within the confines of a prison at least, an accused should not expect to be provided the seminal warnings that a police officer normally would provide about having a right to remain silent and to speak to an attorney before answering questions.

Hopefully, the holding in the case will be restricted to the context of the prison setting. We don't want safer prisons at the expense of our constitutional rights out here in "the World".

www.waterfordlegal.com

info@waterfordlegal.com

Michigan Court of Appeals Rules State Clerk Must Testify in DWLS Cases

2011-11-06T08:23:00.001-05:00

In a 2-1 decision, the Michigan Court of Appeals recently ruled that a certificate mailed to a state driver, notifying him of his suspended license, is "testimonial" as that term is used in the constitution thus, the Secretary of State must produce it's clerk at a trial for driving on a suspended license.

The case, People v Nunley, arose in a district court in Washtenaw County. The prosecutor attempted to introduce notice of the defendant's suspension, without calling a clerk from the Secretary of State's office to lay the proper foundation for the entry of that key document.

Both the district court and the circuit court denied the prosecutor's request to admit the document of suspension; a key element in any DWLS case.

The Court of Appeals panel reasoned that because the prosecutor must establish that the motorist received notice as an element of the crime, it held that introduction of the actual notice document, without producing the necessary foundational witness, violated the accused's right under the Sixth Amendment to the U.S. Constitution to confront and cross examine all witnesses.

In a well-reasoned 7-page dissent, Presiding Judge Henry Saad concluded that the notice was not "testimonial" under the analysis of seminal U.S. Supreme Court caselaw. Judge Saad characterized the notice as merely "administrative" and emphasized that, when the notice was sent to Mr. Nunley, no crime had yet been committed [i.e. Nunley had yet to drive on his newly suspended license]. As such, the notice could not be testimonial in nature.

The result of this decision is that the prosecutor must now secure the appearance of the state clerk from Lansing in order to obtain a DWLS conviction. Should the administrative costs of securing a conviction alter the analysis of the accused's constitutional right to confrontation of witnesses? We think not.

The Washtenaw County Prosecutor has promised further appeal to the Michigan Supreme Court.

www.clarkstonlegal.com

info@clarkstonlegal.com

SCOTUS to Hear Michigan Case on Plea Bargain Process

2011-10-30T08:27:00.001-04:00

This week I had a 3-day jury trial. When it was completed, I walked out of the courthouse but my client did not.

In such criminal cases, at the brink of trial, it is common that the plea discussions give an accused serious pause. Rejection of a reasonable plea offer can result in significantly more time in prison thus, the stakes are high.

The counsel-driven plea process is at the heart of a Michigan case up for oral argument this week at SCOTUS: Lafler v Cooper. The case comes from the Wayne County Circuit Court; straight out of the Frank Murphy Hall of Justice.

The female victim in the case was shot 4-times by Anthony Cooper: twice in the buttocks, once in the abdomen, and once in the hip. She survived these gunshot wounds.

Cooper's lawyer rejected a plea offer that would have capped his prison term to the lower end of his sentencing guidelines on an attempted murder charge. The offer was rejected on grounds that the medical evidence in the case would demonstrate that Cooper was only trying to maim his victim; not kill her. Counsel pushed for a reduction of the charges to assault with intent to do great bodily harm.

Well, as I've learned over the past two decades: "good luck with that..."

After his jury trial conviction, Mr. Cooper was sentenced to 135-360 months in prison. On appeal, he raised a claim that he received ineffective assistance of counsel during the plea bargain phase of his case in contravention of his rights under the Sixth Amendment to the U.S. Constitution.

With his appeals exhausted in the state courts, Cooper filed a petition for Habeas Corpus in federal court. The federal court ruled that the state appellate court erred by not accounting for the "affirmatively deficient advice" of Cooper's trial counsel in rejecting the prosecutor's initial plea offer.

The remedy: the federal court ordered specific performance of the initial plea offer: i.e. a 50-month prison term. Understandably, the prosecutor appealed hence, the case now resides on the SCOTUS docket.

We will keep an eye on this one for you as it implicates how defense counsel handles the all-important plea bargain process. So stay tuned...

http://www.waterfordlegal.com/

info@waterfordlegal.com

Panel Appointed to Examine Indigent Criminal Defense

2011-10-22T08:49:00.000-04:00

This past week, Governor Rick Snyder issued an executive order appointing 10 people to serve on an "advisory commission". Their mission: to quickly assess and make recommendations to the executive and legislature about the delivery of effective legal representation to the indigent accused.

Along with the 10 gubernatorial appointees, the commission also includes state legislative leaders from each political party; two from the state house and two from the state senate.

In reviewing the Governor's appointments, it was good to see Oakland County well represented. Oakland County Circuit Judge Colleen O'Brien is on the commission along with former Oakland County Bar Association President Judith Gracey.

The problem presented to the Commission is how to provide effective assistance of counsel, as guaranteed under the United States and the Michigan Constitutions, for accused individuals that cannot afford to hire a lawyer. Michigan is considered to be among the worst states in the Union in providing legal services for indigents.

This blog covered the problem last October when the Michigan Supreme Court reversed course in the Duncan v State of Michigan case, granting summary disposition to a constitutional challenge to our system of court appointed legal counsel. So now the executive branch will make an attempt to fix what most everyone agrees is a broken system.

Here in Oakland County, this blogger has observed many a colleague providing quality legal service on a court-appointed [thus, low paying] basis. A court-appointed lawyer may go through 50 pleas before taking a case to trial.

Similarly, at the appellate level, roster attorneys for the Michigan Appellate Assigned Counsel System subsist on a steady diet of guilty plea appeals which are essentially thankless fools' errands; done dirt cheap. These MAACS attorneys, however, wait for a legitimate appellate assignment to come along, providing the opportunity to file a merits brief seeking to correct a constitutional wrong.

While professionally gratifying, the trial and/or appellate attorney can expect to be compensated at the rate of about $20 - $25 per hour.

Underfunded Courts Will Erode Justice

2011-10-16T19:38:00.003-04:00

This granite courthouse in the Bronx took a decade to
build (1905-1915) and has been abandoned since 1978.

Achieving justice in the United States is never a given. There are many factors that affect an outcome in the courthouse: the relative skills of the attorneys; the time a matter takes to get to trial; the personality of the judge; the backlog of the judge's docket.

One factor becoming increasingly important in the determination of justice is the funding [or lack thereof] for the judiciary.

Here in Michigan, there are budget-conscious proposals to eliminate trial judges, court of appeals judges, and to shrink the Michigan Supreme Court from 7 to 5 justices.

Referred to as the weakest branch of government in the Federalist Papers due to its inability to control either sword or purse, the judiciary must now fight for its fiscal life here in America, both at the federal level, and on a state-by-state basis, as legislatures scramble to shrink all government budgets.

Here in Oakland County, the county executive, Brooks Patterson, runs a very tight fiscal ship. He has demanded that the courthouse balance its budget; in turn, they have accounted for nearly every penny spent in the courthouse, saving wherever possible.

Patterson's plan has meant a slow attrition among the corps of judicial clerks and other court staff. At the Oakland County Probate Court, this has translated to juggled counter hours and longer lines. Overall, however, the Oakland County Circuit Court's service to the public has not suffered. How long, we wonder, can this continue?

If you have not been to the Macomb County Circuit Court in a while, don't plan your business for the afternoon if it's a Tuesday or Thursday; the clerk's office will be closed.

Elsewhere, courts have not fared nearly so well. In California, for example, $350 million has been cut from the county trial courts since 2009, with even more cuts due by the end of the year. The Economist reported last week that up to 48% of California's county trial courts could be rendered insolvent by the state's budget crisis.

One result of the cuts to courts in California is lengthening the time an uncontested divorce takes to process through the court system; from 6 to 18 months. Trained court staff is needed to process such cases without delay.

In New York, the judges, not having seen a legislated pay raise since the turn of the century, have sued the political branches of their state government. In Ohio, the Morrow County Municipal Court went to a 4-day work week in 2009 and stopped taking new cases for filing because the county failed to requisition sufficient paper.

Some quick stats compiled by the American Bar Association regarding the state of the state judiciaries:

26 states have stopped filling judicial vacancies;
34 states have stopped filling judicial clerkships;
31 states have frozen judges' or clerks' salaries;
14 states have closed courts during weekdays; and
3200 courthouses have been characterized as "physically eroded" or "functionally deficient".

According to ABA, "the underfunding of the judicial system threatens the fundamental nature of our tripartite system of government." To borrow a cliche that also captures the spirit of this problem: "justice delayed is justice denied."

www.clarkstonlegal.com

info@clarkstonlegal.com

Boozy Bears & MIPs

2011-10-05T20:22:00.000-04:00

As Halloween approaches, here's an adult trick that's been going around; add a pint of vodka to some gummy bears and, viola; you have a batch of Boozy Bears.

The problem arises, however, when teens get their hands on the alcohol soaked candy. Now, any gummy-munching teen will come under suspicion for being a minor in possession [of alcohol].

There are legitimate web sites for adults, that instruct party-goers how to make a batch of the Boozy Bears. Effortlessly; just add Stoli.

These sites have had millions of hits on the Internet. Things that are harmful to teenagers are all over the web. Fortunately, several news stations recently splashed Boozy Bear warning segments across their evening newscasts.

So, be on the lookout...

Teenagers charged with an MIP have options. Contact a local attorney if you are your family member has been charged. And in the meantime, stay away from the Boozy Bears.

www.waterfordlegal.com

info@waterfordlegal.com

SCOTUS Opens Term with First Amendment Case from Michigan

2011-10-03T21:18:00.000-04:00

The church can fire its priest, but can it fire the altar boy?

The case of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC is one of the first cases to be argued in the 2011-2012 SCOTUS term that opens today in Washington D.C. This First Amendment freedom of religion case arises from an employment dispute at a now-defunct church in Redford, MI.

The issue in the case is the scope of the long-recognized exception to the federal employment discrimination laws when it comes to hiring or firing the clergy for a church, synagogue, or mosque. This so-called "ministerial exception" has been recognized by all 12 federal appellate courts with the authority to hear such cases, as well as the supreme courts of 10 states.

The rationale behind the exception is that religious organizations, under the freedom of religion, should be allowed to make their own decisions about hiring and firing clergy, without concern of the normal anti-bias laws. The question to be argued before SCOTUS on Wednesday morning is how deep into the staff and the payroll this ministerial exception goes.

Most religious institutions want the freedom to make all staffing decisions without concern for federal employment law; not just decisions relating to the pastor, the priest, the rabbi or the imam. They are pushing for a flat-out ban on all anti-bias laws for any staffing decisions.

The Solicitor General asserts that, to the extent it is recognized, the church's interpretation of the exception is too broad. Church staff members, the federal government will argue, are protected by federal and state employment laws.

The Hosanna-Tabor Church case involves a parochial school teacher who was fired allegedly because of her numerous disability-related complaints; the claim is that her firing by the church-school was retaliatory. If the High Court considers her to be the equivalent of a clergy member, then she cannot seek the shelter of the Americans with Disabilities Act; if she is deemed to be a mere staffer, then she is entitled to protection under the applicable laws.

SCOTUS has seen disputes akin to this in prior petitions. One of the reasons the Redford, MI church's petition may have been selected is because it was prepared and filed by University of Virginia Law School's Professor Douglas Laycock; one of the nation's leading experts on church-state law.

Our First Amendment jurisprudence continues to grow ever richer. Stay tuned for the result.

www.clarkstonlegal.com

info@clarkstonlegal.com

Saved by the Gun

2011-09-30T16:34:00.001-04:00

Ben Wallace

What a difference one-year makes. Last year, our law firm's web site carried a tweet in our news feed about Big Ben attending law school.

Last weekend, any plans the big fella had of convincing a state bar to issue a law license in his name just became more complicated. Wallace, recently retired from the Detroit Pistons, and a former Chicago Bull and Cleveland Cavalier, was arrested in Bloomfield Township on Saturday night.

News reports have Wallace failing field sobriety tests and submitting to a breath test allegedly resulting in a .14 blood alcohol content. The legal limit in Michigan is .08; the year-old "SuperDrunk" threshold is .17.

An unloaded pistol allegedly was found in Wallace's Cadillac. This could actually help him out.

Apparently, Wallace's case was randomly assigned to 48th District Judge Kim Small; known for her harsh sentences for first time offenders of Michigan's drunk driving laws.

Drunk driving is a misdemeanor if a first offense; misdemeanors stay in the district courts where they originate. Carrying a concealed weapon, on the other hand, is a felony. Felonies are bound over for trial, or resolution via plea, at the county circuit court.

Judge Small was all over the national headlines this summer when she sentenced former NBA star, Jalen Rose, to nearly a month in the Oakland County Jail. Would Big Ben have received the same fate? We'll never know now.

Wallace will most likely plead guilty to both the felony and the misdemeanor and get probation rather than any jail time. Carrying the unlicensed pistol may have saved the big fella several weeks of sensory deprivation in the Oakland Hotel.

