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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So often, the holiday season is the season of love. Many men muster their courage to "pop the question" during the holidays.

In the Western marital tradition, a man typically requests the hand of his intended in marriage with the conditional gift of an engagement ring. When a woman accepts the proposal, she proudly wears the ring as a sign to all that she intends to wed the ring donor.

What happens, however, when the marriage does not occur? The legal significance of this issue often correlates to the value of the ring. Sadly, some of the doomed couples wind-up in court.

A decision last week from the Virginia Supreme Court reaffirmed the general rule that an engagement ring is a gift conditioned upon the nuptials of the parties. If the wedding is called-off, regardless of fault, the ring donor is entitled to the return of the ring; the donee has an obligation to return the property.

In the Virginia case, the donor broke-off the engagement after a year. The donee, sporting a two carat ring on her finger, worth over $25,000, balked at returning the ring to her fiance. When this lovers' quarrel was not amicably resolved in private, the couple lawyered-up, and the fur started to fly.

The case went all the way to the Virginia Supreme Court, which conducted a brief survey of the law of engagements and correlated property rights. Featuring a cite to a 1985 law review article from the University of Michigan Law School, the decision shines a light, for instructional purposes, on the old "promise to marry" suits from the late 19th Century.

Promise to marry suits enabled the spurned woman [or man] to file a claim for return of property, both given and expected, along with damages for the embarrassment and heartbreak attendant with a broken engagement. Such suits were fodder, as noted by the Virginia High Court, for tabloid exploitation and sensationalism, depending on the fame or infamy of the litigants.

These common law claims were replaced over the last Century with so-called "heartbalm" statutes providing for the  return of property given that was conditioned on nuptials. The Virginia case is consistent with a published decision from the Michigan Court of Appeals, Meyer v Mitnick, that sprang from the Oakland County Circuit Court.

In the Oakland County case from 2001, the engagement ring donor, a well-to-do physician, requested that his intended execute a prenuptial agreement. She refused and the engagement eventually broke off. Like last week's case from Virginia, the physician donor was the one who broke-off the engagement and the woman donee refused to return the ring.

The Michigan Court of Appeals upheld former Oakland County Circuit Judge Fred Mester, holding that where the condition subsequent -the wedding- does not occur, an action for replevin could be brought for the return of the property.

Indeed, it seems only fair to us here at the Law Blogger that, if the nuptials never occur, property given in anticipation of that fact should be returned. That is a fair and reasonable result.

The cases highlighted in this post tell us that it matters not who calls off the wedding.

Post #572

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Judge Joan E. Young

Judges Joan Young and Elizabeth Pezzetti are spending their final days on the bench at the Oakland County Family Court. The two senior jurists will retire in January and, in each case, will be sorely missed.

In 1984, this blogger spent the summer as a legal intern in Joan Young's office. Back then, she was the court administrator for the Oakland County Circuit Court; long before there was a family court division.

A Wayne State Law graduate, Judge Young was first elected to the Oakland County Probate Court in 1988; she was later appointed by Governor Engler to the circuit bench in 1997, where she was elected to three consecutive 6-year terms.

When the Michigan Legislature created the county family courts in 2000, Judge Young served as chief judge of the circuit court and was instrumental in creating the family law division within the Oakland Circuit. Also, Judge Young presided over the adult drug treatment court from its inception in 2002 until just last year.

In 2002, when the circuit court announced the implementation of e-filing and a push toward a paperless electronic court filing system, Judge Young was the one making the announcement. She provided very strong leadership in these key service areas of the court.

Judge Pezzetti (R) with Referee Betty Lowenthal

For her part, Judge Elizabeth Pezzetti also was appointed by Governor Engler, in 2001, to the probate court. Like Judge Young, Judge Pezzetti spent the her tenure on the bench at the dawn of the family court and during the transition to an electronic filing system.

This blogger has had the distinct pleasure to serve along with Judge Pezzetti on the Citizens Alliance Committee, the advisory board for the circuit and probate courts of Oakland County.

Judge Pezzetti has always had a probate component to her docket; even when serving as a family court judge. As such, she is accustomed to resolving disputes involving families that are under great stress, or families that have members at odds with one another.

The principle manner in which Judge Pezzetti has served our local court over the past 16-years has been through her consistent, patient and studied approach to the many many cases that have flowed through her courtroom. Like Judge Young, she will be very difficult to replace.

