SCOTUS Bruises First Amendment in "Terrorist Aid" Case

On Monday, I was scheduled for admission to the bar of the U.S. Supreme Court; a very formal proceeding.  So first thing Monday morning, I made my way past the security checkpoints of the storied courthouse on the far-side of the Hill, and into Room G-32 (they have an entire suite of offices devoted to bar admissions).

There were only four attorneys slated for individual admission on the Court's docket that day; the last day of the 2009-2010 term.  Good news for us admittees; the Court was issuing 4 opinions so the entire bench would be present for the admission ceremony.

In another piece of extraordinary luck, we were seated in the front row of the courtroom for the day's proceedings.  I actually had a better seat than Nina Totenberg from NPR and Bill Mears of CNN; both were present to hear the opinions read from the bench.

The high-point from that session was Chief Justice John Roberts reading the 6-3 majority opinion in the case of Humanitarian Law Project v Holder; followed by Justice Stephen Breyer reading his dissent (joined by Justices Ginsberg and Sotomayor).  Dissents rarely are read from the bench in the High Court's chamber; this one signaled a strong warning from the Court's liberal wing that the government had gone too far by criminalizing free speech in the name of national security.

This case (actually two cases) involved application of a 1996 federal law banning "material support" to known foreign terrorist organizations black-listed by the Secretary of State.  The terrorist groups in these cases were not Al Qaeda or the Taliban but rather, dissident groups from Turkey and Sri Lanka.

The actions sought to be criminalized in the Holder cases would ordinarily receive First Amendment protection as a form of "pure political speech".  For example, teaching members of the foreign groups how to petition bodies like the United Nations, or hiring an attorney to resolve disputes in a US courthouse.

The federal government has utilized the "material support" law as an effective courtroom weapon in our protracted war on terror.  Justice Roberts emphasized, however, that the Court's holding was narrow and did not criminalize pure speech; just conduct in aid of known terrorist groups.

Prior to Humanitarian Law Project, the Court's terrorist cases were limited to constitutional issues surrounding detainees.  This case, the only "terrorist" case to be decided this term, moved the terrorist jurisprudence outside the detention centers and into our streets; into the heart of our right to free speech.  In so doing, the High Court's decision in this case affects each and every one of us as free thinking individuals.

When the cases were argued before the Court back in February, it was Solicitor General Elena Kagan, subsequently nominated by President Obama to occupy a seat on that very Court, who vigorously defended the law and its effectiveness in combating terror here in the homeland.  She prevailed in the forum where, presumably in October, she will become a mainstay.

The Holder decision evidences the Court's traditional and continuing deference to the political branches (Congress and the Executive) in matters of national security.  In the 21st Century, perhaps like no other time in our history, national security matters are everywhere; even in our own backyards.

After the Holder opinions were read, the Chief Justice turned to the administrative motions of the day, calling my long-time college friend and fellow-attorney, Barak Romanek, to the podium to move for my admission.  Thankfully, his motion was granted and I was duly admitted to the bar of the SCOTUS with a friendly nod from the Chief Justice.

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Posted in: criminal law,First Amendment,free speech,Helena Kagan,Humanitarian Law Project,Justice Breyer,Justice John Roberts,SCOTUS,terrorist

What Happens at Your Creditors' Meeting Once You've Filed for Bankruptcy

 This post is the original content of the Colorado law firm of Wink & Wink, bankruptcy specialists.  They maintain an excellent law blog with frequent updates on matters of bankruptcy that are as relevant here in Michigan as they are in Colorado.  We hope you find this post as informative as we did!

For many bankruptcy filers, the prospect of the §341 Meeting of Creditors causes some stress and anxiety. It’s normal to be apprehensive about your 341 Meeting, but at the same time it’s nothing to be afraid of because most 341 hearings go quickly and smoothly. As with all other aspects of your bankruptcy case, preparation is the key. So what follows is an overview of the 341 process to ease your worried mind.
What Is A 341 Meeting?

The Meeting of Creditors is described in section 341 of the Bankruptcy Code, hence the name “341 Hearing”. It provides for a United States Trustee to convene and preside at a meeting of creditors and directs the Trustee to “orally examine the debtor” in a Chapter 7 case to make sure they are aware of 1) the consequences of filing for bankruptcy, 2) their ability to file a petition under another chapter, 3) the effect of any discharge of debts and 4) the effect of reaffirming any debt.

What happens in reality is that the bankruptcy trustee reads an advisement and then begins calling cases by debtor name. Once you hear your name called, you and your attorney walk up to the desk or podium and the panel trustee places you under oath, checks your identification and asks you questions on the record about your bankruptcy petition and your financial situation.

In Colorado, where I practice bankruptcy law, you will also hand a completed “Trustee Information Sheet” to the panel trustee along with a bank statement and pay stub that covers the date your case was filed. Additionally, the trustee must already have received a copy of your most recent tax return. As I will discuss below, these requirements alone are enough reason to make sure you are represented by an attorney at your 341 Hearing.

In fact, if you meet with an attorney who does not provide representation at the 341 Hearing as part of their services, you should keep looking. If there is ever a time to have the services of a bankruptcy lawyer, it is when you are answering questions about your case under oath.

Who Is the Bankruptcy Trustee?

In a Chapter 7 bankruptcy, private trustees—or panel trustees—are appointed to administer estates under the supervision of the United States Trustee for their judicial district. That means there is a U.S. Trustee’s office in each judicial district (part of the Department of Justice), and then each U.S. Trustee’s office has a panel of private trustees who do the day-to-day work of administering Chapter 7 cases, which includes presiding at the 341 Hearings.