Update:
I was in the halls of the Oakland County Circuit Court on Tuesday when Big Ben was being sentenced by Judge Shalina Kumar. As predicted, he received probation.

Here's a post to an outstanding criminal law blog that captures the perspective of these local NBA stars' convictions from the national level.

www.clarkstonlegal.com

info@clarkstonlegal.com

New Apps Flood Lawyers With Information

2011-09-21T08:00:00.000-04:00

Attorneys, perhaps more than any other professionals, are awash with information; information about their cases, information about changing laws, a constantly shifting schedule. The pace with which the information now flows can only be described as instantaneous.

The manner in which a lawyer collects, stores and utilizes this information is a good indicator of that lawyer's professional skill. In this era of a 24/7 stream of digitized information, mobile devices are beginning to offer specialized apps for lawyers.

Here are some examples:

SCOTUS App. The Oyez Project has just launched an app that will download U.S. Supreme Court activity to your mobile device. This will include digitally recorded oral arguments, text of the High Court's decisions, as well as media coverage and analysis. Pretty cool, to be sure; but is this information-overkill? Why not just wait until you get back to your computer?

Mobile Transcript. This app allows you to download, manipulate, summarize, and transmit deposition transcripts right from your mobile phone. Great for when litigation data must be processed fast. Try using this while on vacation, however, and you will likely need to hire a divorce attorney.

Family Law Apps. Speaking of divorce, there are plenty of divorce-related apps in both the Droid and iPhone markets. For those residents of Gotham, there is an app to calculate your child support, there are apps to save your marriage; apps to stop your divorce; apps to help you win custody and, or course, apps for various forward-leaning divorce attorneys and law firms. Exhausting, to be sure.

State Bar App. Useless here in Michigan, but perhaps a harbinger, the Maryland State Bar Association has produced an app that downloads their rules of evidence, rules of professional conduct, and bits of professional philosophy right to your handheld device. Can the SBM be far behind?

Law Blog Apps. In a case of life imitating art, or perhaps this is best described as lawyers taking themselves too seriously, the blawg "FutureLawyer" announced on Tuesday that there is an app available to download their tech-related posts directly to your mobile device. As if you just could not live without their updates; now you can digest their posts about the latest tech developments while you wait for your case to be called; could have used this App today.

In 18-months, most of these current apps will be considered obsolete. The thing about high-tech is that products are constantly being improved.

Soon, you will be able to go to your doctor and just get a "chip" implanted into your skull; that way you'll have all the world's latest data right under your hood.

www.clarkstonlegal.com

info@clarkstonlegal.com

Post-Divorce Nesting

2011-09-21T06:40:00.004-04:00

Brown Bird Design for Time

This week in Time Magazine, there is a story in the "Society" section about a mode of parenting known as, "Nesting". This is where divorced parents each secure a residence beyond the former marital home; the couple's children remain in the marital home, to "nest".

The theory behind nesting is that it seeks to minimize the sense of upheaval that children of school age often experience during and after their parent's divorce.

Time's Belinda Luscombe speculates that the nesting mode of post-divorce parenting has emerged over the past decade as an innovative version of co-parenting. It remains rare, however, to get both parents on the same page be able to pull it off.

In the past decade, I have completed nearly 250 divorces and only two of those featured a nesting arrangement. Of those two cases, one of nests was destroyed, via foreclosure.

On the other hand, the difficult real estate market has forced many divorcing couples to hang onto their former marital home; like it or not. Nesting would seem to be a viable option. Usually, however, one of the parents "takes one for the team" and remains in the marital home, or the couple "walks away" from the home to begin their new post-divorce lives under the cloud of foreclosure.

Proponents assert that the nesting arrangement eliminates the continuous shuffling between two homes by the children that comes with a traditional parenting schedule; the parents do the shuffling in a nesting arrangement. Also, for children of a certain age, the arrangement allows them to continue living and going to school in a familiar environment, their childhood home, while they adjust to their parents' divorce.

Most family court judges look upon nesting arrangements with a certain degree of skepticism, if not outright scorn. In family court, however, parents are free to make whatever arrangements they desire so long as the judge can be convinced it is in best interests of the children involved in the case.

As a temporary post-divorce parenting technique between two cooperating amiable co-parents, nesting can work. It very well may provide the minor children with a better opportunity to adjust to the strains of divorce.

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Oakland County Re-Visits Medical Marijuana Drama

2011-09-18T08:36:00.003-04:00

The Oakland County Sheriff's interpretation of the Michigan Medical Marijuana Act (MMA) and the Controlled Substances Act has forced two local marijuana facilities to lock their doors. One of the pot-growing operations, Big Daddy's Hydro, in Oak Park, closed voluntarily; the other facility, right here in Commerce Township where this blog post is being composed, was the subject of a task-force raid.

The Oakland Press ran a front-page story on Saturday about Big Daddy's Hydro. The facility was on the receiving end of an Oakland County Sheriff's raid back in January. Since then, the owners were resolved to carry on their operation; an operation they insisted was legal under the MMA. Sounds like a movie might be in there somewhere.

Before Hollywood came knocking to negotiate the movie rights to this true crime drama, however, Big Daddy's in Oak Park locked its doors. The decision was based on the observations of its management group that "patients" were being shook down on the street after leaving the facility. Also, it did not help that four members of the management group were charged with distribution felonies by the Oakland County Prosecutor.

Big Daddy's is consolidating pot growing and distribution operations into their Chesterfield Township facility in Macomb County, and in Detroit. Therefore, Big Daddy's alleged violations of the MMA or the Controlled Substances Act are now in the hands of Prosecutors Eric Smith and Kym Worthy.

The more recent raid on the Commerce Township facility presents an example of an increasingly sophisticated approach to medical marijuana enforcement by the Oakland County Prosecutor. This bust was executed by a joint task force with a federal component; the DEA. [Remember, marijuana remains illegal in any form under federal law.] Also, the Sheriff has commented publicly that the facility violated the Controlled Substances Act, not the MMA.

Criminal defense attorney Neil Rockind was quoted in the Oakland Press yesterday as saying, "They can try to describe it any way they want. I know what happened...and if they want to pursue a case then I'll be there." Yeah, sounds like Neil; never one to shy away from high-stakes criminal defense litigation.

The Michigan Court of Appeals handed prosecutors a serious weapon when it issued its People v McQueen decision last month. The published, thus binding, decision of the Court of Appeals runs a lance through most MMA distribution schemes; at least if those involved want to make any money from their elaborate growth and distribution operations.

This brings us back to the intent of the medical marijuana referendum that passed overwhelmingly by Michigan voters in the 2008 election. The MMA is designed to encourage a "grow-your-own" and "trade-among-friends" approach to distribution.

From the outset, those involved in growing pot have been looking to make money from the provisions of the MMA. Because the Act is silent on pot sales, a legal debate has, er, cropped-up about whether distribution via sale is permitted or proscribed by the Act.

Also, as the Law Blogger has pointed out time and again; the premise of patients getting medical attention from marijuana, although legitimate in a number of cases, is a complete sham in the overwhelming number of patient-care provider relationships. This scam will likely bring down the MMA in the end.

www.waterfordlegal.com

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Large Man Suing White Castle Over Booth Size

2011-09-16T07:07:00.000-04:00

Satisfying my (very) occasional cravings for White Castle sliders, I've never stepped foot into the tiny fast food chain's shoe box stores; I always blow through the drive-through window instead. I cannot imagine the size of their booths as anything but cramped.

A New York man weighing nearly 300 pounds has filed a lawsuit against the Colombus, Ohio based company in federal court alleging violation of the Americans with Disabilities Act. Hungry, humiliated and hurting when he slammed his knee into the metal pole beneath the, er, table, this Plaintiff is now seeking unspecified money damages.

In-house counsel ought to have a good time with this litigation. A spokesman for the company said the store in Nanuet, NY is being replaced by one with larger booths. In tort litigation such as this, corrective action is not held against the company.

Last night, Jay Leno suggested the man ought to protest the fast-food chain by going on a hunger strike; then perhaps he would fit into a White Castle booth.

www.waterfordlegal.com

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Remembering September 11th, 2001

2011-09-11T08:49:00.002-04:00

I remember driving to Detroit for a child support hearing the morning of Tuesday, 09/11/2001. I was just about downtown on I-75, when the "Imus in the Morning" show reported an odd story about a "commuter" plane that had crashed into the North Tower of the World Trade Center.

The matter was being reported in those early moments as an errant plane. The discussion was about near misses that happen more than we realize.

As Don Imus described what he was seeing on the video monitors, his entire radio show crew erupted when the second jet struck the South Tower. I slammed my fist into the empty passenger seat of my car, shouting in disbelief. Along with the rest of the country, I knew instantly what was unfolding in New York was no accident.

By the time I parked my car, cleared security at the Penobscot Building, and made it up to the 9th floor to the Wayne County Friend of the Court, the Pentagon had been struck by another jet and everyone was talking about being under attack.

Everyone's plans changed that day. Some people were saying that yet another hijacked jet was heading due West toward Cleveland and Detroit.

The FOC hearing room was packed with people associated with more than a dozen cases. Thinking I would be trapped there all morning, I started to worry about what was happening in New York and Washington D.C. My brother Terrance lived in Manhattan back then; was he ok? Could I even find out?

Waiting for the Referee to take the bench, I tried Terrance's cell; no answer. I tried a second call; this time Verizon did not even make the connection.

By a stroke of luck, my case was called first. Just as we completed our arguments and received our ruling from the Referee, two Wayne County Sheriffs announced that the Penobscot Building was closing and instructed us to vacate in an orderly but immediate fashion. Mine was the only case called on the docket that day.

Back on the street, all the intersections were choked with vehicles like it was 5:00 on a Friday afternoon; folks were literally fleeing the downtown area. So this is what it feels like to be under attack in America.

Later, I found out my brother Terrance had plans to play tennis at courts located near the World Trade Center that morning; they cancelled their plans due to some puddles from a rain storm that lingered on the courts.

Thinking back on it now, while I stood there chirping to the Referee about eliminating my client's child support obligation for children that DNA results said were not even his, those heroes from Flight 93 wrestled control of their jet, executing some major league damage control from which every citizen in this country has benefitted.

In my mind at least, I have always held the belief that Flight 93 was destined for the Capitol Rotunda. We still have our beloved Capitol, the very soul of Democracy, thanks to those men and women on Flight 93.

Now, let's make it count people; we've got to make it count...

http://www.waterfordlegal.com/

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Medical Marijuana Lawyer Seeks Further Appeal on Dispensary Case

2011-09-09T12:14:00.001-04:00

This blog has covered the recent Michigan Court of Appeals decision in Michigan v McQueen which outlawed medical marijuana dispensaries as well as patient-to-patient pot sales. This appeal is the latest chapter in the pot drama that has gripped our state since the passage of the referendum that legalized medicinal marijuana by a convincing 3/4 popular vote in the 2008 election.

Our readers may recall that the oral arguments in this appeal were the subject of some fanfare when journalist Eric Van Dussen sought to record the arguments, as he did in the People v Anderson medical marijuana case. Jurisprudence in the making is certainly newsworthy; particularly when it concerns our fledgling yet tortured medical marijuana law.

Now this appeal grinds onward to the Michigan Supreme Court. So promises Matthew R. Newburg, legal counsel to the Michigan Association of Compassion Centers, appearing as an amicus in the case.

The Court of Appeals granted Van Dussen's request to record the argument on behalf of the media; granted the Attorney General, also an amicus, 10-minutes of appellant's oral argument time; but denied Mr. Newburg's request to get in on the action at oral argument; his 10-minutes [of fame] will have to wait for another case, unless the Supreme Court grants his application for leave to appeal.

The Compassionate Apothecary claims it was simply operating a "club" of about 345 legal pot growers who "traded" various strains of medical marijuana. In exchange for making a clubhouse available for its pot aficionado membership, Compassionate Apothecary took commissions off the top of all intramural marijuana transactions.

The intermediate appellate court ruled that the act does not authorize such commissions or transactions. The Isabella County Prosecutor has mailed the appellate opinion to all marijuana dispensaries in the county; advising them to cease any operations that contravene the appellate court's decision.

Going beyond the bald mechanics of his client's business model, however, Attorney Newburg told Michigan Lawyers Weekly that the MMA expressly provides for transfers from caregivers to patients and also allows patients who "grow-their-own". The Apothecary's legal counsel also noted that the MMA is silent regarding so-called "patient-to-patient" transfers of the type that apparently went down at the club.

With those arguments in hand, the Compassionate Apothecary now proceeds to the Michigan Supreme Court. Given the mess that this law has become, the High Court may actually take the bait and grant the Apothecary's application for leave to further appeal so they can sort it all out.

