Insurance litigation and government benefits law are some of the driest topics on the planet. But the two Bauserman cases decided by the Michigan Supreme Court raise the timely issue of the role of artificial intelligence in making determinations of human intent; weighing evidence; and deciding between two versions of the same events. 

Machines Determining Benefits

The problem arose when the Unemployment Insurance Agency [UIA], the government agency that processes Michigan's unemployment claims, eliminated human decisionmaking in the determination of unemployment benefits. UIA adopted a machine learning tool known as the Michigan Integrated Data Automated System (MiDAS). This program played a significant role in the Bauserman cases.

MiDAS is an automated system used by the UIA to detect fraud in unemployment claims. In 2013, the UIA implemented a new algorithm in MiDAS that automatically flagged certain claims as potentially fraudulent, triggering a review by a computer program rather than a human investigator. Their experimentation with AI was very short lived; the state stopped using MiDAS as its sole method of detecting unemployment fraud in 2015.

In just over two years, however, the damage had been done. In addition to detecting when unemployment claimants committed fraud in their applications, MiDAS also imposed quadruple penalties upon applicants it determined were intentionally fraudulent. Perhaps the straw breaking the camel's back was that MiDAS interfaced with the state and federal treasuries to claw back wrongfully paid benefits from a so-called fraudulent applicant's tax refund.

A report issued by the state's auditor general concluded that MiDAS incorrectly decided 92% of its cases. The result was that tens of thousands of applicants had their unemployment claims wrongfully denied by a machine learning program. The machine cost the state millions and led to the class action suit in Bauserman.

The Bauserman Cases

Grant Bauserman was one of the many claimants who were affected by the new MiDAS algorithm. After Bauserman filed his claim, MiDAS flagged it as potentially fraudulent based on the new algorithm; his benefits were denied.

Bauserman was fired from his job as a bartender after he got into an argument with a customer and used profanity. He applied for unemployment benefits, but his claim was denied by the state's Unemployment Insurance Agency because it determined that Bauserman was fired for misconduct.

The bartender appealed the decision, arguing that the state's definition of misconduct was too broad and could include minor infractions. The case eventually made its way to the Michigan Supreme Court, which ruled in favor of Mr. Bauserman.

In the first Bauserman case, the Michigan Supreme Court addressed when an applicant's claim must be filed in the Court of Claims. The second Bauserman case involved whether the MiDAS computerized denial of unemployment benefits impacted a constitutional right of the class members.

The court held that the state's definition of misconduct was too broad and that claimants could not be disqualified from receiving unemployment benefits unless they engaged in willful and wanton misconduct. The court also noted that the burden of proof was on the employer to show that the employee's actions rose to the level of willful and wanton misconduct. Here is a link to the Bauserman II case dealing with an state benefit applicant's constitutional rights.

Ultimately, this class action case settled last September for $20 million. Eligible claimants who had their property seized by the state can apply for compensation from the settlement fund. The settlement still needs to be approved by the trial court; the next hearing on the matter is scheduled for July.

The Nomenclature

These cases are interesting because they involve "artificial intelligence" and "machine learning". Artificial intelligence (AI) and machine learning (ML) are related but distinct concepts in the field of computer science.

AI is a broad field that encompasses many different technologies and approaches, while machine learning is a specific approach to building AI systems that relies on data-driven algorithms and statistical techniques.

AI refers to the development of computer systems that can perform tasks that would normally require human intelligence, such as recognizing speech, making decisions, and learning from experience. AI involves the development of algorithms and computational models that can reason, perceive, and understand the world in a way that is similar to human cognition. This is what MiDAS attempted to pull off.

Machine learning, on the other hand, is a subset of AI that focuses on developing algorithms that can automatically learn and improve from experience without being explicitly programmed. ML algorithms use statistical techniques to analyze data, identify patterns, and make predictions or decisions based on those patterns.

