fahmyupdates

Leon Walker with his former
spouse in happier times

There is an interesting privacy law criminal case percolating through the appeals courts that originated here in Oakland County. The case involves the alleged hacking access by a husband of his former wife's computer.

Last Friday, the Michigan Supreme Court denied Leon Walker's application for leave to further appeal from a Michigan Court of Appeals order that similarly rejected his effort to quash the criminal information filed in his case.

On appeal, Walker's lawyers have asserted that the legislature did not intend to criminalize the domestic relations nature of his conduct. Also, although Walker did not challenge the constitutionality of the statute, he simply asserted that the evidence adduced by the prosecutor at the preliminary examination did not comport with the proscribed conduct set forth in the statute.

The case now goes back down to Oakland Circuit Judge Martha Anderson for further proceedings and trial.

Back in 2009, Walker suspected his wife was having an affair. Employed as a computer technician for Oakland County, he had expertise on how to access computers. Allegedly, he hacked into a computer that the prosecutor alleges had been gifted to his wife, discovering evidence of the affair.

This blog covered the case in an earlier post when the matter seemed to be heading for trial.

In speaking with Mr. Walker yesterday [he contacted our law firm], he said he is looking forward to his trial when all the facts will come out before a jury. Among those facts, he says the laptop computer at issue in the case was premarital and that he never gifted it to his former wife.

Walker also claims that the Oakland County Sheriff, or their computer expert, may be responsible for evidence spoilation; they claim to have lost or misplaced his laptop.

Although the Supreme Court declined to decide the case at this time, some of the Justices hinted at their concern that the language in the statute is very broad and could be used to criminalize otherwise legal conduct.

Justice Marilyn Kelly, who voted to hear the appeal, stated her concern in the High Court's order:

The factual basis for one of the charges against defendant is that he allegedly accessed his wife’s e-mail account without her permission. This may be the first time in the 33 years since MCL 752.795 became law and the 16 years since it was amended to its present form that the statute has been used as the basis for criminal charges for the behavior in question.

Justice Kelly goes on to note that the Michigan legislature submitted a bill to the House Judiciary Committee last year seeking to amend the unauthorized computer access statute. This bill would carve-out an express exception in the statute for spouses, provided that certain conditions were satisfied.

We will be keeping an eye on this hot case.

Posted in: computer hacking,Justice Marilyn Kelly,Leon Walker,Michigan Court of Appeals,Michigan Supreme Court,Oakland Circuit Judge Martha Anderson,Oakland County Prosecutor,privacy law

Tuesday, June 5, 2012

Michigan Supreme Court Rules on Medical Marijuana

5:21 AM

Unknown

1 comment

This is a tale of one statute and two defendants. One defendant will be sporting a conviction for marijuana possession, while the other defendant's charges are now dismissed.

This week, the Michigan Supreme Court decided an important case involving Michigan's Medical Marijuana Act. The case, People v Kolanek, consolidated the separate convictions of Alexander Kolanek, and Larry King; the former an Oakland County case, the latter from Shiawassee County.

As detailed by this blog over the past three years, the Michigan Medical Marijuana Act has had a brief and tortured existence. Prosecutors, law enforcement and even judges have taken a restrictive view of the use and immunities provided by the Act. With much success, until now, they have managed to limit the use, or even the assertion of the affirmative defense set forth in section 8 of the Act.

Not surprisingly, several cases have percolated up through Michigan Court of Appeals. Two of these cases culminated in the High Court's Kolanek decision.

In the King portion of the decision, Larry King grew six marijuana plants in an enclosed locked dog kennel. King had a valid medical marijuana registration card.

He moved to dismiss the case against him at both the district and circuit courts; the latter agreed that he was entitled to assert the affirmative defense under the Act and dismissed the case. The Court of Appeals reversed the dismissal and remanded the matter back to the trial court.

In Kolanek, the defendant was arrested with a half dozen joints on his person. A week after his arrest, he obtained a statement from his physician that he would receive a palliative benefit from the use of marijuana; Mr. Kolanek apparently suffered from Lyme disease.

Interestingly, the circuit court in this case held that, even though Mr. Kolanek did not obtain his physician's statement until after his arrest, the affirmative defense in the Act was nevertheless still available to him on the basis that he did at least secure a statement from the treating physician.

Kolanek's case also moved through the Court of Appeals, which reversed the circuit court, holding that to avail oneself of the affirmative defense of the MMA, a person must secure a physician's statement prior to one's arrest for marijuana possession. Makes sense, don't you think...

The High Court reversed the Court of Appeals in King, holding that the MMA sets forth two separate defenses: one is the affirmative defense while the other is a broader immunity to prosecution. A defendant charged with possession may assert the affirmative defense, even if that defendant has not yet obtained a medical marijuana registration card. In order to secure a complete immunity from prosecution, however, an accused must have been issued said registration card and otherwise be in compliance with all the requirements of section 4 of the MMA.

The decision is also notable in that it affirmed the intermediate appellate court's decision in Kolanek to the extent that a defendant must have secured a physician's statement prior to asserting the affirmative defense provided for in the MMA.

The local blogosphere has hailed the Kolanek Court as a victory for medical marijuana users. The decision will be cited in support of the following tenets within the medical marijuana jurisprudence:

The MMA provides for two separate and distinct protections from marijuana prosecution: an affirmative defense available to assert to a jury for accused persons that have received a physician's statement that marijuana is therapeutic treatment of a chronic condition and a broader immunity from prosecution for those issued a registration card;
The decision affirms the MMA's definition of the legal, albeit limited use of marijuana;
The immunity set forth in section 4 of the MMA is broadly construed;
Interpretations of the MMA must give effect to the intent of the electorate through the passage of the medical marijuana initiative.

