Judge Cooper vs Judge MacKenzie

Novi Judge Brian McKenzie

By: Timothy P. Flynn

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

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

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

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

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

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

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

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

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

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

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

www.clarkstonlegal.com
info@clarkstonlegal.com

Read more »

Posted in: Judge Brian MacKenzie,Judge Jessica Cooper,Judge Leo Bowman,Judge Steven Andrews,Oakland County Circuit Court,Oakland County Prosecutor

Marijuana Brownies Get An Evidentiary Hearing In Oakland County

By: Timothy P. Flynn

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

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

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

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

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

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

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

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

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

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

www.clarkstonlegal.com

Read more »

Posted in: Earl Carruthers,medical marijuana,Michigan Court of Appeals,Michigan Medical Marijuana Act,Oakland Circuit Judge Michael Warren,Oakland County Circuit Court

Oakland County Circuit Court Open for Business

Oakland County Business Court

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

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

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

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

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

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

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

www.clarkstonlegal.com
info@clarkstonlegal.com

Read more »

Posted in: Michigan Supreme Court,Oakland Circuit Judge James Alexander,Oakland Circuit Judge Wendy Potts,Oakland County business court,Oakland County Circuit Court

Governor Snyder Goes Eastside for Michigan Supreme Court

Judge David Viviano

For the first time since Justice Neil Reid retired from our High Court in the mid-1950s, a jurist from Macomb County will be seated on the Michigan Supreme Court.  Yesterday, Governor Rick Snyder announced his decision to replace disgraced former Justice Diane Hathaway with Macomb County Circuit's Chief Judge, David Viviano.

Although he comes from a family of jurists, [his father, Antonio Viviano, was a long-serving probate, then circuit court judge, and his sister, Kathryn Viviano, is a sitting judge in the Macomb Circuit Court's family division] David has practiced in several challenging areas of the law and has been outstanding.  In addition to working at the Dickinson Wright law firm in Detroit, he also worked at Jenner and Block in Chicago.  Those are some serious legal chops folks.

We here at the Law Blogger have observed Judge Viviano to be fair, honest, and a judge's judge.  He went to the University of Michigan Law School which, for us, is a big plus.  The attorneys in our law firm have appeared in front of all the Viviano judges.

Of course, an appointment like this one is going to ruffle political feathers.  The Freep, for example, noted that Governor Snyder's appointment was his second consecutive male appointment to the High Court, following Brian Zahra back in 2010.  Along these lines, Oakland County Circuit Court Judge Colleen O'Brien was rumored to be on Snyder's short list.

One thing consistent between the incoming and outgoing justices [Hathaway and Viviano]; they both come from families well-clothed in black robes.  In Judge, soon Justice, Viviano's case, however, that is of less import than the judicial temperament and intellect he will bring to this important job.

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: Governor Rick Snyder,Judge David Viviano,Justice Brian Zahra,Justice Neil Reid,Macomb County Circuit Court,Michigan Supreme Court,Oakland County Circuit Court

Vacancy Tarnishes Michigan Supreme Court

Diane Hathaway with President Obama

Last Friday, the US Attorney filed federal criminal charges [bank fraud] against the now-former Michigan Supreme Court Justice Diane Hathaway; her last official day was Monday, although she has been absent from the bench for weeks.  This is yet another case that gives the public pause, and erodes the confidence we place in our publicly elected officials; especially jurists; especially those elected to the Michigan Supreme Court.


By now, this story is well-known.  Ms. Hathaway and her husband are alleged to have concealed an intra-family transfer of a parcel of Florida real estate in order to get a short-sale approved which resulted in a mortgage loan forgiveness of more than $600,000.

The feds assert that the intra-family transfer was not disclosed to the mortgage lender to intentionally trick the lender into believing the Hathaways were suffering an economic hardship.  Once the short sale was approved, the Florida property was transferred back to the Hathaways.

Seems like a slam dunk prosecution.  Because the federal charging instrument filed in the case was an "information", a guilty plea is expected to be tendered by Hathaway next Tuesday in U.S. District Court.

We here at the Law Blogger have seen many of our divorce clients, while suffering genuine intense economic hardship, have their short sale offers or their loan modification applications rejected.  But even the notion of a sitting Supreme Court Justice applying for a short sale strikes us as untenable.  This whole story falls squarely within the category of: "What were they thinking?"

Thinking back to the November elections of 2008, when Hathaway was elevated from the Wayne County Circuit Court to the High Court, this blog recalls all those attack ads about former Justice Cliff Taylor depicted [via cleaver video editing we might ad] falling asleep during oral arguments.  In the long-run, however, any faith Michiganders placed in Hathaway to replace the pro-insurance Taylor was squandered.