We will follow this one as it develops. Even if the High Court declines this case, there are others building up behind it that are equally, er, "newsworthy".

www.clarkstonlegal.com

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CSI Oakland County

2011-08-31T06:44:00.001-04:00

Hard to believe that right here in Oakland County, Michigan, there is sufficient crime to sustain a nearly $2 million dollar a year crime lab. Yet that is what Oakland County Sheriff Mike Bouchard will be announcing this morning in conjunction with his department's request for an expanded crime lab.

Sheriff Bouchard is expected to tout the Oakland County crime lab's accreditation by the American Society of Crime Lab Directors; the first lab in Michigan to achieve such status. Allocation of the resources for the proposed expansion (up to 3 additional employees and the constantly advancing hi-tech equipment with which they will work) seems like politically rough terrain in these times.

Apparently, the expansion will allow Oakland County to by-pass the lab operated by the Michigan State Police, thereby significantly reducing delays. The MSP crime lab has been flooded with additional work since the City of Detroit shuttered its crime lab amid claims of mismanagement and abuse; claims that are being investigated by the MSP.

This blogger recently experienced the effects of the MSP lab's processing delays in a felony case in Oakland County. It took the Oakland County Prosecutor nearly 8-months to confirm blood reports tying my client to a crime scene.

The prosecutor ended up sending the blood-work to a private lab in Virginia. During the months it took to process the evidence, my client was sent to prison on another unrelated matter from Detroit.

Although the delay was not the accused's fault, he sat in prison on dead time in my case, willing to plead guilty and get his Oakland County case over with. This was not possible due to the evidentiary delays. Not that I am asking you to shed any tears for this hardened skell; but we pay for such delays one way or another.

If an expanded lab lessens delays, expedites justice, and eases the burden on the state lab, that's all good. It's just a shame that our community sports enough crime to make such an arena possible.

www.clarkstonlegal.com

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So You Want to Be a Circuit Judge

2011-08-30T07:11:00.001-04:00

Good news! Governor Rick Snyder has put out an official notice for applications to fill a seat opening up on the Wayne County Circuit Court vacated by Michigan Supreme Court Justice Mary Beth Kelly. Here is the application, should you be an interested practicing attorney living in Wayne County.

Some fantastic Wayne Circuit Judges have come from gubernatorial appointments; Michigan Supreme Court Justice Brian Zahra comes to mind.

Although not completely clear, this current spot will probably be on the family court, so you would preside over a steady diet of divorces and custody battles.

Once you get appointed, don't get too comfortable; the State Court Administrative Office has slated one Wayne County judgeship for elimination no later than January 2013. Wayne County Executive Robert Ficano is calling for more judicial eliminations given Detroit's declining population.

Upon your completion of the judicial term to which you were appointed, if you wanted to keep your job, you would have to run for election on the Wayne County non-partisan ballot. Don't miss those deadlines; and better start raising funds now for your election.

If this sounds good to you, then download the attached form and get cracking on those references; the Governor's deadline is fast approaching.

http://www.clarkstonlegal.com/

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Anti-Shariah Law (Part II)

2011-08-29T08:39:00.002-04:00

State Rep. Rashida Tlaib (D-Detroit)

The Law Blogger recently posted on the Anti-Shariah movement earlier this month. Now, the Michigan legislature is getting in on the act along with the American Bar Association.

HB 4769, sponsored by Rep. Dave Agema of Grandville and numerous other legislators, seeks to restrict contracts and agreements calling for the application of foreign laws whenever such application would conflict with the rights set forth in the U. S. and Michigan Constitutions. The bill was introduced last week and was assigned to the Judiciary Committee of the Michigan House of Representatives.

Judges presiding over disputes involving such contracts and agreements would be required to amend the application of the foreign law to protect the litigant's constitutional rights. If an amended application of the choice of law provision is not feasible, then the foreign law provision is deemed null and void.

Under such a provision, you could kiss Shariah Law goodbye; at least if either party to an agreement calling for the application of the Islamic code wanted to escape the burden of the contract. This scenario would come up most often in the family law context where prenuptial agreements between religiously devout Muslims frequently call for the application of Shariah Law in the divorce judgment. If Agema's bill passes, the family court judge could not honor the prenuptial agreement.

This possibility has Michigan's Arabic community speaking out. Michigan's only Muslim legislator, Rep. Rashida Tlaib (D. Detroit), called a press conference to denounce Agema's bill, stating that her constituents found it "very very offensive" to the extent the bill would cast suspicion on Muslims.

Transactional attorneys that negotiate contracts with international choice of forum clauses are concerned these provisions would be subject to litigation. Until now, such contract clauses routinely have been enforced by Michigan judges.

In the last few years, anti-foreign law bills have sprung up in 22 state legislatures but only Arizona managed to pass their bill into law in April. In the 2010 elections, Oklahoma voters approved an anti-foreign law ballot measure, but the proposal was short-lived having been invalidated in federal court on First Amendment grounds.

The American Bar Association passed resolutions earlier this month denouncing any federal or state laws that impose blanket prohibitions against the use of foreign laws or religious codes.

In our free society where the First Amendment reigns supreme, just who's law is it anyway? Go figure.

http://www.clarkstonlegal.com/

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Medical Marijuana Dispensaries Ruled Illegal by Court of Appeals

2011-08-25T07:57:00.004-04:00

Yes, the ballot proposal writers hired by our pot lobby handed criminal defense lawyers a gift-horse when they wrote-up the Michigan Medical Marijuana Act. Just how are folks supposed to get their marijuana anyway?

A 3-judge panel of the Michigan Court of Appeals has reversed an Isabella County Circuit Judge that had denied the county prosecutor's request for an injunction that would close down the local Compassion Apothecary; a medical marijuana dispensary. After this decision, consider the Apothecary closed.

The sole issue decided in the case was whether the MMA provides for the "sale" of medical marijuana. The Court of Appeals said, "no". That was a foregone conclusion under any plain reading of the provisions of the Act.

Anyone reading the MMA will note that the referendum writers, in their wisdom, provided two ways for "patients" to obtain their, er, "medication". Either you "grow your own", or you get your pot from a certified care provider who can only service 5 patients at a time with an overall limit to the total number of marijuana plants on the premises. The MMA is silent, however, on dispensaries; nor does it provide for transfer by sale.

The Compassion Apothecary [BTW, even the name of this dispensary was illegal so they changed it to "CA"] is a membership-based collective designed to distribute a continuous supply of marijuana to certified patients. The Apothecary operates a locker system whereby patients and care providers pay monthly fees for both membership in the collective and use of a locker.

The CA is a "no grow" and "no smoke" facility. Patients can inspect [see, smell and touch] a wide variety of marijuana strains prior to purchase. The pot price is set by the care provider; the CA takes a 20% "service fee" on the transaction.

Sounds like an organic "win-win" right? Wrong. The collective ran afoul of the law, according to the Court of Appeals, as the MMA does not allow patient-to-patient sales or transfers. Also, the Court held that the CA illegally "possessed" the marijuana under both the Public Health Code, and the MMA.

Accordingly, the Court of Appeals concluded that the CA could be shut down on the basis it was a "public nuisance" as contended by the Isabella County Prosecutor. Case closed; the CA dispensary, and all others like it, are out of business by operation of this published, thus binding, decision of the Court of Appeals.

While the CA huddles with its attorneys to decide whether to take further appeal to the Michigan Supreme Court, Michigan Attorney General Bill Schuette applauded the decision as a much needed patch on a law that "has more holes than Swiss Cheese." AG Schuette told the Detroit News that the MMA has been "hijacked" by folks looking to profit from pot sales and by unscrupulous doctors issuing bogus patient certifications.

This blog has long-held the view that the MMA is a poor law. The Act does not square with the reality that many qualified "patients", perhaps even a majority, once endorsed by Michigan's DCH, smoke pot recreationally, not medicinally.

Some "On-the-Take" physicians conduct cursory reviews of an applicants' medical records in their assessment of a claimed chronic or debilitating medical condition, as required under the Act. Schuette is looking to criminalize bogus physician certifications. We're certainly behind that legislative initiative; good luck Bill.

Whenever a law is based on a fiction, as this one is, our jurisprudence suffers. As AG Schuette correctly points out, too many folks are equating legalization of marijuana with the medicinal use of marijuana. In this decision, the Court of Appeals removes this stubborn disconnect.

www.clarkstonlegal.com

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When Your Children Live with a Murderer Endorsed by the Family Court

2011-08-20T07:27:00.005-04:00

A very worried Trisha Conlon

This bizarre family law custody case is playing out in Seattle, WA. The unusual facts of the case bring into sharp focus the challenge of putting parents' often-questionable decisions through review by a family court judge.

In 1995 Trisha Conlon married Marine fighter pilot John Cushing, Jr.; a man with a tragic past. His ex-wife, Kristine Cushing, shot to death their two young daughters, 4 and 8, while they slept in their Southern California home. This was in 1991, when Mr. Cushing was on active duty in the Marine Corps and Mrs. Cushing, by all accounts, was an ideal soccer Mom.

Kristine Cushing's murder trial featured the now infamous "Prozac Defense"; she was found guilty by reason of insanity and sentenced to a mental institution where she did a nickle, followed by a decade of intensive in-patient style psychiatric treatment. She was discharged without restriction in 2005.

Meanwhile, John Cushing tried to put the pieces of his life back together. He married Trisha Conlon, with whom he had two sons. Sadly yet predictably, the couple divorced in 2004. Mr. Cushing's next "life-choice" was to re-marry his first wife, Kristine Cushing, the now-excused infanticidal murderess.

Today, Lt. Col. Cushing (retired) lives on Vashon Island, WA with a split-custody arrangement whereby one of his sons lives with him; the other lives with Ms. Conlon. The brothers reunite during holidays and vacations. Under this custody arrangement, Conlon eventually became aware that her ex-spouse not only re-married his first wife, but also shared a marital home with her and Conlon's son.

This information was difficult to come by as Mr. Cushing attempted to conceal his family arrangements. The distance between the two parents provided the necessary cover. Ms. Conlon, now living in Oregon, resorted to her family law attorney and his private investigator.

Seeking a change in custody to place her son into her home, Conlon brought proof of the Cushing reunification to the attention of the family court in King County, Washington (Seattle), arguing the arrangement was a "change in circumstance" detrimental to her son's best interests. She lost her case last month; a hearing on appeal is set for next week.

This case is a testament to the lengths people will go in the name of love, marriage, and progenitorship. Many, perhaps most of us, would not make the same decision as the Lt. Col. in this case; infanticide is just a flat-out "deal-breaker". On the other hand, imagine the love and forgiveness Cushing must have for his first wife to be able to take such a risk.

To the extent that his decision has placed his son in harm's path, it will be up to a family court judge of the King County Superior Court in Seattle to determine what is best for the boy under its jurisdiction.

www.clarkstonlegal.com

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Cooley Law Alumni Sues Alma Mater in Class Action Suit

2011-08-15T07:25:00.002-04:00

A class action law suit was filed against the Cooley Law School this week in the United States District Court for the Western District of Michigan. In addition to legal counsel from Gotham, attorney Steve Hyder from Monroe, MI, himself a Cooley graduate, is local counsel on the suit.

The 45-page complaint reads like an indictment on the issue of student loans versus available law jobs in this protracted economic downturn. The complaint alleges that Cooley intentionally uses false statistics (i.e. graduate employment rates and graduates' salaries) to lure and retain prospective law students .

The New York law firm handling the heavy lifting in the suit, Kurzon Strauss, is also suing the New York Law School on nearly identical grounds, but in state court. Each suit seeks hundreds of millions in tuition refunds from the respective law schools.

Last month, Kurzon Strauss was on the receiving end of a law suit filed by Cooley, alleging defamation. The firm had been trolling around Craigslist and Facebook soliciting candidates for its class action suit. Understandably, Cooley wanted to get the drop on the firm and steal the negative publicity thunder such a suit would generate. Always the publicity gurus over there at Cooley.

Cooley will probably use the same law firm on defense as they do on offense; Miller Canfield. One way or another, this litigation will siphon-off some of Cooley's rich profits as they continue to tap deeply into the American Dream, lawyer-style.

www.clarkstonlegal.com

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Vote for the Law Blogger in the ABA's Top 100

2011-08-13T12:17:00.001-04:00

This is the 5th year the ABA Journal has conducted an on-line poll to determine the best law blogs out there in Cyber-Space. If you like our law blog, please vote for us by clicking here.

The Amici form required to register your vote can be anonymous and only takes a minute. Non-lawyers can vote for this blog.

The scope of content covered by the ABA's top 100 blogs is truly amazing. One of the best features of such a poll is the diverse legal specialties that come into focus. Niche areas such as intellectual property, patents, tax law, Internet law, and estate planning are ideal for blog coverage. The attorneys that administer blogs in these areas are specialists devoted to the development of their respective niches.

Our blog, on the other hand, reflects matters of more general interest to lawyers and consumers of legal services in Michigan. This is consistent with our firm's general practice in areas of divorce, criminal defense, and probate law.