This may not be the end of the medical marijuana cases. The issues of cash pot transactions and inter-patient transfers are winding through the court system.

For now, however, at least defense attorneys can get down to the business of asserting the affirmative defense on behalf of their clients, as provided by the express language of the MMA, and not have this tool removed from the shed by over-zealous prosecutors and wrong-headed jurists.

Folks, as always, the best way to get a marijuana possession charge dismissed is to carefully comply with the requirements of the MMA, and obtain your registration card before you purchase, grow, or possess marijuana. After your registration card has been issued by the State of Michigan, be sure to stay within the strict limits of the Act.

Good luck out there.

Posted in: affirmative defense,medical marijuana,Michigan Court of Appeals,Michigan Medical Marihuana Act,Michigan Medical Marijuana Act,Michigan Supreme Court,Oakland Circuit Court

Monday, June 4, 2012

Oakland County Business Court

4:59 AM

Unknown

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.

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

Saturday, June 2, 2012

Military Divorce: Part 1

6:10 AM

Unknown

This post is the first in a three-part series addressing divorce in the context where one or both spouses are in the military. With so many returning servicemembers, our hope is to provide some guidance for those who find that their pre-deployment marriage is no longer tenable.

Divorce is a painful enough when it’s relatively straightforward—a couple living in the same state, no children, pre-nuptial agreements, etc. However, when one of the divorcing spouses is a member of the armed services, a series of other complications exist.

Laws, codes and manuals all contain regulations intended to protect both service members and their soon-to-be former spouses. Generally, the various branches of the armed services view divorce as a civil matter best left for state family courts to sort out. One exception, where the armed services can become directly involved (addressed in a later post), involves adultery.

What Law Governs?

First things first. What law do we need to look at when diving into divorce among military members? For the most part, the laws of the state court where the divorce is occurring govern divorces involving military spouses. However, there are two federal statutes that anyone facing the prospect of a military divorce should be aware of.

The first law is the Uniformed Services Former Spouses Protection Act(USFSPA). Passed in 1982, the law serves the exact function its title suggests—protecting ex-spouses by ensuring they don’t lose entitlement to benefits gained from having been married to a military spouse.

In particular, the law allows state courts to divide military pensions as marital property. This does not mean that an ex-spouse will automatically receive a portion of her service member husband’s (or visa versa) benefits. However, it does give the courts the option to award the ex-spouse a portion of the benefits if the laws of the state and the interests of justice allow it. There are certain limitations to the amount of benefits an ex-spouse will receive, but that will be discussed later.

Another law of import is the Servicemember’s Civil Relief Act. One of the main purposes of this law is to suspend court proceedings that would “adversely affect the civil rights of service members during their military service.” In other words, the law protects those in the military from the proverbial rock and a hard place that can occur when military service conflicts with pressing civil obligations, in this case, divorce proceedings. Articles 522 and 524 are particularly pertinent.

Section 522 allows any active or recently released (active service must have ended within the previous 90 days) service member to ask for a stay of any civil proceedings. The service member will have to explain how “current military duty requirements materially affect the service member’s ability to appear and stat[e] a date when the service member will be available to appear.” Section 524 allows the court, either on its own or at the behest of a service member, to stay a judgment or vacate any court order (such as a garnishment) if it can be shown that the member’s active military service prevented him or her from complying with the original judgment or order.

There are a few other important documents that require mention in any discussion of military divorce procedure. The Uniform Code of Military Justice gives military tribunals jurisdiction over all armed service members. While it generally does not cover divorce, there is one provision that is often used to prosecute adultery, which we will tackle later. The Manual for Courts-Martial is an executive order that provides administrative rules to enforce the UCMJ and also has a section directly addressing adultery.

Over the next two weeks, the Law Blogger will post the rest of this series for our readers affected by, or interested in the military divorce.

Posted in: adultery,divorce,military divorce,Servicemembers Civil Relief Act,UCMJ,Uniform Code of Military Justice

Saturday, May 26, 2012

Convicting the Child Support Payor for Non-Payment

7:18 AM

Unknown

In June, the Oakland County Bar Association has asked me to present to fellow lawyers on the topic of felony child support cases. Like any area of the law, what at first appears simple, really a matter of strict liability, takes on complexity once you start looking at the details.

Over the past ten years, prosecutors began addressing the problem of unpaid child support in Michigan, taking cases from the family courts, and charging the errant payors with felonies in the circuit trial courts. As a result, millions of dollars have been collected that otherwise would not have been paid. Also, dozens of payors, both Fathers and Mothers, have gone to jail; some to prison.

During this wave of prosecutions, many delinquent payors have challenged the constitutionality of Michigan's felony non support statute on the basis that it essentially creates a "debtor's prison". The "inability-to-pay" defense, viable at one time, was removed by the legislature with the passage of the most recent version of the statute in November 1999.

The constitutionality of this version of the statute, particularly the removal of the "inability-to-pay" clause, was tested a few years back in the People v Meldman case; a case from Oakland County. Defendant challenged the family court's findings on the imputation of his income, and challenged the felony child support statute on its face. Conviction affirmed.

The Law Blogger covered the basic ground on this subject some years ago, in these earlier posts: 02/15/2010 and 12/14/2010. These posts covered the UM Law's innocence project and their challenge to the felony child support act's constitutionality.