In Michigan, judges are elected thus, both seats will be filled by the winner of the non-partisan election on November 8th. Don't forget the non-partisan ballot; it is on the back side of the partisan ballot, so be sure to flip your ballot over to vote for judges.

The candidates running for Judge Young's open seat are Oakland County Friend of the Court Referee Lorie Savin and West Bloomfield attorney Victoria Valentine. The candidates running for Judge Pezzetti's open seat are Clarkston lawyer and Public Administrator Jennifer Callaghan and Collin Einhorn lawyer Karen Geibel.

Post #564
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Clarkston Judge Joe Fabrizio

Earlier this month, everyone took note of the Powerball lottery, especially when the prize eclipsed a billion dollars. Easy money if you are the lucky winner.

With all that going on, the latest case to catch our eye here at the Law Blogger is the local story of Michael LaJoice, a former CFO for the Clarkston-Brandon Credit Union and owner of the Chasse Ballroom. Rather than wait for a winning lottery ticket that may never come, Lajoice allegedly devised a plan to siphon huge amounts of cash from the credit union just up the road from our law firm.

In early January, Mr. LaJoice turned himself in to the Oakland County Sheriff's Department after an audit revealed inconsistencies in his accounting. Current criminal charges pending in Oakland County allege 14 felony counts that LaJoice embezzled over $100,000, which is a statutory threshold; the actual number could be well-over $30 million.

The case began right next door to our law office in Clarkston's 52-2nd District Court; Judge Joseph Fabrizio is presiding over the preliminary proceedings.

LaJoice is well-known in our neighborhood for his ownership and operation of the Chasse Ballroom and Latin Dance in Fenton, as well as LaJoice Properties, LLC. LaJoice purchased a lot for $1.2 million in downtown Fenton last June. Development of a new state-of-the-art dance studio on this lot was slated to begin in February, but we aren't holding our breath.

The popular Chasse Ballroom is now closed for business, with a sign on the door apologizing for the inconvenience. There is no word yet as to when LaJoice's business will reopen and the ubiquitous Chasse Ballroom billboards, TV commercials, and radio spots have all but disappeared.

Defending embezzlement cases requires a skilled attorney experienced in handling the volume of evidence generated by electronically transferring funds from multiple accounts. LaJoice is represented by our friend, Michael Manley, a prominent Genesee County defense attorney.

Manley has requested a competency exam for his client on the basis of LaJoice's emotional state combined with the magnitude of the alleged amount embezzled. If Manley convinces Clarkston Judge Joe Fabrizio that his client may be incompetent to stand trial, the court will order a forensic examination to aid in making a determination of LaJoice's mental competency.

Competency and sanity are two different things in the Michigan criminal justice system. The competency examination would determine whether LaJoice has a rational and factual understanding of the proceedings against him and whether he is able to rationally consult with his lawyer to assist in his defense. He will also likely be evaluated for criminal responsibility.

If the exam leads Judge Fabrizio to conclude that LaJoice is incompetent to stand trial [not likely in our opinion], the court then must determine whether there is a substantial possibility that he will become competent within the next 15-months. If that possibility exists, the court will order that LaJoice get the treatment necessary to become competent to stand trial.

If Manley's motion is granted, expect a lengthy delay in the case while LaJoice undergoes a detailed psychological examination. The Center for Forensic Psychiatry is not known for moving quickly, nor should it, given the important role its evaluations play in our legal system.

The amount of money allegedly embezzled in this case is staggering. Usually, such illegal gains come to light eventually, as in this case. With hindsight, LaJoice would have been better-off purchasing Powerball tickets, but then, of course, he would not have been the toast of the town over the past decade.

We here at the Law Blogger can’t help but wonder whether he now thinks it was worth it. What a colossal mess!

www.clarkstonlegal.com

info@clarkstonlegal.com

Post #518

Honorable Hala Jarbou

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

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

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

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

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

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

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

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

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Post #503

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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If you have ever filed a law suit, then you know the importance of getting each of the defendants named in the suit properly served.  When this does not happen in accord with the applicable court rules, your case can be dismissed.

Last month, two interesting cases played out involving process servers: one in federal court and one in the Michigan Court of Appeals.  Both cases present a rare peek into the tense world of service of process.

