Honorable Hala Jarbou

When Oakland Circuit Judge Lisa Gorcyca was first elected in 2008, and assigned to a courtroom with a general docket, the Oakland County Prosecutor dispatched Hala Jarbou to manage the criminal case calls in that courtroom. Judge Gorcyca was greatly assisted in running efficient criminal calls each week due to assistant prosecutor Jarbou's style, presence and knowledge of the criminal law and its procedure.

During her stint as Judge Gorcyca's docket prosecutor, we here at the Law Blogger observed a prepared, knowledgeable and personable lawyer. Ms. Jarbou left the Oakland County Prosecutor's office several years ago to work the drug-crime prosecution unit in U.S. Attorney Barbara McQuade's office in Detroit.

All of this bodes well for Governor Rick Snyder's appointments of Ms. Jarbou and Garan Lucow attorney Jeffrey Matis to fill the vacancies on the Oakland County Circuit Court. These individuals are already listed on the Oakland County Circuit Court's page of the judgepedia web site.

Judge Rudy Nichols retired after 25-years on the bench and Judge Colleen O'Brien recently was appointed by Governor Snyder to the Michigan Court of Appeals. When these vacancies open-up, the veteran judges have the option of moving into the general jurisdiction docket from the family court or vice versa.

Normally, we see the migration of judges from the family court to the general jurisdiction docket and suspect it is due to the burn-out that occurs among family court professionals.

Veteran Judge Cheryl Mathews has indicated her desire to leave the family court to take over Judge Nichols' docket. Whether Judge Gorcyca, also a veteran judge with seniority, will do likewise, and step into Judge O'Brien's docket remains to be seen as she has yet to make-up her mind on the issue.

Therefore, at least one of the new appointees will become a family court judge. Depending on Judge Gorcyca's final decision, both of the new judges could be seated on the family court.

For his part, Jeffery Mattis becomes one of the few civil litigators appointed to the Oakland County Circuit Court bench. We here at the Law Blogger always find it refreshing to have lawyers that tried cases become the newest judges on one of Michigan's most active courts.

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #503

Moving quickly this week, the Michigan legislature passed, and Governor Rick Snyder signed into law, an act that allows private faith-based adoption and foster care agencies to decline services to applicants that are not aligned with the agency's world view. The act, House Bill 4188, thus allows such agencies to refuse services to same-sex or unmarried couples.

Perhaps because the authors knew their bill would be subjected to strict scrutiny, enacted on the very eve of the SCOTUS' same-sex adoption and marriage cases, the preamble clearly lays out critical constitutional distinctions between private and state action. The act declares private agency placement decisions to be outside the scope of state action; the act declares private faith-based agencies free to make decisions pursuant to their stated mission.

Critics point out that Governor Snyder signed the bill into law after it sailed through both House and Senate, and after it was swiftly placed on the legislative agenda at the "last minute", apparently without notice. The ACLU has already conducted press conferences to announce they are seeking well-positioned litigants to challenge the new law.

If any of the private faith-based agencies receive public funding or assistance, a constitutional challenge could be mounted, especially if the SCOTUS declares a constitutional right to marry regardless of gender. Without the public funding component, however, it would appear that private agencies would be free to make adoption referrals consistent with their faith-based missions.

Examination of the State of Michigan's fiscal budget for the current year reveals that nearly $20 million was spent on adoption and foster care agencies; about half of the funding allocation supported private agencies. Proponents of the bill assert that its passage was necessary in order to prevent the faith-based agencies from closing their doors rather than provide services to folks they deem to be unworthy.

Considering that current state practice allows an agency to decline services for any reason, this legislation seems preemptive in nature; perhaps to ward-off attempts to adopt by same-sex couples following a prospective [and somewhat anticipated] win in the DeBoer case.  When introducing the new law, the Governor even acknowledged he expected litigation to flow from its implementation.

We shall see how all of this plays out in light of the much-anticipated DeBoer decision expected as soon as next week.

www.clarkstonlegal.com
info@clarkstonlegal.com

Attorney Alan Gocha, Jr.

