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In an unpublished decision released toward the end of last week, the Michigan Court of Appeals found fault with the Wayne County Family Court in a divorce case that touched on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

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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.

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Valid Prenuptial Agreements Require Full Asset Disclosures

Prenuptial agreements, contracts executed in the anticipation of a marriage, have long been validated in Michigan courts.  Generally, there are two contingencies covered in a typical prenuptial agreement: a) the divorce of the contracting parties; and b) the death of one of the parties.

A primary requirement to enforcing a prenuptial agreement is the "special duty" of full disclosure of all assets by both contracting parties.  This requirement was recently examined in a key (but unpublished) decision of the Michigan Court of Appeals.
The case, In the Matter of Kenneth Waller, originated right here in the Oakland County Probate Court.  The case illustrates the risk of executing a "do-it-yourself" prenuptial agreement.

The contract at issue in the Waller case waived the Wife's interest in a statutory share of her husband's estate in favor of the Husband's adult children.  The Wife challenged her Husband's estate at his death, despite her execution of the antenuptial agreement.

The contract was upheld by the probate court judge.  In reversing the probate court, the Court of Appeals focused on the asset disclosure and lack of evidence that any proper disclosure had been made by either party:

Accordingly, fair disclosure is required  under statute and caselaw in the context of
determining whether a prenuptial agreement can be deemed valid and enforceable.  The record indicates that there was no formal disclosure of assets by either decedent or Waller at the time of or before the execution of the  prenuptial agreement, such as through the presentation or exchange of written asset lists or through a verbal communication or declaration electronically recorded so as to preserve proof of disclosure.  The prenuptial agreement itself did not contain an itemization of assets and values,  nor did it indicate that disclosure of assets had taken place.  

Indeed, there is no evidence of even an informal, off-the-cuff discussion between Waller and decedent regarding the nature, extent, and value of each other’s assets prior to the execution of the agreement.  The probate court essentially found that Waller was sufficiently familiar with the assets held by decedent, making it unnecessary for decedent to redundantly disclose his assets to Waller before the agreement was signed, where  the assets had already been effectively “disclosed” to her simply through the evolution of their relationship in which familiarity with each other’s property naturally occurred.  We agree with the principle that if a party challenging a prenuptial agreement was fully aware of the other party’s assets and their value at the time of execution, an argument that there was a failure to fairly and formally disclose assets should fail; the purpose of a disclosure is to make a party  aware of what he or she may be giving up in signing a prenuptial agreement.

The Court of Appeals held that under such a record, the (rebuttable) presumption of non-disclosure should have been applied to invalidate the prenuptial agreement in that case.

Also, the Court of Appeals placed significance on the lack of a financial statement or schedule of assets.  These are typically attached to the antenuptial agreement.  This way, there can be no claim, as in the Waller case, of a failure to disclose, or a triggering of the presumption of nondisclosure.

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Michigan's Parole Process Explained

From time to time, our appellate clients asking about the parole process.  One way or another, incarceration and parole affects all of us; adding significant costs to maintain our freedom.

An effective criminal justice system depends on the ability of that system to reintegrate the overwhelming majority of convicted felons that have served their bit, back into some semblance of productive society.

The purpose of this post is to explain Michigan's parole process to our readers.  Whether you are a tax paying citizen, or someone with a direct connection to the MDOC, the costs and procedures affect everyone.

Here are the basics...

The Parole Board.
The Parole Board in Michigan was recently reduced in 2011 from 15 members to the current 10 members. The parole board members are appointed by the Director of the Michigan Department of Corrections (MDOC). The Board is the sole paroling authority for felony offenders committed to the MDOC. Members serve 4, 3, and two year terms. Regular meetings are convened by the board to assess and decide parole applications.

The Parole Eligibility Report.
A felony offender must serve the minimum sentence with the MDOC prior to becoming eligible for parole. A Parole Eligibility Report (PER) is prepared on behalf of the applicant by a staff member of the MDOC. This report informs the parole board of the background of an inmate-applicant, and makes sure the applicant's parole file is complete.

The PER also makes recommendations to the parole board for each applicant, taking "misconduct" tickets and the prior criminal record into account. The generation of this report is a critical step in the parole process.

If an applicant has not completed all of the requirements set forth in the judgment of sentence, or if his file is otherwise incomplete, this is noted in the report and parole will be denied.

The Parole Board's staffers use the PER to score a prisoner's parole guidelines. These statutorily-mandated parole guidelines form the backbone of the parole process.

The Parole Interview.
Upon submissions of a prisoner's PER, the prisoner is eligible to participate in an informal and non-adversarial interview with one or more Parole Board members assigned to the prisoner's parole panel. After this interview, a Case Summary Report is generated for the Parole Board's review.
This interview is an excellent opportunity for the prisoner to address members of the board, face-to-face, in order to make a positive impression on his candidacy for parole. The prisoner can address major misconduct tickets, and explain how and when he plans to complete any missing training requirements in order to enhance his eligibility for parole.