The case we've been waiting for, People v Likine, also from Oakland County, was fully briefed for the Michigan Supreme Court last April [including amicus briefs from both the Prosecuting Attorneys Association of Michigan, and a powerful group of Michigan Criminal Law Professors], argued in October, and the High Court's opinion deciding the case is expected any day now.

Likine deals, in astounding depth, with the bed-rock constitutional issue of whether you can be jury tried for a crime involving non-payment, without being able to put on a defense of an inability, or even an impossibility, to pay the court-ordered obligation. Related to this issue is whether a defendant can collaterally attack a statute, introducing evidence from the family court [on issues of payment history, income levels and availability of funds] into a court of general jurisdiction: i.e. the Oakland County Circuit Court.

One more recent development since that post is last June's SCOTUS decision in Turner v Rogers, holding that a child support payor facing incarceration for non-payment is afforded legal counsel under the Sixth Amendment of the United States Constitution. A rare example of SCOTUS reviewing a state court decision with roots in family law jurisprudence.

Great stuff. Stay tuned and we will be sure to convey how the Michigan Supreme Court views all this. Hopefully they will issue their Likine decision prior to the OCBA presentation to my colleagues...

www.waterfordlegal.com

info@waterfordlegal.com

Posted in: child support,debtor's prison,Louis Meldman,Michigan Supreme Court,Oakland Circuit Court,Oakland County Bar Association,OCBA,SCOTUS,Selesa Likine

Monday, May 21, 2012

Your Digital Estate Plan

5:34 AM

Unknown

Do you ever wonder what becomes of a deceased person's Facebook profile?

Increasingly, folks are compiling several digital profiles on the ever-popular social media sites now embedded into the Internet. Many of us have thoroughly fleshed-out these electronic profiles.

Well, what happens to your digital persona when you die? How do we assist our family members with the dismantling of these often extensive robust electronic profiles?

Below are examples of typical digital "assets" contained in an average modern person's legacy:

Social media profiles such as Facebook, LinkedIn, YouTube and a host of others
Professional profiles [I maintain at least a half dozen and counting]
Bank accounts, loan accounts, mortgage accounts
Investment accounts such as eTrade or Ameritrade
Uploaded photos
Uploaded articles
Education accounts, including alumni account profiles
Gaming sites
Email profiles and communications [Most people have at least two email accounts these days.]
Digital media accounts
Cloud computing profiles or accounts
On-line store accounts, particularly those with a social media angle such as iTunes and Amazon

There are other examples, to be sure. Any site that you've had to log-on to, create a profile, and post content, or place orders, is a component of your digital inventory. That's a lot to keep track of...

If your situation is typical, you have some similar passwords, or a theme running through your accounts, but due to the specifications of the particular site, most of your usernames and passwords are different. Also, you probably maintain a list of your names and passwords somewhere; perhaps on your computer.

There are, of course, some web-based products and services that assist with the management of your digital profile:

The first step in managing your digital legacy is to list all of your on-line "assets" and list the usernames and passwords associated with those accounts. You will be saving a family member or friend untold hours on the phone, or on the computer, when they try to figure it out in your absence.

Once you have compiled your all-important digital inventory, the next step is to reference this list and attach it to a power of attorney document. This will allow your attorney-in-fact to manage your accounts in the event of your temporary absence or incapacity.

Ditto to your will; include an instructional paragraph referencing and attaching your digital inventory.

If no instructions are provided, Michigan does not yet have laws governing the posthumous management of a person's on-line "assets". So far, only Oklahoma and Idaho have such laws, with Nebraska not far behind. [Where is California in all this?]

Therefore, if you die "digitally intestate", what happens to your digital profile is up to the particular service provider. For example, Facebook has long taken the position, based on its robust operating agreement that you agreed to when creating your account, that FB owns all of your posts and content. When you die on Facebook's watch, they memorialize your account; restricting views and posts to friends and family. Also, the account is closed if requested by your next-of-kin.

Some folks, however, do not have any next-of-kin. What then?

Here are some options for the proactive among our readers. Some posthumous services will send an email composed by you, or by your designated personal representative, to a designated list of contacts. Here is a sample list of such services:

Call it another characteristic of our modern life; once we are gone, our digital profile lives on for a time. In this fast-paced era, however, it's amazing how fast such a profile will become outdated.

Taking the right steps will allow you to manage that profile from the grave...

Posted in: digital assets,digital inventory,digital legacy,estate planning,Facebook,Linked In,YouTube

Thursday, May 17, 2012

Boyfriend's Background Check Refusal is Just Cause for Custody Modification

4:50 AM

Unknown

In this modern day, it is very important to know with whom your children are associating. Danger lurks everywhere, including in the home next door, down the street, across town, or across the country.

Earlier this week, the Michigan Court of Appeals issued an opinion for publication [meaning that it now binds all lower courts] in a case from the Newago County Family Court. The case, Mitchell v Mitchell, holds that a Mother's refusal to abide by a family court's ruling to provide a background check on her live-in boyfriend is "just cause" to modify custody.

In Mitchell, the parents divorced and Mother eventually moved to Texas. Apparently, Mom's boyfriend was instrumental in the all-too-common process of alienation directed at the non-relocating parent. Mom did not fire-up the Skype and botched a few Texas to Michigan trips, as ordered by the family court at the time it granted leave for the relocation.

Most importantly, however, Mom and her boyfriend refused to provide the court-ordered background check. This proved fatal to her custody case and now, Dad has the kids. What a mess.

From time to time, our law firm gets cases where one parent, in moving on to other relationships, exhibits risky behavior relative to the selection of his or her live-in partner. In such cases, what can the other parent do; just sit back and wait for the damage to be done?