People that drive the mean streets of Bloomfield Hills, West Bloomfield and Keego Harbor drive in fear. At least when they've had a few drinks at the bars and restaurants along Orchard Lake or Telegraph Roads, or Woodward Avenue.

If you get pulled over anywhere within the jurisdiction of the 48th District Court and charged with operating a vehicle while intoxicated, you have a 33% chance of facing Judge Kim Small. She has garnered headlines over the years with her tough sentences, putting ordinary folks in jail for up to 30-days on a first offense.

In the case of 5-Hour Energy lawyer Alan Gocha, Jr., after unsuccessfully challenging the police traffic stop, he was sentenced to 6-days in the Oakland County Jail. His appeals, right up the line, also were unsuccessful.

That's when Mr. Gocha turned to the Governor's office. Since his election back in 2010, Governor Snyder has only pardoned 11 people.

A governor's pardon removes the conviction from your criminal history. While many other crimes are eligible for expungement, alcohol-related driving crimes are not among them; a drunk driving conviction follows you for life.

In the case of Mr. Gocha, a high-end lawyer with a single wealthy client, his pardon application asserted that his conviction was slowing deals with Wall Street and making his required international travel more difficult. In 2013, Gocha was among a select group of lawyers featured as "Leaders in the Law" by Michigan Lawyers Weekly.

Looking into this pardon, reporters learned that Gocha donated over $25,000 to the conservative Michigan Chamber of Commerce. In addition, one of Gocha's law firm's clients, ETC Capital, donated millions to the Republican Governor's Association.

These were, of course, legal political donations. But we here at the Law Blogger have to ask whether Governor Snyder, who is normally "by-the-book" in his judicial appointments, was somewhat swayed by politics in this case.

Correction's Deputy Director, Russ Marian, does not think so. Mr. Gocha is "just another person" who received no special treatment according to Marian.

www.clarkstonlegal.com
info@clarkstonlegal.com

Last week saw Governor Snyder veto a state house bill involving an overhaul of the concealed pistol license procedures proposed by state senator Mike Green [R-Mayville].  The bill drew the Governor's veto because it would have loosened some prohibitions against obtaining a gun for some domestic abusers.

When the proposed legislation, designed to streamline the procedure for obtaining a concealed pistol license by putting the Michigan State Police in charge, went back to the lab, Senator Green promptly stripped the offensive language and put the bill back on track; it is now on fast-track consideration in the state senate.

In vetoing the initial version of the bill, the Governor stated his concern was not to take the chance of exposing victims of domestic violence to additional intimidation and more violence.  The current state of the law proscribes a CPL from being issued to anyone under the injunctive scope of a personal protection order.

Judges involved in a case featuring a PPO can also impose additional restrictions on an individual within that judge's jurisdiction.  Also, as Green has pointed out whenever he explains his bill, federal law likewise bans the issuance of a CPL to anyone that is the subject of a PPO.

If and when the bill passes in its latest iteration, it will abolish the current system of county gun boards, and will centralize the CPL administration through the Michigan State Police.  Some see this as a positive to the extent that guns can be concealed on an applicant's person a few weeks quicker than under the old system.  Others see the local gun boards as a useful local layer of supervision that may be better equipped to detect an inappropriate applicant that perhaps should not have a pistol concealed on his person.

All of this occurs within the context of rising gun deaths across the nation.  Guns are expected to overtake vehicles as the leading cause of death of young persons under the age of 25.

www.clarkstonlegal.com
info@clarkstonlegal.com

This is not a resignation, he says.  Judge Dennis Powers, having served on the district court bench in Novi for the past 16-years, told Michigan Lawyers Weekly that he submitted a letter of retirement, not resignation.

Today is the first day Judge Powers' courtroom sits empty following his sudden change in plans.