The goal of machine learning is to enable computers to learn from data and improve their performance over time, without the need for explicit instructions or intervention from a human programmer. MiDAS may have been learning from its high rate of mistakes, but financially strapped unemployed workers were being financially penalized on the machine learning curve.

The Bauserman cases are also of interest because they involve machines wrongfully affecting people's lives. The cases highlight concerns about our state government relying too-heavily on machine learning tools. The UIA's fateful decision to rely solely on a computer program to determine benefit eligibility was disasterous, harmful and expensive. 

Next Steps

This will surely not be the last attempt by governments to replace the human decision making process with computers. In fact, these cases establish the fact that governments are already identifying and implementing machine learning tools.

Until a piece of code can "get it right" at least 92% of the time, humans will continue to play a key role in the determination of state benefits. Machine interference with the process is unconstitutional says our Supreme Court.

Clarkston Legal

Post #632

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

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

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

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

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

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

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

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

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

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

Post #600
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Legal professionals have mixed views of what the Michigan Supreme Court will do with the Judicial Tenure Commission's misconduct finding and suspension recommendation regarding Oakland County Family Court Judge Lisa O. Gorcyca. Here at this blog, we've asserted the position that the JTC was not the appropriate forum to conduct what amounted to a review on the merits of one of Judge Gorcyca's decisions in a highly-contentious child custody case.

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

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

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

In the introductory paragraphs to the Amicus brief, the OCBA states:

It is often said: “In criminal cases, judges see bad people at their best; and in family law cases, judges see good people at their worst.” In family law, where emotions often run high, judges require both broad authority to issue orders and a full arsenal of powers to implement their orders. They cannot and should not be burdened by “political correctness”. Indeed, one of the cornerstones of our judicial system is the recognition that judges provide justice for all, including, when appropriate, supporting the minority or unpopular causes.

The Amicus brief highlighted points of contention with two of the JTC's findings: 1) the alleged intemperate comments made by Judge Gorcyca; and 2) the alleged error in the mechanics of her contempt ruling.

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

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

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

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

Post #577

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Ever demure, Michigan Supreme Court Chief Justice, Robert Young, Jr., the highest elected African-American in our state government, stated he was unaware of his inclusion on a short-list for President-Elect Donald Trump's consideration to replace former Justice Antonin Scalia at the SCOTUS.

Justice Young, along with fellow Michigan Supreme Court Justice Joan Larsen, were included in Trump's May and September announcements regarding potential SCOTUS appointments. Both Michigan Justices are members of our High Court's conservative block.

Over the years, this blogger has had several occasions to interact with Justice Young. Most recently, when I argued a 4th Amendment search and seizure case at the Michigan Supreme Court last December, it was Justice Young that did most of the questioning. Back in 2008, I shared a panel with Justice Young on the topic of one of my felony-murder appeals that also made it to the Supreme Court.

As part of the Michigan High Court's conservative block, the justices are among those who take a textualist approach to both the Michigan and the United States Constitutions. This means that they decide cases in accord with the precise meaning of the text of the constitutions and the statutes impacting the case, rather than in accord with their own personally held political beliefs.

Deceased Justice Scalia was the textualist-in-chief; he deplored the judical activism which has been a hallmark of the liberal block on the SCOTUS. One of Trump's avowed first orders of business will be to fill the vacancy on the Court to restore the 5-4 majority that has held sway over most of the past decade.

In our opinion, Justice Young would be a well-qualified appointment; an appointment, however, that seems unlikely amid the clamor in the nation to appoint an ultra-conservative federal jurist to the SCOTUS.

Post #566

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Readers of this Blawg are familiar with our view that persons who call things up on the Internet with keystrokes on their computer do not have a reasonable expectation of privacy as to their on-line activity. The Michigan Supreme Court advanced this view in a case that pitted the music streaming service Pandora against one of its users in a class action lawsuit that originated in federal court in California.