By drilling into the ABA Journal's website, you can get an idea of the subject matter covered in the law blogs honored by this Top-100 contest.

As a long-standing member of the ABA, this blogger was recently provided with several complimentary annual membership cupons. I still have a few left. If you are a Michigan lawyer with a P-number greater than 65000, send me an email with your contact information. Interested attorneys must act quickly as these cupons expire in a few weeks.

info@clarkstonlegal.com

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Fab Five Continues to Disappoint UM Fans

2011-08-10T23:22:00.003-04:00

For all their hype, the men behind the Fab Five continue to disappoint fans, supporters and alumni of the University of Michigan.

First it was Chris Webber's phantom time-out vs North Carolina in the 1993 Final Four game. Then the premature abandonment of the University of Michigan Basketball Program by the headliners of the group, Webber and Jalen Rose. Next, the final four banners were removed from Chrysler Arena due to the Ed Martin booster scandal.

This month, it's two criminal convictions right here in Oakland County; one for Jalen Rose, who's doing 20-days in the Oakland County Jail on a sentence from 48th District Judge Kim Small; the other is for charges of felony child support against Jimmy King. According to the Michigan Attorney General, King owes nearly $18,000 in child support arrears. He was arrested in Detroit.

Both men are currently detained in the OCJ.

Attorney General Bill Schuette was quoted in the Detroit Free Press as saying, "when it comes to child support, no matter who you are, you have to play by the rules."

It's a shame that these men have never played by the rules; it's a shame that they continue to cast a pall over the University of Michigan.

www.clarkstonlegal.com

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Ex-Spouse Takes Out Divorce Angst on his Blog

2011-08-10T06:50:00.003-04:00

Boy, would I welcome the chance to write this appeal.

A family court judge in Bucks County, Pennsylvania has enjoined divorcee Anthony Morelli from operating his web site devoted to his ex-wife; thepsychoexwife.

Judge Diane Gibbons based her decision on grounds the Father's blog, which details his failed marriage, his tortuous divorce process, and its protracted custody battle, is harming his young children. In fact, the blog does a hatchet job on his ex.

Morelli says the blog is a forum where he can help others "minimize conflict" and connect to share stories. He would like us to think of his blog as a kumbaya community where divorced men can rip their ex-wives with impunity. Touching, for real.

His lawyers have appealed Judge Gibblons' injunction claiming it is an unconstitutional prior restraint in violation of Morelli's First Amendment right to free speech.

For her part, Morelli's ex-wife says their children know about the blog, which is a shame.

Since he started the blog back in 2007, it has attracted a robust readership of nearly 200,000 new followers per month. At one point, Morelli was earning money from third-party advertisements on the blog.

We'd love to cultivate that type of readership over here at the Law Blogger; figures that such a negative energy factory would do so well.

Prior restraint of free speech, however, is a serious problem in this case. Judges, even family court judges, cannot restrain our free speech. A blog is one of the most common contemporary media designed to amplify freedom of expression. If a blogger lacks taste and restraint, should a local judge act as a censor?

Judge Gibbons' injunction in the Morelli case will undoubtedly be reversed on appeal.

Do you think family court judges should be able to regulate the content of a party's speech in a high-conflict divorce proceeding? Where would you draw the line; threats? abusive commentary?

We would like to know what you think on this issue...

www.clarkstonlegal.com

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150 Posts & Counting; Thank You Readers!

2011-08-06T08:11:00.003-04:00

Since March 2009, we here at the LawBlogger have had the distinct privilege of posting law-related content via the Oakland Press in Pontiac, MI. It has been a great relationship.

Over the past two and a half years, we have posted 150 times to this blog, attracting over 40,000 page views. Very small by national standards, but we're proud of our readership.

On a daily basis, we know that many of our readers scan and absorb fresh content by:

checking their email(s);
perusing their news feeds;
browsing several on-line newspapers and trade publications;
surfing their social media feeds;
actually reading a home-delivered newspaper (old school); and
occasionally watching news on television or the Internet.

We also know that our readers only have a brief moment to read our posts, so we try to make that moment count.

Going over some of our first posts was painful; the posts were soooo long, laden with detailed links. When we first started blogging, I think we tried to publish a law review article in each post.

As a result, no one read past the first 3 paragraphs and we were only able to produce one or two posts a month. That is no way to develop a readership.

When blogging, less is more. Get to the point; stick to the point.

Thanks to our readers that have hung in there over the years. We appreciate your feedback and comments. Please keep them coming. For our part, we will continue to deliver frequent relevant law-related content for your perusal.

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The Anti-Shariah Movement

2011-08-05T11:53:00.002-04:00

There is a growing movement afoot in the United States and Western Europe to arrest the perceived expansion of Islamic Law; also known as Shariah Law. As the Anti-Shariah movement gains momentum here in the US, it is bumping up against the "free speech" clause of our First Amendment.

Sharia, the Islamic code that guides a Muslim's beliefs and conduct, is increasingly viewed by some legislators as a legal system that seeks world domination. This fear has been attached to Islam for centuries.

The most vocal leader of the contemporary Anti-Shariah movement, David Yerushelmi, was profiled on the front page of last Sunday's NYT. An attorney in New York and a Hasidic Jew, Mr. Yerushelmi has aligned himself with a phalanx of conservative think tanks while making a national mark as an expert on Shariah. His recent accomplishments include drafting model Anti-Shariah legislation and filing lawsuits against the government that cite Shariah as, "one of the greatest threats to American freedom since the cold war," according to the NYT.

His warning is being echoed on the floor of statehouses throughout the country. The actual extent of this perceived threat is highly debatable.

Should U.S. Courts ever defer to religious tribunals? It happens more than you may realize.

For example, the United States Court of Appeals for the Fifth Circuit in New Orleans upheld an arbitration award handed down by the Institute for Christian Conciliation. Also, state courts have long upheld decisions made in Jewish courts known as a bet din. Even Islamic courts, particularly in the area of family law, receive some "faith and credit" in state courts (if not full faith and credit).

Particularly in the area of family law, there is an academic perception that religious women are often pressured by spouse and family into arbitrating in religious tribunals. A problem arises when these tribunals then disregard principles of basic equity, fairness and even constitutional protections.

Recent state appellate decisions, one from New Jersey and one from Maryland, provide a fascinating insight into the issue of Shariah Law now confronting state court judges on an frequent basis.

Some state legislatures are drafting bills that would prohibit state court judges, particularly family court judges, from any consideration of the Shariah; all litigants would be bound by applicable state laws.

Perhaps this would be best. We are, after all, in America, are we not?

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Casey Anthony's Lawyers Are Breaking Bad

2011-07-22T08:52:00.007-04:00

San Diego Attorney
Todd Macaluso

I recall putting on my shirt and tie for court while watching GMA two years ago and seeing one of my law school acquaintances, Todd Macaluso, being interviewed as the newest member of Casey Anthony's so-called "dream team" of defense lawyers. The interview in Florida was surprising to me, as I thought Todd was a product liability lawyer in California. Hey, headlines are headlines, right.

Todd comes from a wealthy family out east and he married well; very well. Not interested in Harvard, NYU, or any of the tony east coast law schools, Todd collected his sheepskin right here in the "D" from the University of Detroit School of Law; class of 1987.

Before his graduation ceremony was even concluded, Macaluso was probably on a private jet to San Diego, where he hung his shingle and hasn't looked back. And apparently he has not stopped playing around with private aircraft either, from the way the headlines read this week.

Although forced to quit the Casey Anthony case due to a serious attorney discipline conviction and imminent disbarment in California, Todd is right back in the cockpit, just in time to seize the spotlight, allegedly ferrying Ms. Anthony about the country on his private Pilatus PC-12 turbo-prop aircraft.

The national media, led by Nancy Grace, is in an absolute frenzy over Anthony's location. Knowing Todd, he is loving every minute that he is able to steal the show by flying the infamous "Tot Mom" hither and yon. Hopefully, his 15-minutes will expire by month's end.

Macaluso is a poster child for the adage: "image is everything". He is acknowledged, among dozens of others, in United States Supreme Court Justice Antonin Scalia's book, Making Your Case. A mutual friend who's been to Macaluso's home says there is a photo of Todd on his yacht with Justice Scalia, apparently a friend of the extended Macaluso family.

In 2007, Macaluso received the President's Award from the UDM School of Law. In presenting this award, UDM acknowledged Todd's lobby efforts in Congress to regulate pharmaceutical sales over the Internet. Nothing was mentioned, however, about the opportunistic nature of his burgeoning criminal defense practice.

With the benefit of hindsight, I just have to wonder if my alma mater would have bestowed its President's Award on a graduate who soon would be disbarred for misspending client trust funds; or whether Justice Scalia would acknowledge an attorney that has not only joined forces with a most infamous client, but has positively delighted in concealing her location, while she prepares with her lawyers to fleece all of us.

Only in America folks; only in America.

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Cooley Law School Files Defamation Lawsuit Against Internet Foes

2011-07-15T06:39:00.003-04:00

What is it about Cooley Law School's reputation that makes the folks over there so hyper-sensitive about how that veritable lawyer factory is portrayed? Cooley just cannot seem to avoid repeatedly shooting itself in the foot on the Internet.

Yesterday, Cooley Law School President Don Leduc announced defamation lawsuits against a New York City law firm and several John Doe bloggers. The lawsuits are splashed all over the law school's website.

The complaint against the bloggers (apparently a disparate group of highly dissatisfied former students) alleges the unknown defendants published false statements that Cooley law school representatives were committing fraud and other criminal acts in order to induce prospective students to attend the law school; that the business purpose of the school is to create, then transfer "securities" out of the robust stream of student loans coming into the school; and that the law school is under investigation by an undercover government task force for Title IV violations.

The complaint against the law firm alleges that Kurzon Strauss, a small New York City law firm, published false information relative to the law school's post-graduation employment rate and the school's student loan default rate in an apparent effort to attract litigants for a planned class action law suit against Cooley and other law schools. This complaint sets out a series of business torts including defamation, interference with the law school's business relations, breach of contract, and "false light".

There is no doubt Cooley is taking this litigation seriously, hiring Michigan's premire "biglaw" firm: Miller Canfield. The complaints were filed in the Ingham County Circuit Court on the basis Cooley's business injuries occurred in Lansing, MI, where the school is located.

Cooley apparently operates under the ancient Hollywood adage, "there is no such thing as bad publicity." This blog wryly noted when Cooley purchased the rights to name a minor league baseball park (the former Oldsmobile Stadium; now known as Cooley Law School Stadium) and when the school's website shamelessly touted itself as the #2 law school in the country; second only to Harvard Law School.

These marketing gaffs come straight from the top of the law school's administration. They do not advance the legitimate goals of Michigan's fifth law school, nor do they serve the interests of the legions of Cooley law graduates that have passed bar exams across the nation at historically higher than average rates.

Stay tuned for interesting developments on this one. After Miller Canfield has earned about a half million in fees to conduct plenty of discovery, one of the sides will be filing dispositive motions sometime in 2013.

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Five Red Flags that Your Divorce Attorney is on the Wrong Road

2011-07-14T07:12:00.003-04:00

Divorce lawyers are expensive; far too expensive for what most families need in a divorce proceeding. If you are involved in a divorce, here are some warning signs to help you determine whether you are getting your money's worth for this important service.

1. Lack of Communication. A breakdown in communication is the number one cause of client dissatisfaction with their divorce attorney. If a lawyer does not return your call within a reasonable time, she is either too busy or does not care about your case.

We all know in this era of smart phones that our lawyers get our calls, emails, and text messages within minutes of pushing the send button. Has your lawyer provided a cell phone contact; do you have access to her staff? If not, then you are not a priority in their office.

2. Does not know your case. Any engaged lawyer will have several cases going at one time. Every family is different. But a good lawyer will be sharp enough to master the basic facts and dynamics of your family. The next time you have a status meeting with your lawyer, listen carefully to the lawyer to determine whether he speaks in general terms; or whether he has a specific plan that applies to the facts of your case; your family.

3. Excessive Billings. Do you get sticker shock each month when you examine your divorce attorney's invoice? More troubling: do you even get a monthly invoice? Although many lawyers will have you believe that family law is "rocket science", it is not. If you are being billed more than $250 per hour for non-court related tasks such as preparing "summaries", checklists, or budgets, you are getting fleeced.

One trick unethical lawyers employ is to bill your file at the end of the proceeding, after you cut your deal, and after they see what's available for their fees. Often in such cases, a premium is baked into the final fee. Get your fee agreement in writing at the beginning of the process and insist on monthly invoices. When you receive the invoices, open them immediately as you would any other bill and examine them for accuracy. If you do not agree with items on the invoice, call the lawyer to discuss it right away; it is more difficult to raise fee issues several months down the road.

4. Arrogant and Antagonistic. The "old-school" image of a classic lawyer is that she holds herself above everyone else; is smarter than everyone and not afraid to prove it over and over again. These lawyers carry themselves with a certian touch of, er, arrogance.