Of course, in a perfect world, the prisoner will have completed all required components set forth in his judgment of sentence. This is why good lawyering is so important at the trial phase of the accused's case. Corrections to the presentence investigation report must be made in the lower court as this is the “bible” relative to the prisoner as far as the MDOC is concerned. An inmate will be forced to live within the confines of any errors unless they are corrected on appeal within the timelines set out in the Michigan Court Rules.

Transition Accountability Plan.
Under the Michigan Prisoner Reentry Initiative, the Parole Board and the MDOC are required to formulate a Transition Accountability Plan (TAP) for each prisoner facing parole eligibility.
The TAP serves the dual goals of assisting the prisoner with re-entry into our society, as well as assisting the Board with its parole decision. The TAP identifies specific risk factors for a particular inmate, sets goals relative to minimizing the identified risks, and sets forth a specific plan to help the inmate meet the established goals.

The Parole Board’s Broad Discretion.
In making decisions on parole, the Parole Board has very broad authority to decide the inmate's fate. Nevertheless, the legislature has imposed some restriction on the Board's parole decisions.
For example, the Board must follow the regulatory framework summarized in this post. Also, in no case will a prisoner be granted parole unless and until the Board is satisfied the prisoner will not become, "a menace to society or to the public safety."

In exercising its discretion, the Board takes into account a prisoner's remorse for having committed the offense for which he is incarcerated, his overall mental health, and his "social attitude". A healthy positive attitude is what it takes to achieve parole status; but that is a difficult attitude to acquire and portray from within the grim walls of a prison. The inmate seeking parole must toughen his resolve to acquire and maintain the proper attitude, shutting out all competing negative factors.

Returning to Society.
A prisoner's fate lies squarely within the hands of the Parole Board. At a minimum, the process described above must be followed to the "T". The most important factor beyond having all of one's required sentence components completed, including the payment of restitution, is the adoption and maintenance of a strong positive attitude.

Recidivism is a plague to our society and costs all of us dearly. The Parole Board's job is to identify likely re-offenders and keep them locked-up for the duration of their sentence. This is the cost to society for safety and the enjoyment of our freedom. If the parole process works, prisoners can attain parole, complete parole, and re-join the ranks of law abiding citizens.

Resources.
The Michigan Court of Appeals published an opinion last month, People vs Haegler, explaining the nuts and bolts of the parole board in the context of the appellant-prisoner's CSC conviction and failed attempts at parole.

Some attorneys specialize in parole and probation consultations, assisting clients with the preparation and correction of their initial presentence reports, as well as with the parloe process.  Professional Parole Consulting is such an outfit located in Detroit, MI.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

The Dragon Suicides

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.

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Michigan Court of Appeals Rules State Clerk Must Testify in DWLS Cases

In a 2-1 decision, the Michigan Court of Appeals recently ruled that a certificate mailed to a state driver, notifying him of his suspended license, is "testimonial" as that term is used in the constitution thus, the Secretary of State must produce it's clerk at a trial for driving on a suspended license.

The case, People v Nunley, arose in a district court in Washtenaw County.  The prosecutor attempted to introduce notice of the defendant's suspension, without calling a clerk from the Secretary of State's office to lay the proper foundation for the entry of that key document.

Both the district court and the circuit court denied the prosecutor's request to admit the document of suspension; a key element in any DWLS case.

The Court of Appeals panel reasoned that because the prosecutor must establish that the motorist received notice as an element of the crime, it held that introduction of the actual notice document, without producing the necessary foundational witness, violated the accused's right under the Sixth Amendment to the U.S. Constitution to confront and cross examine all witnesses.

In a well-reasoned 7-page dissent, Presiding Judge Henry Saad concluded that the notice was not "testimonial" under the analysis of seminal U.S. Supreme Court caselaw.  Judge Saad characterized the notice as merely "administrative" and emphasized that, when the notice was sent to Mr. Nunley, no crime had yet been committed [i.e. Nunley had yet to drive on his newly suspended license].  As such, the notice could not be testimonial in nature.

The result of this decision is that the prosecutor must now secure the appearance of the state clerk from Lansing in order to obtain a DWLS conviction.  Should the administrative costs of securing a conviction alter the analysis of the accused's constitutional right to confrontation of witnesses?  We think not.

The Washtenaw County Prosecutor has promised further appeal to the Michigan Supreme Court.

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Underfunded Courts Will Erode Justice

This granite courthouse in the Bronx took a decade to
build (1905-1915) and has been abandoned since 1978.

Achieving justice in the United States is never a given.  There are many factors that affect an outcome in the courthouse: the relative skills of the attorneys; the time a matter takes to get to trial; the personality of the judge; the backlog of the judge's docket.

One factor becoming increasingly important in the determination of justice is the funding [or lack thereof] for the judiciary.

Here in Michigan, there are budget-conscious proposals to eliminate trial judges, court of appeals judges, and to shrink the Michigan Supreme Court from 7 to 5 justices.

Referred to as the weakest branch of government in the Federalist Papers due to its inability to control either sword or purse, the judiciary must now fight for its fiscal life here in America, both at the federal level, and on a state-by-state basis, as legislatures scramble to shrink all government budgets.