For those that do not know, Pandora streams music based on a user's preferences; the user cannot store, download or rewind the tune. A premium version of the service allows a user to skip commercials for a monthly fee.

A user can indicate preferences by creating a music "station" by searching for a song, artist or genre, or by indicating "thumbs up" or "thumbs down" for each song streamed by Pandora in response to the user's search request. Over time, Pandora utilizes complicated algorithms to refine a user's musical tastes, and uses that data to select new songs it thinks the user will like based on that user's input.

The California federal courts have defined a stream as, "an electronic transmission that renders the musical work audible as it is received by the client-computer’s temporary memory." Peter Deacon, a Michigan resident and Pandora user, sued Pandora in federal court for violation of Michigan's preservation of personal privacy act [also known as the video rental privacy act - VRPA].

Deacon sued in the Northern District of California based on diversity jurisdiction: each party to the lawsuit is from a different state. Deacon is from Michigan and Pandora's headquarters are located in Oakland, California.

The trial court ruled in Pandora's favor, dismissing Deacon's lawsuit. On appeal, the Ninth Circuit Court of Appeals, in a relatively rare procedure, certified a legal question to the Michigan Supreme Court:

Has Deacon stated a claim against Pandora for violation of the VRPA by adequately alleging that Pandora is [in] the business of “renting” or “lending” sound recordings, and that he is a “customer” of Pandora because he “rents” or “borrows” sound recordings from Pandora?

The Michigan Supreme Court concluded that Deacon is not a "customer" of Pandora as he did not "rent" songs due to the fact that he did not pay Pandora for the right to listen to its stream.

Deacon claimed violation of the Michigan law on the basis that Pandora made its users' profiles available and searchable on the Internet. Also, Deacon claimed Pandora tied those user profiles into the users' Facebook profiles without the users' knowledge or permission.

Our High Court started its analysis by stating the purpose of the personal privacy protection act: to preserve personal privacy with respect to the purchase, rental, or borrowing of certain materials and to punish violators of such privacy. The central provision of the Act provides:

a person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings shall not disclose to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.

The Act defines a "customer" as "a person who purchases, rents, or borrows a book or other written material, or a sound recording, or a video recording." The Act, however, does not define "rent" or "borrow".

In a unanimous decision, the Supreme Court concluded that renting requires a payment of some type and Deacon availed himself only of Pandora's free services. Nor did he borrow the recordings as there was no implied promise to return the item borrowed.

Therefore, Deacon is not a customer within the scope of the privacy act according to the Michigan Supreme Court. The decision will now be considered in the federal case pending on appeal in San Francisco.

We here at the Law Blogger again find ourselves warning our readers: when your fingers do the walking on your computer keyboard, do not hold onto a sense of privacy regarding where you've been on the Internet.

Post #550

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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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On Saturday, the Michigan Supreme Court issued an order granting leave for an appellant that had been plea-convicted of sexually assaulting a 12-year old victim back in 1994. Twenty years later, in 2014, the Wayne County Circuit Court granted defendant's motion to be removed from Michigan's sex offender registry.

The Michigan Court of Appeals reversed the Wayne Circuit Court, reinstating the CSC-II convict's lifetime registration requirement. At the time of his conviction for groping and fondling the breasts of a then-12-year old girl, the defendant was 19-years old and thus, eligible for Holmes Youthful Trainee status.

This particular defendant successfully completed a 3-year probationary term and his conviction was dismissed back in 1997. His registration requirements under the sex offender registration act [SORA], however, lived on and follow him to this day.

No one is going to shed a tear for any convicted felon that took advantage of a young girl. Nevertheless, the Michigan Supreme Court, in its order granting leave to appeal, instructed the appellate lawyers to brief the following long list of issues:

• Whether placement on the SORA amounts to "punishment"; 
• Does it matter whether the plea-convicted felon attained trainee status; 
• Whether the SORA registration requirement violates a trainee's constitutional due process when a conviction is removed based on successful completion of probation; 
• Whether application of the civil regulatory scheme contained in the SORA violates the due process of a trainee, even if the SORA requirements are not considered "punishment";
• Whether the requirements of SORA that were instituted after defendant's conviction amount to ex-post-facto punishment and are therefore unconstitutional; and finally,
• Whether lifetime SORA registration constitutes "cruel and unusual" punishment in violation of the Eighth Amendment to the Unites States Constitution.

