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

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

Her fateful decision to incarcerate the Tsimhoni children, well within her powers as a family court judge, precipitated the judical tenure complaint. Yesterday, the Supreme Court summarized her predicament in Justice Brian Zhara's 54-page opinion:

The record is clear that as early as August 2010 these children embarked on a concerted effort to thwart meaningful interaction with their father and continued to do so despite respondent’s orders to the contrary. Regardless of their age, there is no question that during the intervening years, each child knew they were supposed to have visitation with their father. And any person old enough to engage in this deliberately defiant behavior over a five-year period must appreciate that they could be called before the court to account for their actions.

Finding that she performed due diligence and acted in good faith in the Tsimhoni divorce, the Michigan Supreme Court declined to suspend Judge Gorcyca, opting to censure her instead. Here is the crux of the High Court's rationale:

In this case...respondent’s decision to hold the children in contempt was an isolated instance of legal error. But we find it more significant that the errors—holding LT in contempt and giving the father the keys to the jailhouse— could have been remedied on appeal, that the errors were made with the parties’ knowledge, and that the parties failed to object to the orders. Further, in this tense court hearing, the children each had a lawyer present as well as the LGAL. The record also reflects that an FOC counselor was in the courtroom as well as an assistant prosecuting attorney. None of the lawyers or trained professionals in the courtroom suggested that respondent’s actions crossed the line nor did they offer alternative actions for the court’s consideration. For these reasons, we cannot conclude that respondent’s decisions are fairly characterized as “willful failure[s] to observe the law.” Respondent had the statutory authority to hold any contemptuous person in contempt of court, and it certainly appears that at least RT and NT blatantly defied the court’s order. As previously discussed, respondent may even have had authority to hold LT in contempt for encouraging his younger siblings’ contemptuous behavior, but we need not decide that question because even if that was not the basis of respondent’s contempt order, it is clear that respondent did not act in willful disregard of the law.

Justice Zahra is perhaps the ideal jurist to author this opinion. He is, as far as we know, the only justice on the High Court bench with judicial experience on the family court.

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

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

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

Post #601
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Simply put, corpus linguistics is the analysis of naturally occurring language. This post applies this discipline to the legal practice of statutory interpretation.

Lately, there has been a fledgling movement within the legal profession to use corpus linguistics as a tool to interpret words within the context of their use; to interpret the words of a statute. After using this tool in his opinion deciding an obstruction-of-justice case in June involving Detroit Police officers, Justice Brian Zahra discussed his approach to members of the State Bar of Michigan last month at the SBM's annual meeting in Grand Rapids.

A corpus is a collection of texts that is representative of a given language. For example, a corpus could be the Michigan Compiled Laws; our collection of statutes here in Michigan.

According to Wikipedia, corpus linguistics is:

the study of language as expressed in corpora (samples) of "real world" text. The text-corpus method is a digestive approach for deriving a set of abstract rules, from a text, for governing a natural language, and how that language relates to and with another language; originally derived manually, corpora now are automatically derived from the source texts. Corpus linguistics proposes that reliable language analysis is more feasible with corpora collected in the field, in their natural contexts, and with minimal experimental-interference.

The Internet, of course, gave rise to a convenient electronic means to compare language usage. Language scientists have made great strides in the past quarter-Century, but legal professionals are only now waking-up to the importance of this language tool.

In People v Harris, Justices Zahra and Stephen Markman both used corpus linguistics in opposing opinions to address the central legal question in the case. The issue was whether a police officer's false statement is nevertheless protected within the scope of a Michigan law that procribes a police officer’s involuntary statement from being used against the officer in a subsequent criminal proceeding.

The two justices utilized corpus linguistics to determine the precise meaning of "information" and how that word is used in the statute at issue in the case, as well as in other statutes. Justice Zahra concluded for the majority that "information" included the false statements made by the officers; Justice Markman, in dissent, concluded that "information" did not include a false statement within the meaning of the statute.

On at least one occasion, the SCOTUS used corpus linguistics in deciding the meaning of the phrase "personal privacy" within the context of the Freedom of Information Act. The 2011 case, Federal Communications Commission vs AT&T, involved whether a corporation has a "personal privacy" interest that fits within the scope of FOIA's document production exception.

AT&T's lawyers argued that corporations did have "personal privacy" just as individual people are imbued with that trait. These lawyers, no doubt, were encouraged by the Citizens United decision of the year before where the SCOTUS held that corporations could be treated like individuals for purposes of making political contributions.

In Justice Zahra's Harris decision, and in his remarks to the bar, the importance of the text of statutes cannot be denied. Justice Zahra was in this law blogger's law school class. Back in that pre-Internet era, there was an emphasis in the curriculum on common law; the judicial interpretation of statutes.

Over the past 20-years, there has been a shift, from the top down, toward giving meaning to the actual text of statutes. The meaning of words is mission-critical from such a perspective.

Words matter, especially as they are laid down in laws.

Post #562

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Post #537

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Unlike the United States Supreme Court, our Michigan Supreme Court stays focused and working through the summer. Accordingly, yesterday it released decisions in the remaining two cases from the trio of medical marijuana cases arising here in Oakland County.

The cases involved pot manufacturing, delivery and possession charges brought against Richard Lee Hartwick and Robert Tuttle.  Both defendants asserted the immunity and affirmative defenses that are set forth in the Michigan Medical Marijuana Act.