Here in Oakland County, the county executive, Brooks Patterson, runs a very tight fiscal ship.  He has demanded that the courthouse balance its budget; in turn, they have accounted for nearly every penny spent in the courthouse, saving wherever possible.

Patterson's plan has meant a slow attrition among the corps of judicial clerks and other court staff.  At the Oakland County Probate Court, this has translated to juggled counter hours and longer lines.  Overall, however, the Oakland County Circuit Court's service to the public has not suffered.  How long, we wonder, can this continue?

If you have not been to the Macomb County Circuit Court in a while, don't plan your business for the afternoon if it's a Tuesday or Thursday; the clerk's office will be closed.

Elsewhere, courts have not fared nearly so well.  In California, for example, $350 million has been cut from the county trial courts since 2009, with even more cuts due by the end of the year.  The Economist reported last week that up to 48% of California's county trial courts could be rendered insolvent by the state's budget crisis.

One result of the cuts to courts in California is lengthening the time an uncontested divorce takes to process through the court system; from 6 to 18 months.  Trained court staff is needed to process such cases without delay.

In New York, the judges, not having seen a legislated pay raise since the turn of the century, have sued the political branches of their state government.  In Ohio, the Morrow County Municipal Court went to a 4-day work week in 2009 and stopped taking new cases for filing because the county failed to requisition sufficient paper.

Some quick stats compiled by the American Bar Association regarding the state of the state judiciaries:

• 26 states have stopped filling judicial vacancies; 
• 34 states have stopped filling judicial clerkships; 
• 31 states have frozen judges' or clerks' salaries; 
• 14 states have closed courts during weekdays; and 
• 3200 courthouses have been characterized as "physically eroded" or "functionally deficient".

According to ABA, "the underfunding of the judicial system threatens the fundamental nature of our tripartite system of government."  To borrow a cliche that also captures the spirit of this problem: "justice delayed is justice denied."

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Oakland County Re-Visits Medical Marijuana Drama

The Oakland County Sheriff's interpretation of the Michigan Medical Marijuana Act (MMA) and the Controlled Substances Act has forced two local marijuana facilities to lock their doors.  One of the pot-growing operations, Big Daddy's Hydro, in Oak Park, closed voluntarily; the other facility, right here in Commerce Township where this blog post is being composed, was the subject of a task-force raid.

The Oakland Press ran a front-page story on Saturday about Big Daddy's Hydro.  The facility was on the receiving end of an Oakland County Sheriff's raid back in January.  Since then, the owners were resolved to carry on their operation; an operation they insisted was legal under the MMA.  Sounds like a movie might be in there somewhere.

Before Hollywood came knocking to negotiate the movie rights to this true crime drama, however, Big Daddy's in Oak Park locked its doors.  The decision was based on the observations of its management group that "patients" were being shook down on the street after leaving the facility.  Also, it did not help that four members of the management group were charged with distribution felonies by the Oakland County Prosecutor.

Big Daddy's is consolidating pot growing and distribution operations into their Chesterfield Township facility in Macomb County, and in Detroit.  Therefore, Big Daddy's alleged violations of the MMA or the Controlled Substances Act are now in the hands of Prosecutors Eric Smith and Kym Worthy.

The more recent raid on the Commerce Township facility presents an example of an increasingly sophisticated approach to medical marijuana enforcement by the Oakland County Prosecutor.  This bust was executed by a joint task force with a federal component; the DEA.  [Remember, marijuana remains illegal in any form under federal law.]  Also, the Sheriff has commented publicly that the facility violated the Controlled Substances Act, not the MMA.

Criminal defense attorney Neil Rockind was quoted in the Oakland Press yesterday as saying, "They can try to describe it any way they want.  I know what happened...and if they want to pursue a case then I'll be there."  Yeah, sounds like Neil; never one to shy away from high-stakes criminal defense litigation.

The Michigan Court of Appeals handed prosecutors a serious weapon when it issued its People v McQueen decision last month.  The published, thus binding, decision of the Court of Appeals runs a lance through most MMA distribution schemes; at least if those involved want to make any money from their elaborate growth and distribution operations.

This brings us back to the intent of the medical marijuana referendum that passed overwhelmingly by Michigan voters in the 2008 election.  The MMA is designed to encourage a "grow-your-own" and "trade-among-friends" approach to distribution.

From the outset, those involved in growing pot have been looking to make money from the provisions of the MMA.  Because the Act is silent on pot sales, a legal debate has, er, cropped-up about whether distribution via sale is permitted or proscribed by the Act.

Also, as the Law Blogger has pointed out time and again; the premise of patients getting medical attention from marijuana, although legitimate in a number of cases, is a complete sham in the overwhelming number of patient-care provider relationships.  This scam will likely bring down the MMA in the end.