With that many questions directed to be briefed, the ultimate opinion in this case will be an outright referendum on the constitutionality of the SORA. Such a referendum has been a long time in the making; the Michigan Supreme Court was patient in order to select its case wisely.

We will watch and monitor this case. Oral argument will occur yet this term, after the briefs have been filed; an opinion likely will be issued sometime in June, just prior to the conclusion of the High Court's term.

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Post #513

On Wednesday, I had an unusual professional experience: oral argument before the Michigan Supreme Court; a first in my 28-years of practice. The case, People v Robertson, was a simple one involving the "search and seizure" clause of the 4th Amendment to the United States Constitution.

Seven justices sit on our state's High Court. So when you appear before the Court, any one of those 7 justices can and do interrupt your argument to pose questions; questions to which you better have a good answer.

In nearly three decades of practicing law, both at a large Detroit law firm, and now a small firm in Clarkston, I have presented over 100 oral arguments to the Michigan Court of Appeals. When you appear at the Michigan Court of Appeals, you face a 3-judge panel.

Back at the turn of the Century the 280,000 square foot Michigan Hall of Justice was built using 14,000 limestone panels. The post-modern edifice, designed by Albert Khan Associates, houses both the Michigan Supreme Court, Court of Appeals, judicial offices and chambers, and some very impressive administrative offices.

It was a great experience to appear before our High Court. We now have to await the opinion [could be a month or two] to see whether our client prevailed, or whether the the Oakland County Prosecutor was successful in overturning Oakland County Circuit Judge Martha Anderson's decision to exclude damaging evidence in this drug possession and delivery case.

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Post #511

Judge Colleen O'Brien

This afternoon, long-serving Oakland County Circuit Judge Colleen O'Brien was appointed by Governor Rick Snyder to the Michigan Court of Appeals. Tomorrow, the Governor has a scheduled news conference to announce his appointment to fill the vacancy on the Michigan Supreme Court created by Justice Mary Beth Kelly's surprise resignation in August.

Judge O'Brien has run for a seat on the Michigan Supreme Court in past elections and has been a persistent name mentioned whenever the discussion arises about appointments to the intermediate appellate court. She will be sorely missed by those of us who practiced before her in the Oakland County Circuit Court. A true "judge's judge", O'Brien is currently serving as the President of the Michigan Judges Association

Vacating her spot on the bench now leaves two seats open on the Oakland County Circuit Court that need to be filled soon. Judge Rudy Nichols retired over the summer and his seat has been filled temporarily by a visiting [retired] judge.

One rumor that proved true is that Oakland Family Court Judge Cheryl Matthews will move from the family court to the court of general jurisdiction. The family court is where new judges are usually assigned upon their election or appointment to the circuit court.

Judge Mathews follows former family court judges James Alexander and Martha Anderson to the general civil court. Could Judge Lisa Gorcyca be far behind?

Governor Snyder therefore now has his work cut out for him in filling these seats. Political influence will be spent in the upcoming weeks; the State Bar of Michigan will compile a list; and many a district court judge will angle for a promotion.

Some of the names we've heard over here at the Law Blogger we liked; other judicial hopefuls we're not so sure would make good judges. But we've come to accept that experienced litigators -lawyers that actually see the inside of a courtroom- are usually never considered for judicial appointments and rarely run for judge on the non-partisan ballot; go figure.

One lawyer that fits the non-litigator description on the Governor's short list for the Supreme Court is University of Michigan Law Professor Joan Larsen. Professor Larsen graduated from Northwestern University Law School and has recently served as a special counsel to the UM Law School Dean. If Professor Larsen is appointed to the High Court, she will be going from one ivory tower to another.

