Law School Rankings Unkind to Michigan Law Schools

Once again, the highly controversial national law school rankings have been published by the US News & World Report. Although you have to pay to see them in full, University of Cincinnati Law Professor Paul Caron has published a segment of the rankings; peer reputation vs "overall" rankings.

Some movement was observed at the top of the rankings.  The University of Michigan Law School, for example, fell three spots from 7th to 10th.  Harvard also fell a spot.  To the USN&WR editor: really; what changed at UM and Harvard to merit the drop?  Go figure.

Proving that it never hurts to associate with a huge public university, Michigan State University's "College of Law" [formerly the unaffiliated Detroit College of Law] is now ranked #82 overall; that would not have occurred in the law school's "stand alone" days.  Not yet "first tier", but improving.

MSU bested Wayne State, which now sits at #112 overall; that never would have happened in the 1980s.

While my law school alma mater, University of Detroit Mercy, did well in the NCAA men's basketball tournament seeding, in the law school rankings, er...not so much; stuck at #178 in the peer reputation category with an "overall" ranking simply noted as "tier 2" and trending downward from its whopping 169 rank back in 2009.  Guess that means, "second rate".  What's going on over there?

Finally, we would be remiss if we did not at least mention Michigan's other perennial basement dweller in these confounded rankings: the mighty, albeit somewhat narcissistic, Thomas M. Cooley Law School; ranked at #184. 

If you care enough to drill into Cooley's own website, however, you will see that they persist in publishing their own law school ranking which places them second [to Harvard] based on a variety of class-size factors.  And perhaps that is as it should be, with a whopping 3727 Juris Doctor candidates currently enrolled [yes folks, that's Three Thousand Seven Hundred Twenty Seven students; can you say, "you are just a number...].  The next highest enrollment is Georgetown University, with 1982 students.

Again, we have to ask, do we really need that many lawyers out there on the street?  Really?

                                                                      www.clarkstonlegal.com

                                                                     info@clarkstonlegal.com

Shariah Law and Divorce

In an unpublished decision released toward the end of last week, the Michigan Court of Appeals found fault with the Wayne County Family Court in a divorce case that touched on the application of Shariah law.

Specifically, the Hammoud case involved the imposition of spousal support in a realaitively short-term marriage. The Court of Appeals was troubled that the family court conditioned the duration of the "open ended" support on wife obtaining an "Islamic divorce" decree, noting:

As structured by the trial court, plaintiff has no incentive to become self-sufficient or to vigorously pursue an Islamic divorce as she is assured an ongoing income ad infinitum.  The trial court also failed to address or seek further clarification of plaintiff’s contention that she was in possession of a document that would permit others to assist or assure her the attainment of an Islamic divorce without defendant’s consent.  Plaintiff indicated that an agreement existed that would permit her brother and brother-in-law to authorize the Islamic divorce, potentially rendering it within plaintiff’s control to prolong her receipt of spousal support.

The implication, as held by the Court of Appeals, was that the family court pressured the husband into agreeing to an Islamic divorce when, under the establishment clause, it had no power to do so.

The Court of Appeals was not impressed with the lower court, the litigants, or their attorneys.  The case also featured an [untranslated] Arabic language prenuptial agreement proffered by husband to support his position that his wife agreed to forgo any spousal support.

The Hammoud case received national attention with a reference in Law Professor Eugene Volokh's law blog; the Volokh Conspiracy.

We here at the Law Blogger agree that family court is not the place for the implication or enforcement of religious laws; that is for the house of worship and is a private matter between the litigants.

www.clarkstonlegal.com

info@clarkstonlegal.com

Social Media Not Mixing with Jury Trials

It took some time, but now the cases are starting to pile-up.  This week's WSJ treats us to a summary of recent "social media" eruptions in the jury trial context.

The basic problem: a jury trial is conducted in accord with the applicable rules of evidence, court rules, and statutes.  When jurors log onto the Internet to obtain additional information [about the parties to the suit, the lawyers, or the judge], or to comment, they are exposed to data and opinion beyond the scope of the applicable rules.  This can and does affect the outcome of a trial.

