Electronic Service of Process

Well, the day is here; or, at least it's getting here.  Lexis/Nexis, the huge legal data base firm [and a charter member of the "Big Data" club], reports that some courts in several Commonwealth countries are allowing alternative service of legal papers via, well, er, Facebook, and other electronic means designed to achieve delivery -in fact- of legal papers.

In the UK, the High Court allowed an injunction to be served via Facebook on an anonymous [and abusive] commenter to Donal Blaney's conservative blog.  Imagine that...

In Australia, a foreclosure notice was ordered to be sent to the delinquent homeowners via Facebook.  Under Canada's rules of alternate service, notice of a claim was sent to the defendant both through his employer, and via Facebook. And in New Zealand, a the initial complaint in a business dispute was allowed to be served on the missing defendant through a company Facebook page.

No reported cases here in the US folks, but it won't be long.  These days, perhaps the most sure-fire way to get someone, at least a person that has a FB account, is by posting on their wall or sending a message.

Texas lawyer John G. Browning addresses the issue in an excellent article published in the Texas Bar Journal.  More on this to come, for sure...

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Posted in: alternate service,Attorney John G. Browning,Donal Blaney,Facebook,lawyer,legal process,State Bar of Michigan

Proposed Divorce Legislation Distinguishes Marital From Separate Property

Two new bills pending in the Michigan legislature attempt to address a long-perceived problem in Michigan family law: how to classify property [separate or marital] in a divorce proceeding.  This legislative proposal has judges and divorce attorneys up in arms.

The tie-barred bills, 4672 and 4673, introduced by Livonia Republican John Walsh, propose standards for the division of marital property, and comingled marital and separate property; create a presumption of non-division for separate property; and revises the procedures by which a family court could "invade" one spouse's separate property and award it to the other spouse.

In Michigan, a family court judge's power to apportion property in a divorce comes strictly from statutes; a confusing patchwork of four separate statutes, to be precise.  Because of this legislative patchwork, a significant body of common law has developed over the past 30-years addressing the classification and division of property.

Although every divorce case is decided on its own merit, the present state of divorce law allows the distinct possibility, if sufficent and compelling factors are proven, for the invasion of separate property.  The new legislation is largely viewed as making such an invasion more difficult, if not impossible.

Birmingham divorce attorney James P. Cunningham summarized the problem in a 2008 Michigan Bar Journal article, calling for legislation to "fill the gap" between the cases.  Cunningham was on the floor of the house in Lansing last week to testify as an expert about the need for this legislation and, presumably, to endorse the content of Walsh's bills.

So why such a fuss from the family court bench and bar?  First, they contend that Walsh is fast-tracking the legislation without input from their professional organizations.  Second, these groups also assert the proposed measures are grossly unfair to the non-propertied spouse.

When cornered by a reporter at the Capitol last week, a lobbist for the bills denied they were being fast-tracked but wryly noted that the family court bar was a veritable "graveyard" for good ideas.

Is this going to be a case of the rich getting richer?  The so-called "missionaries for the family" certainly think so and are determined to quash the measures; you should have seen the chatter about these bills appearing on the State Bar of Michigan's Family Law listserve...

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Posted in: Attorny James P. Cunningham,divorce,family court,family law,family law lawyer,marital estate,marital property,Representative John Walsh,separate property,State Bar of Michigan

When the Innocent Go to Prison We All Lose

Everyone accused of a crime has a right to have the matter tried before a jury with the heightened "beyond a reasonable doubt" evidentiary standard.  Sometimes, however, the jury gets it wrong.

When that happens, you have a constitutional right to appeal.  Most convictions, statistically, are affirmed at the intermediate appellate level.  From there, a convicted felon has a discretionary appeal to the Michigan Supreme Court.

The Michigan Supreme Court selects few cases each year; most petitions for a writ of certiorari, especially when they are from prison inmates, are rejected.

Once your state appellate rights are exhausted, you have the right to petition for habeas corpus in the United States District Court.  Hopefully, your state court appellate attorney had the wisdom to "federalize" your brief in the intermediate state appellate court because if not, all your constitutional issues are deemed waived.

If the Habeas petition is denied in federal district court, as most are, there is a constitutional right to appeal even further, to the United States Circuit Court of Appeals.

The United States Supreme Court is the end of the road.  A petition for a writ of certeriorari to the SCOTUS is, well, best of luck to you....

Most would agree that the incarceration of wrongly convicted individuals is one of the true horrors of our criminal justice system; a less than perfect system that sends people to prison from time to time who did not commit the crime for which they were convicted.

The State Bar of Michigan's blog recently posted some fresh literature addressing this troubling subject.  We think it's worth a look.

Over the weekend, for example, the Detroit Free Press profiled its first in a series of articles detailing a West Bloomfield family's plight following criminal sexual conduct charges.

In addition to the case profile in the Freep, a more detailed study by the Campaign for Justice and the Michigan ACLU is included in the post, tracking 13 wrongly convicted individuals in Michigan; this piece also impugns Michigan's court-appointed counsel system.