The first case, Putruss v Kastaw, was filed in the Oakland County Circuit Court and assigned to Judge Rae Lee Chabot.  The case arose from a melee that occurred at Plaintiff's Southfield clothing store, MODA Couture, when some customers became unruly, allegedly causing damage to the store.

Some of the customers involved were charged criminally, but were subsequently acquitted by jury.  The store owner sued in civil court for damages.  There were discussions between the criminal defense lawyer and the lawyer for the clothing store concerning whether the criminal defense lawyer would accept service of the complaint in the civil matter on behalf of the defendants.

When the criminal defense lawyer declined to represent these individuals and accept service on their behalf, the plaintiff attempted service through deployment of a pair of well-known process servers [one of whom is utilized by our law firm from time to time].  Because the process servers were unable to obtain personal service over the individuals, plaintiffs were granted alternate service, resulting in a dispute over the claimed attempts made by the process servers.

Judge Chabot granted defendant's motion to dismiss stating simply that she was convinced that there was lying under oath by plaintiff's process servers.  Not good enough, said the Court of Appeals in remanding the case for further factual findings by the lower court.

The second case, Nealy v Lotych, pending in federal court in Detroit, involves the allegedly unconstitutional actions of a court officer hired to execute a civil judgment.  The court officer arrived at the judgment debtor's home to execute the judgment, muscled his way in to the debtor's home, would not leave the home, and demanded over $3000 from the debtor and his wife, or he threatened to seize the debtor's truck.

As alleged, the actions taken by the court officer could be deemed illegal and overreaching.  So the federal judge denied defendants' motion for summary judgment.

These cases were covered in an article published in the Michigan Lawyers Weekly.  In the article, Jeff Kirkpatrick, a past president of the Michigan Court Officer Deputy Sheriff and Process Servers Association, stated that while the vast majority of process servers and court officers follow the law, a few "bad apples" sometimes utilize overreaching tactics.

In the near future, it will become an industry standard for court officers and process servers to utilize GPS tracking records to verify their movements relative to an attempted service.  Nothing wrong with a little technological verification when it comes to something as important as achieving personal service.

www.clarkstonlegal.com
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An interesting defamation lawsuit was recently filed in Oakland County Circuit Court, just in time for bow season which opens today for deer.

Last year, an archery company here in nearby Holly, MI resolved to revamp their website.  They turned to Five Sparrows, a web design and marketing firm based in Heartland, MI.

Apparently, Jim Beasley, owner of Spot Shooter Archery, was not satisfied with the performance of the web design firm, telling the Oakland Press that customers could not access products and the owner could not change prices within the online store created by Five Sparrows.

After some obvious "back-and-forth", Beasley had enough and posted a negative review on G+ as well as sent a letter to the local B2B group that connected the two businesses in the first place.  Five Sparrows' demand for a retraction was ignored and a defamation lawsuit followed.

The lawsuit, now assigned to Oakland Circuit Judge James Alexander, seeks damages in excess of the jurisdictional amount of $25,000.  Beasley's lawyer is none other than our friend down the street here in Clarkston; Robert Kostin.

Although this case was initially assigned to Judge Leo Bowman, we suspect it was re-assigned to Judge Alexander with a determination this was business litigation belonging to the new Business Court.

This litigation will be interesting.  In a defamation lawsuit, the plaintiff has the burden of proving that the statements made were false and were made intentionally or with reckless disregard for the truth.  Truth, by the way, is a valid defense to a defamation suit.

We here at the Law Blogger anticipate that Mr. Kostin will file a motion for summary disposition to dismiss this case.  And we like his chances as we feel this type of suit, always difficult to prove, is especially susceptible to dismissal given the facts of this case.

The Internet is nothing if not a massive functional forum for free speech.  Reviews of local businesses are crucial to the hyper-local evolution of commerce and trade.

Take a look at Spot Shooter's web site for yourself to see whether Five Sparrows constructed a functioning web site.  If you wanted to get outside today for the first day of bow season, would you be able to purchase your equipment on-line from Spot Shooter Archery?  If not, whose fault would that be?

www.clarkstonlegal.com
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Veteran Research Attorney
Karen Geibel

Well, the the field is now set.  In November, it will be Lisa Langton vs Karen Geibel for the open seat on the Oakland County Circuit Court.