In the trenches of family law, however, the real trick is to find a reasonable solution to your specific issues that works for everyone, particularly if there are young children. Arrogance is not a trait that gets this done. Does your lawyer show condescension toward you or does he repeatedly become antagonistic toward opposing counsel? If so, this is a sign of weakness, not strength. You may want to consider changing counsel.

5. Too Many Excuses. If your divorce lawyer lacks candor, fire him immediately. Unless he can effectively communicate with you on time regarding your specific issues; unless she follows through and does what she says, delivering service in your case on time, you have a big problem.

We hope these tips help you identify whether you are on the right road with your divorce attorney. After all, your life is in their hands.

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New Jury Rules Could Sway Trial Verdicts

2011-07-05T22:27:00.002-04:00

Photo: Reuters

Many comparisons have been drawn between the O.J. Simpson murder trial in the early 1990s and Casey Anthony's infanticide trial from this summer.

Like the Simpson trial, the Anthony jury's verdict left most Americans scratching their heads, wondering about the state of the criminal justice system in America, and in their local community. Unlike the Simpson case, however, the Orlando, FL trial was placed on the fast-track and, fortunately for everyone, the judge delivered.

In the Anthony case, the accused mother was acquitted of all murder charges, but convicted on four counts of lying to the police. She has been incarcerated for about two years; she could get maxed-out on Thursday to 4-years (a year for each count), with credit for time served. Her out date could be weeks, or even days away.

Tuning-in to the trial while grinding around town tending to my own clients, I was first struck by the possibility of an acquittal when the prosecutor's case in chief was taking two days to clear a so-called "expert" on foul odors; apparently captured in special containers for later sampling. They had experts on top of experts.

The jury, filled with non-Orlando out-of-towners, made the prosecution pay. When she earns a 7-figure income next year, Ms. Anthony will be sticking it in all our faces.

Meanwhile, in September, Michigan begins a probationary period for a series of innovative new court rules. These rules, designed to encourage more detailed juror involvement and participation in a case, may have changed the Anthony verdict. Click here for a detailed discussion of the specific changes.

One of the primary innovations is the ability of jurors to discuss the case among themselves and to ask their own questions of the witnesses, as the proofs are going in. In a huge case like Casey Anthony, you have to wonder if the new rules would make a difference in the outcome if the case was to be tried here in Michigan.

If I had to guess, I would think most Casey Anthony jurors would attest to their frustration spending half the summer listening to a parade of junk scientists. Jurors have fine antennae for junk science.

In the end, all the junk scientists in the world could not overcome the fatal flaws in this case: lack of a cause of death; and the all-in gamble of a first degree murder theory.

Here is a great take on this trial by Harvard Law Professor Alan Dershowitz.

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New Court Rules Expand Jury's Role in Michigan Trials

2011-07-02T11:25:00.003-04:00

This week, the Michigan Supreme Court integrated one of its pilot projects, involving the specific tasks of trial jurors, into the Michigan Rules of Court. The significant changes take effect September 1st.

The MSC order, with only Justice Diane Hathaway dissenting, essentially revolutionizes the role of the jury. Trial lawyers will note a sea change under the new rules.

Some of us have already utilized these rules by conducting trials in Oakland Circuit Judge Potts' courtroom.

The new rules are significant in that, for the first time, standard jury instructions will be supplemented with legal theories of the issues, submitted to the court by the opposing lawyers, distilled by the judge, then supplied to the jury. A trial judge thus retains all "editorial" powers relative to the theories and issues submitted by the lawyers, and consequently has great control over the content of each case as it goes in. Under the old rules, in addition to a reading of a series of standard instructions, the parties requested various "special instructions" applicable to their specific case.

Here are the other significant changes:

In addition to the standard opening statement, parties may now request making an "interim commentary" as the evidence is going in. This creates the possibility of editorializing the content of the evidence as it is entered into the record; the old rules limited all pre-evidence commentary to the opening statement.
Also, a distinct possibility of in-trial interactive dialogue with a jury is possible given the new provisions allowing jurors to submit their own questions to witnesses.
Where appropriate, litigants will submit trial notebooks to jurors containing witness lists and relevant documents.
In civil cases, where depositions will be read into the record at trial, the parties must submit joint deposition summaries to the jury.
In cases utilizing expert testimony, one party's expert will be allowed to hear the testimony of the other party's expert, rather than sitting in the hallway of the courtroom under the usual sequestration order.
Perhaps most significant, jurors will be permitted to discuss the case amongst themselves during regularly scheduled breaks in the trial rather than waiting until formal deliberation when the proofs are completed.

In her dissent, Justice Hathaway commented that the rules allowing for interim jury questions, interim deliberations, and the submission of deposition summaries, will poison the trial process with unnecessary complications.

We here at the Law Blogger must admit that, with lawyers being, er, lawyers, the new rules do have fantastic potential to complicate the trial process. On the other hand, the Wall Street Journal's Law Blog applauds these developments to the extent that they treat jurors as thinking adults; not a bunch of kindergartners.

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Proposed Divorce Legislation Distinguishes Marital From Separate Property

2011-06-30T10:12:00.001-04:00

Two new bills pending in the Michigan legislature attempt to address a long-perceived problem in Michigan family law: how to classify property [separate or marital] in a divorce proceeding. This legislative proposal has judges and divorce attorneys up in arms.

The tie-barred bills, 4672 and 4673, introduced by Livonia Republican John Walsh, propose standards for the division of marital property, and comingled marital and separate property; create a presumption of non-division for separate property; and revises the procedures by which a family court could "invade" one spouse's separate property and award it to the other spouse.

In Michigan, a family court judge's power to apportion property in a divorce comes strictly from statutes; a confusing patchwork of four separate statutes, to be precise. Because of this legislative patchwork, a significant body of common law has developed over the past 30-years addressing the classification and division of property.

Although every divorce case is decided on its own merit, the present state of divorce law allows the distinct possibility, if sufficent and compelling factors are proven, for the invasion of separate property. The new legislation is largely viewed as making such an invasion more difficult, if not impossible.

Birmingham divorce attorney James P. Cunningham summarized the problem in a 2008 Michigan Bar Journal article, calling for legislation to "fill the gap" between the cases. Cunningham was on the floor of the house in Lansing last week to testify as an expert about the need for this legislation and, presumably, to endorse the content of Walsh's bills.

So why such a fuss from the family court bench and bar? First, they contend that Walsh is fast-tracking the legislation without input from their professional organizations. Second, these groups also assert the proposed measures are grossly unfair to the non-propertied spouse.

When cornered by a reporter at the Capitol last week, a lobbist for the bills denied they were being fast-tracked but wryly noted that the family court bar was a veritable "graveyard" for good ideas.

Is this going to be a case of the rich getting richer? The so-called "missionaries for the family" certainly think so and are determined to quash the measures; you should have seen the chatter about these bills appearing on the State Bar of Michigan's Family Law listserve...

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Violent Video Games Are Protected Free Speech Says SCOTUS

2011-06-28T06:46:00.001-04:00

On the final day of the 2010 term, as their long summer break beckoned, SCOTUS issued a notable decision involving the regulation of video game content. Brown v Entertainment Merchants Association is a 7-2 decision invalidating California's ban of violent video game sales to minors on the grounds that such regulation is an unconstitutional restriction on protected free speech.

So now, when California's pre-teens are committing untold violent capital felonies in Grand Theft Auto, at least they will not be breaking the law in the real world.

Under the First Amendment, SCOTUS held that such speech is protected, even if expressed in the format of a violent video game available to minors. Therefore, the state regulation of such speech would be subjected to a reviewing court's "strict scrutiny".

Under such a standard, California's video game regulation did not survive. The SCOTUS decision affirms the 9th Circuit's opinion, reaching a similar conclusion that, like books and plays before them, video games are a valid and recognized form of free expression in our society, cloaked with all the protections of the First Amendment. Such free speech protections do not vary with a new and different medium of communication.

The High Court was unpersuaded by California's rationale that interactive video games posed a special problem by the child's participation in the outcome of the violence depicted on the screen, and therefore required content-based restrictions.

This is one of those "in your face" moments of Americana. It seems that, if left to our own devices, our multi-faceted talents and diverse commerce-based culture will unerringly produce this stuff for mass public consumption.

Some of the legistlators on the left coast tried to regulate the content of such expression, at least where minors were concerned. Well, our babies gotta grow-up sometime; why not inject them at an early age with a serious dose of interactive urban crime or intergalactic slaughter.

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New York Becomes 6th State to Legalize Same-Sex Marriage; California Next?

2011-06-25T07:27:00.004-04:00

Albany, New York. Last night, in a 33-29 vote, the New York Senate passed a same sex marriage bill expected to be signed into law by Governor Andrew Cuomo. When this bill is signed by the governor, who lobbied for its passage, New York becomes the sixth state to legalize gay marriage.

A similar bill was defeated in New York in 2009. The governor's persistent lobbying; some key Republican donors; an essentially absent Catholic Church; and voting senators that had gay family members, all factored into passage of the bill late Friday night.

Meanwhile, on the left coast, the seminal case from California continues its epic journey to the SCOTUS. Perry vs Brown (formerly known as Perry vs Schwarzenegger) involves California's passage of Proposition 8 which banned gay marriage after it previously passed muster with California voters. A conservative group sued in federal court; the ban was struck down, and the federal trial court's decision is now on appeal before the Ninth Circuit.

Judge Vaughn Walker, the now-retired federal court judge that initially struck down Proposition 8, publicly came out as a gay man only after his recent retirement. His ruling was immediately challenged based on grounds of bias, becoming the first judge in history to be challenged for recusal on the basis of sexual orientation. The chief judge of the federal bench in San Francisco upheld Judge Walker's ruling.

Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and the District of Colombia are jurisdictions that all have previously legalized same sex marriage.

This has become the civil rights issue of our time.

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Senate Proposes Statewide Registry for Medical Marijuana Patients & Caregivers

2011-06-24T08:29:00.002-04:00

Earlier this week, a bill was submitted to the plenary Michigan Senate by the Judiciary Committee that would require a state-wide registry for medical marijuana patients and care providers. Senator Rick Jones, a sponsor of the proposed legislation and chairman of the judiciary committee said the registry would be a "critical tool" for law enforcement.

The mechanics of the proposed law would require the DCH to submit a registrant's name and address to the state police within 48-hours of issuing the marijuana registration card. The police would then be able to call-up the data, for example, during routine traffic stops.

Of course, the compassion care industry is up in arms, viewing the bill as a significant affront to a registrant's privacy. An earlier version of the bill called for the submission of a wider scope of personal information about a registrant.

Oddly, the ACLU has come around on this bill, opposing the earlier version as overly intrusive, but conceding that a state-wide registry could prevent potentially dangerous raids where lots of feathers get ruffled. Still, the ACLU's official position is that the bill, even as amended, needs a separate "probable cause" requirement prior accessing the database. Unworkable, in our humble opinion.

Senator Jones' committee was busy this week, also introducing another medical marijuana related bill; this one to stop those pesky lawsuits filed by high profile lawyers against municipalities over their pot ordinances.

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Parental Divorce Reduction Act is Misguided

2011-06-23T07:30:00.002-04:00

New Mexico state senator Mark Boitano introduced a bill last February titled the Parental Divorce Reduction Act. The legislative intent behind the bill was to reduce unnecessary divorce, reduce family court litigation, and educate parents about the effect of divorce on their children.

Noble objectives; unworkable mechanics. This bill basically died shortly after its introduction to the New Mexico state senate, even prior to being assigned to a committee. For some reason, despite the death of this bill, it recently has received significant blog attention from family law pundits.

Perhaps the bill made headlines because of its attempt to introduce a significant counseling requirement for divorcing couples, followed by an 8-month "cooling off" period. The text of the bill specifically mentions counseling topics such as domestic violence, drug abuse and alcoholism, and infidelity.

Here in Michigan, there are a pair of tie-barred bills in the Senate that were recently referred to the Judiciary Committee. The bills propose required counseling on the effects of divorce and a longer pre-marital waiting period or premarital counseling.

Many divorcing couples do not have these issues. Those that do are not in the mind set to benefit from court required counseling; they just want their divorce over with, and quickly.

The best time to counsel individuals about the harmful effects of divorce on their children, addiction, domestic violence, and other family-related issues is prior to a marriage, not at the end of one. On the other hand, many readers will share my opinion that such matters are not germane to government-imposed counseling.

Sadly, divorce will continue to be a permanent feature to our social landscape.

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SCOTUS: No Right to Attorney in Child Support Civil Contempt Proceeding

2011-06-22T07:32:00.001-04:00

As the High Court's term comes to an end this week, SCOTUS is issuing opinions by the day. One of those announced this week was the South Carolina case involving a father's contempt proceeding for failure to pay his child support.

The case, Turner v Rogers, involved a series of contempt proceedings conducted in the family court. Father failed to pay his support, so he was repeatedly jailed, once for a 12-month stint. Neither father nor mother were represented by counsel in the proceedings.