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Medical Marijuana Lawyer Seeks Further Appeal on Dispensary Case

This blog has covered the recent Michigan Court of Appeals decision in Michigan v McQueen which outlawed medical marijuana dispensaries as well as patient-to-patient pot sales.  This appeal is the latest chapter in the pot drama that has gripped our state since the passage of the referendum that legalized medicinal marijuana by a convincing 3/4 popular vote in the 2008 election.

Our readers may recall that the oral arguments in this appeal were the subject of some fanfare when journalist Eric Van Dussen sought to record the arguments, as he did in the People v Anderson medical marijuana case.  Jurisprudence in the making is certainly newsworthy; particularly when it concerns our fledgling yet tortured medical marijuana law.

Now this appeal grinds onward to the Michigan Supreme Court.  So promises Matthew R. Newburg, legal counsel to the Michigan Association of Compassion Centers, appearing as an amicus in the case.

The Court of Appeals granted Van Dussen's request to record the argument on behalf of the media; granted the Attorney General, also an amicus, 10-minutes of appellant's oral argument time; but denied Mr. Newburg's request to get in on the action at oral argument; his 10-minutes [of fame] will have to wait for another case, unless the Supreme Court grants his application for leave to appeal.

The Compassionate Apothecary claims it was simply operating a "club" of about 345 legal pot growers who "traded" various strains of medical marijuana.  In exchange for making a clubhouse available for its pot aficionado membership, Compassionate Apothecary took commissions off the top of all intramural marijuana transactions.

The intermediate appellate court ruled that the act does not authorize such commissions or transactions.  The Isabella County Prosecutor has mailed the appellate opinion to all marijuana dispensaries in the county;  advising them to cease any operations that contravene the appellate court's decision.

Going beyond the bald mechanics of his client's business model, however, Attorney Newburg told Michigan Lawyers Weekly that the MMA expressly provides for transfers from caregivers to patients and also allows patients who "grow-their-own".   The Apothecary's legal counsel also noted that the MMA is silent regarding so-called "patient-to-patient" transfers of the type that apparently went down at the club.

With those arguments in hand, the Compassionate Apothecary now proceeds to the Michigan Supreme Court.  Given the mess that this law has become, the High Court may actually take the bait and grant the Apothecary's application for leave to further appeal so they can sort it all out.

We will follow this one as it develops.  Even if the High Court declines this case, there are others building up behind it that are equally, er, "newsworthy".

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Medical Marijuana Dispensaries Ruled Illegal by Court of Appeals

Yes, the ballot proposal writers hired by our pot lobby handed criminal defense lawyers a gift-horse when they wrote-up the Michigan Medical Marijuana Act.  Just how are folks supposed to get their marijuana anyway?

A 3-judge panel of the Michigan Court of Appeals has reversed an Isabella County Circuit Judge that had denied the county prosecutor's request for an injunction that would close down the local Compassion Apothecary; a medical marijuana dispensary.  After this decision, consider the Apothecary closed.

The sole issue decided in the case was whether the MMA provides for the "sale" of medical marijuana.  The Court of Appeals said, "no".  That was a foregone conclusion under any plain reading of the provisions of the Act.

Anyone reading the MMA will note that the referendum writers, in their wisdom, provided two ways for "patients" to obtain their, er, "medication".  Either you "grow your own", or you get your pot from a certified care provider who can only service 5 patients at a time with an overall limit to the total number of marijuana plants on the premises.  The MMA is silent, however, on dispensaries; nor does it provide for transfer by sale.

The Compassion Apothecary [BTW, even the name of this dispensary was illegal so they changed it to "CA"] is a membership-based collective designed to distribute a continuous supply of marijuana to certified patients.  The Apothecary  operates a locker system whereby patients and care providers pay monthly fees for both membership in the collective and use of a locker.

The CA is a "no grow" and "no smoke" facility.  Patients can inspect [see, smell and touch] a wide variety of marijuana strains prior to purchase.  The pot price is set by the care provider; the CA takes a 20% "service fee" on the transaction.

Sounds like an organic "win-win" right?  Wrong.  The collective ran afoul of the law, according to the Court of Appeals, as the MMA does not allow patient-to-patient sales or transfers.  Also, the Court held that the CA illegally "possessed" the marijuana under both the Public Health Code, and the MMA.

Accordingly, the Court of Appeals concluded that the CA could be shut down on the basis it was a "public nuisance" as contended by the Isabella County Prosecutor.  Case closed; the CA dispensary, and all others like it, are out of business by operation of this published, thus binding, decision of the Court of Appeals.

While the CA huddles with its attorneys to decide whether to take further appeal to the Michigan Supreme Court, Michigan Attorney General Bill Schuette applauded the decision as a much needed patch on a law that "has more holes than Swiss Cheese."   AG Schuette told the Detroit News that the MMA has been "hijacked" by folks looking to profit from pot sales and by unscrupulous doctors issuing bogus patient certifications.

This blog has long-held the view that the MMA is a poor law.  The Act does not square with the reality that many qualified "patients", perhaps even a majority, once endorsed by Michigan's DCH, smoke pot recreationally, not medicinally.