Ms. Langton is a deputy court administrator for the Oakland Circuit Court.  Ms. Geibel is the long-serving research attorney for Oakland Circuit Judge Rudy Nichols.  Incidentally, Judge Nichols is also up for re-election, running with a block of six other sitting judges.

Last month, this blog speculated that Ms. Langton could wind-up with the seat unopposed, unless someone else filed the requisite 5000 signatures.  That someone is Karen Geibel.

Normally, a half-dozen candidates vie for any open seat on the Oakland Circuit bench.  The top two vote-getters advance from the August primary to the general election in November.

Because this year's non-partisan election has a paucity of candidates, the judicial hopefuls will not have to ruin their summer with endless campaign appearances since they will both automatically advance to the November ballot without spending a dime.  Nevertheless, you will probably see the judicial candidates at various farmers' markets, municipal gatherings and parades over the next six months.

As the new judge will be installed in the family court division, the divorce lawyers out there will slowly begin to take note of the now-official judicial candidates.  For our part, we will be monitoring the election to inform our readers of any relevant developments; stay tuned.

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Normally, an open seat on the Oakland County Circuit Court garners lots of attention among members of the local bar.  As litigators, we appear in front of the judges, day in, day out, so who is running for an open seat is usually big news.

April 22, 2014, is the filing deadline for an open seat on the Oakland County Circuit Court.  To date, while no one has filed the requisite 5000 signatures to become an official candidate, it is well-known that Lisa Langton, a deputy court administrator and wife of news personality Charlie Langton, is expected to make her candidacy official prior to the filing deadline in late April.  So far, however, she stands alone.

We here at the Law Blogger, finding the lack of interest and the dearth of candidates unusual, decided to check with some of our connected peeps.  No one knows for sure, but the consensus is that some wanna-be judges are lurking out there in the weeds, waiting for the deadline to come closer before announcing their candidacies via well-timed press conferences.  We shall see.

Otherwise, Ms. Langton stands to waltz into a seat that normally costs the successful candidate nearly a quarter million dolllars and a pound of flesh.  To become a judge in this town, a lawyer must survive an absolute cage-match primary campaign featuring a dozen of the usual suspects [assistant prosecutors, well-funded big law attorneys, politically backed lawyers], and then be the last one standing following a bruising general election.

According to a recent article in the Oakland Press following Ms. Langton's press release announcing her candidacy, she has endorsements from Oakland County Executive L. Brooks Patterson and from the retired judge whose seat was temporarily mothballed after his retirement in 2010, Jack McDonald.  This blogger has also heard that Langton hired old-school strategist Al Holtz; when you hire Al, you're dead serious.

This open seat on the Oakland Circuit bench is designated as a non-incumbent position and is for an 8-year term in the family court division.  The November 2012 judicial election taught us that once elected, an Oakland County judgeship is akin to a lifetime federal appointment; bullet-proof.

We here at the Law Blogger will monitor the Oakland County Clerk's unofficial candidate list as the deadline approaches.  Let's see who among us lawyers are of a judicial mindset.

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Novi Judge Brian McKenzie

By: Timothy P. Flynn

I'm aging myself by belonging to a group of 50-something lawyers that can recall when Oakland County Prosecutor Jessica Cooper was a circuit court judge, then a Court of Appeals judge.  Now she is, of course, the Oakland County Prosecutor.  Impressive career trajectory.

And as the prosecutor, Judge Cooper's career is now intersecting with another local judicial luminary, Novi District Judge Brian MacKenzie. Their career collision comes through a complaint the prosecutor filed   -in the form of a petition for a Writ of Superintending Control-   with the Oakland County Circuit Court, now assigned to Judge Leo Bowman.

The Writ alleges illegal conduct against the Novi judge.  Judge MacKenzie has struck back hard with a responsive pleading that, on first blush, sure calls into question the propriety of the prosecutor's Writ.

Channel 7 Action News was one of the first news outlets to break the story about the details of Cooper's allegations.  Judge Cooper alleges that over the past decade, Judge MacKenzie handed down sentences that did not comport with the law; that he dismissed cases after guilty pleas were tendered and accepted by the Court; that he dismissed cases stating it was with the consent of the prosecutor when there was no such prosecutorial consent; and perhaps most disturbingly, that he removed these cases from the public files of the Novi District Court.

Judge McKenzie is one of those judges that polarizes public opinion.  Truly, he is an iconic figure in our local judiciary.  Some folks love him; others not so much.