The case highlighted in the WSJ was a 2010 murder conviction overturned, in part, because a juror ignored the admonishment of the judge, and tweeted the jury's verdict to the public prior to it being read in court.  Now, the defendant will stand trial again this summer.

In other courtrooms, despite explicit instruction from the trial judge that jurors must not discuss the case among themselves until the proofs are complete and they are formally deliberating, jurors have been known to exchange contacts and begin texting one another.

A Florida juror recently spent 3-days in jail for "friending" a defendant on Facebook so he could either get a date with the woman, or get out of jury duty.

A case in the California appellate courts hinges on whether a juror in a case must now disclose his social media activity to defense attorneys in a gang-beating case so the attorneys can determine whether to challenge their client's conviction based on the juror's social media activity.

Judges have a range of options when juror misconduct mars an ongoing trial.  Those options include: punishing the juror for contempt (i.e. jail or a fine); removing the objectionable person from the jury (there is always at least one alternate); and declaring a mistrial and starting the trial over.

The WSJ article cites to a potential test case: the Drew Peterson case in Illinois.  In that case, defense attorney Joel Brodsky is considering ways to prevent jurors from acquiring information about the case outside the courtroom.  One idea under consideration is for the jurors to disclose their IP addresses and social media handles so they can be monitored.  Along these lines, technicians are suggesting the installation of cookies so that if a juror accesses the Internet about the case in any way, the juror's foray is reported to the trial judge.

Can the centuries-old jury trial system withstand such developments?  Is there any effective way to prevent seated jurors from accessing the media about the case to which they have been entrusted?

As litigators, we here at the Law Blogger realize this truly is a "Brave New World".  When you ramp-up for a trial, and focus on the scope of the evidentiary issues in the case, it is very unsettling to think that, with a few points and clicks, a juror can unearth a veritable treasure trove of [inadmissible] information about you, your client, or your case. 

In almost every case, such additional information will sway the juror's opinion and somehow affect the outcome.  Turning a trial into a popularity contest is not a fair way to administer justice.

www.clarkstonlegal.com

info@clarkstonlegal.com

What Happens to Frozen Embryos After A Divorce?

In happier times, the Stratfords, Jude and Jayane, did what an increasing number of marital couples are doing; they froze one of Jayane's eggs that had been fertilized by Jude's sperm; i.e. they cryopreserved an embryo.  When the dust settled in their subsequent St. Clair County divorce proceeding, the now-divorced couple realized they had forgotten to address their frozen embryo in the consent judgment of divorce.

Jude went back to the family court seeking permission to allow an anonymous couple to utilize the single fertilized and frozen egg.  Jayane objected, asserting her desire to donate the embryos for research.

After carefully balancing the respective interests of the parties following an evidentiary hearing, St. Clair County Family Court Judge Elwood Brown concluded that Jude held a "superior interest" in the embryo, and promulgated a thoroughly-researched opinion and order on this ground-breaking topic that has no precedent in Michigan's statutory or common law.

Judge Brown ruled that: "[Father] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple."  Jayane appealed Brown's ruling to the Michigan Court of Appeals.

The MCOA reversed the family court in an unpublished and thus non-binding per curiam decision, holding that the lower court erred by obligating the fertility clinic, not a party to the Statford divorce, and further held that the family court order was too vague relative to Father's right/duty to donate the fertilized egg to another "willing couple".

The appellate court was particularly troubled by the lack of a contract between the divorced parties and the fertility clinic.  Addressing the family court's creation of duties to a non-party, the MCOA stated:

Aside from the permissive nature of the order, the order imposed upon the clinic several obligations that the clinic may be unwilling to accept or unable to perform.  For example, the record does not indicate whether the clinic is able to make the embryo available for adoption.  Similarly, the record contains nothing to demonstrate that the clinic is willing or able to accept the order’s apparent restriction that the embryo be adopted only by a willing couple.  In addition, the record does not identify who, if anyone, is currently paying for any of the clinic’s costs arising from cryogenic preservation until a “willing couple” is available for adoption.  We are further left to assume from this record that there is preservation in fact, viability, and, non-abandonment of the embryo.  Moreoever, in the event plaintiff opts not to donate the embryo, the record does not indicate whether the clinic is willing or able to continue to preserve the embryo indefinitely.