Some "On-the-Take" physicians conduct cursory reviews of an applicants' medical records in their assessment of a claimed chronic or debilitating medical condition, as required under the Act.  Schuette is looking to criminalize bogus physician certifications.  We're certainly behind that legislative initiative; good luck Bill.

Whenever a law is based on a fiction, as this one is, our jurisprudence suffers.  As AG Schuette correctly points out, too many folks are equating legalization of marijuana with the medicinal use of marijuana.  In this decision, the Court of Appeals removes this stubborn disconnect.

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Biological Father Cannot Parent His Law School Love Child

They were students at Cooley Law School in the late 1990s.  She was married; he was from Buffalo, New York. 

Their long-term adulterous affair eventually led to the birth of a child in 2002.  Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state.  For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast.  The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state.  Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad.  All three parties sought summary disposition of the paternity issue.  Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan.  The case hinged on the definition of a child born "out of wedlock".  The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution.  In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance.  She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court.  Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation.  Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved.  For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity.  The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.

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Court of Appeals Rules that MERS Cannot Foreclose Via Advertisement

Do you know if MERS owns your home?  MERS [you know, the Mortgage Electronic Registration System] has been getting drawn deeply into the nationwide mortgage meltdown.

The Michigan Court of Appeals recently handed MERS some more bad news here in Michigan: they cannot foreclose by advertisement because the COA ruled they do not hold an interest in the indebtedness under the applicable Michigan statute.

In the 2-1 decision in Residential Funding Corp v Saurman, two cases were consolidated which posed the same legal question: whether the mortgagee, MERS, could foreclose by advertisement rather than filing a foreclosure lawsuit (a "judicial foreclosure"). 

The respective home owners in these consolidated cases each defaulted on their mortgages.  MERS instituted non-judicial foreclosures by advertisement, as permitted by statute.  The properties were then purchased by MERS at sheriffs' sales.  At this point, the respective homeowners from Kent and Jackson Counties, challenged the foreclosures on the basis that MERS could not foreclose via advertisement as they did not fall within the definition of a "mortgagee" under the statute.

Just what is MERS?  The Saurman opinion provides a good clean glimpse.  According to the Court of Appeals:

MERS was developed as a mechanism to provide for the faster and lower cost buying and selling of mortgage debt.  Apparently, over the last two decades, the buying and selling of loans backed by mortgages after their initial issuance had accelerated to the point that those operating in that market concluded that the statutory requirement that mortgage transfers be recorded was  interfering with their ability to conduct sales as rapidly as the market demanded.  By operating through MERS, these financial entities could buy and sell loans without having to record a mortgage transfer for each transaction because the named mortgagee would never change; it would always be MERS even though the loans were changing hands.  MERS would purportedly track the mortgage sales internally so as to know for which entity it was holding the mortgage at any given time and, if foreclosure was necessary, after foreclosing on the property, would quit claim the property to whatever lender owned the loan at the time of foreclosure.

In the 1990s, the early challenges from county officials throughout the nation to the MERS system of high-speed and cheap securitization went unnoticed in favor of the mortgage lending industry.  Remember Andy Jacobs and his World Wide Financial ads?

As the MERS system of speed collateralization took off, it developed a process of instant deputization, where thousands of loan officers received “certifying resolutions” in minutes via the Internet. These financial deputies or, in some cases "agents", were authorized to process mortgage transfers and foreclosures on behalf of MERS.

As usual, all good things come to an end.  This blog chronicled the unraveling of MERS in an earlier post.  This Michigan Court of Appeals' decision, published thus binding on circuit courts, is just the latest in a series of legal losses for the corporation.

All this has the board of directors of the Virginia-based MERS Corporation very nervous. MERS is a private mortgage registry database that has essentially replaced our nation’s tradition of publicly stored land ownership records. MERS’ CEO, R.K. Arnold, among the founders of the corporation, jumped ship in January.

Like the banking system, however, the mortgage lending system cannot simply fall apart.  This is a developing problem you will be hearing more about in the months and years to come.

In the meantime, if you are experiencing mortgage payment difficulties in Oakland County, the Oakland County Treasurer has partnered with GreenPath Debt Solutions, the United Way and others to establish the Oakland County Foreclosure Prevention Initiative.   Simply click on this link or call (888) 350-0900 for assistance with the eviction process or to speak with a certified housing counselor.

For the scholars among our loyal readers, the University of Cincinnati Law Review has published a comprehensive article on MERS' intimate relationship to the mortgage industry and the contemporary foreclosure process.

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Retired Wayne Circuit Judge Heading to Trial as an Accused Defendant

It remains one of the biggest cocaine busts in Michigan history. Over 100-pounds were seized by the Inkster Police Department in early-2005. So much cocaine, it literally stunk-up a courtroom in the Frank Murphy Hall of Justice; Judge Mary Waterstone's courtroom.

The case was so huge, Judge Waterstone feared her courtroom, and the cast of characters surrounding it, would be overwhelmed. Her instincts were correct as the case has gone South for everyone.