The embattled judge was facing a trial this month at the Judicial Tenure Commission over allegations of improper expense reports, a "ghost docket", threatening a "whistle blower" staff member, and other judicial improprieties.  Up until 2-weeks ago, it looked like Judge Powers, 72-years old and thus ineligible by age to run for another election under state law, was determined to fight the charges to the bitter end.  Judge Powers' lawyers at the Vandeveer Garza law firm were gearing-up; now they have withdrawn from the matter.

Not to condone judicial impropriety [these allegations will never carry the weight of a judicial conviction in light of the Judge's sudden retirement], but we here at the Law Blogger will hate to see Judge Powers go.  He was always a gracious and reasonable jurist in our experience.  Personally, I had one of my biggest felony cases begin in the Novi District Court, and Judge Powers handled it very well; for that I will always be grateful.

That said, however, this is truly a bad end to an otherwise outstanding judicial tenure.  When judges are accused of impropriety -something that has been rampant out in Novi- the effect is that the foundation of the justice system erodes and the community loses faith in the concept of achieving justice as a civic goal in our free society.  This is not a good result in a free society governed by laws that are ruled upon by a judiciary elected from the community.

The next step out in Novi is for Governor Rick Snyder to appoint a lawyer to finish-out the remaining two years of Judge Powers' term.

www.clarkstonlegal.com
info@clarkstonlegal.com

By: Timothy P. Flynn

Last Tuesday, Governor Rick Snyder signed a new adoption law designed to accommodate a biological father's standing to establish his parental rights and suspend pending adoption proceedings.  In such cases, the child is returned to the Mother, and remains under the jurisdiction of the county family court.

 Most family court professionals will recognize this procedure as the path to take in nearly all cases.  A recent case from Ottawa County, however, resulted in a 13-page published [and thus binding] appellate opinion that resulted in awarding Father full custody of an infant when he challenged Mother's adoption petition. In Johnson v Byron, Father successfully utilized the "she was giving-up the baby anyway" argument, a commonly un-persuasive assertion, but one that prevailed in both the Ottawa Family Court and the Michigan Court of Appeals, presumably due to the unusually dysfunctional parental dynamics [i.e. a concealed pregnancy, expedited adoption, heroin, marijuana, pills, booze, the works].

The new law calls for the child to be returned to the Mother upon Father's filing of a timely challenge to the adoption proceedings.  In such cases, the temporary adoption placement is terminated and Mother's petition is dismissed; custody of the child is then determined by the county family court, with Father's parental rights intact.

The local Friend of the Court then gets involved in the custody determination through the application of the Child Custody Act, rather than through a "best interest" hearing under the now-revised adoption law.

Members of the Republican caucus in the Michigan House were apparently sufficiently moved by outcomes in Byron and cases like it to reach out to the Adoption Committee of the State Bar of Michigan's Family Law Section; the Committee authored HB 4648.

In the wake of the new law's passage, many family law professionals commented in the legal news media that the amended adoption law removes a potential trump card from the hands of a previously disinterested and perhaps irresponsible biological father; it levels the field for both parents, giving the Father a voice in lieu of punishing Mother for her decision to seek adoption.

We here at the Law Blogger believe that this law makes good sense.

www.clarkstonlegal.com
info@clarkstonlegal.com

Sorry about that headline.  But this case was all-over your evening news back in 2004, when kindergarten teacher Nancy Ann Seaman axed her long-time husband to death on Mother's Day.

Earlier this month, Ms. Seaman filed for clemency consideration with Governor Rick Snyder.  You might recall [but probably not] that 3-years ago, a federal judge granted Seaman's petition for Habeas Corpus.

Ms. Seaman was jury convicted of first degree murder before retired Oakland Circuit Judge John McDonald.  Seven-months after her trial, Judge McDonald reduced Seaman's conviction from first to second degree murder.

Both Seaman and the prosecutor appealed.  The Michigan Court of Appeals reversed the trial court and reinstated Seaman's first degree murder conviction.  [The linked MCOA opinion contains a fascinating in-court colloquy about premeditation between the prosecutor and trial judge at the hearing on Seaman's motion for a new trial, beginning on page 5.]

