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.

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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.

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Prisoner Has No Right to Miranda Warning During Prison "Investigation"

Homemade Prison Shanks

I have appellate clients doing time at the MDOC's Carson City Correctional Facility in Montcalm County.  One summer day a few years back, when I had just cleared the facility, a gang fight broke out in the yard which led to warning shots being fired from the gun tower and a 2-day lockdown.

Last month, the Michigan Court of Appeals decided a case involving the MDOC's attempt to get to the bottom of those gang disputes.  In the process, the intermediate appellate court touched on the nerve of an accused's right to have legal counsel prior to making statements to police.

In People v Cortez, the defendant, a prisoner at Carson City, underwent a cell shake-down which yielded two shanks from around his bunk.  Cortez was removed to a segregation unit and subsequently interviewed by an MDOC official who attempted to obtain information from the inmate relating to where the shanks came from and who was behind the gang violence.

In his statement, Cortez initially denied any knowledge of the shivs, then had a change of heart and told all, providing details about the gangs and the shivs.  He was charged with two counts of prisoner in possession of a weapon.

At his jury trial [yes, he utilized his right to crank-up a jury trial], Cortez's lawyer attempted to keep out his statements on the basis they were made during a custodial interrogation but without the benefit of Miranda warnings.

You remember Miranda v Arizona; the seminal criminal procedure and constitutional law case from the 1960s SCOTUS, requiring police to provide an accused suspect of his right to remain silent and to obtain a lawyer prior to answering any questions.

Anyway, the Court of Appeals upheld the trial court's decision to allow the MDOC official testify about his questioning of Cortez; the questioning was characterized by the prosecutor as designed to elicit information about the gang violence within the facility and not to obtain evidence of Cortez's guilt.  Cortez's SADO attorney argued that the questioning was clearly intended for use in his subsequent prosecution.

The Court of Appeals held that Cortez was not entitled to Miranda warnings on the basis that he was not in "custodial interrogation" when he was, er, "interviewed" by the prison official; that the prison official was not the equivalent of the state police, nor was he acting on behalf of the state police, who later took over the case;  that the MDOC official's sole concern was prison safety, not gathering evidence against Cortez.

So, within the confines of a prison at least, an accused should not expect to be provided the seminal warnings that a police officer normally would provide about having a right to remain silent and to speak to an attorney before answering questions.

Hopefully, the holding in the case will be restricted to the context of the prison setting.  We don't want safer prisons at the expense of our constitutional rights out here in "the World".

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SCOTUS to Hear Michigan Case on Plea Bargain Process

This week I had a 3-day jury trial. When it was completed, I walked out of the courthouse but my client did not.

In such criminal cases, at the brink of trial, it is common that the plea discussions give an accused serious pause. Rejection of a reasonable plea offer can result in significantly more time in prison thus, the stakes are high.

The counsel-driven plea process is at the heart of a Michigan case up for oral argument this week at SCOTUS: Lafler v Cooper. The case comes from the Wayne County Circuit Court; straight out of the Frank Murphy Hall of Justice.

The female victim in the case was shot 4-times by Anthony Cooper: twice in the buttocks, once in the abdomen, and once in the hip.  She survived these gunshot wounds.

Cooper's lawyer rejected a plea offer that would have capped his prison term to the lower end of his sentencing guidelines on an attempted murder charge.  The offer was rejected on grounds that the medical evidence in the case would demonstrate that Cooper was only trying to maim his victim; not kill her.  Counsel pushed for a reduction of the charges to assault with intent to do great bodily harm.

Well, as I've learned over the past two decades: "good luck with that..."

After his jury trial conviction, Mr. Cooper was sentenced to 135-360 months in prison.  On appeal, he raised a claim that he received ineffective assistance of counsel during the plea bargain phase of his case in contravention of his rights under the Sixth Amendment to the U.S. Constitution.

With his appeals exhausted in the state courts, Cooper filed a petition for Habeas Corpus in federal court.  The federal court ruled that the state appellate court erred by not accounting for the "affirmatively deficient advice" of Cooper's trial counsel in rejecting the prosecutor's initial plea offer.

The remedy: the federal court ordered specific performance of the initial plea offer: i.e. a 50-month prison term.  Understandably, the prosecutor appealed hence, the case now resides on the SCOTUS docket.

We will keep an eye on this one for you as it implicates how defense counsel handles the all-important plea bargain process.  So stay tuned...

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SCOTUS Opens Term with First Amendment Case from Michigan

The church can fire its priest, but can it fire the altar boy?

The case of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC is one of the first cases to be argued in the 2011-2012 SCOTUS term that opens today in Washington D.C. This First Amendment freedom of religion case arises from an employment dispute at a now-defunct church in Redford, MI.

The issue in the case is the scope of the long-recognized exception to the federal employment discrimination laws when it comes to hiring or firing the clergy for a church, synagogue, or mosque.  This so-called "ministerial exception" has been recognized by all 12 federal appellate courts with the authority to hear such cases, as well as the supreme courts of 10 states.