The SBM blog post also includes a link to Reason Magazine's nation-wide study featuring UM Law Professor Sam Gross who concludes that wrongful convictions are far more common than most of us believe.

We are not sure what the solution is to this problem.  Many folks in our free society seem hell-bent on breaking the law in major ways, committing "crimes against the person", to use a classification phrase from Michigan's sentencing guideline manual.  No doubt, prosecutors often have a full plate.

But when the accused is innocent, we all lose some of our individual rights, liberties and freedoms.

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Posted in: acquittal,conviction,criminal defense attorney,habeas corpus,Michigan Supreme Court,prison,prisoners,State Bar of Michigan,United States District Court,United States Supreme Court

SBM's Judicial Crossroads Task Force Recommends Streamlining State Courts

Former Oakland Circuit Judge Barry Howard (left) and
Attorney Edward Pappas co-chaired the task force.

The lawyers saw it coming long ago.  With waves of deep budget cuts crashing down upon the public sector, how could the judiciary keep-up with the ever higher demand for its high-quality service we have come to expect?  Judicial reform.

At the direction of the Michigan Supreme Court, the State Bar of Michigan selected a task force of attorneys and judges from across the state back in early-2009.  The task force met for a full-day each month from September 2009 through last May, gathering ideas, discussing problems and suggested solutions, and debating various cost-cutting strategies.

Last week, the task force announced its findings and recommendations.  The following are the more significant findings and recommendations of the task force:

• Our state courts have a mixed-funding structure rather than a state-funded system, with municipalities and court-generated revenues contributing heavily to each county court's operational costs.  This patch-work is having a disparate impact on various courts throughout the state, with some areas getting hit much harder than others; 
• Our 83 counties are served by 585 full-time trial court judges at the district, circuit and probate levels.  The number of judgeships should be reduced according to up-to-date demographic data and historic caseload data; 
• The recommended reduction in judgeships must only take place upon the retirement of currently sitting judges in order to maintain judicial independence; 
• Judicial services should be coordinated and consolidated by region after the "best practices" are identified;
• Increased flexibility among court administrators in the reassignment of workload must occur once the recommended judicial downsizing and service coordination begins;
• Full and effective use of available technology to assist in the delivery of judicial services will reduce costs in the long-run; and 
• Continued use of innovative community-based programs in the trial court setting that address mental health and substance abuse problems will continue to yield significant cost savings.

Basically, the courts will have to do more with less resources.  A familiar song among the state workers and teachers spread throughout the counties and across the nation.

The good news for attorneys practicing in Oakland County is that we have already have most of the docket converted to an e-file system.  There are still some dockets -criminal and some family law cases- that do not currently accommodate electronic filings.

Another innovation to take hold in some of the county circuit courts in Southeast Michigan is electronic file retrieval or Internet-based databases that are searchable by members of the public. A good example of this system is Oakland County's Court Explorer where you can search the docket entries in a case and, for a very nominal fee, order a copy of any document filed in the case.  Usually, in a few hours, the document show-up in your email.

Another (even better) example of electronic access is the Wayne County Probate Court where the documents are imaged and available for viewing electronically with the click of your mouse.  As for the Wayne Circuit Court, however, not so much...

Roster attorneys for the Michigan Appellate Assigned Counsel System (MAACS), for example, physically have to be present on the 9th floor of the Frank Murphy Hall of Justice in order to access our client's register of actions in Wayne County.  This amounts to difficult "access to justice" when, on an appeal, you are simply trying to piece together the procedural history of your client's case.

Electronic docket access differs widely from county to county.  In Genesee, the docket entries of a case is displayed in fragmented screen images.  If you print-out the register of actions in the case, you get several pages of chopped-up, difficult-to-read DOS-style text.  A waste of paper, and definitely not user-friendly.

While the idea behind the task force was to identify some of the "best practices" at the county level and implement them state-wide, this blog wonders whether this will be possible at the political level.

Our law firm's attorneys and paralegals access county court records everyday across the State of Michigan.  From our perspective, standardization of electronic access would greatly improve our efficiencies in the delivery of legal services.

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Posted in: attorneys,Barry Howard,Edward Pappas,judges,judicial reform,MAACS,Michigan Appellate Assigned Counsel System,Michigan Supreme Court,State Bar of Michigan

What Happens if Michigan Goes Belly-Up?

This is a post from the State Bar of Michigan's official blog.  The post is the original content of University of Indiana School of Law Professor Gerard Magliocca.

Not that this would ever happen in Michigan, but Prof. Magliocca guest blogs at Balkinization on the constitutional implications of a state going into default, in "Too Big To Fail" States".  He says we better get ready, especially for a default by a big state:

The prospect that a state like California might default or need a bailout raises two interesting constitutional questions. The first is whether Congress can attach conditions to a bailout that would require a state to undertake substantial reforms of its constitution. I think the answer is yes. Under South Dakota v. Dole, Congress has broad authority to place strings on the receipt of federal money so long as there is some relationship or germaneness between the money and the terms. After all, the state is always free not to take the funds.