Now, thanks to the published Mitchell decision, one safeguard that can be requested is for the family court to order a background check of the individual. If used properly, this device will provide some information that would otherwise be unavailable.

A competing concern is, of course, the privacy of the individual. This ruling can, and no doubt will, be used offensively and improperly as often as it is used in the fashion intended by the 3-judge panel of the Michigan Court of Appeals.

All we here at the Law Blogger can say about that is: is he or she really worth it? Best to err on the side of caution for the safety of the children.

In our practice, we routinely counsel clients to take it slow when it comes to introducing young children to the new "significant other". Divorce is unsettling enough; the new person is most often seen by the kids, even when nice, as a threat. They may repress their anxiety in order to gain approval from the relocating parent.

What a mess we can make right in our own kitchens.

The best defense to all of this is to exercise good judgment and to err on the side of putting the kids first; something that Kate Mitchell was found not to have done. In so doing, she has unwittingly handed us family law attorneys a defensive weapon which can be wielded in the protection of the children.

Post Note: Since this post, I learned that my friend and colleague here in Oakland County, Daniel Victor, has been hired by Mom, Kate Mitchell, and has filed an application for leave to appeal to the Michigan Supreme Court. Great case to land on appeal. Of course, an opposing brief was filed by Dad's family court lawyer, Melissa K. Dykman.

While no stranger to the Supreme Court Justices, Mr. Victor will have a tough road convincing four of them to reverse the Court of Appeals. Not so sure I'm wishing him luck on his effort(s) in this one either folks...

Posted in: child custody,Daniel Victor,domicile,family court,family law lawyer,John Mitchell,Kate Mitchell,Michigan Court of Appeals,Newago County,relocation

Saturday, May 12, 2012

POTUS and Same-Sex Marriage

5:50 AM

Unknown

This week, President Obama [POTUS] grabbed big headlines by endorsing same-sex marriage as a personally held belief. He admitted to changing his views on the subject [again] after discussing this issue with his wife and daughters, and perhaps, after Vice President Biden threw down the gauntlet, esssentially forcing the issue by asking, publicly, "what's wrong with it?"

Another Biden gaffe; or a script from the West Wing? Hard to tell when the Chief keeps changing his position on the issue...

Meanwhile, as this post is being written, the GOP nominee for November's presidential election, Mitt Romney, is preparing to give 39th commencement address at Liberty University; the Lynchburg, VA, conservative Christian college founded by the Reverend Jerry Falwell in 1971.

You have to wonder if Romney will take the opportunity to either: criticize President Obama's newly-held endorsement of the freedom to marry between two consenting adults; or to espouse his own view that a marriage must be between a man and a woman; as stated in the Bible and codified in the DOMA [the federal Defense of Marriage Act, ironically signed into law by President Clinton back in 1996].

Neither man has a choice at this point; the political battle lines are drawn. Obama cannot alienate a solid chunk of his core supporters by holding any other view than an unequivocal support of same-sex marriage. Similarly, if Romney, in addressing the marriage issue today, does not roundly criticize same sex marriage, he is done among moderate and conservative Republicans.

Executive branch politics aside, however, there is a group of interesting cases percolating through the federal court system on their way to the SCOTUS. These cases involve challenges to the DOMA or to state laws that define marriage to the exclusion of same-sex couples.

We here at the Law Blogger have been following this issue over the past few years; here are some of our earlier posts tracking the subject:

Illinois Becomes 6th State to Recognize Same-Sex Unions January 2011
Same-Sex Marriage Cases Go Constitutional April 2010

There are three cases in the same-sex marriage pack that seem to be headed toward SCOTUS for their ultimate resolutions; two of those cases present direct constitutional challenges to specific provisions of the federal DOMA; the other case [Perry] challenges the constitutionality of a state law ban on gay marriage.

Here are the Justia links for these leading cases:

Pedersen, et al -v- Office of Personnel Management [pending in Connecticut, but involving couples from that state as well as Vermont and New Hampshire];

Gill, et al -v- Office of Personnel Management [post-post-note: 1st Circuit declares DOMA, section 3, unconstitutional, case will surely go to SCOTUS]; and, of course,

Perry -v- Schwarzenegger [9th Circuit Court of Appeals recently -Feb 2012- affirmed lower court's ruling overturning California's ballot proposal ban on same-sex marriage].

Executive branch politics on this state-law issue will, of course, continue to play out in the media. The same-sex marriage issue could be the 21st Century version of the "abortion" bell weather with regard to a presidential candidate's personally-held beliefs.

Legalities of same sex marriage, however, will continue to be determined on a state-by-state basis, with the larger constitutional issues being determined by the SCOTUS, not by what a sitting President thinks.

On the other hand, Perry or one of the DOMA cases will most likely reach the SCOTUS at some point during the next presidential term. Therefore, the next President's opportunity to appoint a justice to the closely divided High Court will have a significant impact on the ultimate resolution of the issue.

Constitutional law experts compare this issue to the one decided by the High Court in the 1967 case of Loving -v- Virginia, striking Virginia's ban on inter-racial marriage as unconstitutional.

All we can do is to stay tuned on this...

Posted in: Defense of Marriage Act,DOMA,Jerry Falwell,Liberty University,Mitt Romney,POTUS,President Obama,same-sex marriage,SCOTUS

Wednesday, May 9, 2012

Medical Marijuana: The Feds Strike Back

4:36 AM

Unknown

Even as Connecticut became the 17th state to legalize marijuana for medicinal purposes last week, the DEA continues to bring the heat on some of the more visible pot crusaders across the country. The latest to be busted is Richard Lee of Oaksterdam University fame in Oakland, California.

