New Hampshire Supreme Court Reviews Family Court Decision on Home Schooling

Custody issues are almost always best-decided by parents outside the courthouse.  Sometimes, however, a school choice dispute drives post-divorce parents into the courtroom.

In a case percolating through New Hampshire, a family court judge endorsed a parenting plan between feuding parents that featured public school over home-schooling by the mother.  The case was argued before the New Hampshire Supreme Court last week with a decision expected soon.

Mother, Brenda Voydatch, claims a constitutional First Amendment right to direct her daughter's education in accord with her deeply-held religious beliefs.  Father, on the other hand, petitioned the family court for an order that his daughter attend public school.  The family court judge appointed a guardian ad litem for the child who recommended the switch to public school.

Father knows best; for now.

This case has been acquiring headlines while burning through the NH appellate courts.  The parents have already tested their respective positions on the school issue in a full-blown custody trial resulting in joint legal custody, with "physical custody" to the child's mother.

Mother attacked the family court's reliance on the so-called expert testimony of the GAL, an admitted non-expert in the comparative pedagogies sought by the parents.  Mother paid her lawyers to be troubled by the court's apparently exclusive reliance on his GAL; a sort-of "judge-in-the-field".

For their part, father's lawyers have scoffed at the notion that any constitutional issues are presented in the case at all. Father sees the family court's public school ruling as an example of tough decision-making; family court style.   His pleadings also assert that Mother has exhibited an excessive, Christian, religiosity in her curriculum that has impeded their children's socialization; read "secularization".

The dispute is certainly philosophical, if not constitutional.  Stay tuned per usual as we await the outcome of the case and report back to you.

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Posted in: child custody,family court,family law,First Amendment,New Hampshire Supreme Court,religion

UM Law Grad Wins at SCOTUS in Female Prisoner Assault Case

University of Michigan Law Quad

As a young attorney back in the early-1990s, I worked for a Detroit law firm and moonlighted as an adjunct professor at the University of Detroit Mercy. The adjunct instructor gig was made possible by my willingness to teach federally mandated law courses to female prisoners at the Scott Correctional Facility in Plymouth, MI.  One of their chief complaints: sexual assaults by the guards.

The abuse was so common at Scott Correctional, the inmates initiated a lawsuit back in 1996 that eventually resulted in a $15 million jury verdict in the Washtenaw County Circuit Court.  It took until 2008 for the inmates to get their verdict and their vindication.

Earlier this week, UM Law graduate David Mills, a Cleveland, Ohio solo practitioner who's office is his kitchen table and who's mother is his paralegal, had a jury verdict reinstated by the SCOTUS in a prison guard assault case.  Mills filed a suit in federal court on behalf of Michelle Ortiz alleging that she was sexually assaulted during her one-year sentence in an Ohio penitentiary.  Ortiz alleged that she promptly reported the assault and was rewarded with a second assault the very next evening, followed by a stint in solitary confinement.

Mills' suit was a "section 1983" civil rights case which alleged that a state actor, the prison's case manager, failed to take steps sufficient to protect Ortiz's safety.  The jury awarded Ortiz $625,000, but that verdict was reversed on appeal by a panel of the Sixth Circuit Court of Appeals.

Ortiz was granted certiorari by SCOTUS to determine the procedural issue of whether a defendant that loses a motion for summary judgment, brought early in the case, can appeal a trial court's dispositive decision after a jury verdict on the merits of the case.  Luckily for Attorney Mills, the federal circuit courts of appeal are divided on this issue.

SCOTUS has now ruled that a litigant cannot wait until after a trial to appeal such a dispositive decision; the appeal must be taken interlocatory (in the middle of the case) in order for the issue to be properly preserved.

From time to time, this blog takes note of some of the problems and peculiarities arising from keeping millions of citizens incarcerated.  Obviously, in our free society, you are not free to break the law.  If you do, a stint in prison can be the result.  In the prison business, however, there are cases of clear-cut abuse.  Paying your debt to society should not equate to torture at the hands of the state.