Right out of the box, Justice Brian Zahra, writing for a unanimous court, noted the distinction in how the MMA came into being compared to most other laws.  As a voter-based initiative, the MMA was not drafted by legislators with the assistance of the bipartisan legislative council and its staff.  No, the pot law was drafted by the national pot lobby, without a review for, "content, meaning, readability and consistency".

Perhaps because of the manner it was drafted, the MMA has been a highly litigated piece of legislation since its passage in 2008.  There are more than a dozen published Court of Appeals decisions attempting to make sense of the Act; the Michigan Supreme Court has addressed the Act in 9 separate cases.

The Supreme Court remanded both cases back to the Oakland County Circuit Court for new evidentiary hearings to determine whether the accused in each case is entitled to the immunity from prosecution set forth in section 4 of the Act. The High Court affirmed that neither defendant was entitled to assert the affirmative defenses contained at section 8 of the Act.

Upon remand, the Supreme Court crafted a 4-part test to be used by the trial court in assessing whether an accused has complied with the Act. An accused now has the burden to demonstrate through a preponderance of evidence:

• he has a valid medical marijuana card;
• he has kept the amount of marijuana within the limits mandated in the Act [i.e. 12-plants per patient and 2 ounces for personal use];
• all plants were kept in a closed locked facility; and
• he was participating in the medical use of marijuana.

What this tells us here at the Law Blogger is that, unless these guys followed the MMA grow, housing, and storage requirements to the tee, they are doomed for conviction. For our part, we've always been concerned that the sheriff and the courts do not understand how pot is grown and what constitutes "smokable marijuana".

A fresh-cut plant, for example, contains water weight and stem wood; none of it is smokable.  Fast forward several weeks, when the plant is dried and detached from its stem, and it is smokable and weighs less.

How will the sheriff weigh the collieweed, mon?  This is the question that will likely play out at the evidentiary hearings ordered by Justice Zahra and the High Court.

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Judge Lisa Gorcyca

November 25 is recognized in Michigan and Oakland County as Adoption Day. Accordingly, there were events scheduled to commemorate the event in the Oakland County Family Court, including a visit by Michigan Supreme Court Justice Brian Zahra, who presented a resolution of the Michigan Supreme Court officially recognizing Adoption Day in Oakland County.

Oakland County Family Court Judge Lisa Gorcyca presided over the event, and then performed an adoption for April DeBoer, who adopted her third child.  Ms. DeBoer is one-half of the same-sex couple that have garnered headlines for challenging Michigan's adoption law, which disallows adoptions by same-sex couples.

This blog has followed the same-sex couple's federal case, now heading to the SCOTUS, as it has wound its way through the federal court system  -starting in Detroit, then Cincinnati, and now Washington, D.C.-  picking-up lots of public interest along the way.   Currently, their case is getting briefed right here in Oakland County and oral arguments likely will be scheduled before the Supreme Court for late spring or early fall.

In granting the adoption, Judge Gorcyca, looking beyond the politics of DeBoer's case, said, "I've had a chance to follow the love you feel for your entire family.  If they prevail in their adoption case, Ms. DeBoer and her partner, Jayne Rowse, will be able to jointly adopt the four adopted children living in their Hazel Park home.  Presently, the couple must adopt the children independent of one another.

Even the couple's opponent in their high-profile case, the Michigan Attorney General, has acknowledged that DeBoer and Rowse are excellent  parents.  As noted by Ms. DeBoer at her recent adoption proceeding, she feels the love and acceptance in Judge Gorcyca's courtroom, but when she walks out the door, she is jarred by the reality that she, her partner and their adopted children are not recognized as a legal family.

We here at the Law Blogger hope that will change soon. Should the change come from our Legislature, or from the High Court; that is the real question.

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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.

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Supreme Court Justice Brian Zahra

If you are a Justice on your state Supreme Court, and were up for re-election, then last Tuesday was a good day for you, except if you work in Ohio.  Here in Michigan, the two incumbent Justices, our friend Brian Zahra, and his colleague, Stephen Markman, were re-elected in a hard-fought race.

The High Court election results mean that the conservative 4-Justice majority in Michigan stays intact for now.  The newcomer to the Michigan Supreme Court is UM Law Professor Bridget Mary McCormack, a Democratic nominee.  Professor McCormack replaces retiring Justice Marilyn Kelly; a long-serving Justice and a Judge's jurist if there ever was one.

The November 2012 election featured tight High Court races in other states around the country.  In Iowa, Justice David Wiggins was the only survivor of a 4-Justice block that decided a case recognizing same-sex marriage back in 2009.  His three High Court colleagues were defeated in the 2010 election.

Meanwhile, in Florida, the local Republican party targeted three justices as "too liberal" and "too extreme" to be worthy of their High Court.  The effort failed, however, as all three liberal Justices retained their seats.

In Michigan, as in most states, our jurists are "elected".  Many, if not most, of our jurists, however, take their seats on the bench through a gubernatorial appointment, then get elected after finishing out the term to which they were appointed.  The advantage is being able to run as a sitting judge or justice.

Justice Zahra is a good example.  He was initially appointed to the Wayne Circuit bench by former Governor  Engler, then elevated to the Court of Appeals by Engler.  After Governor Snyder was elected, one of the first things he did was to elevate Zahra to our High Court.

While the judicial ballot is "non-partisan", this past election confirms an age-old trend in judicial elections; you cannot remove politics from the courtroom.

Postscript:  Here is an editorial from the NYT referencing the huge sums spent on Michigan's High Court election.

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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.

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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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