Despite assurances from the U.S. Department of Justice early in the Obama administration that enforcement of the federal Controlled Substances Act would not be a law-enforcement priority, in April the DEA capped a mounting campaign to arrest dispensary owners across California, Colorado, and Montana. Many dispensary owners claim to have received letters from the DEA threatening criminal prosecution if the businesses do not cease and desist.

What has changed since the Ogden memo of October 2009, when Obama's DOJ signaled it would leave marijuana enforcement to the states?

One explanation is that when it came to dispensing marijuana, medicinally or otherwise, some folks started to make money; big money. This led to the DOJ's so-called Cole memo last spring, which sought to "clarify" the previous memorandum, and which provided a mandate to U.S. Attorneys to vigorously prosecute marijuana distributors and to "follow-the-money".

Strong voices in the pot lobby are crying foul, suggesting that operators within the DOJ [particularly in California and Colorado] are acting on their own, ignoring the official White House script on this issue. For their part, some of the medical marijuana states are seeking an end to this chaos; bi-partisan legislators from five of those states signed an open letter to President Obama requesting that the DEA not interfere with their respective medical marijuana laws.

Well folks, because this is a presidential election year, don't look for the Chief to weigh in decisively on this one anytime soon. For a glimpse into the mind of the voting public, you can peruse the 100+ comments to an article in the Economist on this subject. Some excellent points on both sides of the issue are made in the forum.

No wonder Mr. Lee is calling it quits out in California at Oaksterdam; he obviously doesn't want to do a dime in the federal penitentiary as all this gets sorted out. We here at the Law Blogger will, of course, keep you posted; we've been tracking this issue since 2008.

Posted in: California,Cole memo,Colorado,Connecticut,medical marijuana,Oaksterdam University,Ogden memo,President Obama,The Economist

Tuesday, May 8, 2012

When Dementia Renders Your Spouse a Stranger

2:41 AM

Unknown

Richard Webber & Adele of Grey's Anatomy

Dementia, always a sad development for any family, is particularly cruel in long-term marriages where one spouse is afflicted, and the other is left to pick-up the pieces. In such cases, marriages are often stressed to the break-point.

This issue has received national attention lately, courtesy of the hit television series, Grey's Anatomy, where Dr. Webber's character is losing his wife, Adele, to Alzheimer's.

Alzheimer's disease is the most common form of progressive dementia. Recent scientific findings, however, suggest that there may be many sub-types of dementia.

For example, frontotemporal degeneration [also known as Pick's disease] manifests itself much earlier than Alzheimer's and progresses faster. Frontotemporal degeneration is believed to afflict between 50-60 thousand adults in the United States, compared to the 5 million Americans afflicted with Alzheimer's.

Frontotemporal disease is particularly threatening to a marriage due to the swift onset of symptoms which attack a spouse's personality directly; not just with the onset of memory loss, as in much older Alzheimer's patients. The non-afflicted spouse often feels ignored, snubbed or maligned because of the most common characteristic of the disease: silence.

Like many diseases, frontotemporal degeneration progresses differently in individuals, taking on a life of its own. Most cases feature a prominent and swift deterioration of the patient's overall personality; a complete breakdown in the patient's ability to communicate with and care about others.

Obviously, the patient's ability to hold down a job, or to hang onto their marriage, is put to the test. This is because frontotemporal degeneration attacks the frontal temporal lobe of the brain; the region responsible for decision-making and judgment. The frontal lobe actually shrinks.

Sometimes, one disease is mistaken for the other, leading to confusion among the family care providers and a confusing series of hospital stays, doctors visits and testing.

Dementia, in general, highlights the need to secure a solid estate plan early in a marriage, before the onset of any incapacity. Once a dementia sets in, an individual could lose their mental capacity and have a guardian and conservator appointed to manage their affairs. While this fiduciary could be, and usually is, a family member, no estate planning is possible while a loved one is under such legal incapacity.

I you or a spouse have been diagnosed with dementia, here are some local support groups that may be of use:

Alzheimer's Association;
National Family Caregivers Association - [developing e-communities to provide support and information]
Association for Frontotemporal Degeneration - [referencing a support group in Grand Rapids, MI]

In the meantime, if you are enjoying the fruits of good health, do not take it for granted. Be proactive and get an estate plan executed.

info@clarkstonlegal.com

Posted in: Alzheimer's disease,conservatorship,dementia,divorce,elder law,estate planning,frontotemporal degeneration,Grey's Anatomy,guardianship,Pick's disease,Richard Webber

Tuesday, May 1, 2012

Practicing Lawyers Embrace Social Media

2:59 AM

Unknown

This Thursday, I will be presenting in Seattle, WA to a group of lawyers from around the country on the topic of social media. Not considering myself an expert in the field, I was surprised to get the invitation to join an esteemed panel.

Here's the catch; the good folks at Avvo.com, a website designed to interface consumers of legal [and health care] services with the providers of those services, wanted a panel made of practicing attorneys; not just the usual "social media marketing" consultants.

Lawyers are not just dabbling in social media these days. For most, getting connected and developing a robust electronic profile is now a "catch-up" exercise.

So I will be addressing conference attendees on how, as a busy practicing attorney, I have utilized social media in my law practice. Along with the other panelists from around the country, I will be sharing my experience with utilizing social media to get our law firm message out to our target audience.