The Court of Appeals found (by 2-1) that the trial court abused its discretion by acting as a "thirteenth juror" in reducing the conviction to second degree murder.  The intermediate appellate court also held that premeditation has no set time-frame but rather, can be established in the fleeting moment that it takes to have a "second look" at an imminent homicide.

Dissenting Judge Karen Fort Hood was troubled by the apparent "disconnect" between Seaman's self defense theory and testimony regarding "battered spouse syndrome".  Evidence relative to the latter theory was limited by the trial court.  Judge Fort Hood also commented on what she perceived as a confusion of jury instructions on the two concepts.  See the last two pages of the above link for her concise dissent.

The Michigan Supreme Court declined further review of Ms. Seaman's conviction; the Habeas petition still lingers with the United States District Court for the Eastern District of Michigan grinding through cases filed in 2009, before turning to those filed in 2010.

Carol Jacobsen, a University of Michigan Law Professor, is the executive director of the Women's Justice and Clemency Project.  They are seeking clemency for Seaman and 9 other convicted women, many of whom were tried prior to a change in the law allowing accused women to present evidence of domestic abuse.

www.clarkstonlegal.com
info@clarkstonlegal.com

Here in the 313, we're used to having it rough.  This is a place where nothing comes easy.  Detroit has been existing within the shadow of a lost world-class status since the riots in 1967.

Now that Washington D.C. lawyer and Snyder-appointed emergency manager Kevin Orr has settled-in and taken a look around here in the "D", it's starting to look like this appointment may have come too late.

There is a mountain of things to correct; the deep oaken roots of 100-years of corruption need to be pulled out of the Detroit soil; it is proving very difficult.  The prospect of the largest municipal bankruptcy in United States history is now looming large; the consequences of the decades of mismanagement are coming home to roost.

Mr. Orr is zeroing-in on municipal pensioners, municipal employees, and an overall 20-billion dollar debt restructuring package.  If the restructuring fails, this mess will be placed in the hands of a federal bankruptcy judge; the state problem goes federal.

Now that the battle lines have been drawn, the unions, of course, are squawking.  They claim a multi-million dollar war chest to fight all of Mr. Orr's decisions.  Not surprisingly, none of Detroit's municipal workers want their pensions or their health care benefits cut.  Orr says these perks need to be compressed to stop the swelling of an out-of-control deficit of a non-productive municipality.

As a small business with some 20 employees here in the suburbs, we here at the Law Blogger must admit that, while we are life-long Detroiters, it is irritating to hear the sabre-rattling unions and pension managers make these legal threats when we have seen years of lavish and outlandish junkets along with a strong whiff of corrosive privilege.  Nobody involved in a City of Detroit pension needs to take a trip to Hawaii on the City's dime; under these financial straights, that is just plain wrong.

In sum, Detroit is just a promise gone bust; gone way past the point of no return.  Now an outsider, a Washington D.C. lawyer, must try to get us our city back.

What can we do, what can you do, to help...?

Post Script:  On July 19, 2013, Detroit's Emergency Manager filed a petition under Chapter 9 of the US Bankruptcy Code.  Despite the Michigan Attorney General's challenge to the petition, the Court of Appeals said the petition could proceed, and the Bankruptcy Judge in Detroit has asserted jurisdiction over the case and has stopped all challenges in state court forums.

www.clarkstonlegal.com
info@clarkstonlegal.com

There is a little-known loophole in our gun laws that allows a person that has a concealed pistol license (CPL) to openly carry a firearm into a school, provided the weapon is visibly holstered.  Given recent headlines, State Representative Andy Schor, (D Lansing), is attempting to close this loophole with House Bill 4104.

Hopefully, these terrible headlines will render the state gun lobby ineffective, and HB 4104 gets passed and signed by Governor Rick Snyder.  Who could forget last December when the Governor, on the eve of the Newtown, Connecticut shooting, was poised to sign gun legislation that would have broadened and strengthened weapon possession laws, but had a change-of-heart and vetoed the bill.