The rationale behind the exception is that religious organizations, under the freedom of religion, should be allowed to make their own decisions about hiring and firing clergy, without concern of the normal anti-bias laws.  The question to be argued before SCOTUS on Wednesday morning is how deep into the staff and the payroll this ministerial exception goes.

Most religious institutions want the freedom to make all staffing decisions without concern for federal employment law; not just decisions relating to the pastor, the priest, the rabbi or the imam.  They are pushing for a flat-out ban on all anti-bias laws for any staffing decisions.

The Solicitor General asserts that, to the extent it is recognized, the church's interpretation of the exception is too broad.  Church staff members, the federal government will argue, are protected by federal and state employment laws.

The Hosanna-Tabor Church case involves a parochial school teacher who was fired allegedly because of her numerous disability-related complaints; the claim is that her firing by the church-school was retaliatory.  If the High Court considers her to be the equivalent of a clergy member, then she cannot seek the shelter of the Americans with Disabilities Act; if she is deemed to be a mere staffer, then she is entitled to protection under the applicable laws.

SCOTUS has seen disputes akin to this in prior petitions.  One of the reasons the Redford, MI church's petition may have been selected is because it was prepared and filed by University of Virginia Law School's Professor Douglas Laycock; one of the nation's leading experts on church-state law.

Our First Amendment jurisprudence continues to grow ever richer.  Stay tuned for the result.

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New Apps Flood Lawyers With Information

Attorneys, perhaps more than any other professionals, are awash with information; information about their cases, information about changing laws, a constantly shifting schedule.  The pace with which the information now flows can only be described as instantaneous.

The manner in which a lawyer collects, stores and utilizes this information is a good indicator of that lawyer's professional skill.  In this era of a 24/7 stream of digitized information, mobile devices are beginning to offer specialized apps for lawyers.

Here are some examples:

SCOTUS App.  The Oyez Project has just launched an app that will download U.S. Supreme Court activity to your mobile device.  This will include digitally recorded oral arguments, text of the High Court's decisions, as  well as media coverage and analysis.  Pretty cool, to be sure; but is this information-overkill?  Why not just wait until you get back to your computer?

Mobile Transcript.  This app allows you to download, manipulate, summarize, and transmit deposition transcripts right from your mobile phone.  Great for when litigation data must be processed fast.  Try using this while on vacation, however, and you will likely need to hire a divorce attorney.

Family Law Apps.  Speaking of divorce, there are plenty of divorce-related apps in both the Droid and iPhone markets.  For those residents of Gotham, there is an app to calculate your child support, there are apps to save your marriage; apps to stop your divorce; apps to help you win custody and, or course, apps for various forward-leaning divorce attorneys and law firms.  Exhausting, to be sure.


State Bar App.  Useless here in Michigan, but perhaps a harbinger, the Maryland State Bar Association has produced an  app that downloads their rules of evidence, rules of professional conduct, and bits of professional philosophy right to your handheld device.  Can the SBM be far behind?


Law Blog Apps.  In a case of life imitating art, or perhaps this is best described as lawyers taking themselves too seriously, the blawg "FutureLawyer" announced on Tuesday that there is an app available to download their tech-related posts directly to your mobile device.  As if you just could not live without their updates; now you can digest their posts about the latest tech developments while you wait for your case to be called; could have used this App today.

In 18-months, most of these current apps will be considered obsolete.  The thing about high-tech is that products are constantly being improved.

Soon, you will be able to go to your doctor and just get a "chip" implanted into your skull; that way you'll have all the world's latest data right under your hood.  

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Violent Video Games Are Protected Free Speech Says SCOTUS

On the final day of the 2010 term, as their long summer break beckoned, SCOTUS issued a notable decision involving the regulation of video game content.   Brown v Entertainment Merchants Association is a 7-2 decision invalidating California's ban of violent video game sales to minors on the grounds that such regulation is an unconstitutional restriction on protected free speech.

So now, when California's pre-teens are committing untold violent capital felonies in Grand Theft Auto, at least they will not be breaking the law in the real world.

Under the First Amendment, SCOTUS held that such speech is protected, even if expressed in the format of a violent video game available to minors.  Therefore, the state regulation of such speech would be subjected to a reviewing court's "strict scrutiny".

Under such a standard, California's video game regulation did not survive.  The SCOTUS decision affirms the 9th Circuit's opinion, reaching a similar conclusion that, like books and plays before them, video games are a valid and recognized form of free expression in our society, cloaked with all the protections of the First Amendment.  Such free speech protections do not vary with a new and different medium of communication.

The High Court was unpersuaded by California's rationale that interactive video games posed a special problem by the child's participation in the outcome of the violence depicted on the screen, and therefore required content-based restrictions.

This is one of those "in your face" moments of Americana.  It seems that, if left to our own devices, our multi-faceted talents and diverse commerce-based culture will unerringly produce this stuff for mass public consumption.