Fast-forward 6-years. Judge Waterstone, the former Assistant Wayne County Prosecuting Attorney, and the Inkster police detective in charge of the original case are heading to trial next month on perjury-related felony charges of their own before Wayne Circuit Judge Timothy Kenny.

The original cocaine distribution charges alarmed now-retired Judge Waterstone. In the ensuing investigation which engulfed her, Judge Waterstone has gone on record stating the assistant prosecutor was in way over her head, that she didn't trust the drug dealers' high-profile attorney, that the case should have been charged in federal court, she feared for her own safety and for the safety of her staff, and she feared the witness-for-the-prosecution (a paid confidential police informant) would wind-up dead.

Alexander Aceval and Ricardo Pena were jury-tried on possession and distribution charges related to the massive cocaine haul. During trial, Wayne County Assistant Prosecutor Karen Plants sought an ex-parte meeting with Judge Waterstone, advising the judge that her police witnesses were lying to the jury.

The mechanics of the bust involved the informant, while in touch with the Inkster Police, transporting the cocaine from Aceval's "J Dub" bar in Riverview, with Aceval following in his own vehicle. Police took-down both vehicles but did not charge their informant. At Aceval's trial, the police apparently provided false testimony as to whether they knew or had been in contact with their informant.  Nor was the jury told that the informant was to receive a 10% commission from the forfeited funds generated in the bust upon Aceval's conviction.

Hearings had been conducted (in camera) at the request of Aceval's attorney seeking the identity of the police informant. Judge Waterstone, confident that an informant did exist, ruled that the identity of the informant was an issue that could not be raised at trial before the jury.

When she learned of the officers' perjured testimony, Waterstone says she faced the dilemma of protecting the informant's life; believing the defendant's attorney, James Feinberg, could not be trusted with such information.

Around the time of Aceval's trial, attorney Feinberg was making headlines elsewhere, representing one of the most notorious drug gangs in Detroit history; the so-called "Black Mafia Family". Once the Aceval trial got underway, Judge Waterstone observed that attorney Feinberg's obvious strategy was to simply ignore her order regarding the confidential informant's identity, and pursue a line of questioning designed to put the police witnesses "on the spot" relative to their informant.

Perplexed by the law enforcement perjury, with death threats lodged in the case from the outset, the prosecutor (with Waterstone informally kept in the loop) consulted with the Wayne County Prosecutor's renowned appellate-chief, Timothy Baughman, who recommended using a separate sealed record of the prosecutor advising the judge on the particulars of the perjured testimony, then continue with the trial.

Both the judge and the prosecutor are now second-guessing that decision as they head into their own trial(s). Ironically, Judge Waterstone subsequently lamented to investigators that rather than follow Baughman's suggestion to continue with the trial, she wished that she had consulted with fellow-judge Tim Kenny, who is now presiding over her trial and could ultimately sit in judgment of his former colleague on the bench.

When Judge Waterstone stepped-off the case, her successor, Judge Vera Massey Jones, un-sealed the in camera hearing transcripts which revealed the prosecutor's decision not to object to known perjured police testimony to avoid "telegraphing" the informant's identity.  Judge Waterstone endorsed the decision, stating: "I think the CI (informant) is in grave danger.  I'm very concerned about his identity being found-out."

In the meantime, Pena was jury-convicted and Aceval's initial trial resulted in a hung-jury before Waterstone. Aceval's second trial ended when he pled guilty to possession of cocaine with the intent to deliver.  He was sentenced by Judge Vera Massey Jones to 10 to 15 years prison.

Aceval appealed his guilty plea conviction which was affirmed by the Michigan Supreme Court just last December.  Of note in the Supreme Court's decision, former Justice Maura Corrigan declined to take part in the case, indicating that she may be called as a character witness on Judge Waterstone's behalf.

The case against Waterstone, the prosecutor and the cops is being prosecuted by the Michigan Attorney General due to the obvious connections with the Wayne County Prosecutor's office.  Last Friday, more than twenty pre-trial evidentiary motions were argued before Judge Kenny in the lead-up to the trial, scheduled (firmly) for March.

This case impugns the very integrity of our criminal justice system.  The final result will not be clear until all the dust from the trial and subsequent appeals finally settles.

For our part, we will convey the significant developments in the case in this blog; stay tuned.

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Dr. Dre Is In the House; The Michigan Supreme Courthouse

Honigman Miller's top-notch First Amendment lawyer, Herschel Fink, seems to get all the great cases; at least in my humble opinion.  Today, Fink argued on behalf of Rapper Dr. Dre before the Michigan Supreme Court while Dre's high-powered Los Angeles legal counsel was listening to Mr. Fink from the Court's well-appointed counsel's table.

This case has been up and down the court system here in Michigan for ten-years.

The dispute goes back to Dre's last Detroit concert in July 2000 at the Joe Louis Arena.  Dennis Archer was the Mayor, but was out of town.  Dre was on his infamous "Up in Smoke" tour along with Eminem and Snoop Dog.  The boys had cooked up a racy video deemed inappropriate by the Detroit Police for the youngsters expected to attend the show.