These recent events, and the Governor's imminent appointments to the Oakland Circuit Court, will have an important impact on Oakland County residents planning to file for divorce in the upcoming months. If you are involved in proceedings before the Oakland County Circuit Court, consider hiring lawyers that have experience in this town.

Our lawyers have seen judges in this town come, and we've seen judges go. We're still here; open for business at 8:00 tomorrow morning.

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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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Michigan's second largest court recently regained partial control of its docket after being supervised by Judge Michael Talbot and the Michigan Supreme Court.  The 30-plus judges of the 36th District Court will report their daily attendance to the High Court's administrative office along with progress on their caseloads; the court administrator for the district court in Detroit will continue to provide the Supreme Court Administrative Office with financial reports as well.

The  36th District Court handles one million cases per year according to Fox News Detroit.  The court's own web site, however, proudly touts a docket only half that large.  Perhaps they need to review their own files a little more closely.

Some big-time felony criminal cases get started in the 36th District Court, situated adjacent to Comerica Park and Ford Field in Downtown Detroit.  Many of today's Tiger and Lion fans will walk right past this court on their way to the games.

Some of the court's revenue woes stem from the quarter billion dollars in uncollected traffic tickets and unpaid misdemeanor fines.  Collecting even a fraction of these revenues would go a long way to relieving some of the court's fiscal pressures.

The recently concluded Supreme Court review resulted in the district court significantly trimming its bloated workforce and streamlining its procedures.  These are moves in the right direction.

On one memorable occasion, this Blogger presented with a matter for which the court clerk could not determine the assigned judge, despite reviewing a copy of the notice sent by the clerk to my client.  When the judge was figured-out, I went to the assigned court room at 10:30 am, only to find the doors locked.  Although the lights were on in the court room, and I could see staff in the back, it took another hour to get the matter heard before a judge.

When I left the court around noon that day, I had the feeling that I was lucky to have my matter heard at all.  Hopefully, those days are over.

Pruning redundant staff and streamlining court procedures will help this high-volume court to provide the citizens of Detroit a crucial public service: access to justice and the rule of law.

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Plaintiffs' Lawyer Richard Bernstein

This Sunday's NYT carried an article about a well-funded right-wing challenge to three justices on the Tennessee Supreme Court.  Despite surviving the retention election [where a justice essentially runs against herself] all three targeted Tennessee jurists saw their margin of electoral victory eroded by the well-orchestrated conservative campaign.

The sins of the jurists?  Appointing a Democratic Attorney General in 2006 [Tennessee has not gone Republican in a presidential election in decades, and that includes Tennessean Al Gore in the 2000 election]; being "soft-on-crime"; and being anti-business.  Still, there was a general feel of an overall outright political attack on the jurists in the election last week based on their voting record in key cases.

Usually, High Court justices come under fire for single issues.  In 2010, for example, all the justices on Iowa's Supreme Court that voted one year earlier to approve same-sex marriages were ousted in the non-partisan Iowa ballot.  The same thing happened in California to three High Court jurists during the death penalty debate: none of the pro-death penalty justices were retained.

Nowadays, a jurist's vote to approve same-sex marriage is common place; happens all the time, as routinely reported in this law blog.

Here in Michigan, the personal injury plaintiff's bar has been accused of attempting to buy a seat on the Michigan Supreme Court for the past quarter Century.  Our High Court has held onto a precarious 4-3 "conservative" majority for that decades-long stretch and then some.  This so-called conservative majority is crucial in cases that decide not only personal injury issues, but also constitutional issues relating to criminal defense, law enforcement, privacy and business.

Now, personal injury lawyer Richard Bernstein recently announced he is seeking a nomination from the Michigan Democratic Party for a seat on the Michigan Supreme Court.  In November, two Governor Snyder appointees are facing re-election, and a third seat is opening-up via the retirement of Justice Michael F. Cavanaugh.