At Hathaway's inevitable sentencing, she will be ordered to pay back the mortgage deficiency.  But we have to wonder: will she also be sentenced to federal prison?  Perhaps she will be able to avoid a prison sentence by tendering a guilty plea.  Wow, a former Michigan Supreme Court Justice pleading guilty in a federal courthouse.

One of the consequences of Hathaway's resignation from the High Court is the imminent appointment of a replacement.  One name that has been floated is Oakland County Circuit Judge Colleen O'Brien.  And if she gets the appointment, Governor Snyder will also have the opportunity to appoint O'Brien's replacement to the Oakland Circuit.

We can hardly wait.  Stay tuned.

www.clarkstonlegal.com
info@clarkstonlegal.com

Read more »

Posted in: bank fraud,Justice Clifford Taylor,Justice Diane Hathaway,Michigan Supreme Court,Oakland Circuit Judge Colleen O'Brien,Oakland County Circuit Court,United States Attorney

Tale of Two Parole Boards

Jacob Trakhtenberg

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

www.clarkstonlegal.com
info@clarkstonlegal.com

Read more »

Posted in: Jacob Trakhtenberg,Judge Daniel O'Brien,Judge Deborah Tyner,Michigan Court of Appeals,Oakland County Circuit Court,Oakland County Prosecutor,Robyn Frankel,Sixth Amendment,William Spengler

Oakland County Business Court

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

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

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

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

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

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

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

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

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: business court,Oakland County,Oakland County Circuit Court

By the Numbers: Clarkston Legal Production 2011

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

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


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

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

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

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

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

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

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

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

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

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

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

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: family court,Friend of the Court,Genesee County,Livingston County,Macomb County Circuit Court,Oakland County Circuit Court,Wayne County Circuit Court

Disparate Sentences for NBA Stars' Drunk Driving Convictions in Oakland County

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

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

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

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

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

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

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

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

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

www.waterfordlegal.com

info@waterfordlegal.com

Read more »

Posted in: Ben Wallace,criminal defense lawyer,drunk driving,felony firearm,Jalen Rose,Oakland Circuit Judge Shalina Kumar,Oakland County Circuit Court,OWI

The Dragon Suicides

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


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


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


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


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


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


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

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

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


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

Suicide crisis lines

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

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

Suicide prevention, education and treatment

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

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

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

http://www.clarkstonlegal.com/

info@clarkstonlegal.com

Read more »

Posted in: Common Ground,Lake Orion,Lake Orion Community Schools,LOHS,Michigan Court of Appeals,Oakland County Circuit Court,Oakland County lawyer,suicide

Oakland County Circuit Court Appoints Ombudsman

For the first time in its long history, the Oakland County Circuit Court has appointed an Attorney Ombudsman to serve as a liaison between the county's bench and the bar.  Southfield Attorney Joel Serlin has the distinction of being the first Ombudsman to the Oakland Circuit beginning December 1, 2011.

In announcing the appointment, Chief Judge Nanci Grant said:

Our bench is excited to participate in the inaugural ombudsman program.  We embrace the program, and the opportunity presented, as an illustration of the importance attached to the transparency and accountability of the bench and bar - to each other, of course, but more importantly to the administration of justice in Oakland County.

The role of this ombudsman will be to address the administrative and case management issues raised by the Oakland County bar.  The OCBA proposed the notion of appointing an ombudsman over a year ago. When the proposal was formally presented to the Oakland judges, it received overwhelming support.

The purpose underpinning the program will be to provide a discreet forum for attorneys practicing before the Oakland bench to address matters for which there is no other avenue in which to seek redress of their various concerns.  The ombudsman is independent of the judiciary and maintains confidentiality relative to the requests  made to his office.

This development is just another example of how practicing law in Oakland County is a distinct professional pleasure.  We welcome this development; kudos to the OCBA and all the Oakland County Circuit Judges.

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: Attorney Joel Serlin,Oakland County Bar Association,Oakland County Circuit Court,Oakland County Circuit Court Judge Nanci Grant,OCBA,ombudsman

Underfunded Courts Will Erode Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: American Bar Association,Federalist Papers,Macomb County Circuit Court,Michigan Court of Appeals,Michigan Supreme Court,Oakland County Circuit Court,Oakland County Probate Court,uncontested divorce

Saved by the Gun

Ben Wallace

What a difference one-year makes.  Last year, our law firm's web site carried a tweet in our news feed about Big Ben attending law school.

Last weekend, any plans the big fella had of convincing a state bar to issue a law license in his name just became more complicated.  Wallace, recently retired from the Detroit Pistons, and a former Chicago Bull and Cleveland Cavalier, was arrested in Bloomfield Township on Saturday night.