Several of the defendants that have been sentenced by MacKenzie applaud the justice they received in his courtroom; Channel 7 had a few willing to go on camera to defend the judge.  You do not have to look very far around Novi, Milford and Highland to encounter people who respect Judge MacKenzie's brand of justice.

On the other hand, now-retired Oakland Circuit Judge Steven N. Andrews admonished Judge MacKenzie on an appeal from the Novi District Court to the Oakland Circuit Court way back in 2004.  In reversing McKenzie's judgment of sentence, Judge Andrews, in a tersely-worded opinion called-out the district judge for meting-out sentences that did not comport with the law; Judge Andrews characterized MacKenzie's sentences as an illegal "pattern of conduct."

We here at the Law Blogger have always known Judge MacKenzie to be devoted to the Sobriety Court he established and nurtured in the Novi District Court and to the concept of required sobriety for alcohol-convicted probationers in general.  He is also known as a friend of veterans, recently starting a veterans' court in Novi.

There used to be websites devoted to a favorable portrayal of McKenzie and there are websites devoted to the disparagement of the good judge; now all deeply buried in Google's search results by this breaking story.

Some lawyers, vocal but who must remain nameless, view the manner in which Judge MacKenzie conducts a criminal call to be akin to "Kabuki Theater": heavy on drama, light on substance.  Others see him as a champion of justice that has a positive effect on the lives of the people that appear in his courtroom.

We now shall wait and see how the Oakland County Circuit Court Judge eventually assigned to the case assesses the allegations set forth in Judge Cooper's Writ.  Stay tuned for updates on this one.

www.clarkstonlegal.com
info@clarkstonlegal.com

By: Timothy P. Flynn

Does the Michigan Medical Marijuana Act presume that a certified patient can only consume marijuana by smoking herb, or can pot brownies do the trick?  That was the question posed by a case from the Oakland County Circuit Court that went to the Michigan Court of Appeals.

Now, on last week's remand back to the Oakland County trial court, an evidentiary hearing will be conducted in the People v Carruthers case to determine whether the accused was using a "reasonable" amount of marijuana by baking the pot brownies.

Earl Carruthers was charged with illegally manufacturing marijuana when pot brownies and several ounces of "loose" pot were found in his vehicle; he possessed a medical marijuana card and a caregiver certificate at the time of his arrest.  Oakland County Circuit Judge Michael Warren precluded him from submitting evidence to the jury about his status as a card-carrying medical marijuana patient and care provider.  Judge Warren also ruled that the entire weight of the pot brownie mixture [some 55 ounces] could be taken into account relative to the manufacturing charge.

Even though the circuit court allowed Carruthers to appeal the evidentiary rulings prior to his trial, the Defendant elected to plunge into the trial without the ability to present an affirmative defense as to his medical marijuana use; he was jury-convicted. In appealing this conviction, the broad immunity provision and the narrower affirmative defense section of the MMA were once again interpreted by the Michigan Court of Appeals; this time in the "usable marijuana" context.

 Complicating this issue is the fact that the MMA itself defines "usable marijuana" two different ways: first, the Act references the broad definition set forth in the public health code, then proceeds to promulgate its own, much narrower definition of marijuana:

"Usable marihuana" means the dried leaves and flowers of the marihuana plant and any mixture or preparation thereof, but does not include the seeds, stalks, or roots of the plant.

Whether Carruthers could avail himself of the MMA's immunity provisions [case dismissed; no jury trial] hinged on the weight of the edible.  Judge Warren ruled the whole pot brownie had to be weighed; Defendant asserted that only the net weight of the THC, the active ingredient in marijuana, could be taken into account.  Although the prosecutor's expert stated that THC was present in the brownies, it was impossible to conclude how much.

This ruling could make it difficult for a marijuana patient or care provider to produce pot brownies in conformity with the weight limitations of the MMA.  Critics within the defense bar expressed concerns that the Court of Appeals' decision limits ingestion via the lungs, i.e. with smoke.  Patients that have lung conditions and cannot smoke are thus precluded from legally ingesting baked goods laced with marijuana.

The case will be heading to the Michigan Supreme Court for certain.  Our High Court will once again be called upon to "fill-in-the-blanks" of the MMA.