The open-carry in schools exception came crashing into the media headlights last February when Nicholas Looman, a CPL holder, open carried his pistol into an elementary school in Grand Rapids in order to vote in an election.  He was allowed to vote, then escorted off school grounds and later briefly detained.

Obviously, the 25-year old was looking to make a point.  In the end, the Kent County Prosecutor took a pass on prosecuting Looman, saying he technically complied with state law.  A CPL holder can open-carry a weapon in a public school, day care center or public hospital provided the weapon is visible.

With the recent national headlines as a backdrop, the gun debate has been renewed in Lansing.  Schor's proposed legislation is competing with a senate proposal sponsored by Senator Mike Green (R-Mayville).  It was Senator Green's bill (vetoed SB 59, which now has been re-introduced as SB 112) that was sitting on Governor Snyder's desk when the Newtown shootings broke-out.

We here at the Law Blogger cannot help but conclude that when we enter certain public places, such as schools, day care centers and hospitals, we just need to leave our guns at home.  Along these lines, we hope that Representative Schor's bill will pass the Legislature and be signed by Governor Snyder, and that Senator Green and company goes away.

www.waterfordlegal.com
info@waterfordlegal.com

Judge David Viviano

For the first time since Justice Neil Reid retired from our High Court in the mid-1950s, a jurist from Macomb County will be seated on the Michigan Supreme Court.  Yesterday, Governor Rick Snyder announced his decision to replace disgraced former Justice Diane Hathaway with Macomb County Circuit's Chief Judge, David Viviano.

Although he comes from a family of jurists, [his father, Antonio Viviano, was a long-serving probate, then circuit court judge, and his sister, Kathryn Viviano, is a sitting judge in the Macomb Circuit Court's family division] David has practiced in several challenging areas of the law and has been outstanding.  In addition to working at the Dickinson Wright law firm in Detroit, he also worked at Jenner and Block in Chicago.  Those are some serious legal chops folks.

We here at the Law Blogger have observed Judge Viviano to be fair, honest, and a judge's judge.  He went to the University of Michigan Law School which, for us, is a big plus.  The attorneys in our law firm have appeared in front of all the Viviano judges.

Of course, an appointment like this one is going to ruffle political feathers.  The Freep, for example, noted that Governor Snyder's appointment was his second consecutive male appointment to the High Court, following Brian Zahra back in 2010.  Along these lines, Oakland County Circuit Court Judge Colleen O'Brien was rumored to be on Snyder's short list.

One thing consistent between the incoming and outgoing justices [Hathaway and Viviano]; they both come from families well-clothed in black robes.  In Judge, soon Justice, Viviano's case, however, that is of less import than the judicial temperament and intellect he will bring to this important job.

www.clarkstonlegal.com

info@clarkstonlegal.com

On the last business day of calendar 2012, Governor Snyder signed the Internet Privacy Protection Act.  With that stroke of the Governor's pen, Michigan joins just 3 other states [California, Maryland and Illinois] to enact sweeping employment legislation designed to protect employees' and students' social media accounts.

This law affects all employers, regardless of size, and also applies to public and private schools.  The IPPA prohibits employers or schools from requiring applicants to disclose their password or login information as a condition for admission, hiring or discipline.

Technically, employers and schools are prohibited from accessing a subject's "personal internet account", which is defined in the statute as:

an account created via a bounded system established by an internet-based service that requires a user to input or store access information via an electronic device to view, create, utilize, or edit the user’s account information, profile, display, communications, or stored data.

This definition covers just about every social media account you can think of; and then some.  Arguably, the IPPA applies to all employee's internet accounts of any kind; not just social media accounts.

However, there are broad exceptions to what is out-of-bounds for employers.  For example,

• Employers can still access devices owned by the employer as well as the data stored on such devices; 
• Accounts created by the employer and used for the employer's business purpose; 
• Employers can discipline employees that transfer data owned by the employer onto that employee's personal internet account;
• Employers can access personal accounts when necessary to conduct an investigation for the purpose of complying with laws; 
• Employers can access personal accounts when conducting an investigation into work-related conduct, and 
• Employers can still access any information about an employee or applicant that is available on the Internet without the use of a password or login information.

