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.

www.clarkstonlegal.com
info@clarkstonlegal.com

Justice Richard Bernstein

Yesterday, the Michigan Supreme Court, in one of Justice Richard Bernstein's first opinions, held that when a husband-wife medical marijuana operation is not conducted in strict accord with the Medical Marijuana Act, the wife, whose role was limited to assisting with the harvest schedule, is not afforded immunity under the MMA. So let's break that down.

In the case, People v Cynthia Mazur, Oakland County Circuit Judge Colleen O'Brien denied defendant's request for immunity under the act because the grow operation conducted within the marital home was not in accord with the provisions of the MMA. Ms Mazur's role in the operation was limited to writing-out the harvest schedule of the pot plants on sticky notes.

Defendant's husband was both a registered marijuana patient as well as a care-provider. Ms. Mazur, however, was neither.

She appealed the trial court's denial of her request for immunity, but the Michigan Court of Appeals affirmed Judge O'Brien's ruling. The Supreme Court agreed to take a look.

In its opinion, the High Court left the door open for the defendant, however, by ruling that her sticky notes detailing harvest dates constituted supplying hubby with "marijuana paraphernalia" as that phrase is defined in the act. Accordingly, Justice Bernstein's opinion concluded that if these sticky notes were the prosecutor's only evidence, then the charges against Mazur had to be dismissed; the prosecutor could, however, rely on other evidence to secure a conviction, the Court held.

This case is the first of a triad of pot cases from the Oakland County Circuit Court to result in an opinion from the Michigan Supreme Court. Decisions in the two remaining cases are expected within the next few weeks as the High Court prepares to end its 2014-2015 term.

One of the take-aways from this case is that spouses of registered patients may avail themselves of the immunity of the MMA, even if they are not registered care providers or patients, if the operation is conducted in strict accord with the act.  If the operation is rogue or being conducted outside compliance with the MMA, then criminal liability can attach to the non-registered spouse.  

Here at the Law Blogger, we will continue to monitor the evolution of this pot jurisprudence. Stay tuned.

www.clarkstonlegal.com
info@clarkstonlegal.com

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.

www.clarkstonlegal.com
info@clarkstonlegal.com

Diane Hathaway with President Obama

Last Friday, the US Attorney filed federal criminal charges [bank fraud] against the now-former Michigan Supreme Court Justice Diane Hathaway; her last official day was Monday, although she has been absent from the bench for weeks.  This is yet another case that gives the public pause, and erodes the confidence we place in our publicly elected officials; especially jurists; especially those elected to the Michigan Supreme Court.


By now, this story is well-known.  Ms. Hathaway and her husband are alleged to have concealed an intra-family transfer of a parcel of Florida real estate in order to get a short-sale approved which resulted in a mortgage loan forgiveness of more than $600,000.

The feds assert that the intra-family transfer was not disclosed to the mortgage lender to intentionally trick the lender into believing the Hathaways were suffering an economic hardship.  Once the short sale was approved, the Florida property was transferred back to the Hathaways.

Seems like a slam dunk prosecution.  Because the federal charging instrument filed in the case was an "information", a guilty plea is expected to be tendered by Hathaway next Tuesday in U.S. District Court.

We here at the Law Blogger have seen many of our divorce clients, while suffering genuine intense economic hardship, have their short sale offers or their loan modification applications rejected.  But even the notion of a sitting Supreme Court Justice applying for a short sale strikes us as untenable.  This whole story falls squarely within the category of: "What were they thinking?"

Thinking back to the November elections of 2008, when Hathaway was elevated from the Wayne County Circuit Court to the High Court, this blog recalls all those attack ads about former Justice Cliff Taylor depicted [via cleaver video editing we might ad] falling asleep during oral arguments.  In the long-run, however, any faith Michiganders placed in Hathaway to replace the pro-insurance Taylor was squandered.

At Hathaway's inevitable sentencing, she will be ordered to pay back the mortgage deficiency.  But we have to wonder: will she also be sentenced to federal prison?  Perhaps she will be able to avoid a prison sentence by tendering a guilty plea.  Wow, a former Michigan Supreme Court Justice pleading guilty in a federal courthouse.

One of the consequences of Hathaway's resignation from the High Court is the imminent appointment of a replacement.  One name that has been floated is Oakland County Circuit Judge Colleen O'Brien.  And if she gets the appointment, Governor Snyder will also have the opportunity to appoint O'Brien's replacement to the Oakland Circuit.

We can hardly wait.  Stay tuned.

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.