Thanks, in part, to the followers of this blog, I can point to sustained search results placing us near the top of hyper-local searches for legal services in Northern Oakland County.

As a preview to this presentation, I was interviewed by Colin O'Keefe [from the Seattle area] of LXBN TV. Here is a link to Colin's interview.

www.clarkstonlegal.com

info@clarkstonlegal.com

Posted in: Avvo,Avvocating 2012,Colin O'Keefe,lawyer,Oakland County,Seattle,social media

Thursday, April 26, 2012

SCOTUS' Judicial Review of Federal Health Care Legislation

4:34 AM

Unknown

This is a guest blog post on SCOTUS' historic and extensive judicial review of the health care legislation. Now that the dust is settling after oral arguments in March, we here at the Law Blogger have enlisted Wayne State University Law Professor Robert Sedler, who teaches Constitutional Law, to provide his expert analysis on this topic. Professor Sedler has commented widely on this issue currently pending before the U.S. Supreme Court.

The constitutional challenge made to the health care statutes has been to the so-called “individual mandate” in PPACA as being beyond the constitutional power of Congress under the commerce clause. The opponents contend that this provision is unconstitutional and that the rest of the act cannot be severed from this provision, so that the entire Act fails.

The High Court took the unusual step of reserving three days in March for oral arguments in review of the case; normally advocates get an hour to present their arguments and attempt to convince the bench.

Sometimes in oral argument, the position of judges on the issue in question is clear; sometimes it is not; and sometimes, there are surprises both ways.

In the arguments in this case, the questions of six Justices were so one-sided that their position was clear, and this coincided with their ideological disposition. For example, Justices Scalia and Alito sharply questioned the government's lawyer [the Solicitor General; the petitioner in this case] and either didn't ask questions, or asked only soft questions of the respondents’ lawyers. Justice Thomas never asks questions, but he is certain to vote with Scalia and Alito.

Scalia and Alito made it clear that they consider the individual mandate unconstitutional and are disposed to invalidate the entire law. Justices Ginsburg, Breyer, Sotomayor and Kagen did just the reverse, strongly questioning the respondents’ lawyers and using the questions to make their points, just as Scalia and Alito did in their questioning of the government's lawyer. The liberal bloc will doubtless vote to uphold the individual mandate.

Justice Roberts was tougher on the Solicitor General, although he asked some questions of the challengers’ lawyers. For his part, Justice Kennedy asked hard questions of the lawyers on both sides. and, as is so often the case, may be the swing Justice.

The possible outcomes are as follows:

 The individual mandate is constitutional. Kennedy joins the four liberals. Roberts joins the three conservatives in dissent, or may concur with Kennedy to make it 6-3 rather than 5-4.

 Justices Kennedy and Roberts join the three conservatives to hold the individual mandate unconstitutional and that the rest of the act cannot be severed, so that the entire act falls.

 Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that all of the rest of the act is severable. This is what the Eleventh Circuit held.

 Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that the rest of the act can be severed except for the requirement that the insurance companies insure everyone despite a pre-existing condition, and that ratings for individual policies be community wide. This was the government's position.

Predictions as to what the High Court will do - and there have been many- are completely speculative and unnecessary. The Court will decide the case by the end of June, with several of the Justices reading their concurring or dissenting opinions from the bench in the Chamber of the Supreme Court. At that time, on that date, we will know the fate of the federal health care statutes.

Law Blogger Note: although the preliminary voting among the Justices in conference took place at the end of March, the Justices sometimes change their minds, and thus their vote. No one but the Justices themselves attend these case conferences. Also, leaks among the law clerks and court staffers are exceedingly rare. We will all have to stay tuned.

Posted in: health care,individual mandate,judicial review,Law Blogger,Law Professor Robert Sedler,lawyer,SCOTUS,Solicitor General,Wayne State University Law School

Thursday, April 19, 2012

Bankruptcy: What will I lose? What can I keep?

6:12 PM

Unknown

Our good friend and colleague out here in Clarkston, David Shook, provides another bankruptcy-related guest blog post.

Many debtors imagine repo men descending on their homes to loot and pillage their estate seconds after the bankruptcy papers are filed in federal bankruptcy court.

While this makes for great television, the facts could not be further from the truth. While there are cases where assets need to be sold for the benefit of creditors, there is a process to be followed, and the opportunity for hearing before a judge, prior to the sale of anything in a case.

Debtors are allowed to retain up to fixed amount of value in assets through a process of exemptions, which are written into the Bankruptcy Code. Exemptions allow for the first dollars of any asset to remain in the debtors possession throughout the bankruptcy process. If for some reason the Chapter 7 Trustee should choose to sell an asset for the benefit of the creditors (which is very rare) the Debtor would receive the exemption amount from the sale proceeds, prior to creditors seeing a dime.

Keep in mind the system focuses on the debtor’s value in the property, not the value of the asset. I receive many a creditor phone call to inform me that “Bob” filed bankruptcy, but got to keep his Corvette, ski boat, etc. If the Corvette is worth $25,000 but subject to a creditor lien of $23,000, Bob has only $2,000 in equity in the car. Given The Code, allows the debtor an exemption of up to $3,450 in an automobile, there is no benefit to creditors in selling the car. Thus the bankruptcy Trustee has no interest in the selling the Corvette, if “Bob” continues to pay the creditor on his car loan, he may retain it after bankruptcy.

On the other hand if the Corvette does not have a creditor lien, or the lien is small enough to warrant the sale of the asset, the exemption must be paid to the debtor from the sale proceeds. In our example the Corvette is worth $25,000, but the creditor lien is only $5,000. Here the Trustee might very well sell the car, pay off the creditor lien, and all expenses of sale, and retain $18,000. The Trustee must give the Debtor the exempt amount from the sale proceeds.