One interesting context within which the new Act will likely get some early play is in the workmen's compensation arena.  It is nothing new for insurance adjusters to track the activities of injured employees on social media sites.  The IPPA may supply an avenue of protection for employees who have had a post on Facebook taken out of context.

The Act also bars an employer from "shoulder surfing" the employee; the practice of monitoring an employee's social media site by directing the employee to log onto the site so the manager can observe recent posts.

Nor can an employer require an employee to disclose information from which the employer can then access the employee's personal internet account.

Violation of the IPPA subjects an employer to a misdemeanor conviction and a fine of $1000 as well as other civil penalties.  Violators are also subject to paying the employee's attorney fees.

www.clarkstonlegal.com
info@clarkstonlegal.com

Governor Rick Snyder

Here in Oakland County, we've had an operational business court pilot since April 1, 2012.  This week, Governor Rick Snyder signed HB 5128 into law, amending portions of the Revised Judicature Act to rescind the so-called "cyber courts" [an idea that was never clear and never got off the ground], and replacing those specialized tribunals with "business courts" for all county circuit courts with more than 3 judges.


The central idea behind the specialized tribunals is to require electronic case and document filings.  According to the recent Senate Fiscal Agency analysis, the business courts would:

• Have exclusive jurisdiction over all business or commercial disputes with an amount in controversy in excess of $25,000;
• Any cause of action arising, in whole or in part, from a business or commercial dispute would be assigned to the business court;
• Require all circuit courts with more than 3 sitting judges to submit a plan for the implementation of a business tribunal to the State Court Administrative Office; 
• Counties with fewer than 3 judges have the option of submitting an administrative order for SCAO review for a specialized business court with concurrent jurisdiction with the county trial court;
• Cases will be assigned to business court judges via a blind draw;
• Business court cases are required to be filed electronically;
• Require that the judges assigned to the business courts be trained by the Michigan Judicial Institute; and
• Any cases that are pending on the various county pilot programs remain on that docket until they are completed. 

Presently, there are several "specialized" courts operational here in Michigan.  Each county has a family court, a probate court, and a court of general jurisdiction.  All district courts have a "small claims" division where people can bring disputes without lawyers.  Some county and district courts have "sobriety courts" focusing on treatment over incarceration.  And some counties have Veterans' court and adult treatment courts.

We will see if this new specialized court prunes the docket of the county courts of general jurisdiction.  Here at the Law Blogger, this seems like a good idea.

www.clarkstonlegal.com
info@clarkstonlegal.com

Daniel Quinn

This story flew under the radar for most media, and even some attorneys.  That is, unless you knew Daniel Quinn's sad story out of the Livingston County Family Court.

Yesterday, Governor Rick Snyder signed Senate Bill 557 and Senate Bill 558 into law, revoking our 1956 Paternity Act to allow claims to be filed by a putative [biological] fathers, even when the mother is a married woman; married, that is, to someone other than the putative father.

The original paternity law, that presumes that a married woman's husband is the father of any child born during a marriage, was considered by many family law practitioners to be a throwback from a lost society; a law [poorly] designed to protect the sanctity of the marriage institution.

The new law, introduced by Senator Steven Bieda of Livonia, was supported by the 2,100 members of the State Bar of Michigan's Family Law Section, among them, yours truly.

Five and a half decades after the original paternity act was passed, the real world came crashing up against that law.  Little Maeleigh is now nearly 7-years old and has not been allowed to see her father in over 4-years due to the now-repealed paternity act.

At the time of her birth in 2005, Maeleigh's mother was married, to a convicted drug-dealer.  She was separated from her husband, however, and conducted a long-standing and open affair with Daniel Quinn, Maeleigh's biological father.  For nearly three years, Quinn was an involved father in his daughter's life, with the trio living as a family unit.