Some of the legistlators on the left coast tried to regulate the content of such expression, at least where minors were concerned.  Well, our babies gotta grow-up sometime; why not inject them at an early age with a serious dose of interactive urban crime or intergalactic slaughter. 

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New York Becomes 6th State to Legalize Same-Sex Marriage; California Next?

Albany, New York.  Last night, in a 33-29 vote, the New York Senate passed a same sex marriage bill expected to be signed into law by Governor Andrew Cuomo.  When this bill is signed by the governor, who lobbied for its passage, New York becomes the sixth state to legalize gay marriage.

A similar bill was defeated in New York in 2009.  The governor's persistent lobbying; some key Republican donors; an essentially absent Catholic Church; and voting senators that had gay family members, all factored into passage of the bill late Friday night.

Meanwhile, on the left coast, the seminal case from California continues its epic journey to the SCOTUS.  Perry vs Brown (formerly known as Perry vs Schwarzenegger) involves California's passage of Proposition 8 which banned gay marriage after it previously passed muster with California voters.  A conservative group sued in federal court; the ban was struck down, and the federal trial court's decision is now on appeal before the Ninth Circuit.

Judge Vaughn Walker, the now-retired federal court judge that initially struck down Proposition 8, publicly came out as a gay man only after his recent retirement.  His ruling was immediately challenged based on grounds of bias, becoming the first judge in history to be challenged for recusal on the basis of sexual orientation.  The chief judge of the federal bench in San Francisco upheld Judge Walker's ruling.

Connecticut, Iowa, Massachusetts, Vermont, New Hampshire, and the District of Colombia are jurisdictions that all have previously legalized same sex marriage.

This has become the civil rights issue of our time.

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SCOTUS: No Right to Attorney in Child Support Civil Contempt Proceeding

As the High Court's term comes to an end this week, SCOTUS is issuing opinions by the day.  One of those announced this week was the South Carolina case involving a father's contempt proceeding for failure to pay his child support.

The case, Turner v Rogers, involved a series of contempt proceedings conducted in the family court.  Father failed to pay his support, so he was repeatedly jailed, once for a 12-month stint.  Neither father nor mother were represented by counsel in the proceedings.

The case wound its way through the South Carolina court system.  By the time the case arrived at the SCOTUS, Turner had long-completed his 12-month stint in the county jail.

SCOTUS, in reversing his conviction, nevertheless held that a person involved in civil contempt hearings, as a matter of Due Process, was not entitled to an attorney.  The reasons for this are because the opposing party is not the state but rather, the mother of the children.  Also, the High Court found that in such proceedings, Due Process is satisfied by providing the support payor with a form to elicit financial information, providing him notice of a hearing, and by conducting a brief hearing on the payor's finances relative to his obligation.

In this case, Turner's conviction was reversed (even though he completed his jail stint) because he was not provided with a financial disclosure form, was not provided an attorney, and the family court erred by failing to make relevant factual findings that father was able to make the support payments when it found him in contempt.  Basic stuff.

Here is a piece of scholarly criticism of this SCOTUS decision in the blog Concurring Opinions that has already shown up in the blogosphere.

Bottom line: pay your child support obligations.

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SCOTUS Orders the Release of More than 45k California Felons

Photo Credit: LA Times

In a hotly contested 5-4 plurality decision that will surely go down as one of the more controversial cases of this decade, SCOTUS affirmed the 9th Circuit Court of Appeals in ordering the release of more than 45,000 California felons.  The decision will precipitate the largest release of prisoners in American history.

Brown v Plata began it's marathon crawl through the federal court system in 1990, when a case was filed challenging the poor status of mental health treatment in the California prisons.  Then in 2001, a companion case challenging the medical care of prisoners was initiated.

These consolidated cases have everything, from a procedural standpoint.  For example, a "special master" first was appointed by the federal court to make findings about the prison conditions.  The State of California stipulated to violations of the Eighth Amendment's prohibition of cruel and unusual punishment and agreed to remedy the problem by reducing overcrowding in the prisons.  Next, when remedial measures fell short, or did not occur, the court appointed a receiver to oversee the California Department of Corrections.

The cases were even assigned to a special three-judge panel to oversee the CDC's progress; or lack thereof.

Justice Anthony Kennedy wrote the majority's opinion, finding that prison conditions had gone too far for too long.  The opinion provides a few slices of life in the CDC like sharing a toilet with 55 of your good buddies, or doing your entire four-year bit in a sweaty gymnasium. 

The always-conservative Justice Antonin Scalia opined that the majority's decision was "absurd", noting that SCOTUS routinely overruled 9th Circuit decisions that called for the release of individual prisoners.  Justice Scalia sees grave problems that will come home to roost from the Plata ruling.

In a separate dissent, Chief Justice John Roberts wrote that the majority's decision conflicts with a federal law which prohibits judges from releasing prisoners.