We here at the Law Blogger must say that the ingestion of pot brownies by a legitimate card-carrying patient sure seems to be consistent with the spirit, if not the letter, of the Medical Marijuana Act.  Stay tuned, as we will be following this one...

www.clarkstonlegal.com

On June 3rd, the Oakland County Business Court commences here at the Oakland County Circuit Court.  The Michigan Supreme Court has appointed Oakland Circuit Judges Wendy Potts and James Alexander to preside over the docket.

To qualify for the Business Court, a dispute must seek at least $25,000 in damages and all litigants must be business entities; not individuals.  In addition, the Business Court will adopt e-filing and feature cost-saving tools such as audio/video conferencing and an emphasis on alternative dispute resolution.

Judges Alexander and Potts will be assigned cases in a blind-draw system; each judge will serve a 6-year term on the special court.  Bench trials -trials without juries- are expected to be the norm in the Business Court.  Both judges are expected to take a "hands-on" approach to the docket, with a scheduling-emphasis that features bringing the litigants into court early on with an emphasis on settlement; not trial.

If you ask us over here at the Law Blogger, this sounds like a very interesting gig for a jurist; here's why.  The Business Court will be the exclusive forum to hear and resolve the following type of disputes:

• Information technology, software, web-site design and hosting;
• Internal disputes within a business organization;
• Contract disputes, including intellectual property rights;
• Commercial banking transactions;
• Commercial real estate transactions;
• Business or Commercial insurance disputes.

For specific statutory language contained in the Revised Judicature Act controlling which cases are expressly included and which cases are expressly excluded in the Business Court, click here.

Litigants that desire to be included on the Oakland Circuit's Business Court docket should download and complete this Notice of Assignment to the Business Court Form.  For more information about the Business Court, click here.

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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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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.

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Jacob Trakhtenberg

Sitting on a parole board must be tough.  When reviewing a convict's petition for parole, the board member has an enormous amount of pressure to "get it right".

One option is to take the easy route by erring on the side of caution and letting the petitioner's sentence "run it's course".  Eventually, if flopped enough times by the parole board, a convicted felon simply gets released from the penitentiary by serving a statutory maximum period of incarceration.

That is what happened to two convicted felons that have been making headlines this month: one local; the other from Upstate New York.  This post takes a look at the circumstances of the cases, addressing the challenges of the parole system presented in each.

First, the Michigan case.  In 2005, Jacob Trakhtenberg, a former Chief Engineer for Chrysler, was charged in Oakland County Circuit Court with 5-counts of criminal sexual conduct.  The charging instrument did not specify dates of the alleged sexual assaults against his minor daughter, 8-years old at the time, and was silent as to the specific nature of alleged sexual contact.

His initial court-appointed lawyer elected to conduct a bench trial before former Oakland Circuit Court Judge Deborah Tyner, who found the accused guilty on 3 of the five charges.  One of the alleged deficiencies of Trakhtenberg's court-appointed defense counsel was that she did not conduct any investigation whatsoever relative to the prosecutor's disclosed witnesses.

Trakhtenberg was in prison during the years in which his appeals have [twice] traveled the gamut of the Michigan appellate courts.

Although his appeals have finally gained some traction thanks to our friend, appellate specialist Robyn Frankel, this relief may have come too late for the convicted felon.

In November, the defendant was placed on parole, having served 2/3 of his maximum 10-year sentence, and being eligible for release under the applicable Michigan statute.  His second appeal, known as a "6500 appeal" after the specific court rule that provides for such a last bite at the procedural apple, was decided in his favor last week in a Michigan Supreme Court opinion that remanded the case to the Oakland County Circuit Court for a new trial.

In a 4-2 decision [Justice Hathaway abstained], our High Court held:

In this case, defense counsel failed to exercise  reasonable professional judgment when deciding to forgo particular investigations relevant to the defense, including her
failure to identify the factual predicate of each of the five charged counts of criminal sexual conduct, her failure to consult with key witnesses, and her failure to sufficiently develop the defense presented at trial.  Accordingly, her representation fell below an objective standard of reasonableness.  Defendant was unfairly prejudiced by counsel’s deficient performance.  The key evidence against defendant was the complainant’s testimony.  Therefore, the reliability of defendant’s convictions was undermined by defense counsel’s failure to introduce impeachment evidence and evidence that corroborated defendant’s testimony that defense counsel was unaware of because she decided to forgo those investigations.  Had the impeachment evidence and the evidence that corroborated defendant’s testimony  been introduced, there was a reasonable probability that the result of the trial would have been different.  [Syllabus, page 2]

The effective assistance challenge to Trakhtenberg's conviction, ultimately successful in this case, is a critical component of an accused's basket of Sixth Amendment rights guaranteeing a fair trial.