All that changed when Maeleigh's mother reconciled with her felon husband, removing Maeleigh from Quinn's custody, and moved out of Michigan.  Quinn's claims of paternity, filed in the Livingston County Circuit Court, were rejected on grounds he lacked legal standing to bring an action because Maeleigh's mother was married at the time of her birth and the husband was irrebutably presumed to be the father.

Quinn is now expected to file a paternity claim under the new law.  For his sake, and the sake of his daughter, he may be able to take advantage of his prior filings to come within the scope of the new law.

The new paternity act, however, lays out very specific limited circumstances under which a family court judge can declare a child to be born out of wedlock when the mother is married, and to make paternity findings.  The putative father [referred to as an "alleged father" in the act] cannot have knowledge of the mother's married status.  There is a three year time limit for the putative father to bring the action to the family court.  There are other limitations set forth in the act.

The new paternity act is hailed as "progress" among my colleagues who have seen first-hand, the heart break that is caused by a law that slams the door in the face of a biological father.  Senator Bieda's public rationale for sponsoring the new law is that the old law was passed in a simpler time, before DNA paternity testing.

The unspoken inference, however, is that we now live in a relatively more permissive and morally lax era.  Don't go thinking that a married woman's children are the issue of her husband.  In our post-modern era, you just cannot operate under that assumption.

And what does that say about us...?

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

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/

info@clarkstonlegal.com

Judge Brian Zahra

Justice Maura Corrigan’s resignation last week left an important vacancy at the Michigan Supreme Court at the outset of Governor Rick Snyder’s tenure.  Justice Corrigan's seat was replaced today with the appointment of long-serving Court of Appeals Judge Brian Zahra.

As this blog has noted over the past 18-months, the dissention among the liberal and conservative justices on our High Court has become public, and nasty.  While Judge Zahra is certainly a conservative judge, he has a legal scholar’s temperament and strong work ethic.  He assumes Justice Corrigan’s seat, and the balance of her term, at a time when the Court has seen some embarrassing escapades and needs a rapprochement.

Judge Zahra was a law school classmate of this Blogger at the University of Detroit School of Law in the mid-1980s.  On Thursdays after class, Zahra would get us into the Polish Falcon Club in Detroit to play basketball.  Back then, he took the law very seriously, graduating at the top of our class as one of the editors of the law review.

 

Already well-known in Detroit’s tight GOP circles by the time he graduated  law school in 1987, Zahra was made partner during a brief stint at the downtown office of the Dickenson Wright law firm.  Almost as soon as he was promoted to partner, he accepted an appointment to the Wayne County Circuit Court; courtesy of then-Governor Engler.  Shortly thereafter, he was again-appointed by Engler in 1999 to the Court of Appeals where he won re-election.

Politics aside, Judge Zahra is an excellent selection for the Michigan Supreme Court.  Ideologically, he is not too different from departing Justice Corrigan.  Like her, Zahra has solid work habits and a strong sense of public service.  Former Detroit Mayor and Supreme Court Justice Dennis Archer describes Zahra as a "moderate" conservative, "not an idealogue".


Here is Justice Robert Young's official statement on Zahra's appointment to the bench.  Also, the Free Press editorialized the appointment.

  

We think the newest justice has an excellent opportunity to quell the public discord within the Hall of Justice that has received embarrassing national attention over the past year.  We are more accustomed to seeing such rancor down the street, where the two political branches attempt to govern the state.

 

Congratulations Justice Zahra.  May you long-serve the High Court in good health. 

www.clarkstonlegal.com

info@clarkstonlegal.com

  

Justice Maura Corrigan

In the first business-day of the new year, a significant development is unfolding at the highest levels of government for the State of Michigan.  Michigan Supreme Court Justice Maura Corrigan is expected to resign from the Court in order to serve in newly-minted Governor Rick Snyder's cabinet; most likely as the Director of the Michigan Department of Human Services.

This gives us pause on several levels.  The first consequence of Justice Corrigan's resignation is that it provides the new governor, deemed a political "moderate" along the lines of William Milliken, with his first opportunity to appoint a justice to the high court.