The one thing SCOTUS gave the State of California was time.  California has busied itself with transferring thousands of state prisoners to county jails across the state.  This will not amelioriate the entire problem, however, and some of California's "happy-go-lucky" [Scalia's characterization] felons will wind up on the streets.

This High Court decision brings into focus the inherent tension between our individual freedoms and enforcement of the laws.  There is a constant tension between the two concepts.  Sometimes, that tension cycles to the breaking point like in California, where too many law breakers are stuffed into concrete boxes that are ready to explode.

In Michigan, although we are far behind California in maxing-out our prison capacity, we have an awful lot of population encased in concrete and barbed wire.  In fact, we have the opposite problem.  Due to budget cuts, we have at least one brand new facility, in Lake County, sitting empty due to lack of funding.

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High Court Rules Religious Mom Cannot Homeschool

Admittedly, the New Hampshire Supreme Court's recent decision favoring public school over homeschooling by Mother does not bind any of the courts in our jurisdiction.  Nevertheless, the ruling is instructive for anyone wrangling with family court issues.

This blog tracked the dispute in an earlier post as the case was submitted to the High Court following oral arguments.

Here are the basic facts: Post-divorce, Mother was homeschooling her daughter over Father's objection.  The religious component of Mom's in-home curriculum gave Dad indigestion, so he made an appointment with his divorce lawyer.

The family court appointed a Guardian Ad Litem to review the matter and make a recommendation to the judge.  The GAL concluded that public school was in the best interest of the minor child and so ruled the family court judge.

On appeal, Mother broadly challenged the judge's power to do so, raising a host of religious-based First Amendment arguments. The NH Supreme Court affirmed the family court on narrow grounds, finding that within the context of this particular dispute, the family court's discretionary powers were properly exercised in favor of what it determined was in the best interests of the parties' daughter.

The "best interest" determination included attendance at the local public school.  The child was ordered to progressively integrate into the public school curriculum, starting with three 5th grade classes.

Some readers will recognize this dynamic.  In his petition, Father alleged that due to the Mother's religious-based schooling, and through a complete immersion into Mother's church, daughter became withdrawn from Father's world (i.e. his new wife and child).  His officially stated fear was that his daughter was becoming isolated within Mother's home, and within her church, and this isolation was preventing her development.

For her part, Mother proclaimed that the additional contact between Father and daughter, and daughter's introduction into the public school system had a negative impact on the daughter, and that daughter (along with Mother) was suffering "extreme difficulty" with the court-ordered lifestyle modification.

In the end, the NH Supreme Court was not persuaded by Mother's high-flying, SCOTUS-citing First Amendment arguments.  The High Court ruled that it was the mandate of the family court to call the balls and strikes in this parenting dispute.

I, for one, feel very sorry for this now-confused little girl.  Not only is she being thrust, perhaps too late, into the main stream of our culture, she is also contending with her Father's new family; all within the context of her Mother's teachings, such as they are.

When parents have joint legal custody but cannot agree on basic issues of schooling and domicile, it is one of the saddest specters in the modern family court.

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SCOTUS Erodes Witness Confrontation Requirement

This case was straight out of Detroit.  Anthony Covington was lying next to his car at a gas station, shot in the stomach, bleeding out, but still alive and speaking with the Detroit Police.

Just before he died, he identified Rick Bryant as his shooter.  Bryant's subsequent conviction, based largely on the dying man's identification, went all the way to the SCOTUS and was decided last month.

Conviction affirmed; and in the process, one of the many exceptions to the hearsay rule is broadly expanded at the expense of accused persons everywhere.

The 6-2 decision in Michigan v Bryant erodes the confrontation clause of the Sixth Amendment requiring that all witnesses against an accused be brought to court.  Surprisingly, Justice Sotomayor wrote for the majority; Justice Giinsburg recused herself; and just as surprisingly, Justice Scalia wrote in dissent.

This case is significant to the extent that it allows police officers to testify at a trial about what an out-of-court (i.e. hearsay) witness said when that witness is no longer available for purposes of cross-examination and in-court confrontation.  Whether a dying man's declaration comes into evidence at a criminal trial depends on the "testimonial" nature of his utterance.

Prior SCOTUS decisions have addressed this problem.  Until now, two domestic violence cases established each end of the continuum.

In the well-known case of Davis v Washington, the declarant's statment -made during a 911 call- was admitted because the emergency was ongoing when the statement was made.  The presence of the emergency made the statement non-testimonial and thus, admissible in court even though the declarant was not present at the trial.

On the other hand, when a statement is made after the emergency is extinguished, as in Hammond v Indiana, then such a statement is clearly testimonial; that witness must be brought into court, or the statement is excluded from trial.  The witness in Hammond made her statement from the safety of her home during a subsequent police visit. 

The Bryant Court constructs a complicated two-perspective test to determine the "testimonial" nature of a dying man's declaration.  A reviewing court must now consider both the declarant's primary purpose in uttering the statement, along with the recipient's purpose in receiving the statement.  Say what??