In so ruling, the MCOA compared the Statford's circumstances with an earlier "zygote" case from 1999, Bohn v Ann Arbor Fertility Clinic, which involved a similar family court "custody" dispute, along with a companion "breach of contract" cause of action.

In each case, the Court of Appeals focused on the agreement, or lack thereof, between the biological donors and the fertility clinic.  In deciding each case, the MCOA emphasized the poor quality of the lower court record relative to upholding the plaintiff's claims or, in the Stratford case, the lower court's rationale.

Nor did the Stratford panel endorse the lower court's "balance of interests test", ruling that such was within the purview of the legislature and not the courts.  We here at the Law Blogger heartily agree.

Stay tuned to see whether either party applies for leave to further appeal or whether there will be additional proceedings in the family court.

Also stay tuned to see whether our state legislature passes legislation to address the proprietary rights of zygotes, oocytes, and other pre-embryonic cells.

www.clarkstonlegal.com

info@clarkstonlegal.com

Google's Privacy Policy Gets Look From Attorneys General

By now we've all been shocked by how much information the major search engines collect and store about each of us. The reach now extends into our cell phones and possibly even into our contacts.

On March 1st, Google implemented a new, single privacy policy, replacing it's patchwork of more than 50 separate policies spread across its product line and services. In the wake of Google's new privacy policy, the Attorneys General in a majority of states are calling foul.

Speaking for at least 35 state attorneys general, the National Association of Attorneys General complains that the new policy violates consumers' policy by sharing personal information across Google's services without providing an explicit "opt in" or a meaningful "opt out" option.  NAAG sent a letter to Google's Chief Executive Officer, Larry Paige, requesting a sit down.  The NAAG letter states, in part:

Google’s new privacy policy is troubling for a number of reasons. On a fundamental level, the policy appears to invade consumer privacy by automatically sharing personal information consumers input into one Google product with all Google products. Consumers have diverse interests and concerns, and may want the information in their Web History to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their Search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy. It rings hollow to call their ability to exit the Google products ecosystem a “choice” in an Internet economy where the clear majority of all Internet users use – and frequently rely on – at least one Google product on a regular basis. 

For its part, Google claims the new policy will be easier for all to understand.  For our part, this Blog adheres to a simple basic principle: when conducting search and post activities on line, we keep in mind that we are creating a searchable and reviewable record.

Everyone seems to know the difference between posting content on sites like Google+ and YouTube and having their deepest darkest searches tracked.  In the former context, the user usually intends for the content to be discovered.  For example, we here at this blog wish our Clarkston Legal video on YouTube had more than 45 views in two years; my son thinks that's lame.

In the latter context, on the other hand, folks are sometimes embarrassed by what pops-up in the form of advertisements that the mighty and all-powerful web spider has determined to be relevant to a particular individual.  Such ads are displayed based on the aggregated content and personal information collected by the service provider.

This chapter just lets us know that privacy law is a fast-growing area of law that will take on increasing significance.  Stay tuned for the flow of developments as the lawsuits start to pile-up.

www.clarkstonlegal.com

info@clarkstonlegal.com

Should Your Divorce Go To Trial

On Friday, I was sure that I was going to spend the entire day in a divorce trial; my first in a quarter century of practice. Didn't happen.

Why? Because trial in divorce rarely makes sense. This case, in Genesee County, had it all: a GAL for the minor children; a joint bankruptcy in the middle of the proceedings; two [failed] mediation sessions; motions from each side, jousting for the entry of temporary support and parenting orders.

The case was positioned for trial because both sides held onto rigid positions on many of the issues important in any divorce proceeding: custody, parenting time, child support, alimony and debt apportionment. My law clerk, a third year student at Wayne State, prepared an excellent trial brief; she had compiled a trial notebook, and we were prepared and ready to go.

As the case was the oldest on Judge Kay Behm's docket [18-months], I knew it was going to resolve one way or another.

The case did resolve, after 8-hours in the courtroom, because each of the parents made common-sense, strategic compromises. In the end, the parents each looked past their own personal wounds, and their self-centered agendas, and took into account the best interests of their minor children.