Governor Snyder's first appointment comes at a time of acute dissension at the High Court.  The Court has long been divided along ideological lines with a tightly held conservative majority of 4 justices often opposing the 3 more liberal justices over the past decade.  While some of the players have changed over time, the 4-3 conservative majority on the Court has remained relatively constant for many years.  Justice Corrigan has always led her conservative colleagues, authoring many business-friendly decisions and opinions tending to favor law enforcement in the criminal law.

Some of the acrimony within the Michigan Supreme Court has spilled from their conference chambers into the public in the form of scathing dissents in several decisions, and a recent letter-censure of fomer-Justice Betty Weaver back in November.  Justice Corrigan was among the five Justices signing the censure letter. 

The consensus among Michigan's appellate bar is that Governor Snyder's appointment will end-up as a critical "swing-vote" on the several critical decisions awaiting argument and decision in the current term of the High Court.

One of Justice Corrigan's recent opinions of note was the case of People v Smith; a case involving an African American criminal defendant's challenge to his murder conviction, handed down by an all-white jury selected from a nearly all-white jury pool.  Justice Corrigan's opinion affirming the conviction (and reversing the Court of Appeals decision that had remanded the case back to Kent County for a new trial) was upheld by a unanimous U.S. Supreme Court decision in Berghuis v Smith.  Justice Ruth Bader Ginsburg, the author of the SCOTUS decision, characterized Justice Corrigan's handiwork as "cogent".  High praise for a conservative state justice coming from a Clinton-era SCOTUS appointee.

Another highlight in Justice Corrigan's distinguished jurisprudence is her opinion (5-2) in Glass v Goeckel, granting Michiganders the right to walk along the beaches of the coastline of our Great Lakes.  A controversy had arisen from the intermediate appellate court's decision in a case from Up-North holding that citizens could not walk along the beaches of the Great Lakes but rather, could only walk in the water; difficult, if not impossible along many stretches of the lakes.  In overturning the intermediate appellate court, Justice Corrigan's opinion cited both Roman law and portions of the Northwest Ordinance.  She also faced eleventh-hour vigorous dissents from her colleagues Stephen Markman and Robert Young, Jr.

Perhaps Justice Corrigan's most enduring accomplishment, in addition to her life of selfless public service, is her leadership role in bringing about the completion of the Michigan Hall of Justice; a beautiful courthouse which serves as the home of the Michigan Supreme Court and the Lansing office of the Court of Appeals.  Having argued in that Court on several occasions, I've noted that you could land a plane on the counsels' tables.

A second major consequence of Justice Corrigan's job-swap is even more political.  If she assumes the directorship of the Department of Human Services, she will head the agency tasked with providing public assistance and child and family welfare assistance to Michigan's poor.  The DHS has over 100 county offices throughout Michigan.

In the Great Recession era, the DHS has been swamped with families and individuals seeking aid; over one million open cases were logged by the agency last May.  Also, the agency is being sued in federal court over its track record of protecting children.  The imminent appointment of a receiver for the agency apparently was forestalled by Justice Corrigan's appointment.

With Governor Snyder getting elected and taking office on a firm promise to immediately reducing the state's nearly two billion dollar budget deficit, you don't have to be a genius to "do the math" on this one.

So let's sit back and see how this one plays out, as the ripple effect from the election spreads throughout our Great Lake State.

Update:  Since the original version of this post, Justice Corrigan and Governor Snyder have made Corrigan's appointment as Director of DHS official.  Recognizing the difficult task at hand, Governor Snyder has apparently promised Corrigan, and the federal judge, 600 new-hires to replace the more than 1000 experienced workers mothballed via former Governor Granholm's retirement inducements. 

Former Justice Corrigan has a huge and important challenge ahead.  Michigan's poor and its underserved children stand to benefit.

For another take on this subject, check out fellow Oakland Press blogger Tim Skubick's post.


http://www.clarkstonlegal.com/

info@clarkstonlegal.com