The case wound its way through the South Carolina court system. By the time the case arrived at the SCOTUS, Turner had long-completed his 12-month stint in the county jail.

SCOTUS, in reversing his conviction, nevertheless held that a person involved in civil contempt hearings, as a matter of Due Process, was not entitled to an attorney. The reasons for this are because the opposing party is not the state but rather, the mother of the children. Also, the High Court found that in such proceedings, Due Process is satisfied by providing the support payor with a form to elicit financial information, providing him notice of a hearing, and by conducting a brief hearing on the payor's finances relative to his obligation.

In this case, Turner's conviction was reversed (even though he completed his jail stint) because he was not provided with a financial disclosure form, was not provided an attorney, and the family court erred by failing to make relevant factual findings that father was able to make the support payments when it found him in contempt. Basic stuff.

Here is a piece of scholarly criticism of this SCOTUS decision in the blog Concurring Opinions that has already shown up in the blogosphere.

Bottom line: pay your child support obligations.

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Fathers See Gains in County Family Courts

2011-06-20T08:33:00.001-04:00

Do the regularly maintained statistics support the contention that fathers are getting more time with their children in family courts? To borrow a lyric from the 70’s band, Boston, “it’s more than a feeling”.

Divorce records maintained by the Michigan Department of Community Health reflect a trend that family law professionals have observed, and perhaps helped influence; fathers with joint custody and equal parenting time.

While family law attorneys will no doubt acknowledge this trend, hard statistics are difficult to garner. Custody is still decided on a “case-by-case”, county by county, basis.

The form used by MDCH to collect information about divorces has a field to designate custody of minor children involved in a case. The person completing the form, usually an attorney, selects from the basic options of joint custody, or designates custody to mother, or father.

Per usual, however, the devil is in the details. For many practicing family law, the formal custody designation set forth in a judgment of divorce or custody order is merely a label, and a poor one at that.

Joint legal custody is usually a given; an accepted starting point. Physical custody, however, is a more contentious battlefield. The phrase “physical custody” does not even appear in the Michigan Child Custody Act; it is a mechanism used by family law attorneys and family court judges to identify a custodial parent.

The more significant provision is the parenting schedule set forth in the judgment. Not only does that schedule establish how much actual contact the minor children get with each parent, it also determines the child support obligation for each parent.

Purely anecdotal evidence from our recent divorce cases is consistent with the trend that Fathers are awarded joint custody (legal and physical) more often and, roughly, equal parenting time. One size, however, does not fit all.

An article titled Throwaway Dads, from the Michigan Bar Journal from 10-years ago, decrying a gender bias against fathers, provides an interesting barometer relative to the climate change in Michigan’s county family courts.

There must be good reasons to establish where the children of a divorce will live, and even better reasons to limit them from the home of one of their parents. Focusing on the parenting schedule rather than the custody label is the real trend at work here.

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Reasonable Fees a Must in Tight Legal Services Market

2011-06-14T22:15:00.004-04:00

Consumer focus groups often characterize attorneys as overpriced. Combine that conclusion with a lawyer's frequent arrogance, and the overall experience of purchasing legal services can be disappointing.

A recent study cited in The Economist noted that so called “Big Law” [America’s 250 largest private law firms] shed 8% of its work force over the past two years. Many top-tier law school graduates cannot find work in their chosen field.

Local general practitioners have also seen the effects of a tight market for legal services amidst a glut of service providers. Fortunately for them, appearing before the local magistrate or county trial judge cannot be outsourced to India like an e-discovery document review.

Nevertheless, globalization, digitization, and cloud-based data sourcing are driving fees for all legal services downward. Information is coming to the people at a bit-torrent pace. The client is forcing the attorney to re-think how service is measured and purchased.

Although professional pundits have been forecasting the death of the billable hour for the past two decades, it appears to finally be happening. Value-based alternative fee arrangements such as flat fees, performance contingencies, and multiple transaction discounts, are commonplace among competitive firms.

Survival in such an industry depends on a client-focused approach. Adding value to the client’s case, always important, is now imperative.

No one wants to overspend on a lawyer. Therefore, prior to hiring an attorney, do some research on the Internet; check the reviews; check the electronic profile. Your digital due diligence will increase the likelihood that your dollars will be well spent.

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When the Innocent Go to Prison We All Lose

2011-06-13T08:21:00.002-04:00

Everyone accused of a crime has a right to have the matter tried before a jury with the heightened "beyond a reasonable doubt" evidentiary standard. Sometimes, however, the jury gets it wrong.

When that happens, you have a constitutional right to appeal. Most convictions, statistically, are affirmed at the intermediate appellate level. From there, a convicted felon has a discretionary appeal to the Michigan Supreme Court.

The Michigan Supreme Court selects few cases each year; most petitions for a writ of certiorari, especially when they are from prison inmates, are rejected.

Once your state appellate rights are exhausted, you have the right to petition for habeas corpus in the United States District Court. Hopefully, your state court appellate attorney had the wisdom to "federalize" your brief in the intermediate state appellate court because if not, all your constitutional issues are deemed waived.

If the Habeas petition is denied in federal district court, as most are, there is a constitutional right to appeal even further, to the United States Circuit Court of Appeals.

The United States Supreme Court is the end of the road. A petition for a writ of certeriorari to the SCOTUS is, well, best of luck to you....

Most would agree that the incarceration of wrongly convicted individuals is one of the true horrors of our criminal justice system; a less than perfect system that sends people to prison from time to time who did not commit the crime for which they were convicted.

The State Bar of Michigan's blog recently posted some fresh literature addressing this troubling subject. We think it's worth a look.

Over the weekend, for example, the Detroit Free Press profiled its first in a series of articles detailing a West Bloomfield family's plight following criminal sexual conduct charges.

In addition to the case profile in the Freep, a more detailed study by the Campaign for Justice and the Michigan ACLU is included in the post, tracking 13 wrongly convicted individuals in Michigan; this piece also impugns Michigan's court-appointed counsel system.

The SBM blog post also includes a link to Reason Magazine's nation-wide study featuring UM Law Professor Sam Gross who concludes that wrongful convictions are far more common than most of us believe.

We are not sure what the solution is to this problem. Many folks in our free society seem hell-bent on breaking the law in major ways, committing "crimes against the person", to use a classification phrase from Michigan's sentencing guideline manual. No doubt, prosecutors often have a full plate.

But when the accused is innocent, we all lose some of our individual rights, liberties and freedoms.

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Breathalyzer May Be Required in Michigan Bars

2011-06-11T17:44:00.002-04:00

There is a bill pending in the Michigan Senate which, if passed, will require bars and restaurants that serve alcoholic beverages to make self-operated breathalyzers available to patrons. The bill, sponsored by Senator Bert Johnson of Highland Park, was submitted to the Senate Committee on Regulatory Reform on June 1, 2011.

Presumably, the legislative wisdom associated with such a law would be to provide bar patrons with some immediate feedback relative to their blood alcohol level. There is a large body of published analysis, however, impugning the accuracy of these devices. For example, if any alcohol or a variety of other agents are present in your breath sample, the results will be distorted.

One advantage of this law is that if patrons discovery they are "Super Drunk", with a blood alcohol in excess of .17, they would presumably not risk the enhanced penalties by venturing onto the roadways.

In a court of law, the preliminary breath test (PBT) results generated from such devices are not deemed admissible in court. Like field sobriety test results, the PBT can generally only be used to demonstrate whether there was probable cause to support a drunk driving arrest.

These machines cost anywhere from $250 to $950. Every bar, restaurant, or entertainment venue will have to purshase a series of these devices. Resources will be devoted to operating and maintaining the breathalyzers by the waitstaff at each speakeasy. Liability steming from this legislative requirement will result in lawsuits.

On the other hand, the more awareness that is raised about drinking and driving, the better. The question is whether the costs imposed on restauranteurs, then passed on to patrons, is worth it.

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The Skelton Divorce; An "Only in America" Moment

2011-06-08T07:36:00.002-04:00

John and Tanya Skelton
in Lenawee County Circuit Court

I remember having a bad feeling about this story as it broke over the news during the Thanksgiving weekend last year. Three young boys missing; clueless father.

Fast forward seven months and now we have the Skelton divorce in the Lenawee County Family Court making headlines.

In those intervening months, the three Skelton brothers have not surfaced. For his part, their father simply states that he gave them to "an [unnamed] organization".

He stuck to this story, forcing his wife into a divorce trial where he represented himself in the proceedings before family court Judge Margaret Noe. Accordingly, Judge Noe awarded custody, such as it is under the circumstances, to thier mother, Tanya Skelton.

As each month passes without any trace of the boys, the case grows ever colder. The Lenawee County prosecutor has charged John Skelton with parental kidnapping; a capital offense with a potential life sentence.

Regardless whether this case highlights the depth and horrifying scope of mental illness or, perhaps more ominously, it is a barometer of our post-modern culture, there will be no happy ending to this carnival side-show.

Only in America does a depraved father, who [at best] gave his three sons away to unknown individuals, seize headlines by insisting on a divorce trial where he represents himself; for the headlines, no doubt. Alas, even his suicide attempt was botched.

Stay tuned, as our next debacle can only be moments away.

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Biological Father Cannot Parent His Law School Love Child

2011-06-05T10:52:00.002-04:00

They were students at Cooley Law School in the late 1990s. She was married; he was from Buffalo, New York.

Their long-term adulterous affair eventually led to the birth of a child in 2002. Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state. For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast. The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state. Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad. All three parties sought summary disposition of the paternity issue. Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan. The case hinged on the definition of a child born "out of wedlock". The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution. In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance. She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court. Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation. Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved. For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity. The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.

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Michigan's Super Drunk Law After Six Months

2011-06-04T09:10:00.001-04:00

It's still too early to tell if Michigan's new "Super Drunk" driving law is having an effect on making our roadways safer. The law took effect last November.

Some following the law have noted that due to plea deals, many convicted of this law are going to rehab rather than jail. One of the provisions of the law was to double the jail term from 90 to 180 days for convicted super drunk drivers.

According to Eaton County district judge Harvey Hoffman, an early proponent of the new law, more folks are jumping into sobriety courts, or extended rehabilitation programs. Judge Hoffman cites chronic jail overcrowding as a chief factor in sentencing super drunks to rehabilitation over a six-month jail bit.

Of course, here in Oakland County, there is no such thing as a plea bargain and the prosecutor no longer participates in district sobriety courts. If you are charged under the Super Drunk law, you will not get an offer to reduce the charge to impaired driving, even if it is your first offense. Your fate will be in the hands of your sentencing judge.

By comparison, the Eaton County prosecutor has a new policy in super drunk cases of approving a plea reduction to impaired in exchange for the accused's assent to enter into a sobriety court program, forcing the offender to come to terms with their drinking problem.

The 0.17 blood alcohol level which triggers the new law is not an outrageously high BAC. On average, the BAC of an arrested driver is 0.16; very close to the super drunk threshold.

So the best thing to do is simply stay off the roads when you've had too much to drink; that way, we're all safer. If you cannot do that, go on ebay and purchase a "Big Blue Book" as a compulsory 12-step program may be in your future.

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SCOTUS Orders the Release of More than 45k California Felons

2011-05-30T08:03:00.005-04:00

Photo Credit: LA Times

In a hotly contested 5-4 plurality decision that will surely go down as one of the more controversial cases of this decade, SCOTUS affirmed the 9th Circuit Court of Appeals in ordering the release of more than 45,000 California felons. The decision will precipitate the largest release of prisoners in American history.

Brown v Plata began it's marathon crawl through the federal court system in 1990, when a case was filed challenging the poor status of mental health treatment in the California prisons. Then in 2001, a companion case challenging the medical care of prisoners was initiated.

These consolidated cases have everything, from a procedural standpoint. For example, a "special master" first was appointed by the federal court to make findings about the prison conditions. The State of California stipulated to violations of the Eighth Amendment's prohibition of cruel and unusual punishment and agreed to remedy the problem by reducing overcrowding in the prisons. Next, when remedial measures fell short, or did not occur, the court appointed a receiver to oversee the California Department of Corrections.

The cases were even assigned to a special three-judge panel to oversee the CDC's progress; or lack thereof.

Justice Anthony Kennedy wrote the majority's opinion, finding that prison conditions had gone too far for too long. The opinion provides a few slices of life in the CDC like sharing a toilet with 55 of your good buddies, or doing your entire four-year bit in a sweaty gymnasium.

The always-conservative Justice Antonin Scalia opined that the majority's decision was "absurd", noting that SCOTUS routinely overruled 9th Circuit decisions that called for the release of individual prisoners. Justice Scalia sees grave problems that will come home to roost from the Plata ruling.

In a separate dissent, Chief Justice John Roberts wrote that the majority's decision conflicts with a federal law which prohibits judges from releasing prisoners.