In Ortiz, the prison guard eventually became the prisoner.  Just as Michiganders did in the Scott Correctional case, Ohioans can pick-up the tab for the incarcerated, and for the abuser's wrongful deeds.

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Posted in: criminal defense,David Mills,lawyer,Michelle Ortiz,prison,Scott Correctional,summary judgment,University of Detroit Mercy,University of Michigan Law School

Adultery in the Marital Bed

Please; Not in the Marital Bed

Always poor judgment, sometimes an adulterous liason makes it into the marital bed.  If the cuckholded spouse learns of the at-home trist, the ensuing divorce is very nasty.

This circumstance was recently featured in the NYT.  The article is of note in this blog mostly because it quotes a well-known Michigan divorce attorney; Richard Roane of Grand Rapids.

With New York finally following the rest of the states in 2009, all 50-states now have "no fault" divorce laws on the books.  Each state is different, however, as to how adultery, if and when proven, is factored into the divorce judgment.

The Michigan Penal Code has long-contained a chapter on adultery, defined as, "the sexual intercourse of 2 persons, either of whom is married to a third person." The scope of the criminal conduct includes divorced but cohabiting persons. The statute requires the cuckolded spouse to swear-in as the complaining witness and has a brief statute of limitation; one year.

The adultery statute merged into the penal code in 1931. The caselaw on this "consensual" crime goes back to 1884, in a case from Berrien County; People v Hendrickson.  That case stands for the evidentiary proposition that the testimony of the un-married participant in an adulterous union (the "other woman") can supply the requisite testimony to support a conviction, subject of course, to cross examination.

In the here and now of 2011, Michigan's family courts have adhered to the "no-fault" provisions of the divorce statutes. Adultery is now a matter of private morals, with family court judges free to exercise their discretion regarding the weight to put on allegations of adultery and their attendant consequences in matters of child custody and property division.

State Senator Ron Jelinek has proposed legislation seeking to abolish adultery as a felony.  The proposed legislation, however, has not gone anywhere since being referred to the Senate's judiciary committee shortly after its introduction in February 2009.

Occasionally, the adultery statute is cited in civil cases seeking to apply what is known as the "wrongful conduct" rule which blocks a plaintiff's attempt to gain from an adulterous relationship.

Immoral, but all too common, adultery has always posed a serious threat to the traditional family unit. Adultery, however, is a rarely charged felony. Thus, it's persistence within the penal code, particularly the anti-cohabitation provision, bloats the Michigan Compiled Laws with anachronistic provisions. Transgressions are best addressed within the discretion of the family court judges.

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Posted in: adultery,divorce,family court,family law,felony,lawyer,no fault divorce,Richard Roane

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.

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Posted in: Dennis Archer,Dr. Dre,Eminem,First Amendment,Herschel Fink,lawyer,Michigan Court of Appeals,Michigan Supreme Court,prior restraint,privacy,Snoop Dog,Wayne County Circuit Court

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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Posted in: Anna Nicole Smith,bankruptcy,constitution,J. Howard Marshall,Lyle Denniston,probate court litigation,SCOTUS,trust,trustee

ABA Proposes to Drop LSAT Requirement for Law School Applicants

The dreaded LSAT scantron.

From time-to-time this law blog has addressed the effects that the down economy has had on the legal profession. In doing so, we’ve alerted our readers to the collateral effects now becoming manifest for recent graduates of the nation’s 250+ law schools. We’ve often asked the question: do we really need more lawyers?

The latest development in this rough chapter of the profession is the current proposal of the American Bar Association to drop the requirement that students entering law school take the LSAT.

Doesn’t this sound like a good thing? Many critics have long-asserted that the only thing this test measures is one’s aptitude for taking a standardized test. Well, not so fast.

The consensus among the industry professionals is that all the top-tier law schools will continue requiring that applicants sit for the exam. It should be noted that as many as 10 law schools already have been granted waivers to admit students without LSAT scores.