No word yet as to whether the Oakland County Prosecutor will go forward with a second trial considering Defendant has already served a maximum sentence.  Since the completion of his first set of appeals, the initial trial judge, Judge Tyner, resigned from the Oakland County Circuit Court bench and was succeeded on the case by Judge Daniel O'Brien.

The tough part of criminal sexual assault convictions is that the Michigan Department of Corrections has a bright-line policy whereby the offender must complete sexual abuse counseling prior to achieving eligibility for parole.  Often, convicted offenders maintain their innocence, adhering to a campaign of total denial.  This renders them ineligible for an early parole.

While the resulting extended prison stay is justified for a properly convicted abuser, it is a tragedy if the person is wrongly convicted as concluded by the Michigan Supreme Court in Trakhtenberg.

Meanwhile, in Webster, NY, the criminal justice system attempts to make sense of how William Spengler should have been handled.  Spengler, a paroled murderer, allegedly killed two first responders to a fire he started as a decoy prior to killing himself on Christmas Eve.

It has now come to light that Spengler was paroled after serving a 17-year prison sentence for murdering his grandmother with a hammer.  Prior to his release from prison, 4 consecutive parole boards denied Spengler parole despite finding him to be well-spoken, well-behaved and intelligent.

After being released from prison, Spengler kept to himself for about a decade, until he apparently solicited the assistance of a young neighbor's daughter to purchase a shotgun and an assault rifle.  We now know that these were the weapons used in Spengler's murder-suicide.

Comparing these two cases brings the difficulty of the parole process into focus.  Once a person has been warehoused in prison for several years, what does the justice system do with them upon release?

What about persons wrongfully convicted [or unconstitutionally convicted] such as Trakhtenberg?  If ultimately acquitted, he may be entitled to millions in civil damages.  Will this potential exposure play into the Oakland County Prosecutor's decision to re-try the former automotive engineer who has already served all the prison time he could serve?

Are hardened killers such as Spengler ever truly rehabilitated?  Apparently, there is always a significant risk in allowing such killers to walk free among us.

This blog does not claim to have the answers to these tough questions.

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Recently, the Oakland County Circuit Court announced the creation of a business court similar to those implemented by Kent and Macomb Counties over the past year.  The business court here in Oakland County has been "operational" since April 1, 2012, and is slated to continue as a pilot program through 2014.

The business court's "pilot" status was created by an administrative order issuing from the Oakland County Circuit Court.  The business court is designed to study the effectiveness of implementing a specialized case management system to handle specified business-related litigation.

Judges sitting on the Oakland Circuit's court of general jurisdiction (i.e. civil-criminal dockets) will all receive cases on the business court docket.  To be assigned to the business court, a case must involved alleged damages of $500,000.

There are many disputes that will be excluded from the business court.  These will include consumer claims against businesses, personal injury and wrongful death cases, medical and legal malpractice law suits, and commercial landlord tenant cases, among a handful of other types of disputes.

So what's going to be different in the business court?  Parties, for example, will be required to make various pre-trial disclosures early in the case [i.e. within 42-days of the initial pleadings]; a joint pre-trial report will be submitted to the business court; an initial conference will be scheduled within 21-days after the pre-trial report is submitted; and the judge will issue a final scheduling order after reviewing the pre-trial report.

The idea behind this modified procedure is to identify and hone the issues and to schedule the court's resources in accord with the specific issues to be presented in the case.

Given the budgetary restraints imposed on the circuit court in the past few years, cutting millions from the budget, the Oakland County business court design had to be cost effective.  This is why there will be no specially appointed judge assigned to a business docket.

Essentially, this specialized court will have to run within the confines of the existing circuit court.

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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


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


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


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


What is it about LOHS and the surrounding community that could be causing students to take their own lives?  Is there any connection between the cases?
  
One of the many comments to the Oakland Press article linked above suggests that bullying occurs at the school.  While there is a correlation between teen-age bullying and suicide, I doubt it can explain this Oakland County phenomena.

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

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


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

Suicide crisis lines

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

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

Suicide prevention, education and treatment

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

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

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

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