Aside from the relative oddity of a lawyer running for a seat on the High Court [as opposed to a sitting judge] there is the fact that Bernstein is the wealthy scion of personal injury luminary Sam Bernstein.  Also, we take note that the Democrats declined to nominate Bernstein in his bid to be the Democratic candidate for Michigan Attorney General in 2010.

While we here at the Law Blogger realize that one justice cannot re-write our jurisprudence, we do have to wonder about the propriety of electing a lawyer so viscerally aligned with a specific area within the law: i.e. prosecuting plaintiffs' personal injury tort suits.

Our judicial system does depend on a jurist's neutrality in all cases.  So let's stay away from the well-funded single-issue juggernauts.  

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Juvenile Lifer Raymond Carp

In 2012, the SCOTUS ruled in Miller v Alabama that state laws providing for life sentences for juveniles were unconstitutional.  Michigan is believed to have the most juvenile lifers in the nation; 350 prisoners convicted of life sentences when they were juveniles, all waiting to die in prison.

The juvenile lifer issue has become a hot-button topic for both the appellate courts and the legislature here in Michigan.  The consolidated cases decided this week by the Michigan Supreme Court, known as People v Carp, et al, squarely
addressed the narrow issue of whether the SCOTUS ruling in Miller should be applied retroactively.

If Miller's ban on mandatory life sentences for juveniles is applied retroactively, then the 350 juvenile lifers in MDOC prisons would have a shot at parole.  The retroactive application of Miller has also been the focus of cases in federal courts in Michigan, with one federal judge in Detroit last year ordering the MDOC to come up with a plan to address parole for this group of convicts.

Of course this comes as horrible news to people like Barbara Hernandez, doing a life sentence for her ancillary role in a 1991 murder right here in Pontiac, MI.  On the other hand, Attorney General Bill Schuette, whose office argued the case for the State of Michigan, hailed the decision as a victory for the families of murder victims.

No doubt, the attorneys for the three defendants in the consolidated cases will now petition to the SCOTUS for further appellate review, seeking clarification as to the retroactivity of Miller.  The remaining 350 juvenile lifers will continue to sit on the edge of their stainless steel racks awaiting final decision on their fate.

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Novi District Judge Dennis Powers

Over here at the Law Blogger, we've dared to imagine what it's like to be a judge.  While none of our lawyers have ever been on the non-partisan ballot, we work with enough judges to marvel at the awesome responsibilities they shoulder every day, and the substantial powers entrusted to them to decide cases.

To maintain a well-oiled docket, either at the district court or the circuit court level, is a monumental task that requires legal knowledge, wisdom and perhaps most importantly, management skills.  As either a circuit or district court judge, you are elected from the very community in which you pronounce judgment, day-in-day-out.

 Judges, even more so than our public servants in the other branches of government, must have impeccable integrity.  When a judge breaches the public's trust, it erodes the fabric of our justice system; when that breach is due to dishonesty, the damage is accelerated.

Two veteran jurists in Novi have been in the news over the past year for this type of mission-critical breakdown.  They have left their communities wondering about the brand of justice that is served at the 52/1st District Court.

Last week, the Judicial Tenure Commission filed a 58-page complaint against district judge Dennis Powers, alleging among other things that Judge Powers requested reimbursements to which he was not entitled, was frequently late to court, granted favors to his "friends", as famously detailed in a Fox News' expose, and threatened to terminate the whistle-blower on his staff after the local media reported on the story.

For his part, Judge Brian MacKenzie, in the adjacent chambers at the 52/1st, is also under scrutiny; his docket is being reviewed by a higher court; and a tape recording made in Judge MacKenzie's chambers about a questionable conversation the judge directed involving an exchange of dismissals, civil for criminal, is under review by the FBI.  We shall see where all that goes...