Meanwhile, behind the scenes, the chairman of the ABA’s committee on the entrance exam has told the National Law Journal that a significant faction within the committee has concluded that the rule that law school applicants, “submit to a valid and reliable admission test” should be repealed. The committee’s concern, in part, relates to the ABA’s proper role in the law school admission process and its indirect endorsement of the Law School Admission Counsel; the well-funded organization that administers the LSAT.

The proposal to drop the LSAT requirement will be the subject of public debate at the ABA committee’s next meeting on April 2 in Chicago.

Last weekend, we posted on the problems associated with the glut of lawyers, taking our lead from a front-page story in the NYT Business Section that has since received much exposure. The ABA proposal has attracted more unwanted attention to the professional formation of attorneys.

One of the knocks against lawyer-making is that the process is designed to enrich the law school and impoverish the law student. Students willingly submit to the impoverishment process in exchange for a coveted professional credential: the Juris Doctor.

Local connection: No law school exemplifies this process more than our own Cooley Law School, receiving yet more spectacular negative publicity on this subject in the tongue-in-cheeky blog Above the Law whose recent post on this subject asks, “does the ABA really want every lower-ranked law school to turn into Thomas Cooley?”

While acknowledging that most of the top-schools will continue using the admission test, ATL suggests that Cooley will drop the LSAT like a bad habit, opening the door even further for those, er, less-qualified legal aspirants that can afford to pay heavy-duty tuition bills for their shot at the American Dream; lawyer style.

While our service-economy is flexible and somewhat forgiving, your law school student loan obligation is not. Where the rubber meets the road on this problem is that attorney positions have become occasional in a crowded profession.

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Posted in: ABA,Cooley Law School,Great Recession,law school,lawyer

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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Posted in: Dennis Archer,Governor Rick Snyder,John Engler,Judge Brian Zahra,Justice Maura Corrigan,law review,Michigan Court of Appeals,Michigan Supreme Court,University of Detroit School of Law

Is Law School Worth the Tuition Investment?

Graphic by Peter & Maria Hoey

Does Michigan’s economy really need six law schools pumping over a thousand newly minted graduates into the service sector every year?  

Unlike many job seekers, most new lawyers are heavily debt-burdened; some carrying well over $100,000 in student loans.  This can lead to desperation.

  

The economy is still smarting in several key sectors here in Michigan.  Both the auto and real estate sectors appear to be clawing their way back, but the jobless rate remains stubbornly high.  Most experts are saying we are in for another half-decade of “recovery”.

In down-times, higher education, as an industry, does remarkably well.  People take a hard look at their employment prospects and many decide to improve their skills by obtaining additional credentials.

Law school is something that nearly half the population considers at one time or another.  In this tough economy, however, have law schools turned this recurring American Dream into a debt-nightmare?


The question is on Congress' collective mind; they ordered up a report on this very topic from the GAO.

An entire generation of newly minted lawyers, facing student loans the size of a modest first home, are in the same tight spot as those who over-purchased real estate during the boom years.  Only for these new lawyers, there is no foreclosure option.  

And the prospects are, well, scary.  Established small and medium sized firms will lease office space, but they are not going to pay salaries.  The larger firms are downsizing their attorney-rosters.  A Northwestern Law study estimates that the large firm sector has lost more than 15,000 attorney and staff positions since 2008.

Corporate legal departments are slashing legal expenses; anything that can be outsourced goes to India where there is a glut of cheap lawyers, eager to review documents for about $20 per hour.

Despite this grim outlook, law schools are reporting up to 93% of their graduates are, “known to be employed nine-months after graduation.”  This statistic is fostered by the annual law school rankings published by the U.S. News & World Report. 

  

Employment as a barista at Starbucks, however, is different than working in the legal profession.  To improve their stats, some law schools have been known to temporarily hire a battalion of their recent grads for $20 an hour to work in the placement office.  The U.S. News statistic does not take these distortions into account.

This grim theme was the focus of recent “over-the-top” marketing techniques employed by Lansing’s Cooley Law School.  The correlation between a paucity of jobs and a downright glut of attorneys is well documented in the blogosphere.

It’s not all bad though.  Students with a high motivation and grade point can persist with good jobs in their chosen field, even after they take off their rose-colored glasses.