Don't get me wrong, I would rather conduct a trial than spend the entire day as I did Friday, painstakingly going over, discussing, negotiating, and resolving every aspect of a failed marriage and the flotsam that goes along with it. But as a divorce lawyer, I keep the best interests of the client in mind. Trial almost never makes sense.

So it may be that when I finally retire, I will have never conducted a divorce trial. Actually, that is a client-service goal of mine.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

RadioShack Stung in Privacy Suit

Say it ain't so.  RadioShack may have hacked.

In an interesting privacy rights law suit being prosecuted right here in Detroit, in the U.S. District Court for the Eastern District of Michigan, Radio Shack just lost its motion for Rule 12b(6) summary judgment. 
The case, pending before Judge Victoria Roberts, now heads to trial.

The claim is that a RadioShack customer purchased a new cell phone and had his data transferred at a RadioShack store; the old phone was to be recycled.  A RadioShack employee allegedly accessed the images on the customer's old phone, saw some apparently objectionable pics from the customer taken at his place of employment, and in a "Big Brother"-like maneuver, sent the pics to the customer's employer.

The customer was fired and he is now suing RadioShack for violating his right to privacy and for breach of RadioShack's own cell phone disposal privacy policy.

Noting that very little discovery has been conducted in the case, chastizing RadioShack's counsel for raising two seminal "sufficiency-of-the-pleadings" cases in a reply brief, and intimating that questions of fact for a jury may exist, the Court denied RadioShack's motion for summary judgment.  The complete order is here.

One of the fact questions spotted by Judge Roberts was the scope of the consent the customer may have given to the store in accessing his images on his old cell phone. 

Imagine going into a RadioShack outlet to simply transfer your cell phone data [i.e. your digital life as you know it] to a new phone, and you wind-up getting fired because some entry level employee decides to police the content of your data, and forward selected portions of that data to your employer.  My guess is that this case will probably settle, and confidentially. 

In my humble yet professional opinion, RadioShack has some significant exposure on this claim.  At least they would if I was on the jury.

If you think your right to privacy has been compromised on-line and would like a free consultation to assess your potential claim, contact our law firm.

http://www.waterfordlegal.com/

info@waterfordlegal.com

Social Media Presentations for Lawyers Are In Demand

With Lynn Krauss, President
Midland County Bar Association

Over the past several years, I have had the opportunity to address various bar organizations and industry groups on the topics of marketing and legal issues emerging within the social media context.  Lately, my bookings for such presentations have increased.

Lawyers now want to know how to market their wares electronically, and how to avoid the pitfalls.



Yesterday, I presented to the Midland County Bar Association.  They hold their monthly meetings in the spacious, and just-built, clubhouse at the Midland Country Club.

As bar association meetings go, it was a well-attended event.  The MCBA's Treasurer, Eric Larsen, attributed this to the topic he arranged: social medial marketing for lawyers.  Of the nearly 40 attendees, there was an even mix of general practitioners and Dow corporate attorneys.

The discussion focused on how to stay abreast of the constant wave of information; how to manage that information; and how to disseminate select portions of that information for a lawyer's prospects.  Hyper-local marketing was explained.  Tips were imparted on how to rise above the ever-present clutter that always seems to accompany search engine results.

The message in Midland was consistent with my other presentations: to get noticed on the Internet [i.e. Google, Yahoo, YouTube], lawyers marketing on the web need to frequently post relevant content that your target audience will find useful.

Now doing that, while managing a law firm, and actually practicing law, that is the challenge for the modern general practitioner.  More and more, lawyers and catching on to the social media wave.  For many, the good ole "yellow pages" ad is a distant memory.

Upcoming presentations on these topics will include a webinar sponsored by Thompson-West on Thursday, 02/23/2012, at 11:00 am EST.  Also, I will be on a panel of other practicing attorneys at the "Avvocating 2012" seminar in Seattle, WA in May.

Stay tuned as this is an ever-evolving topic.

www.clarkstonlegal.com

info@clarkstonlegal.com

Narcissus Gets a Divorce

Narcissus admires his reflection.

In my decades of divorce practice, I've encountered folks who, if a psychological evaluation was completed, would be characterized as having narcissistic personality disorder.  A few of these peeps have been clients; others have been on the opposing side.

Either way, everyone involved is in for a rough ride.