While $3,450 might not sound like a good deal, depending on the amount of debt this may be a great deal. In effect the debtor has traded the Corvette for $3,400 in cash and wiping clean all creditor claims.

If upon review, it is determined a debtor may have assets that cannot normally be retained in bankruptcy, Chapter 13 of the Bankruptcy Code may very well help. One of the benefits of Chapter 13, which focuses on the repayment of debts over a 3 to 5 year period, is a debtor is allowed to “buy back” assets from the estate.

In this example the Debtor is allowed to pay creditors the value of the Corvette ($25,000), less the lien and exemption ($5000 + $3,400 = $8,400) over the life of the plan. Again depending on the amount of debt involved, paying $16,400 over a 36 to 60 month period may very well be a great deal.

So what can you keep in a bankruptcy? One of the few clear benefits for the debtor in the 2005 bankruptcy reforms relates to retirement accounts.

The vast majority of tax deferred retirement accounts, IRA’s, 401(k), 403(b), etc., are exempt from the bankruptcy estate. While the probations against transfers discuss in my last post apply, and it is not advisable to move a $10,000 CD into a IRA on the eve of bankruptcy, normal contributions are exempt regardless of the balance in the account. A debtor, who puts 6% of his gross pay into a 401(k) or contributes the maximum deductible amount to his IRA each year, has an unlimited exemption in the account. As I tell clients, the difference between your case, and a case with $100,000 in an IRA, is the money you have after bankruptcy.

I have seen several cases over the years where the Debtor has hundreds of thousands of dollars in an IRA or 401(k). In one example the Debtor had close to two million dollars in his IRA’s. All of these funds where retained free of claims by creditors or the Trustee.

For all of the energy invested in wealth retention, the best protection is also the simplest. Everyone with a paycheck should have some type of retirement account, and deposit as much as possible into the account, up to the deposit limit’s set by the IRS.

Great advice Dave. Any of our readers with questions are encouraged to contact Mr. Shook for answers.

Posted in: bankruptcy,Clarkston,Clarkston Legal,David Shook,lawyer

Tuesday, April 17, 2012

Privacy and Tracking Cell Phone Use

4:15 AM

Unknown

Our cell phones have been described as the biographer of our daily lives. If deconstructed, a cell phone can tell an awful lot about its owner.

Increasingly, cell phone carriers are being subpoenaed in high-conflict, or fault-based divorce cases. The cell phone records identify the persons with whom an individual communicates throughout the day, and where that communication occurred.

The information contained in cell phones is also important in the law enforcement context. Formerly reserved for federal agents, local law enforcement is now getting in on this information bonanza thanks to a smorgasboard of services provided by cell phone carriers.

The legal question posed by the practice is whether local police departments must obtain a probable cause-based warrant prior to securing our cell phone information from our carrier. The answer is unclear.

Recently, SCOTUS decided United States v Jones, requiring a warrant prior to installing a GPS tracking device on a drug suspect's vehicle. The decision in Jones did not address whether a warrant is needed in the case of obtaining cell phone records; including the geographic information in the now-ubiquitous GPS navigation systems embedded in cell phones.

In addition to geo-tracking data, there is also "cloning": having a cell phone, for example, download [to police] copies of sent and received texts.

This information is deemed so important to law enforcement agencies, some are by-passing the cell phone carriers altogether, purchasing their own cell phone tracking equipment in order to avoid the cost and delay of dealing directly with the various carriers. In February, police in Grand Rapids, for example, were able to track a cell phone call placed by a stabbing victim who had been secreted away in a basement.

At present, however, there are few guidelines for cell carriers and the disparate local police agencies as to what information can be provided, and what evidentiary standard must be met in such disclosures.

With the SCOTUS decision in Jones less than clear, and with the federal circuit courts of appeal divided on the issue, Congress and the state legislatures are looking at the issue. Privacy law is going to be a growing branch of our jurisprudence in the next few decades.

www.clarkstonlegal.com

info@clarkstonlegal.com

Posted in: cell phone,cloning,criminal law,divorce,GPS,lawyer,privacy law,SCOTUS

Saturday, April 14, 2012

Electronic Service of Process

6:31 AM

Unknown

www.waterfordlegal.com

info@waterfordlegal.com

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...

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

Tuesday, April 10, 2012

Spice Kills

3:32 AM

Unknown

Waterford Judge Jodi Debbrecht

This is a guest blog post from 51st District Judge Jodi Debbrecht in Waterford, MI.

Dickie Sanders was a relatively normal teenager – interested in BMX bikes, student, goals, dreams. However, Dickie died from using bath salts.

While at home he had a psychotic episode as a result of using bath salts and was “seeing” fire engines and police cars in multitude arrive at his home. He was screaming to his father who was in the kitchen of their home with Dickie.

Suddenly, as Dickie was counting cars, he reached down and grabbed a butcher knife and slit his throat open.

Dickie’s parents are both doctors; doctors who knew nothing about Spice, K2 or bath salts. They rushed him to the hospital after triaging him themselves where he was treated and sent home for care.

Less than 24 hours later, while in his bedroom, Dickie suffered another psychotic episode as a result of using bath salts and killed himself.

Many, many more stories just like this one abound. And many, many stories similar to this one have occurred in our local communities.

Every day in my courtroom, young adults are admitting to using spice/K2, bath salts or other synthetic substances. No matter what you call them, they are killing our youth and the parents who appear to support their children are left with no answers, just left to wonder, what is this stuff?