The one thing SCOTUS gave the State of California was time. California has busied itself with transferring thousands of state prisoners to county jails across the state. This will not amelioriate the entire problem, however, and some of California's "happy-go-lucky" [Scalia's characterization] felons will wind up on the streets.

This High Court decision brings into focus the inherent tension between our individual freedoms and enforcement of the laws. There is a constant tension between the two concepts. Sometimes, that tension cycles to the breaking point like in California, where too many law breakers are stuffed into concrete boxes that are ready to explode.

In Michigan, although we are far behind California in maxing-out our prison capacity, we have an awful lot of population encased in concrete and barbed wire. In fact, we have the opposite problem. Due to budget cuts, we have at least one brand new facility, in Lake County, sitting empty due to lack of funding.

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Was Clarence Darrow America's Greatest Lawyer?

2011-05-22T09:04:00.003-04:00

The Old Lion's Autobiography

He walked away from the University of Michigan Law School after his first year, declaring formal education a "waste of time". At the height of his game in the mid-1920s, he was the first trial lawyer in America to weave his client's interests through the available media, and thus into our societal fabric.

Darrow is perhaps best remembered for defending the teen-aged murderers in the Chicago case known as Leopold and Loeb. The accused boys, wealthy pampered law students, received life prison sentences, narrowly avoiding a death sentence.

And of course, Darrow successfully defended teacher John T. Scopes, accused of teaching evolution in a Tenessee public school. His opposing counsel, prosecutor William Jennings Bryant, arrogantly took the witness stand in defense of a literal interpretation of the Bible. Darrow is considered to have disgraced Bryant during his cross examination.

The Old Lion, as he was known, was one of the left's radical champions. He played a significant role in the development of the American Civil Liberties Union. He was well-suited for his time.

A new biography of Darrow by Andrew Kersten [University of Wisconsin, Green Bay], American Iconoclast, has revived interest in the lawyer and his momentus cases. As the "go-to" trial lawyer of his day, Darrow made numerous enemies on both the left and the right. Salon takes note of Darrow's eventual tendency to go where the biggest fees were paid.

Local connection: In early September 1925, Dr. Ossian Sweet moved into a home with his family on Garland in Detroit; a neighborhood then known as "Black Bottom". Often, black families that moved on streets with white families would get attacked. In October 1925, a white lynch mob was thwarted by Dr. Ossian and some members of his family, resulting in the death of one of the assailants.

Now charged with murder, Dr. Ossian reached out through the NAACP to hire Darrow. Judge Frank Murphy presided over the trial, during which Darrow gave a closing argument that lasted over seven hours. Ossian was acquitted.

Assessing Darrow's colorful career, in all its hues, provides an opportunity to compare the outrages of his day to the many modern problems that continue to plague our nation.

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White House Proposes Stiffer Penalties in Computer Hacking Legislation

2011-05-14T08:09:00.002-04:00

This week, President Obama announced a legislative initiative designed to strengthen the penalties for convicted computer hackers. The initiative proposes a mandatory 3-year prison term upon conviction of a number of computer crimes; the sentence would be served consecutively to any other convicted counts.

The computer fraud and abuse act is already on the books. Obama's proposal is aimed at introducing stiffer mandatory penalties - something like Michigan's mandatory two year consecutive sentence for a weapons-related conviction.

The initiative also introduces a broad definition of a "critical computer infrastructure", seeking to regulate the reporting of breaches of such infrastructure(s). A critical computer infrastructure includes the delivery of critical government services, telecommunications, finance and banking, emergency services, and oil, gas, water and electricity production.

That covers just about everything but Face Book.

Another interesting facet of the President's cyber-legislative proposal is adding computer hacking to the list of crimes covered by RICO (Racketeering-Influenced and Corrupt Organizations Act), the act used successfully over the decades to convict mobsters and mob bosses.

We do live in an age where secure transactions are critical to our daily life. In such a culture, cyber-crooks and hackers may be paying a higher price for their misdeeds if President Obama's proposal gets any legislative legs.

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Murder has no Statute of Limitations

2011-05-10T21:03:00.002-04:00

Veteran defense lawyer Michael McCarthy (L)
and veteran prosecutor John Skrzynski

Prosecutors cannot take their time once they make the decision to prosecute a case. Generally, the law does not reward any party that sleeps on their rights and duties.

Normally, the prosecutor has a certain period of time, known as the "statute of limitations", within which to charge a crime. An exception to this rule is murder; there is no statute of limitations on a murder charge.

The Oakland County Prosecutor recently brought two cases that alleged murders that took place in 1978 and 1968, respectively. The 1968 case charged Nolan Ray George, a suspected serial killer, with the first degree murder of Gwendolyn Perry. Likewise, the 1978 case charged Wilburn Cooper with first degree murder.

Cooper's jury convicted him in two hours flat. As for Mr. George, his defense lawyer, veteran attorney Michael McCarthy attempted to keep out evidence of so-called "prior bad acts"; two prior murders. Oakland Circuit Judge Michael Warren ruled the other murders admissible; George also was jury convicted in short order.

Forty years, thirty years, or ten; if the prosecutor can marshal evidence to prove the elements of an open murder charge beyond a reasonable doubt, murderers should pay the price for their heinous crimes. The competing interest, of course, is that any evidentiary trail grows ice cold over the decades; a defense is very difficult to mount with the passage of an ocean of time.

Mr. McCarthy was probably asked why on earth he would represent a serial killer a dozen times if he was asked once.

The criminal justice system requires seasoned defense lawyers to force the government to prove its case; each and every time. Only in this fashion do we maintain our individual liberties and avoid becoming a police state.

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Medical Marijuana Act Going Up in Smoke?

2011-05-07T18:42:00.005-04:00

For some time, this blog has been tracking the various twists and turns of the Michigan Medical Marijuana Act. Every week, there has been something new on this topic.

This week, it was a Dearborn district court judge declaring the entire MMA unconstitutional on federal preemption grounds. Judge Mark Somers invoked the doctrine of federal preemption and the supremacy clause in denying defendant's motion to dismiss in People v Brandon. He caught headlines by ruling that the MMA conflicted with an area controlled by federal law.

This week also gave us a rare "about face" from the Court of Appeals on the issue of video taping oral arguments in a seminal marijuana case. A journalist, Eric VanDussen, sued the Court of Appeals upon being denied access to record the oral arguments in the People v Anderson case. The High Court remanded the case back to the COA, mandating that the intermediate appellate court, "articulate the reason why 'the fair administration of justice' warrants the denial of [VanDussen's] request to film oral argument on May 10, 2011.

As a result of the Supreme Court's order, the COA decided to let the cameras roll. What's the "over-under" on how long (as in minutes) it will take for the video of the Anderson arguments to make it to YouTube. I'm thinking five minutes. [As promised, here is the link. Note: it appears that the link has been disabled.]

Last month, a seminar on the MMA scheduled to be conducted in a privately owned horticultural store in Highland Township was cancelled on short notice on grounds the township clerk alerted organizers that it would vigorously enforce their pot growing ordinance. In Highland, like many other townships, an ordinance imposes a moratorium on the growth, sale or dispensation of marijuana.

Also last month, a Saginaw physician, Dr. Ruth Buck, was indicted on federal charges of aiding and abetting in the distribution of marijuana, a Schedule I drug. The suit questions Dr. Buck's due diligence relative to her examination into her patients' so-called chronic illnesses, as required under the Act.

In addition to the Anderson case, soon to be decided by the Court of Appeals, the Redden case, pending before the Supreme Court, is destined to be the seminal case on this subject for some time. Last month, Attorney General Bill Schuette filed an amicus brief in the Redden case.

We will have our answers soon on the question of whether the MMA has the legs to stick around to authorize the palliative use of marijuana; or whether the act will go up in smoke as a failed piece of legislation, torn apart via ordinance and the common law.

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Michigan State Police Extracting Cellphone Data During Traffic Stops

2011-04-25T23:49:00.003-04:00

Since 2008, the Michigan State Police apparently have used devices in their patrol cruisers capable of extracting data from a driver's cell phone. The troubling part is that it may be possible to tap your cell phone during a routine traffic stop.

The data extraction device, Cellbrite UFED, can pull existing, hidden, and deleted phone data, including your call history, text messages, contacts, and images; even your geotags. It can also extract ringtones which can be highly incriminating in some situations. These devices can crack into more than 3000 cellphone models and easily blow-thru passwords.

All this, of course, raises some legitimate concerns under the Fourth Amendment's "search and seizure" clause. Do you have a reasonable expectation of privacy in the data contained in your cell phone once you take that puppy on the road?

Along these lines, the Michigan Chapter of the ACLU has filed a freedom of information act request with the MSP seeking detailed information on how the device is used. In response, the MSP has issued their own press release asserting that they do not use the data extraction device during routine traffic stops, do not use the device without a prior search warrant, and cannot extract data from the phone without first having possession of the phone.

The MSP has also asserted that compliance with the ACLU's document request would be costly but they would be delighted to produce the records in exchange for a half million dollars to cover the costs.

Stay tuned for the law suit. In the meantime, to protect your privacy when the lights and sirens erupt behind you on your next traffic stop, you should probably power down your phone.

Cellbrite UFED

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Court of Appeals Rules that MERS Cannot Foreclose Via Advertisement

2011-04-23T09:19:00.010-04:00

Do you know if MERS owns your home? MERS [you know, the Mortgage Electronic Registration System] has been getting drawn deeply into the nationwide mortgage meltdown.

The Michigan Court of Appeals recently handed MERS some more bad news here in Michigan: they cannot foreclose by advertisement because the COA ruled they do not hold an interest in the indebtedness under the applicable Michigan statute.

In the 2-1 decision in Residential Funding Corp v Saurman, two cases were consolidated which posed the same legal question: whether the mortgagee, MERS, could foreclose by advertisement rather than filing a foreclosure lawsuit (a "judicial foreclosure").

The respective home owners in these consolidated cases each defaulted on their mortgages. MERS instituted non-judicial foreclosures by advertisement, as permitted by statute. The properties were then purchased by MERS at sheriffs' sales. At this point, the respective homeowners from Kent and Jackson Counties, challenged the foreclosures on the basis that MERS could not foreclose via advertisement as they did not fall within the definition of a "mortgagee" under the statute.

Just what is MERS? The Saurman opinion provides a good clean glimpse. According to the Court of Appeals:

MERS was developed as a mechanism to provide for the faster and lower cost buying and selling of mortgage debt. Apparently, over the last two decades, the buying and selling of loans backed by mortgages after their initial issuance had accelerated to the point that those operating in that market concluded that the statutory requirement that mortgage transfers be recorded was interfering with their ability to conduct sales as rapidly as the market demanded. By operating through MERS, these financial entities could buy and sell loans without having to record a mortgage transfer for each transaction because the named mortgagee would never change; it would always be MERS even though the loans were changing hands. MERS would purportedly track the mortgage sales internally so as to know for which entity it was holding the mortgage at any given time and, if foreclosure was necessary, after foreclosing on the property, would quit claim the property to whatever lender owned the loan at the time of foreclosure.

In the 1990s, the early challenges from county officials throughout the nation to the MERS system of high-speed and cheap securitization went unnoticed in favor of the mortgage lending industry. Remember Andy Jacobs and his World Wide Financial ads?

As the MERS system of speed collateralization took off, it developed a process of instant deputization, where thousands of loan officers received “certifying resolutions” in minutes via the Internet. These financial deputies or, in some cases "agents", were authorized to process mortgage transfers and foreclosures on behalf of MERS.

As usual, all good things come to an end. This blog chronicled the unraveling of MERS in an earlier post. This Michigan Court of Appeals' decision, published thus binding on circuit courts, is just the latest in a series of legal losses for the corporation.

All this has the board of directors of the Virginia-based MERS Corporation very nervous. MERS is a private mortgage registry database that has essentially replaced our nation’s tradition of publicly stored land ownership records. MERS’ CEO, R.K. Arnold, among the founders of the corporation, jumped ship in January.

Like the banking system, however, the mortgage lending system cannot simply fall apart. This is a developing problem you will be hearing more about in the months and years to come.

In the meantime, if you are experiencing mortgage payment difficulties in Oakland County, the Oakland County Treasurer has partnered with GreenPath Debt Solutions, the United Way and others to establish the Oakland County Foreclosure Prevention Initiative. Simply click on this link or call (888) 350-0900 for assistance with the eviction process or to speak with a certified housing counselor.

For the scholars among our loyal readers, the University of Cincinnati Law Review has published a comprehensive article on MERS' intimate relationship to the mortgage industry and the contemporary foreclosure process.

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High Court Rules Religious Mom Cannot Homeschool

2011-04-21T08:34:00.002-04:00

Admittedly, the New Hampshire Supreme Court's recent decision favoring public school over homeschooling by Mother does not bind any of the courts in our jurisdiction. Nevertheless, the ruling is instructive for anyone wrangling with family court issues.

This blog tracked the dispute in an earlier post as the case was submitted to the High Court following oral arguments.