 

The much harder question is what happens if a state threatens to default unless it gets a bailout. In the case of a small state, this is not much of a threat. A default there would not cause any systemic problems. If California or another large state defaults, however, that's a different story. These states may be "too big to fail." What's worse, they know this. It is clear that Congress cannot just order a state not to default--that would run afoul of New York v. United States and the Tenth Amendment. Thus, if California comes to Congress for a bailout, the state is the one with the leverage. ("Give us a bailout on generous terms or else.") In effect, this would create the possibility of a "reverse unfunded mandate"--the federal government picking up the tab for a profligate state.

 

What can be done to address this issue? One possibility, I suppose, is that Congress could declare that a state in default is not "a republican form of government" under the Guarantee Clause and then order them not to default. That's a pretty heavy lift though, especially since states that defaulted in the past were never considered "not republican." The other thought is that Congress could threaten to withhold other federal spending from a renegade state. Would this be constitutional? I'm not sure. There's a difference between saying to a state, "Here's a gift with some conditions. Take it or leave it" and saying "Here's a gift. Take it or else we are going to kick you in the teeth." Nevertheless, that might be the only way to make a default so costly for the state that it would have to accept a bailout under stringent terms.

 

One reason we got into trouble in 2008 is that there were no default rules (or analysis) in place when "too big to fail" financial institutions started to fail. We'd better not make the same error when it comes to state governments.

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Posted in: law school,Professor Gerard Magliocca,State Bar of Michigan,strategic default

No Joke: What's the Difference Between a Divorce and a Tatoo?

This blog post combines two posts from the SBM Blog and is the original content of the State Bar of Michigan.

As Michigan lawyers go about the work of convincing our state legislators that a tax on legal services would be a fundamental and costly mistake, we face the same response again and again:  "if we exempt one service we have to exempt them all."  In Georgia, policymakers are also gearing up for a tax on services, and a recent white paper from Georgia's venerable Tax Foundation asks: "Can anyone really keep a straight face while justifying a tax exemption for legal services, tattoos, haircuts, car repair,health club memberships and other common services?"  Well, we can.  In fact, we wonder how serious policymakers can keep a straight face equating legal services with personal grooming and adornment services.Bottom line: government shouldn't tax behavior that is good for society. We're all better off when people get the legal advice they need to secure justice or comply with the law.  Tatoos, not so much.

The original SBM Blog post, above, referenced a related post on the same subject, which is reproduced here for our readers convenient reference:

Unfair, Unwieldy, Unwise, Unethical, and Unconstitutional

The prospect of a Michigan tax on services that extends beyond the 26 services already taxed to include legal services is a growing threat, with a group of business leaders actively pushing the idea, legislation already introduced, and the Governor endorsing a services tax. The State Bar has successfully lobbied in the past against taxing legal services, arguing that a tax on legal services is unfair, unwieldy, unethical, unconstitutional, and, ultimately, unsuccessful. The constitutional problems with a tax on legal services are magnified when legal services to businesses are excluded, as is the case with several of the current proposals. See HB 5527, 5528, and 5529. If you haven’t expressed concern about a tax on legal services to your legislator, now’s the time.  Here’s how to connect.  Here’s the State Bar’s position.

Here's a quick rundown of the arguments.  A tax on legal services is...

Unfair – Most legal services are rendered in circumstances of crisis, stress, or misfortune. People who seek legal assistance in cases involving child support payments, child custody, divorce, death, domestic abuse, end-of-life decisions, or bankruptcy seek them out of necessity, not choice. For this reason, a tax on legal services is aptly labeled a  "misery tax".  

Unwieldy – Determining what fees and services would be subject to the tax and which records would or could be subject to audit would be an administrative nightmare. Among other reasons, attorneys often don't receive payment promptly from their clients, making it a potential administrative burden to reconcile payment with the tax obligation.  Administrative complications were one reason why the only two large states that have adopted such a tax – Florida and Massachusetts – repealed it shortly after it took effect. 

Unethical – Collection of a sales tax on legal services could compromise client confidentiality, imposing the state’s tax collection apparatus into the attorney-client relationship. Law firms do pay taxes under the Michigan Business Tax. 

Unwise – Individuals and businesses seek legal advice to ensure compliance with the law.  Such behavior should be encouraged, not taxed. Further, the tax could be counter-productive, causing clients to seek legal services outside Michigan for intellectual property, federal tax, estate planning, legal service, and encouraging law firms providing such services to relocate outside Michigan, or perform such services at satellite offices. Like medical services, legal services are not discretionary. Taxing legal services is taxing justice. 

Unconstitutional – In addition to constitutional concerns about attorney-client privilege and the taxation of criminal defense, the proposal to exempt one class of clients (business) from taxation while imposing the tax on another class (individuals) raises serious constitutional issues.

Unsuccessful - Two states, Florida and Massachusetts, enacted sales taxes on services but repealed the measures when they proved to be administratively difficult and unpopular.  In the three small states that are said to have a tax on legal services, two also tax physician services and the thrid reports that the tax is not enforced because it is so difficult to calculate and collect.


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Posted in: legal services,State Bar of Michigan,taxation