Spice/K2, bath salts are essentially materials that are infused with chemical compounds that cause hallucinations, erratic behavior, disorientation, nausea, and even death. The symptoms are not limited to these noted here. Spice/K2 and bath salts (or similar substances) are technically illegal in Michigan. However, they continue to be sold because as soon as the legislature identifies a chemical compound as a controlled substance thereby making it illegal, the individuals making the chemical change the compound.

The new compound is not listed as one that is illegal because it no longer fits the definition as defined in the statute for an illegal substance. Furthermore, Spice/K2 and bath salt use is on the rise because it becomes increasingly difficult to test for, is relatively inexpensive and easily accessible.

An immediate and viable way to stop the use of this new drug is to get people to stop selling it. In order to get people to stop selling it, we must raise awareness of the critical nature of this issue. Together we can stop the use and sale of this insidious substance.

Only together can we win the war against synthetic drugs – or any drugs. Informational meetings are being held throughout your community to provide you with information about this toxic substance.

Get the answers. Get the facts. Get armed to save our youth. Saying I didn’t know will not bring our young adults back from potentially irreparable damage, even death.

For more information, please see the links contained on my website: www.JudgeJodi2012.com.

Thanks Judge Jodi for putting the spotlight on this issue that has cropped-up among our children and their friends.

www.waterfordlegal.com

info@waterfordlegal.com

Posted in: 51st District Court,bath salts,drug abuse,Judge Jodi Debbrecht,K2,spice,Waterford

Sunday, April 8, 2012

What Makes a Good Family Court Judge?

5:00 AM

Unknown

Attorney Henry S. Gornbein

This post is from the Huffington Post's Divorce Blog. The author is Henry S. Gornbein, a colleague of ours from Oakland County that specializes in divorce and family law and a regular contributor to the Huffington Post. In this post, Henry really captures the critical elements of a good family court judge.

Here is what Henry had to say on the subject:

In over forty years of practicing family law, I have appeared before hundreds of different judges. I have found that some are rude, arrogant, and suffer from what is known as black robe syndrome. This means that they have forgotten -- or never knew -- what it was like to practice law, and have a holier than thou attitude. Most judges are considerate, will listen, and will try to resolve issues in cases.

Here are some of my thoughts on the attributes of a good judge in family law:

1. A judge should remember that he or she may also be divorced. I have represented judges in their divorces before, and they are human just like everybody else.

2. A good judge should listen to the arguments of attorneys and show compassion.

3. A good judge should not lose control of his or her court room.

4. A judge should not let arguments go on endlessly, and give everyone a chance to speak. The judge should also know when to cut arguments off in court.

5. A good judge should be fair and not biased.

6. A good judge should be decisive. One of the most frustrating things for attorneys are judges who will take matters under advisement, or fail to come up with a ruling. People need rulings so that they can go on with their lives. Even if an attorney or client disagrees with the ruling, it is better to have a ruling than not to have any decision made by the court.

7. Judges should be on time. If court is set for 8:30 or 9:00 a.m., judges should be prompt. One of the most frustrating things for litigants and their attorneys is to sit around for hours on end waiting for a judge who does not start court promptly.

8. Some judges will refuse to talk to attorneys in chambers about a case. I think that is wrong. I feel very strongly that a meeting with attorneys through a pre-trial, where a judge will listen to some of the key issues and then send a signal, can lead to a settlement. I also believe that a good judge will set up meetings in order to settle cases rather than just saying, "if you can't settle, then call your first witness." Trials should be a last resort, not a first resort. A good judge knows that.

9. A good judge should always be in control of his or her court room and docket, but also should not be punitive or refuse to allow people to have their day in court. There is an old saying that justice delayed is justice denied. Cases that are set for trial which are continually adjourned because of court docket conflicts or other reasons, help no one. While I believe that there should be reasonable adjournments granted when an attorney requests one, there should not be unlimited adjournments of a hearing or trial of a case.

10. I have found over the years that if the judge will start a trial, listen to the parties, allow some evidence, and permit the litigants to get whatever he or she has off his or her chest -- the case can often be settled. Getting that day in court, getting a chance to speak and feeling that a litigant is heard can often lead to a resolution of a case without the need to go through an entire trial. I have had judges over the years who would give people a chance to speak in an informal manner, and then get down to try and settle the case. Letting someone be heard, letting someone feel that his or her thoughts and wishes are important, is a good way to lead to a resolution of a case.

11. A good judge should show respect for the attorneys and for the litigants, and a good judge should expect respect in return.

12. In our multi-cultural, social and ethnic society, a judge should be sensitive to religious, ethnic, racial, and cultural differences. I have had judges tell me that certain cultures act in certain ways, and allowing these cultural differences to be recognized in a respectful manner can lead to a resolution of a case.

13. In making a ruling, a good judge should be clear and concise, and explain what he or she is doing and why. Too many times I have had attorneys and litigants walking out of a court room shaking their heads and wondering what the judge did and clearly not understanding what the ruling was based upon. This is not good for anyone.

14. Last, but not least, just like a good lawyer understands that a trial before a stranger should be the last resort, not the first, a good judge should understand that also. A judge should leave plenty of opportunity for resolution of a case short of trial either through mediation, negotiations or sometimes, arm-twisting by the judge.

Well put Henry; we could not have stated the matter any better. Clearly, four-decades of practicing family law has given you some very valuable insight. Thanks for sharing your thougts.

www.clarkstonlegal.com

info@clarkstonlegal.com