Over the past several years, "narcissism" has also taken on a connotation-du-jour.  The diagnosis being made by dime-store psychologists (i.e. parties to family court litigation) whenever the object takes an opposing or contrary view. 

What is narcissim, really?

According to the Mayo Clinic, narcissistic personality disorder is "characterized by dramatic, emotional behavior, which is in the same category as antisocial and borderline personality disorders."   A person with this personality disorder may exhibit some of the following characteristics, according to the Clinic:

• Believing you are better than others;
• Fantasizing about your success, power and attractiveness;
• Exaggerating your achievements or talents;
• Expecting constant praise and admiration;
• Ignoring other's feelings and emotions;
• Believing and acting like you are really, really special;
• Taking advantage of others;
• Expecting others to go along with your often super-sized schemes and plans;
• Exhibiting jealousy toward others;
• Believing others are jealous of you;
• Unable to maintain healthy inter-personal relationships;
• Easily hurt or rejected;
• Fragile self-esteem

If you know someone with more than a few of these traits, run.  If you are married to such a person, get ready for the inevitable divorce proceeding when you finally throw in the towel, realizing that your spouse will never change. 

If you are a lawyer representing such a person, affix your chin strap and bring a lunch.

In the divorce context, the narcissist fares quite poorly.  The above-listed features of this personality disorder are routinely identifed and rigorously addressed by family court professionals. 

In this process, the personality flaws of the narcissist are forced itno the lab for a full-on forensic evaluation.  Many of the tools in the family court professional's arsenal will be brought to bear upon the conduct of the narcissist in an effort to force short-term modification, and to achieve a stable platform.

Some red flags that I've gleaned over the years: a narcissist will change lawyers often, blaming the status of the case on the mistakes of prior legal counsel.  Also, the register of actions in the case of a narcissist will often be a mile long, peppered with hearings, motions, and more hearings.

When a narcissist is embroiled in a divorce proceeding, the children are used as pawns.  Any input from the Friend of the Court [either via a referee, family counselor, or social worker] or from a therapist, is rejected; the narcissistic parent must be dragged to court, kicking, screaming and cursing.

In the years leading up to such a divorce, the other spouse will often report being chronically verbally abused and bullied by the narcissist.  In fact, this dynamic will set the initial tone of the proceeding.

The process will next feature a series of attempts, which will take some time, where the professionals try to arrest the insidious and pervasive conduct of the narcissist.  Arrest, but not change; this person will not change.

The other spouse many times will exhibit classic signs of emotional abuse during this painful process: low self-esteem, exhaustion, a desire to give up or give in.  This person needs a strong focused divorce lawyer.

And counseling. 

During the divorce process, the other spouse is well advised to minimize the face-to-face contacts with the narcissist.  If children are involved, then communicate through emails and texts. 

If you feel threatened at home or during parenting exchanges, seek exclusive use of the marital home.  If you are separated, use a neutral transition point for the parenting exchanges; most family court judges will grant such a request simply to err on the side of everyone's safety.

Finally, stay focused on the process knowing that the process will eventually come to an end.  The Michigan Supreme Court has mandated that county family courts conclude divorce proceedings within a year.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Nagging Outstrips Adultery as Primary Engine of Divorce

Toward the end of last month, you may have noted the stir that a WSJ article caused over the issue of nagging and its toxic effect on marriages. The article concluded that nagging may have more potential to bust apart couples than adultery.

As a divorce attorney in the third decade of practice, I’ve witnessed many clients complain about their spouse’s nagging; and about their cheating.  It is impossible to say which is more toxic to a marital union.

Nagging, as a relationship dynamic, is all about a breakdown of communication, and an attempt to reassert control.  The article clearly stated that it was women who did the nagging while men were on the receiving end.  The “experts” interviewed for the article opined that this was because of a woman’s role as a “manager” of the family; meanwhile men tend to, “feel like a little boy being scolded by his mother.”

For their part, women complain that, when they ask about something, they just want it handled. 

Problems arise, however, when a couple takes it to the next level, and begin to argue about the nagging, rather than the root problem.  Communication breakdown.