Our blog has already detailed some of the shenanigans sponsored by Judge Brian MacKenzie in an earlier Law Blogger post.  Since then, Oakland Circuit Judge Colleen O'Brien did find that Judge MacKenzie acted contrary to the law in at least 8 cases, and ordered part of his docket [in domestic violence cases] to be subject to her review.

Then there is the 2014 election where the allegations against Judge MacKenzie will be tested on the non-partisan ballot, first in the August primary, then in the general election if MacKenzie survives the primary; he is being challenged by two local attorneys- his former law clerk Travis Reeds, and Scott Powers, Judge Dennis Powers' son.

With the formal JTC complaint now filed against him, it is uncertain whether Judge Powers will even make it through the two years remaining on his term.  That would open-up a seat on this radioactive bench for Governor Rick Snyder to fill through a local judicial appointment.

In order to restore faith in our local judiciary, Governor Snyder needs to get that appointment right, should he have the opportunity.  Stay tuned and we will keep you posted of all significant developments happening out in Novi.

In the meantime, if you've had an interesting experience in a district court, we would like to hear from you.

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Davontae Sanford in better times.

This blog ran a post detailing the plight of young Davontae Sanford back in 2012.  At age 17, Sanford was sentenced, based on his confession, to 37-90 years on 4-counts of second-degree murder for the 2009 Runyon Street shootings in Detroit.

It is widely accepted that his was a false confession and that the real murderer was Detroit hit-man Vincent Smothers, who also confessed to the same crimes; he has repeatedly stated Davontae had nothing to do with the quadruple-murders.

The consequence of Sanford's [false] confession to the Runyon murders was that the DPD ignored the hit man's detailed confession to the same dirty deeds.  They had their man on the Runyon murders [Sanford], and "that-was-that."

According to Sanford's trial transcript, Wayne Circuit Judge Brian Sullivan pushed both sides to produce a plea agreement.  Sanford's plea to second degree murder, in hindsight, may have been rational given Judge Sullivan's comments at his sentencing hearing that, had he not pled, Sanford would have been convicted of first degree murder and sentenced to "the bullet", i.e. life in prison, no parole.

The young man's appeal was decided in his favor last year when the Michigan Court of Appeals remanded his case back to the Wayne County Circuit Court, vacating the lower court's denial of his motion to withdraw his guilty plea, and instructing the lower court to consider expert witness testimony relative to false confessions.  The Court of Appeals also ruled that the hit man, Smothers, could testify at Sanford's remand hearing.

Well, now the Michigan Supreme Court has gone and reinstated the lower court order denying Sanford's request to withdraw his guilty plea.  The High Court held out one last thin straw of hope to Sanford: its order does not prejudice Davontae's right to file what in our industry is known as a 6.500 moition; the last chance "hail Mary" for a convicted felon.

So now it's on to the 6.500 motion; perhaps the judge presiding over the matter in the Frank Murphy Hall of Justice will decide to hear from the experts on the topic of false confessions; perhaps the judge will want to hear from the Detroit Hit Man about these murders.

Either way, Davontae has wasted away in the MDOC for the past five-years for a crime most believe he did not commit.  We here at the Law Blogger need to believe that, despite his false confession, his is a soul worth saving...

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Juvenile Lifer Raymond Carp

By:  Timothy P. Flynn

Oral argument is scheduled in the Michigan Supreme Court for March 6th in the juvenile lifer case of People v Raymond Carp to determine whether the SCOTUS decisions banning state juvenile lifer laws should get retroactive application.  One of the interesting amicus briefs filed in the case comes from several hundred Ann Arbor high school students.


In May 2006, Raymond Carp was only 15 years old when his half brother attacked and killed their mother's friend with a knife in her home.  Carp was present, but the evidence that he participated in the murder was sketchy at best.