Police commander (and later City Council President) Gary Brown and other police officials met with Dre's concert promoters backstage prior to the show and advised that power to the show would be cut if the explicit video was shown.  After some haggling, and perhaps some arm twisting, the promoters talked the performers to go on with the show, sans intro. The exchanges were openly recorded by a tour film crew.

When the tour moved North the next day to the Palace of Auburn Hills, word had leaked to authorities in that community that the Detroit Police successfully canned the objectionable video intro by threatening to cut power to the event.  The tour went to federal court, that day, and obtained an injunction from U.S. District Court Judge Nancy Edmunds to prevent any interference with the show on behalf of the police.  The show at the Palace featured the explicit video introduction.

The tour left Michigan, and the promoters sued Detroit and settled for their attorney fees.  Former Mayor Archer issued a public statement that conceded the possibility of an unconstitutional "prior restraint" on behalf of the Detroit Police officers, and recognized the federal court injunction that was subsequently issued.

Six months later, Dre and his producers released a DVD of the tour with some bonus tracks which included a 10-minute segment titled, "Detroit Controversy".  This segment depicted some of the heated exchanges between Commander Brown, the DPD, City officials, and the tour promoters at the Joe.

The officers sued on eavesdropping and other tort theories and saw their case summarily tossed-out by the Wayne County Circuit Court.  The officers' first appeal to the Michigan Court of Appeals resulted in an affirmance of the summary disposition, except on the eavesdropping claim.  The intermediate appellate court said dismissal of that claim was premature as discovery had not been completed.

The case was sent back to the Wayne Circuit Court to complete the discovery process.  The additional evidence simply showed the Detroit government officials and police conducting the meeting in "public" areas backstage; doors open and hangers-on gawking.

Even after this so-called "additional evidence" was adduced and discovery finally closed, the Wayne Circuit Court again granted summary disposition in favor of Dr. Dre and the concert promoters; the case again was appealed by the officers to the Court of Appeals.

In a 2-1 decision, the Court of Appeals voted to again remand the eavesdropping claim back to the trial court.  Before the case could go back to the trial court for the second remand, however, the Michigan Supreme Court granted the promoters' application for leave to appeal.  Briefs were filed, and oral argument was conducted today.

The issue to be decided by the High Court is whether law enforcement officials have an expectation of privacy in carrying out their public duties.  Plaintiffs, the government officials and police officer, claim there was an agreement the meeting would be private and that the cameras were "hidden".  Also in-play in this case is the role of the ubiquitous video recorder and the instantaneous world-wide transmission potential of it's digitized content.

For those interested in drilling further into this case, Attorney Fink's appellate brief, complete with several instructive backstage photos, is reproduced here; the police officers' brief is attached here.  Warning:  although well-written, these briefs are not light reading.

We cannot help but wonder what the former Detroit Police commander and other public officials want out of this case.  Money damages from a deep-pocket gangsta rapper?  Exposure from such a high-profile case?

It sure seems to us from the photos in the Appellants' brief, and from the facts set forth by the Court of Appeals, that the core-incident in this case involved a very public meeting about the government's exercise of a "prior restraint".

We will follow this case as it grinds to a conclusion over a decade in the making.  Stay tuned.

Michigan Court of Appeals Judge Brian Zahra Elevated to Supreme Court

Judge Brian Zahra

Justice Maura Corrigan’s resignation last week left an important vacancy at the Michigan Supreme Court at the outset of Governor Rick Snyder’s tenure.  Justice Corrigan's seat was replaced today with the appointment of long-serving Court of Appeals Judge Brian Zahra.

As this blog has noted over the past 18-months, the dissention among the liberal and conservative justices on our High Court has become public, and nasty.  While Judge Zahra is certainly a conservative judge, he has a legal scholar’s temperament and strong work ethic.  He assumes Justice Corrigan’s seat, and the balance of her term, at a time when the Court has seen some embarrassing escapades and needs a rapprochement.

Judge Zahra was a law school classmate of this Blogger at the University of Detroit School of Law in the mid-1980s.  On Thursdays after class, Zahra would get us into the Polish Falcon Club in Detroit to play basketball.  Back then, he took the law very seriously, graduating at the top of our class as one of the editors of the law review.

 

Already well-known in Detroit’s tight GOP circles by the time he graduated  law school in 1987, Zahra was made partner during a brief stint at the downtown office of the Dickenson Wright law firm.  Almost as soon as he was promoted to partner, he accepted an appointment to the Wayne County Circuit Court; courtesy of then-Governor Engler.  Shortly thereafter, he was again-appointed by Engler in 1999 to the Court of Appeals where he won re-election.

Politics aside, Judge Zahra is an excellent selection for the Michigan Supreme Court.  Ideologically, he is not too different from departing Justice Corrigan.  Like her, Zahra has solid work habits and a strong sense of public service.  Former Detroit Mayor and Supreme Court Justice Dennis Archer describes Zahra as a "moderate" conservative, "not an idealogue".