If a couple, even a committed couple, does not learn how to cope with the dynamic, they often wind up divorced in the long-run.  Professor Howard Markman of the University of Denver, cited and quoted in the WSJ article, says nagging is the “enemy of love”.

The real barometer here is the 400-plus comments on the article; they are hilarious.  Take a look for yourself.

www.clarkstonlegal.com

info@clarkstonlegal.com

How Will Your House of Worship Utilize the SCOTUS Ministerial Exception?

Who among them can be fired?

Earlier this month, SCOTUS issued a unanimous decision in Hosanna-Tabor Lutheran Evangelical Church vs EEOC.  The case holds that a church receives freedom of religion protection under the First Amendment when it comes to employment termination decisions.

This case came about because the school, located right here in Wayne County, MI, fired one of the school's "called", or vocational teachers.  The church utilized both lay teachers, and vocational teachers; the latter being formally ordained by the church congregation and equipped with a "diploma of vocation".

Cheryl Perich started out at the school as a lay teacher, then earned her diploma and was commissioned as a "called" teacher in 1999.  Her problems with teaching at the school began at the start of the 2004 school year when she was diagnosed with severe narcolepsy (sudden deep sleeps from which a person cannot be roused) and placed on disability.

When Ms. Perich attempted to return to school with medical clearance, she was fired.  She filed a claim with the EEOC alleging her firing violated the Americans with Disability Act.  The U.S. District Court for the Eastern District of Michigan agreed with the church school that the so-called "ministerial exception" to our employment laws applied; summary judgment was granted.

On her appeal to the U.S. Sixth Circuit Court of Appeals, the lower court was reversed and instructed to allow Ms. Perich to present her claims that the firing had been retaliatory.

This case was one of the first to be argued before SCOTUS last fall.  Due to the unclear scope of the "ministerial exception", the case received much attention from the legal media and court watchers.

In its decision, SCOTUS ruled that the doors of the courthouse were essentially closed to ministers claiming violation of state or federal workplace discrimination laws.  The decision is now being touted as the most significant church-state ruling from SCOTUS since its 1990 decision affirming a general government prohibition of spiritual peyote smoking by Native American Indians.

The EEOC urged the High Court to limit the application of the "ministerial exception" to employees who functioned in an "exclusively religious function" (i.e. not teachers).  SCOTUS refused to take the bait, with Chief Justice John Roberts, the author of the opinion, characterizing the government's plea as an extreme position.

So now, the line remains unclear.  SCOTUS did not precisely define how far into the church's employee roster the exception goes.

Nevertheless, the Court's decision pointed to significant factors in holding that the exception applied in this case: Ms. Perich was ordained by the church; that she performed "important religious functions" in addition to her mostly secular teaching duties; that she taught a religion class 4-days per week, etc.

Critics of the decision wonder why only the employment discrimination laws do not apply to religious employees of a house of worship.  For example, if a senior minister conducts a campaign of sexual workplace harassment upon a junior pastor, does this decision now bar the junior pastor's claims?

No doubt, there will be more cases in the future that will require the courts to define this exception with more precision.

www.clarkstonlegal.com

info@clarkstonlegal.com

SCOTUS Imposes Warrant Requirement for GPS Vehicle Tracking

Last Monday, the SCOTUS issued a 5-4 decision in what could turn into a seminal 4th Amendment case; United States vs Jones.  The High Court strongly embraced privacy here in the electronic age.

In 2004, Antoine Jones owned and operated a hopping night club in downtown Washington D.C.  His joint was so jumpin, it caught the attention of a joint drug task force consisting of the FBI and the Washington PD.

The task force staked out the club by filming all the action at the front door.  Also, Jones' cell phones were tapped and data dumped.  With this evidence in hand, the task force applied for and was granted a warrant to place a GPS tracking device on Jones' wife's Jeep Cherokee within 10-days and within the District of Colombia.

Problem: the GPS device was placed on Jones' vehicle on the 11th day, and in Maryland.  The vehicle was tracked for 28-days and a case for cocaine distribution was submitted for prosecution based, in part, on the evidence collected through the GPS tracker.

Prior to his first trial, Jones moved to suppress the GPS data; his motion was only granted in part.  The trial resulted in a hung jury.  Jones was tried again, and ultimately he was convicted and sentenced to life imprisonment.