Writing for the dissent, Justice Scalia, not usually a champion for the defense but an ardent supporter of the confrontation clause, thinks the question "is an absurdly easy one".  The murder victim from Detroit, in his last breath, was telling the Detroit Police who shot him so they could apprehend the shooter; not to stop any "emergency".  Therefore, the statement was testimonial in nature and should not be admissible in court according to Scalia's analysis.

Seems like each year SCOTUS issues at least one decision from Detroit and the surrounding area that has a local murder at issue.  Last year it was Warden Berguhis v Thompkins; this year it's Rick Bryant's case.

Kinda sad that we're known for the laws that get spawned from these murders.

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The Cost of Free Speech

"For the past 20-years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America's military."  So reads the first line of today's 8-1 SCOTUS decision in the Snyder v Phelps case.

By now, the story is familiar to all of us: Albert Snyder's son, Marine Lance Corporal Matthew Snyder, was killed in action in Iraq.  Nearby Corporal Matthew's funeral, members of the Westboro Baptist Church protested, with many members of the congregation carrying anti-gay and anti-america signs.

Albert Snyder sued in federal court (pursuant to diversity of citizenship jurisdiction - when each party is from a different state), claiming the intentional infliction of emotional distress.  A jury awarded Mr. Snyder over 12 million dollars.  The Eleventh Circuit Court of Appeals reversed the verdict on First Amendment grounds.

In affirming the 11th Circuit, the High Court stressed the particular set of facts, as developed by the parties to the dispute.  Key among those facts were that the church protesters advised the police of their planned protest in advance, and obeyed all the restrictions (i.e. staying 1000 feet away from the funeral) placed upon their gathering.

The lone dissenting justice, Samuel Alito, characterized the speech as a "vicious verbal assault" that did not merit First Amendment protection.

Only the hardened zealots among us would condone the disruption of the funerals of our nation's soldiers by protesting against gays in the military with such cheap attention-grabbing tactics.  Justice Oliver Wendell Holmes perhaps said it best:

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought we hate.

Chief Justice Roberts ultimately concluded, along with seven other justices, that the church members were legally allowed to be proximate to the funeral and say what they had to say.  The following excerpt from Roberts' decision perhaps best captures the spirit of Justice Holmes in the sanctity we place on freedom of speech:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible….Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and– as it did here– inflict great pain.

Even particularly controversial, virulent and inflammatory free speech remains free; regardless of content.  In upholding the First Amendment in Snyder, the first case sited by Chief Justice Roberts was to the seminal case of Hustler Magazine, Inc vs Jerry Falwell.  That case, from the early 1970s, pitted the evangelical preacher against America's iconoclastic pornographer.

In order to be truly free, the content of our speech simply cannot be regulated by government.  There cannot be a "heckler's veto".

This case belongs to the progeny of the flag burning case from the 1990s and the Nazi march through Skokie, IL from the 1980s.  Each of those forms of controversial speech was protected back in its day; this is just the latest incarnation.

For the scholars among our readers, the oral arguments for this case are at this link.  Definately worth the hour to listen; you get a real feel as to the judicial persona of the various justices.

The Silent Justice

Supreme Court Justice
Clarence Thomas

SCOTUS pundits are not expecting Justice Clarence Thomas to ask any questions during the balance of the Court's term, which ends in June.  And why should they?  Justice Thomas last asked a question during oral argument in a February 2006 death-penalty case; he's been silent ever since.

Rather than interact with the lawyers appearing before him, Justice Thomas has acquired the odd habits of slowly rotating in his leather chair in the famous courtroom, staring at the ceiling, examining his nails, while listening to the lawyers' oral arguments and the questions from his more engaged colleagues.  When I was sworn into the SCOTUS bench last term, I witnessed this peculiar behavior from the jurist first-hand.

In 1991, when President Bush (41) needed to replace the retiring Justice Thurgood Marshall, a giant on the High Court, he was looking for a conservatively-minded jurist.  Aside from those required credentials, President Bush had to select someone to follow Justice Marshall's distinguished tenure.  Before ascending to the SCOTUS bench, Marshall successfully argued the seminal Brown v Board of Education case, which abolished the "separate but equal" fallacy in the public school context.

Bush's short-list began and ended with Clarence Thomas, who had only very recently been appointed to the federal appellate bench for the D.C. circuit following a solid career in the EEOC during the Regan-era.  He had never argued a case before the SCOTUS.

But who could forget, on the other hand, how the sordid Anita Hill fiasco tarnished the selection process for the high court?  And what about last month's story about unpaid taxes on his joint return with his wife?   Well, never mind all that, as his is a job-for-life.

In noting Thomas' half-decade of "taking-up space" on the Court, Adam Liptak observed in the NYT:

His attitude toward oral arguments contrasts sharply with that of his colleagues, who seem to find questioning the lawyers who appear before them a valuable way to sharpen the issues in the case, probe weaknesses, consider consequences, correct misunderstandings and start a conversation among the justices that will continue in their private conferences.