Here are the basic facts: Post-divorce, Mother was homeschooling her daughter over Father's objection. The religious component of Mom's in-home curriculum gave Dad indigestion, so he made an appointment with his divorce lawyer.

The family court appointed a Guardian Ad Litem to review the matter and make a recommendation to the judge. The GAL concluded that public school was in the best interest of the minor child and so ruled the family court judge.

On appeal, Mother broadly challenged the judge's power to do so, raising a host of religious-based First Amendment arguments. The NH Supreme Court affirmed the family court on narrow grounds, finding that within the context of this particular dispute, the family court's discretionary powers were properly exercised in favor of what it determined was in the best interests of the parties' daughter.

The "best interest" determination included attendance at the local public school. The child was ordered to progressively integrate into the public school curriculum, starting with three 5th grade classes.

Some readers will recognize this dynamic. In his petition, Father alleged that due to the Mother's religious-based schooling, and through a complete immersion into Mother's church, daughter became withdrawn from Father's world (i.e. his new wife and child). His officially stated fear was that his daughter was becoming isolated within Mother's home, and within her church, and this isolation was preventing her development.

For her part, Mother proclaimed that the additional contact between Father and daughter, and daughter's introduction into the public school system had a negative impact on the daughter, and that daughter (along with Mother) was suffering "extreme difficulty" with the court-ordered lifestyle modification.

In the end, the NH Supreme Court was not persuaded by Mother's high-flying, SCOTUS-citing First Amendment arguments. The High Court ruled that it was the mandate of the family court to call the balls and strikes in this parenting dispute.

I, for one, feel very sorry for this now-confused little girl. Not only is she being thrust, perhaps too late, into the main stream of our culture, she is also contending with her Father's new family; all within the context of her Mother's teachings, such as they are.

When parents have joint legal custody but cannot agree on basic issues of schooling and domicile, it is one of the saddest specters in the modern family court.

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Internet Gambling Stung by Feds

2011-04-16T07:49:00.003-04:00

Like the "war on drugs", there has been much federal focus on eradicating those ubiquitous illegal gaming sites. Yesterday, the feds moved against the owners of two of the biggest sites on the web.

Indictments were unsealed by the U.S. Attorney in Manhattan against the owners of PokerStars and Full Tilt Poker. The feds have seized all their holdings in the United States.

You may recall that back in 2006, Congress passed the Unlawful Internet Gambling Enforcement Act, an anti-gaming law prohibiting banks from processing winnings from internet gambling sites. PokerStars and Full Tilt Poker, among other sites, developed ways around the law, disguising gamblers' payments as sales for jewlery, flowers and other goods.

The U.S. Attorney alleges the schemes amount to bank fraud and money laundering. The case is complicated by the foreign residence of the primary defendants. Two of the gambling sites, for example, are located in Ireland.

At least 3 arrests were made, however, in Las Vegas and Utah, while the FBI coordinates with Interpol to secure nearly a dozen other named defendants.

The Internet domains of the main sites have been seized by the FBI with a notice posted on the home pages warning would-be Internet gamblers of possible crimes they could be committing under the United States Code. Approximately 15-million Americans visit gambling sites on any given day.

Well, looks like this could be the end of Internet gambling in the U.S.

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Collateral Consequences of a Guilty Plea

2011-04-11T06:38:00.002-04:00

When an accused pleads guilty to a crime, the complexity of our modern legal system often leaves some of the significant consequences of the plea undetected. After all, that's why you hired a lawyer in the first place, right?

These undetected consequences include quasi-criminal matters such as immigration as well as less obvious examples like disqualification from certain career paths or professional degrees; or affecting a client's parent-child relationship.

Recognizing this growing problem back in 2006, the State Bar of Michigan's Criminal Issues Initiative sought to educate criminal defense lawyers and the public by developing material useful to making a fully informed decision.

In addition, the SBM's website provides useful and current information for those either facing a criminal plea, or those attempting to recover from one. The web site includes a checklist for clients to complete, the Michigan Re-entry Law Wiki link, and information about housing, immigration, employment, and child/parent issues.

Just recently, the SBM's Representative Assembly (the State Bar's elected governing body) passed a resolution to support legislation for the collection and notification of all collateral consequences involved with a criminal guilty plea.

Attorneys are challenged to keep-up with the multi-faceted and ever-expanding consequences of criminal convictions in our modern world. When facing the prospect of a criminal guilty plea, even for a misdemeanor, be sure you hire a lawyer that knows about such consequences.

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Michigan Attorney General Files Amicus Briefs in Medical Marijuana Cases

2011-04-10T22:06:00.000-04:00

Michigan Attorney General Bill Schuette has filed amicus briefs in two medical marijuana cases pending in Michigan appellate courts; one case is from Oakland County, the other from Isabella County.

The Oakland County case, the well-known People v Redden debacle, involved whether an unregistered marijuana user could nevertheless assert the defenses set forth in the Medical Marijuana Act. That case is pending before the Michigan Supreme Court.

In the AG's Redden brief, the assertion is that only qualified patients may avail themselves of the statutory defenses set forth in the MMA. The Court of Appeals held otherwise.

The case from Isabella County tests whether anyone can earn a profit from their pot-growing efforts.

We will monitor each of these cases and report back to our readers.

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Should Teen "Sexting" be Criminalized?

2011-03-28T08:32:00.001-04:00

Last winter, a 14-year old from Olympia, WA wanted to send her boyfriend a special momento. In an exercise of judgment she would come to profoundly regret, she snapped a full-on frontal nude with her cell phone.

She then attached the pic to her boyfriend Isaiah's number and pushed send, sealing her fate.

For his part, Isaiah was coaxed by another girl he thought was good friends with his girlfriend into forwarding the pic. Actually, the other girl was a rival for Isaiah's affections with an epic episode of cyber-bullying on her mind.

Annotating the pic with a disparaging comment, the rival did a global attach, publishing it to all her contacts. From there, it went viral within hours.

Before school started the next day, parents and middle school administrators alike were scrambling with damage control. By mid-day, local police were on the scene conducting interviews. Isaiah was arrested at the school by the end of the day.

Isaiah, the rival, and another middle school student were charged with distributing child pornography; a felony. The three teenage offenders spent at least one night in the local juvenile detention center and were brought before a magistrate in standard blue jumpsuits.

The community was pitched into an uproar. Some parents wanted the accused teens tried as adults; others wanted the subject of the photo charged along with the publishers.

In the end, the prosecuting attorney moderated the charges, offering a misdemeanor reduction equivalent to our "disorderly conduct", with the opportunity to earn a dismissal in exchange for some very targeted community service.

As a component of their probation, the teen misdemeanants were required to create a public service campaign about the hazards of sexting. The prosecutor fashioned a sentence that would both capitalize on the aftershock of the incident as well as educate the public about what was acceptable conduct for their children.

Looks like "mission accomplished".

But you would be fooling yourself to think that our culture's sexual saturation is going to change anytime soon. Our children are bombarded with images on a 24/7 basis. Remember Motorola's Super Bowl ad of Megan Fox snapping a pic of herself in a bubble bath. Wonder who she sent that pic to...?

We here in the Detroit area are well familiar with sexting hazards; it basically brought down the hip-hop Mayor after all. [Well, technically a perjury conviction accomplished that; but still, just sayin....]

So think twice before you push send folks. This bit of digital common sense applies to any manner of content you are about to publish.

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"First and Ten": New Teen Driving Law

2011-03-26T08:51:00.002-04:00

The new driving law that takes effect Wednesday is known as "First and Ten". Teens must stop adding (non-family) passengers under age-21 after the first one; and back in the driveway by ten o'clock pm.

The present curfew is midnight, without any passenger restrictions. The Michigan State Police website has an excellent summary of the new restrictions.

The new law applies to all level 2, or "intermediate" drivers in Michigan's Graduated Driver Licensing (GDL) program. These are drivers who are at least 16-years of age who have also completed their coursework and road test.

Statistics published by the Insurance Institute for Highway Safety provided the impetus for the new law. These stats show that in 2008, more than 60% of all teen age passenger fatalities involve a teen age driver. Also, teens are disproportionately responsible for all traffic fatalities: nearly 20% even though they make-up only 14% of America's driving population.

Driving is indeed a priviledge and central to our way of life. Modern distractions such as cell phones, GPS devices, and sound systems all contribute toward shifting a drivers' focus from the road to the interior of the vehicle. Add a few teen age friends and a teen driver and it's an accident waiting to happen.

The new teen driving law has been splashed on bill boards around Metro-Detroit to increase awareness among drivers; parents and teens alike.

Violators of the new law will receive 2-points on their master driving record and will have their probationary driving period extended for up to a year.

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Dr. Dre Successfully Defends Privacy Suit Brought By Detroit Officials

2011-03-22T21:37:00.000-04:00

The case has percolated up and down Michigan's legal system for a decade. Today, the Michigan Supreme Court handed Dr. Dre a long-sought win over former Detroit officials who tried to sue the rapper and a host of promoters on a tort-based eavesdropping theory.

In reversing the Michigan Court of Appeals, the High Court adopted the rationale of dissenting judge Chris Murray who concluded that no reasonable juror could conclude that the city officials had a reasonable expectation of privacy in their heated back-stage discussions with Dre's crew at the Joe Louis Arena in the summer of 2000.

Considering that MTV was in the house with their camras rolling, I agree with Judge Murray.

The dispute concerned how Detroit officials dealt with some of the raunchier segments of Dre's show.
Police commander (and later City Council President) Gary Brown and other police officials met with Dre's concert promoters backstage prior to the show and advised that power to the show would be cut if the explicit video was shown. After some haggling, and perhaps some arm twisting, the promoters talked the performers to go on with the show, sans intro. The exchanges were openly recorded by a tour film crew.

When the tour moved North the next day to the Palace of Auburn Hills, word had leaked to authorities in that community that the Detroit Police successfully canned the objectionable video intro by threatening to cut power to the event. The tour went to federal court, that day, and obtained an injunction from U.S. District Court Judge Nancy Edmunds to prevent any interference with the show on behalf of the police. The show at the Palace featured the explicit video introduction.

The tour left Michigan, and the promoters sued Detroit and settled for their attorney fees. Former Mayor Archer issued a public statement that conceded the possibility of an unconstitutional "prior restraint" on behalf of the Detroit Police officers, and recognized the federal court injunction that was subsequently issued.

Six months later, Dre and his producers released a DVD of the tour with some bonus tracks which included a 10-minute segment titled, "Detroit Controversy". This segment depicted some of the heated exchanges between Commander Brown, the DPD, City officials, and the tour promoters at the Joe.

The officers sued on eavesdropping and other tort theories and saw their case summarily tossed-out by the Wayne County Circuit Court. The officers' first appeal to the Michigan Court of Appeals resulted in an affirmance of the summary disposition, except on the eavesdropping claim. The intermediate appellate court said dismissal of that claim was premature as discovery had not been completed.

The case was sent back to the Wayne Circuit Court to complete the discovery process. The additional evidence simply showed the Detroit government officials and police conducting the meeting in "public" areas backstage; doors open and hangers-on gawking.

Even after this so-called "additional evidence" was adduced and discovery finally closed, the Wayne Circuit Court again granted summary disposition in favor of Dr. Dre and the concert promoters; the case again was appealed by the officers to the Court of Appeals.

The victory for Dr. Dre in the Michigan Supreme Court further strengthens the First Amendment reputation of Honigman Miller's Herschel Fink.

The final outcome was hard-fought and the right decision. A public figure, back stage with his promoters, trying to work-out content problems with public officials while MTV camera crews record the give-and-take, does not describe a private moment. Whatever words are uttered in the mix are fair game to digitized and splashed throughout the world wide web.

To force the rapper through a trial on the public official's tort claim would have a chilling effect on such productions.

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Home Run King Faces Federal Perjury Charges in San Fransisco

2011-03-22T17:24:00.004-04:00

Barry Bonds
Associated Press

Barry Bonds, formerly of the Pittsburgh Pirates and San Fransisco Giants, is the defendant in a federal perjury case that began today; the case was charged back in 2007.

Bonds holds several major league baseball records, including most home runs in a career (762), and in a single season (73). He is the son of former all-star Bobby Bonds. Son Barry has been named league MVP more than any other player, taking that award 4 straight years at the height of his career.

Unfortunately, he ended his career under the cloud of the federal indictment that is now unfolding in a San Fransisco trial. The charges allege Bonds testified falsely to a federal grand jury on the subject of his use and sources of steroids.

Earlier, Bonds had been offered immunity in exchange for truthful testimony. Bonds insisted he was unsure of what the substance(s) were, claiming he was "juicing" with flaxseed oil and arthritis cream for all he knew.

It's in the hands of the attorneys and jurors now. On the first day of trial, however, Bonds received a bit of good news when his former trainer, Greg Anderson, chose a holding cell over live trial testimony.

This does not have the makings of a quick trial.

Not the best lead into Opening Day. Let's just hope its all done by the playoffs.