News reports have Wallace failing field sobriety tests and submitting to a breath test allegedly resulting in a .14 blood alcohol content.  The legal limit in Michigan is .08; the year-old "SuperDrunk" threshold is .17.

An unloaded pistol allegedly was found in Wallace's Cadillac.  This could actually help him out.

Apparently, Wallace's case was randomly assigned to 48th District Judge Kim Small; known for her harsh sentences for first time offenders of Michigan's drunk driving laws.

Drunk driving is a misdemeanor if a first offense; misdemeanors stay in the district courts where they originate.  Carrying a concealed weapon, on the other hand, is a felony.  Felonies are bound over for trial, or resolution via plea, at the county circuit court.

Judge Small was all over the national headlines this summer when she sentenced former NBA star, Jalen Rose, to nearly a month in the Oakland County Jail.   Would Big Ben have received the same fate?  We'll never know now.

Wallace will most likely plead guilty to both the felony and the misdemeanor and get probation rather than any jail time.  Carrying the unlicensed pistol may have saved the big fella several weeks of sensory deprivation in the Oakland Hotel.

Update:
I was in the halls of the Oakland County Circuit Court on Tuesday when Big Ben was being sentenced by Judge Shalina Kumar.  As predicted, he received probation.

Here's a post to an outstanding criminal law blog that captures the perspective of these local NBA stars' convictions from the national level.

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: 48th District Court,Ben Wallace,drunk driving,Judge Kim Small,Oakland County Circuit Court,Oakland County Jail,Super Drunk

Fab Five Continues to Disappoint UM Fans

For all their hype, the men behind the Fab Five continue to disappoint fans, supporters and alumni of the University of Michigan.

First it was Chris Webber's phantom time-out vs North Carolina in the 1993 Final Four game.  Then the premature abandonment of the University of Michigan Basketball Program by the headliners of the group, Webber and Jalen Rose.  Next, the final four banners were removed from Chrysler Arena due to the Ed Martin booster scandal.

This month, it's two criminal convictions right here in Oakland County; one for Jalen Rose, who's doing 20-days in the Oakland County Jail on a sentence from 48th District Judge Kim Small; the other is for charges of felony child support against Jimmy King.  According to the Michigan Attorney General, King owes nearly $18,000 in child support arrears.  He was arrested in Detroit.

Both men are currently detained in the OCJ.

Attorney General Bill Schuette was quoted in the Detroit Free Press as saying, "when it comes to child support, no matter who you are, you have to play by the rules."

It's a shame that these men have never played by the rules; it's a shame that they continue to cast a pall over the University of Michigan.

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: child support,child support arrearage,drunk driving,Judge Kim Small,Michigan Attorney General Bill Schuette,Oakland County Circuit Court,Oakland County Jail,University of Michigan

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.

info@clarkstonlegal.com

www.clarkstonlegal.com

Read more »

Posted in: attorney,Cooley Law School,Kevin O'Keefe,law blogs,lawyer,legal issues,Michigan Court of Appeals,Michigan Supreme Court,Oakland County Circuit Court,Oakland Press,SCOTUS

Oakland County Judge-Shuffle Shaping Up

Recently, President Obama appointed Oakland Circuit Judge Mark Goldsmith to the federal bench in Detroit. His appointment has been approved by the U.S. Senate and he is expected to assume his place at the United States District Court for the Eastern District of Michigan by year's end.

Goldsmith's appointment creates an opening on the general docket of the Oakland County Circuit Court.  Oakland Family Court Judge James M. Alexander has announced that he will vacate his place in the Family Court to assume Judge Goldsmith's docket.

Judge Alexander will be handling general civil cases, and a criminal docket.  This means that attorneys, and parties that had matters pending with Judge Alexander in the Oakland Family Court will have their matters re-assigned to another judge.

This also means that another judge will be appointed, perhaps by the end of the year, to fill Judge Alexander's spot on the family court in Oakland County.  Rumors are rampant relative to Governor Jennnifer Granholm's appointment for this seat.  Among a few others, we've heard that 51st District Chief Judge Phyllis McMillen is under active consideration.

McMillen would be well-suited for the family court appointment.  A judge's judge, McMillen brings plenty of judicial experience as well as a valuable even-handed judicial demeanor to fill this important vacancy.  Unfortunately, in our system of political judicial appointments, the right person does not always get the job.

Our system of judicial elections for at-large seats, and gubernatorial vacancy appointments makes for an ever-changing bench at the county and municipal levels.  Good judges help to instill in the general public the proper confidence in our judicial system.

www.clarkstonlegal.com
info@clarkstonlegal.com

Read more »

Posted in: Judge Phyllis McMillen,Oakland Circuit Judge James Alexander,Oakland Circuit Judge Mark Goldsmith,Oakland County Circuit Court,Oakland County Family Court