Here is Justice Robert Young's official statement on Zahra's appointment to the bench.  Also, the Free Press editorialized the appointment.

  

We think the newest justice has an excellent opportunity to quell the public discord within the Hall of Justice that has received embarrassing national attention over the past year.  We are more accustomed to seeing such rancor down the street, where the two political branches attempt to govern the state.

 

Congratulations Justice Zahra.  May you long-serve the High Court in good health. 

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100th Post - Thank You Readers!

We here at the Law Blogger would like to thank the Oakland Press, and our readers for the opportunity to disseminate our posts on the developing legal issues of our day, as they occur.

On average, this blogs receives 75 daily page views.  Sometimes, readers are motivated to comment.  The comments tendered often provide a fresh look at the subject from a completely different point of view.  They also provide insight into how we've treated a subject.

We value your comments.  Please keep them coming.

Interestingly, in our two-year history of 100-posts, the one about Cooley Law School's sponsorship of the former Oldsmobile Stadium received the most comment from readers.  Although posted back in February, we still receive the occasional comment on that post.

This blog first posted on March 30, 2009.  The topic was a Michigan Court of Appeals decision to address a parenting dispute between a lesbian couple.  Since then, the blog has featured many posts on the same-sex marriage issue.  Other recurring themes have included the Michigan Medical Marijuana Act, decisions of import (in our opinion) from the Michigan Supreme Court and SCOTUS, the Second Amendment, the Fourth Amendment's search and seizure case law over the past two years, family law issues, and many other topics we hope that you find useful, or at least interesting.

In the posts, which we try to keep relatively brief but of a varying length, we link to original documentation whenever possible.  Also, we make every effort to get out at least two posts each week; three posts if possible.  Some of your comments have expressed approval of this model.

There are a sea of blogs out there on every topic imaginable; particularly legal topics.  We hope that the fleeting time you have to spend checking your various news feeds throughout the day is worthwhile when you alight upon our blog.

With the lighting-fast pace of developments on the Internet, -newsfeeds, social media, aggregated search tools, mirco-blogs- some of the pundits now wonder if blogs have been relegated to the "old school".  Not so, says one of the premire law bloggers, Kevin O'Keefe.  His recent post emphasizes the importance and value of a good law blog.

Most law students and legal professionals now keep current with developments via subscriptions to various law blogs.

As always, if you have any suggestions or comments, we welcome you to post your ideas to this blog, or by contacting us electronically.

Above all, thanks again for taking a moment to read our posts.  Without you, the reader, this blog is nothing.

For our part, we aim to keep the fresh, relevant legal content posted to this blog.

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Michigan Supreme Court Affirms Father's Child Support Obligation Even When Parental Rights Terminated

There has been some buzz among family law practitioners this week concerning the Michigan Supreme Court's decision in the DHS vs Beck case.

Earlier this year, we posted on the Michigan Court of Appeals decision that held a father, whose chronic drugging resulted in the complete neglect of his children and termination of his parental rights, nevertheless remained obligated to pay child support for his two children.  The published Court of Appeals decision was just affirmed by the Michigan Supreme Court.

This case arose from the Oakland County Family Court; it was Judge Martha Anderson that initially terminated Mr. Beck's parental rights while also affirming his obligation to pay child support.  Both parents had been abusing drugs so their two children were placed with grandparents.  For her part, the mother  got straight, and otherwise complied with a DHS parenting plan; she now has the children.

The Supreme Court's Beck decision is remarkable in that it is the first decision to be issued by the Court in the current term.  Also, although the decision affirms the holding of the Court of Appeals, it does so on grounds different then those relied on by the intermediate appellate court.

The father in Beck did not appeal the termination of his parental rights; only the family court's ruling that he remained obligated to pay support for his children.  On appeal, the father argued that he was denied due process because he was arbitrarily deprived of his property (i.e. his support payments).  Like the intermediate appellate court, the Supreme Court was not convinced, ruling that the father failed to articulate how, exactly, his due process rights were implicated.

One of the issues to arise in the Beck case was that the parental termination provisions of the Juvenile Code are silent as to the corresponding "parental responsibilities".

The Court analyzed the rights and duties implicated by a family court's decision to terminate parental rights while continuing to obligate support payments.  Michigan common law has long established a minor child's right to support from both parents.  The appellate courts also recognized a parent's right to the "companionship, care, custody and management of his or her children."

In affirming the Court of appeals, the Supreme Court not only separated parental "rights" enumerated in the juvenile code, from the duties set out in the Child Custody Act, it also held that parental rights contained in the Custody Act were distinct and thus independent from the duties created by that same Act.

Of note in the dicta of the Court of Appeal's decision was an express acknowledgment of the current "times of difficult financial circumstances."  The Beck panel realized that in such difficult economic times, public policy is served by not shifting all support and maintenance obligations onto the custodial parent or, in some cases, the state.

This is the right decision.  If getting high is more important to a father than parenting, the rest of us should not have to pick-up the slack for that father and supply public benefits for such a man's children.  He should pay as well, even if he can no longer see his children.

Such are the choices we make in life.

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