In the weeks immediately following the murder, the accused attempted suicide and reported to having a recurring inescapable nightmare: seeing his brother murder their mother's friend over and over again.  Carp's jury conviction was affirmed by the Michigan Court of Appeals; the Michigan Supreme Court agreed to consider the case last year in order to assess whether the SCOTUS ban on juvenile lifer laws should receive retroactive application here in Michigan.

With the oral arguments in this much-anticipated case only a few weeks away, the High Court's decision to allow the collective student body of a Michigan high school to file an amicus brief has garnered some additional media attention for Mr. Carp's plight.  The amicus brief, from Ann Arbor's Father Gabriel Richard High School, was filed last Friday and signed by 450 high school students.

We here at the Law Blogger have read this brief and note that it raises some very compelling arguments for the retroactive ban of Michigan's juvenile lifer law.  Perhaps the most interesting aspect of the Gabriel Richard brief is the true and honest perspective of the teenager; the brief is written in unabashed teen fashion and does not masquerade as the product of a legal scholar progeny from the AP history class.

This blog applauds the Supreme Court's decision to allow this collective voice to be a part, however small, of this case.  We will monitor the oral argument and report back on the High Court's decision.

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By:  Timothy P. Flynn

In mid-January, the Michigan Supreme Court heard oral arguments in Porter v Hill, a case we've been following in this blog, involving the rights of grandparents to see their grandchildren.  The grandparents in this case have not been allowed to conduct visitation of their two grandchildren because, prior to his death, their son   -the biological father of the children-  had his parental rights terminated; now the mother does not allow them contact with the kids.

This sad case hinges on the statutory definition of the term "grandparents".  The Michigan Court of Appeals ruled in Mother's favor that because the deceased biological father's rights were terminated, he was not a "legal parent" of the children thus, the paternal grandparents did not have standing under the grandparenting statute.

The lawyer for the grandparents, Phillip L. Ellison, asserted that the word "grandparents" is not a term of art but rather, a word with a very specific statutory definition.  Ellison argued to the justices that the family court and Court of Appeals improperly carved-out an exception to the statute by disallowing these grandparents to bring their case to the family court for a determination of the merits of their claim.

When asked by Justice Mary Beth Kelly whether he was asking the High Court to simply ignore the fact that the father's rights to the children had been terminated, Ellison stated:

No, I would have you look at what the Legislature has specifically directed.  That is, a grandparent is a natural parent of the natural parent.  The legal status of that parent is irrelevant when it comes to who has standing to ask for a grandparenting-time order.

We here at the Law Blogger agree.  It just doesn't feel right to us to have a grandparent's rights to visit with their biological grandchildren foreclosed due to the abuse or neglect of their son or daughter.

A decision from the Michigan Supreme Court will come before the end of their term in June; stay tuned all you grandparents out there.

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Wayne Circuit Judge Wade McCree

By:  Timothy P. Flynn

The Oxford University Press has designated the slang term "selfie" as the word of the year.  For our over-50 readers, a selfie is when a person takes a picture of themself, or a part of themself -usually on their cell phone-  and transmits it to another person.

We here in the 313 can agree that the word has picked-up some credibility thanks to Judge Wade McCree's legal troubles.  How can we forget Charlie LeDuff's piece in Judge McCree's chambers when the good judge was confronted by his embarrassing instantly viral "selfie".

Well, fast-forward 2-years to the oral arguments this week at the Michigan Supreme Court.  The docket included the Judicial Tenure Commission's case against Judge McCree.  The JTC wants McCree to be suspended for six more years  -he is currently suspended without pay for his selfie-  so that he cannot be re-elected when his term expires in 2014.

McCree is represented by State Bar of Michigan President Brian Einhorn.  During Einhorn's oral argument in defense of the judge, Justice Robert P. Young, Jr. made the reference to the judge's "selfie".  The reference was picked-up and amplified by Justice Bridget McCormack.

A judge taking a nude selfie most assuredly does not inspire confidence in the judiciary.  The big question is what will the Michigan Supreme Court do with Judge McCree's case?

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