In our free society, with its commerce, temptations and throw-away marriages, there will always be a strong demand for legal services.



Update:  Shortly after this post, inspired by the front page article in the Sunday NYT's Business Section, this offering appeared in the WSJ's Law Blog.


Another Update:  As another sick indicator for law students and lawyers alike, here is a report from the ABA Journal about the editor-in-chief of the Chicago-Kent Law Review describing how he cannot find a job despite his best efforts.  Presumably, this dude is at the top of his class.  Like Michigan, however, Illinois has half a dozen law schools, all churning-out juris doctors each year, all with little hope of landing a paying lawyer-gig.  Go figure.

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Posted in: attorney,Chicago-Kent Law Review,Cooley Law School,law school,lawyer,U.S. News and World Report

Email Snooping by Spouse Results in Felony Criminal Charges

Oakland County Prosecutor Jessica Cooper has elected to prosecute a Rochester Hills man for accessing his wife’s email account. The emails were accessed from a computer that the husband purchased for family use.

The criminalization of conduct involving computers and privacy has had federal and state law components. For example, in the federal realm, the Electronic Communications Privacy Act was initially passed to proscribe electronic eavesdropping and was significantly expanded in 1986 from traditional “wired” forms of electronic communication, to include all forms of digital electronic communication.

A few years earlier, the Computer Fraud and Abuse Act outlawed electronic espionage. The federal computer crime scheme also features several “technology-neutral” provisions allowing prosecution for a variety of criminal acts involving a computer.

By creating a statutory right to privacy in Internet communications, the federal law creates an expectation of privacy in our digital transmissions and provides a tool for selective prosecution.

But does that expectation of privacy extend to a marital home? To the family computer?

A Rochester Hills woman, Clara Walker, is the complaining witness in the Oakland County case against her third (former) husband, Leon Walker. The husband purchased a family computer and set-up a gmail account for his wife. Shortly thereafter, suspecting his wife was conducting an affair with her second husband, Mr. Walker accessed his spouse’s gmail account to get the proof.

Apparently, his suspicions were well-founded as the couple was divorced last year.

The price of this confirmation, however, was high. Walker has been charged with unauthorized access to a computer; a five-year felony charge due to Walker's circumstances. The case, charged early last year, has kicked around the 51st District Court and the Oakland County Circuit Court since March, surviving the defendant's motion to dismiss.  Trial has been scheduled for Valentines Day.

The unauthorized computer access provisions of the Michigan Penal Code under which Walker has been charged are part of a 1979 statute designed to combat identity theft and computer hacking.  The provisions in the act create a presumption that access to another person’s computer file or digitized data was unauthorized. Various access or password-related exceptions are available to rebut the statutory presumption.

Two prior convictions, or an amount involved in the crime between $1000 but less than $20,000, elevates this computer crime from a misdemeanor to a felony.  Cooper has received criticism for charging an individual for alleged conduct which was resolved in family court. As she'll tell you; "happens all the time."

The case recently began receiving national attention when Walker, formerly an IT professional for Oakland County, cast Attorney Ray Cassarr aside in favor of "Feiger Law".  Figures.

Mr. Walker’s trial, over which Oakland Circuit Judge Martha Anderson will preside, should present some interesting evidence. The private family circumstances leading to the Walker's divorce proceedings may be deemed relevant to the criminal case.  Also, given the way the statute is worded, some interesting defenses can be presented to a jury. Among them, the defense counsel could focus the jury on whether a spouse’s separate email account on a family computer is private and whether there is an expectation of privacy in such an account when your husband has the password.

Any conviction will most likely be appealed.  We here at the Law Blogger will keep an eye on this one for you.  Expect updates.

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Posted in: criminal defense attorney,divorce,family court,Feiger Law,felony,Jessica Cooper,Oakland Circuit Judge Martha Anderson,Oakland County Prosecutor,unauthorized access computer

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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Posted in: Department of Human Services,DHS,Governor Rick Snyder,Great Recession,Justice Maura Corrigan,Justice Robert Young,Michigan Supreme Court,SCOTUS