As an appellate practitioner, that's exactly what you hope to get out of oral argument; that is how our common law is supposed to get forged.

Staying silent for so long sure seems like an ineffective way to occupy one of the more significant seats on the most storied bench in the land.

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Has Accused's Right to Effective Assistance of Counsel Been Expanded by SCOTUS?

Since 2009, I have served as a roster attorney for the Michigan Appellate Assigned Counsel System (MAACS). While a MAACS roster attorney hones his knowledge of the many facets of criminal law in the appeal context, most assignments involve assessment of yet another guilty plea appeal. No glory in that, to be sure.

Many of the guilty-plea appeals involve the Sixth Amendment issue of ineffective assistance of counsel. Often, youthful offenders claim they are forced by trial counsel to "take a deal" that they later regret. Rarely do these claims have merit. In almost every case, the Michigan Court of Appeals is not persuaded that the accused youth tendered anything but a knowing and voluntary guilty plea.

The mantra of the trial court taking the plea comes to mind: "Are you pleading guilty here today because you are guilty of this offense?"  The accused, sheepishly, states in the affirmative.

Last year, however, the SCOTUS decided Padilla v Kentucky. The case reversed the conviction of a legal immigrant on the basis of ineffective assistance of counsel where the accused was not properly and fully advised of the immigration consequences of his guilty plea.  Padilla was told not to worry about deportation because he had been in the country so long.

The Padilla case has drawn much attention among scholars of the criminal law; not for its immigration component, but for how it has expanded the scope of a lawyers duty to advise their clients of all the myriad consequences associated with their plea.

These consequences go far beyond the mere risk of incarceration and fines.  The potential "collateral" consequences could an individual's right to obtain a loan, obtain insurance benefits, bear arms, to vote, serve on a jury, serve as a foster parent, to participate in particular professions, terminate pension benefits, determine where a person can live, result in the loss of child custody, and in the case of sex crimes, doom the individual to a near lifetime of onerous registration requirements.  This is but a partial listing of the potential consequences.

Difficulties certainly arise for the lawyer facing her client's guilty plea.  The collateral consequences associated with the plea are often scattered across the Michigan Penal Code, and the federal statutes.

Defense counsel is often oblivious to this trap-laden universe.  The courts are wholly unconcerned with consequences to a plea that they do not impose.  For their part, prosecutors are not troubled with matters outside their direct control.

Add to this the fact that Michigan's court-appointed defense counsel advises the accused on nearly a pro-bono basis, and you have the makings for a constitutional catastrophe; or at least an imminent collision with the Padilla holding.

In the Internet-Age, as the number of people with criminal records have increased, so has the ability of employers, educators, lenders, and landlords to gain direct access to those records.  This makes obtaining legal advise as to the collateral consequences of a guilty plea all the more compelling.

Lawyers will have to be sharper than ever as they ambulate across the minefield of the criminal case.  Keep your eyes wide open has always been a trait of the best criminal defense attorneys.

Related story in Sunday NYT:  No sooner was this post uploaded when the Times published a story on the problem with monitoring people that once had the right to carry a weapon, but lost that right due to a felony conviction.

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SCOTUS Reprise: Stripper's Estate Gets Second Oral Argument

Money isn't everything, right.  Yet here is SCOTUS, taking a close second look at the money.

A case involving a Texas Billionaire's massive estate and a washed-up model turned stripper is on the SCOTUS docket for oral argument today, for the second time.  You recall this case.

The estate of former Guess Jeans model whose, er, "married" name was Vickie Lynn Marshall, and who worked under the name Anna Nicole Smith, has carried on the lawsuit she filed shortly after J. Howard's death in 1995 at age 90.

Plenty of eyebrows were raised and family feathers ruffled in 1994 when Mr. Marshall took Smith as his third wife.  Then he died and the lawsuits began.

And these lawsuits have just not stopped, despite (and perhaps because of) the fact that all the litigants have died.  Anna Nicole Smith died in a drug overdose in 2007, shortly after the U.S. Supreme Court reversed an unfavorable decision for Smith issued by the U.S. Court of Appeals for the Ninth Circuit.

The case involves the scope of federal jurisdiction, eventually engulfing three separate court systems. At his death, Marshall had long established a trust estate plan leaving everything to his son, E. Pierce Marshall, who was also named trustee of the trusts.  Smith contested the trust plan, asserting that Marshall told her he would leave a portion of his estate to Smith.

What would have been a simple, although large, Texas county probate tussle went federal when Ms. Smith was hit with a default-judgment for, of all things, sexual harassment.  She filed for bankruptcy in California and her deceased husband's trustee-son claimed non-dischargability along with libel for statements Smith allegedly made against the decedent.  Smith counter claimed in the bankruptcy court for interference with her husband's estate plan.