The federal appellate court, the D.C. Circuit Court of Appeals, reversed Jones' conviction and SCOTUS granted the U.S. Solicitor's petition for certerorari.  On appeal, the government conceded to the botched execution of the warrant, arguing no warrant was needed in the first place.

Last November, when the case was orally argued before the United States Supreme Court, the Justices were clearly troubled by the government's argument.  An appellate lawyer can glean a lot about the likely outcome of a case from the questions justices and judges pose, or don't pose, during oral argument.

In Jones, Justice Steven Breyer likened the government's position to George Orwell's 1984, commenting to the Solicitor General, "If you win this case, there is nothing to prevent police or government from monitoring 24-hours a day, every citizen of the United States."

Chief Justice John Roberts wanted to know whether the Solicitor General's argument meant that the government could place tracking devices on the vehicles of the 9 Justices.

The opinions themselves, contain Justices' musings [dicta] on what the founders would have ruled back in 1791, regarding these confounded GPS devices.

Justice Sonia Sotomayor wrote a concurrence taking a broad view of our privacy protections guaranteed by the Fourth Amendment, against the many highly sophisticated new electronic tracking devices deployed by the government.  Justice Anthony Scalia, writing for the majority, tailored a more narrow view of privacy; couching his conclusion on the basic definition of a "search", and clearly demarcating our "expectation of privacy" to include satellite tracking device-free vehicles.  

Flatly rejecting the government's argument that the temporary installation of the GPS tracking device was not a search, the Scalia majority affirmed the DC Circuit's reversal of Jones' conviction, warning authorities they needed a probable cause warrant in order to attach tracking devices.

Other than Sotomayor's concurrence, which does not bind future courts, SCOTUS  did not provide a sweeping enhancement of privacy rights in the electronic age.

Dodging a serious sentencing bullet, life, Mr. Jones is now free to go; his conviction for distributing cocaine stays reversed.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

200 Posts in Two Years

Thanks to our readers, this blog has over 62,000 page views in the nearly two years of its existence.  Since March 2, 2010, we have posted 200 times on legal topics of interest to readers of the Oakland Press' e-paper.

There are literally millions of blogs now on the Internet.  Of these, hundreds of thousands are devoted to legal topics.  The competition for 15-seconds of a reader's attention is keen these days.

We will continue to scour the web, fine-tuning our news feeds for interesting and useful legal information for your regular consumption.

When walking the halls of the various courts in Southeast Michigan, colleagues and judges occasionally mention one of our posts.  Grateful to claim a professional readership component among our followers, we will do our best to post relevant legal content on an ever more consistent basis.

Our view is that as the 21st Century begins to take full root, information, especially legal information, will flow at an ever faster pace.  Legal information is available to the people; it is how that information is managed that counts.

Thank you readers; check back soon.

www.clarkstonlegal.com

info@clarkstonlegal.com

Military Divorces for Returning Soldiers

As our soldiers return from war in the Middle East, many cases of post traumatic stress disorder are becoming manifest.  Often, the PTSD shatters an already fragile marriage, strained to the break point from years long separation.

Many soldiers, having survived the war, come home only to be placed in a trick bag: struggling with PTSD while their marriage falls apart.  To complicate things even more, there are special rules that apply to military divorces.

The psychology of both partners to the marriage is affected by the homecoming.  The state-side spouse absorbed 100% responsibility for managing household tasks, child rearing, education, and all other domestic issues.  A sense of independence may have seeped into the spouse's "mindset" that often requires an adjustment when the other partner returns from war.

For his part, the returning soldier needs time and some space to decompress from war; especially if the individual is not only returning state-side, but also discharging from the armed forces.

If the soldier's deployment was for several years, a spouse may have developed an "interim relationship" which must now be dissolved if the marriage is going to survive.  Many do not.

The Servicemembers Civil Relief Act (SCRA) [formerly known as the Soldiers' and Sailors' Civil Relief Act] is a federal statute that governs issues of defaulted servicemembers and the related stay of proceedings in divorce actions.  One feature of SCRA is that divorcing servicemembers are entitled to have the judge appoint them an attorney in the family court.  Interestingly, however, the statute is silent as to the scope of the appointed attorney's duties and her right to compensation for services rendered.