Now hang with me on this....

The federal bankruptcy court not only dismissed the trustee's claim, it awarded Smith nearly half a billion dollars on her counter claim, finding that Marshall's son did interfere with his father's testamentary wishes.  This ruling was taken to the U.S. District Court where Smith's award was reduced to a paltry $88 million.

In the meantime, in an entirely separate proceeding, a Texas probate jury found that the decedent's estate plan was valid, ruling against Smith.  These decisions were then considered by the Ninth Circuit who invalidated the federal district court's award to Smith, holding that the Texas probate court had exclusive jurisdiction over such matters.

SCOTUS disagreed back in 2006, reversing the Ninth Circuit and holding that some issues tainted by state probate court could legitimately find their way into federal court via a properly raised bankruptcy-related issue; i.e. Smith's counterclaim.  The High Court then remanded the case back to the Ninth Circuit for a determination on the merits of that claim.

On those said merits, the Ninth Circuit again ruled against the stripper.  Again, the stripper, this time through her estate because she had died, appealed to SCOTUS who once again granted certiorari.  Responding to her claims is the estate of E. Pierce Marshall, who died shortly after Smith.

And now, viola, oral argument, chapter two is here today.  Stay tuned for the result.

This time, the issue concerns the very nature of federal jurisdiction and the constitutional powers (under Article II of the Constitution) of the federal courts; delving even deeper into that subject than the first go around. For a more detailed analysis of this case, SCOTUS expert Lyle Denniston has put together an excellent oral argument "recap" published on the SCOTUSblog.

Regardless of how the High Court rules, the lesson we take away from this suit is that money drives the bulk of all litigation.  Sometimes justice is just roadkill in the process.

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Michigan Supreme Court Justice Maura Corrigan Resigns to Head DHS

Justice Maura Corrigan

In the first business-day of the new year, a significant development is unfolding at the highest levels of government for the State of Michigan.  Michigan Supreme Court Justice Maura Corrigan is expected to resign from the Court in order to serve in newly-minted Governor Rick Snyder's cabinet; most likely as the Director of the Michigan Department of Human Services.

This gives us pause on several levels.  The first consequence of Justice Corrigan's resignation is that it provides the new governor, deemed a political "moderate" along the lines of William Milliken, with his first opportunity to appoint a justice to the high court.

Governor Snyder's first appointment comes at a time of acute dissension at the High Court.  The Court has long been divided along ideological lines with a tightly held conservative majority of 4 justices often opposing the 3 more liberal justices over the past decade.  While some of the players have changed over time, the 4-3 conservative majority on the Court has remained relatively constant for many years.  Justice Corrigan has always led her conservative colleagues, authoring many business-friendly decisions and opinions tending to favor law enforcement in the criminal law.

Some of the acrimony within the Michigan Supreme Court has spilled from their conference chambers into the public in the form of scathing dissents in several decisions, and a recent letter-censure of fomer-Justice Betty Weaver back in November.  Justice Corrigan was among the five Justices signing the censure letter. 

The consensus among Michigan's appellate bar is that Governor Snyder's appointment will end-up as a critical "swing-vote" on the several critical decisions awaiting argument and decision in the current term of the High Court.

One of Justice Corrigan's recent opinions of note was the case of People v Smith; a case involving an African American criminal defendant's challenge to his murder conviction, handed down by an all-white jury selected from a nearly all-white jury pool.  Justice Corrigan's opinion affirming the conviction (and reversing the Court of Appeals decision that had remanded the case back to Kent County for a new trial) was upheld by a unanimous U.S. Supreme Court decision in Berghuis v Smith.  Justice Ruth Bader Ginsburg, the author of the SCOTUS decision, characterized Justice Corrigan's handiwork as "cogent".  High praise for a conservative state justice coming from a Clinton-era SCOTUS appointee.

Another highlight in Justice Corrigan's distinguished jurisprudence is her opinion (5-2) in Glass v Goeckel, granting Michiganders the right to walk along the beaches of the coastline of our Great Lakes.  A controversy had arisen from the intermediate appellate court's decision in a case from Up-North holding that citizens could not walk along the beaches of the Great Lakes but rather, could only walk in the water; difficult, if not impossible along many stretches of the lakes.  In overturning the intermediate appellate court, Justice Corrigan's opinion cited both Roman law and portions of the Northwest Ordinance.  She also faced eleventh-hour vigorous dissents from her colleagues Stephen Markman and Robert Young, Jr.

Perhaps Justice Corrigan's most enduring accomplishment, in addition to her life of selfless public service, is her leadership role in bringing about the completion of the Michigan Hall of Justice; a beautiful courthouse which serves as the home of the Michigan Supreme Court and the Lansing office of the Court of Appeals.  Having argued in that Court on several occasions, I've noted that you could land a plane on the counsels' tables.

A second major consequence of Justice Corrigan's job-swap is even more political.  If she assumes the directorship of the Department of Human Services, she will head the agency tasked with providing public assistance and child and family welfare assistance to Michigan's poor.  The DHS has over 100 county offices throughout Michigan.

In the Great Recession era, the DHS has been swamped with families and individuals seeking aid; over one million open cases were logged by the agency last May.  Also, the agency is being sued in federal court over its track record of protecting children.  The imminent appointment of a receiver for the agency apparently was forestalled by Justice Corrigan's appointment.

With Governor Snyder getting elected and taking office on a firm promise to immediately reducing the state's nearly two billion dollar budget deficit, you don't have to be a genius to "do the math" on this one.

So let's sit back and see how this one plays out, as the ripple effect from the election spreads throughout our Great Lake State.

Update:  Since the original version of this post, Justice Corrigan and Governor Snyder have made Corrigan's appointment as Director of DHS official.  Recognizing the difficult task at hand, Governor Snyder has apparently promised Corrigan, and the federal judge, 600 new-hires to replace the more than 1000 experienced workers mothballed via former Governor Granholm's retirement inducements. 

Former Justice Corrigan has a huge and important challenge ahead.  Michigan's poor and its underserved children stand to benefit.

For another take on this subject, check out fellow Oakland Press blogger Tim Skubick's post.


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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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California's Same-Sex Marriage Ban Grinds Along in the Ninth Circuit

This Law Blog has been tracking the same-sex marriage case out of California.  We covered Perry vs Schwarzenegger in an earlier post detailing the players and the issue framed in the constitutional law suit that originated in a federal court in San Fransisco.

Since our last post on this topic, the trial court judge issued a lengthily opinion last August, ruling that California’s Proposition 8 was unconstitutional, enjoining further enforcement.  Proponents of the marriage ban appealed to the Ninth Circuit.

The U.S. Ninth Circuit Court of Appeals has stayed the trial court ruling, however,  while the appeal is pending.  Recently, televised oral arguments were conducted on the case before a 3-judge appellate panel.  


Federal appellate arguments are rarely, if ever, televised; testament to the national interest in the case.

The federal appellate court appears to be trying to figure out what, exactly, should be the scope of their ruling.  Most federal judges, particularly appellate judges, eschew rulings that become broad constitutional pronouncements.

According to the SCOTUS analyst Lyle Denniston, the Ninth Circuit’s Perry panel seems likely to nullify the ban against same-sex marriage, “provided they could do so without having to write a sweeping opinion that established a national constitutional right of gay marriage.”

The initial arguments in the case before the Ninth Circuit concerned whether the appellants even had proper standing to appeal Judge Vaughn Walker’s ruling.  California’s top government officials, the governor and the attorney general, have refused to defend Prop 8, or to appeal the trial court’s ruling.

At least one of the judges on the appellate panel was troubled that no state actors showed up to argue the case.  The appellate judge suggested that perhaps the issue could be posed to the California Supreme Court for a determination as to whether California law would allow any entity to stand in as a legal “proxy” for the suit.

Perry’s well-heeled lawyers stated in response to the suggestion that even if California law allowed a proxy-style legal fight, the proxy would be unable to demonstrate how they were harmed by lifting the ban against same-sex marriage.


Scholars of the appellate courts compare this case to the famous SCOTUS decision in Loving v Virginia, which struck down state laws banning marriage between African Americans and whites.  We wonder how the Loving case would have been decided if Mr. Loving's "bride" was a man instead of a woman.

This Perry case could be our chance to find out the 21st Century answer to that question.  As a decision from the appellate court is expected soon, perhaps by the end of the year, we must ask that you to stay tuned in on this case.

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Lake County to Absorb 2500 California Felons

In 1998, the Michigan Department of Corrections opened the Michigan Youth Correctional Facility in Baldwin, Michigan; right smack in the middle of the Manistee National Forest in Lake County.  The facility, known as the “punk prison”, closed in 2005 and was subsequently sold to GEO Group, Inc., a Texas-based conglomerate.

Lake County has suffered unemployment as high as 20% as a direct result of mothballing the youth facility.  The situation is about to change, however, due to California’s chronic prison overcrowding.

This blog has been tracking the landmark prison overcrowding case recently argued before the SCOTUS.  In a proactive effort to alleviate the situation, California recently contracted with the GEO Group to house more than 2500 inmates in the newly-renovated facility.  

California’s contract with GEO is worth a reported 60-million per year to the private detention management services company.  The contract begins in 2011 and runs through 2014.  Given California’s fiscal woes, you have to wonder how they can afford it.

Nevertheless, Lake County Michigan is ready to absorb the collateral benefits associated with accepting thousands of Californian felons, expecting to add as many as 500 jobs to the local economy.

This development hammers home the idea that in our democratic society, the constant tension between law and freedom results in a massive resource allocation for prisons, jails and law enforcement apparatus.

So when you are driving Up North this summer along M-37, just remember not to pick-up any hitchhikers.

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