In a military divorce, support is also governed by federal regulations; each branch of the armed services has promulgated policies in the form of regulations that require the servicemember to provide adequate support for family members.  To calculate support, the servicemember's "leave and earnings statement" must be obtained and deciphered.

To enforce a support order, the support payee must turn to the Defense Finance and Accounting Service.  The DFAS website has references to garnishment resources and information on designated agents.

Custody issues are resolved, for now, in accord with the state laws governing this issue within a divorce proceeding.  Many states have specific provisions within their custody statutes that deal with a servicemember.

Congress, however, has been considering various amendments to SCRA that would federalize custody issues arising within military divorces.  The ABA has prepared a "white paper" on the subject.

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Federal Government Calls for Total Ban on Distracted Driving

Unanimously, the 5 members of the National Transportation and Safety Board called for all states to impose a complete ban on texting, emails, and even cell phone use (hand held or hands free) while operating a vehicle.  The NTSB's little-noted but highly significant recommendation came out before the holidays last month in the wake of a series of deadly car crashes involving distracted drivers.

In one of the crashes, a Missouri teenager caused a death accident after texting 11 times in as many minutes.  There seems to be a correlation between youth and distracted driving which is compounded by the youth's relative inexperience on the road.

Now the question is whether the state legislatures have the political will to outlaw what has become ingrained behavior for most driving Americans.  Even if distracted driving is banned, there is also a question of enforcement.

With all the OEMs producing vehicles outfitted with navigation systems and sophisticated communication software built right into the car, state legislatures will soon have lunch dates with automotive industry lobbyists; for sure.  And then there is the cell phone industry; not likely to stand on the sidelines and watch this type of prohibitive legislation develop.

Here is the legislative breakdown so far, with new laws appearing on the books every year: 35 states and the District of Columbia have banned texting while driving; 30 states have banned all cell phone use by a beginning driver; 9 states have banned hand-held cell phone use while in a car.

The NTSB's firm position is simply that use of electronic communication devices is too dangerous to be allowed anywhere in the United States.  When the NTSB announced the recommended ban early last December, it chairwoman, Deborah Hersman, said, "We're not here to win a popularity contest.  No email, no text, no update, no call is worth a human life."

You got that right sister; you sure got that right.  We will be monitoring the state legislation on this topic and will report back to you with significant developments.

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Child Obesity as a Custody Factor in Family Court

Yesterday, the NBC Today Show featured a segment on family court cases where a parent was mounting a child custody challenge based on obesity.  This past year, I recall hearing much about the subject of childhood obesity, perhaps due to the First Lady's "Let's Move" campaign.

According to a recent report by the Center for Disease Control, childhood obesity affects 17% of our nation's youth; a figure triple what it was just a generation ago.  Now that this is a recognized condition putting on the cloak of yet another national crisis, should family court judges take childhood obesity into account in the custody calculus?

The father featured in the Today Show segment was shown cooking a vegetarian meal for his two preteen children.  He succeeded in his custody ploy to the extent the family court judge modified  custody such that the children stayed at dad's house during the weeks of the school year.

In Michigan, the Child Custody Act sets forth several factors which a family court judge must consider when deciding a custody dispute.  One of these factors is the capacity of a parent to provide food, clothing, medical care or other remedial care.  Arguably, this factor could include how a parent manages a child's diet; particularly if that child is at risk for obesity or is, in fact, obese.


The relative physical health of the parents and the reasonable preference of the child (particularly if older than age 12) could also come into play in a childhood obesity custody case.  A parent's unhealthy lifestyle may factor into the family court judge's calculus.


In come cases, it may strike the judge as unfair to basically penalize a parent for the child's eating habits.  This is a particularly close case where the obesity may be genetic and thus, hereditary.  Also, how far does the family court go?  


The optimal situation, of course, is where both parties co-parent with the child's best interests in mind.  Diet, exercise and lifestyle, however, often do not mesh between divorced parents.


As our nation continues it's struggle against the bulge, the cases of the type featured on the Today Show may pop up with more regularity in the county family courts across the state.  We all want the best for your young children.  Certainly, a good diet is an important component to a good healthy upbringing.

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