These panel trustees are usually private bankruptcy attorneys who do the work on a part-time basis. They take a cut of any assets they find in the bankruptcy estate, along with a flat fee for each case they administer.

So, in a Chapter 7 case, you have two levels of trustee involvement: 1) the U.S. Trustee, who is reviewing your case to make sure you qualify for chapter 7 and that your case is not an ‘abusive filing’; and 2) the panel trustee who is looking for assets they can sell to make some money.

What Is the Trustee Looking For?

Because the panel trustee has a financial stake in every Chapter 7 case they see, the 341 Hearing really boils down to one thing: money. The panel trustee is looking to see if you have assets they can liquidate because that is how they get paid. (The panel trustee takes 25% of the first $5,000, 10% of the next $45,000, etc.) Therefore, the questions you are asked are tailored to determine if your estate has any non-exempt assets.

For example, if you own a car, the trustee will want to know how you came to the value the vehicle(s) you listed for the car in your bankruptcy petition. If the trustee thinks the value is too low, they may order an appraisal.

A bankruptcy attorney is invaluable in preparing you for the types of questions you may be asked at the 341 Hearing.  This is because your attorney, in preparing your bankruptcy case, will know what property or interests you have that will be of interest to the trustee and can prepare you accordingly.

What About the Creditors?

Since the 341 is technically called the Meeting of Creditors, you may be wondering where the creditors are in the process. All of your creditors receive notice of your bankruptcy and also the date of your 341 Hearing. However, it is very rare for a creditor to appear at this meeting.

In fact, the only time you usually see creditors at the 341 Hearing is when the creditor is an ex: ex-wife, ex-husband or ex-business partner, someone with an opinion about your bankruptcy or who wants the trustee to know that they think you have some very fancy golf clubs in the garage that you didn’t list on your petition (another reason to have an attorney prepare your bankruptcy case!). In other words, you probably will never see Bank of America at the 341 meeting, they just aren’t emotionally involved and they don’t have the staff or money to send someone to every meeting of creditors when one of their customers files for bankruptcy.

The Role of the Attorney

The 341 Hearing is a perfect example of why having a lawyer prepare your bankruptcy AND represent you at the trustee meeting is essential. If you spend any time at all in the hearing room, listening to other cases as they go before the panel trustee, the benefits are obvious.

Last month, I saw an extreme example of what can happen when you aren’t prepared for or represented at the 341 Hearing. The trustee called the next case and the debtor approached the table, raised his right hand and took an oath. Once he sat down he was shaking and obviously nervous. The trustee asked him a few preliminary questions, checked his identification and then asked him if he had personal knowledge of the contents of his bankruptcy petition. This very basic question threw this guy for a loop. He asked to have the question repeated, and repeated again. And then he turned very, very pale and passed out. It was scary and sad because the poor guy was obviously nervous about his case and his petition and would have benefitted greatly from professional advice and representation. My client actually turned to me and said “Am I ever glad we have a good bankruptcy attorney!”

Fainting at the 341 Hearing is not at all common, but having your case dismissed for failure to provide your tax return to the trustee is, along with having to surrender property (like your tax refund) that you could have kept if you’d had legal advice.

Overall, the 341 Hearing is nothing to be scared of, as long as you are prepared and accompanied by an attorney who has prepped you for the meeting. Most 341’s go quickly and painlessly, especially when your case was properly prepared, you know what to except, and are ready for the specific questions that might come your way.

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Posted in: 341 meeting,Bankrupcty,creditors,debtor,discharge,trustee,Wink and Wink

SCOTUS Tilts Miranda Warnings Toward Police in Case From Southfield

In January 2000, Van Chester Thompkins of Southfield committed a drive-by style shooting, killing one victim and wounding another.  He was convicted by an Oakland County Jury in May 2002 of first degree murder, assault, and a variety of weapons charges.

The case was initially assigned to now-retired Judge Richard Kuhn and subsequently re-assigned to Judge Michael Warren. Thompkins was represented at trial by West Bloomfield attorney, Lawrence Kaluzny.

From these local beginnings, this case went all the way to the United States Supreme Court (SCOTUS).

Thompkins was apprehended in Columbus, Ohio nearly a year after the shooting and questioned extensively by Southfield PD detectives.  During his custodial interrogation, the suspect refused to answer the detectives' questions for several hours.

Nearly three-hours into the mostly one-way interrogation, the following exchange occurred:

     Detective:  "Do you believe in God?"

     Thompkins:  "Yes."

     Detective:  "Do you pray to God?"

     Thompkins:  "Yes."

     Detective:  "Do you pray to God to forgive you for shooting that poor boy down?"

     Thompkins:  "Yes."

Kaluzny's motion to suppress this statement was denied by the trial judge.  On the basis of this one-word confession, the jury convicted Thompkins, who is doing a life sentence in Coldwater, MI.

The conviction was appealed to the Michigan Court of Appeals and affirmed in an unpublished opinion issued in February 2004.  Detroit appellate attorney Elizabeth Jacobs challenged the lower court's rulings on the motions to suppress Thompkins' statement and to suppress defendant's identification by the surviving shooting victim.  Jacobs also raised issues of trial misconduct by the Oakland County Prosecutor, claiming that Kaluzny's failure to raise the issue below rendered Thompkins' legal representation constitutionally deficient.

The intermediate appellate court disposed of Jacobs' argument on the suppression issue with the following ruling:

Defendant argues that the trial court erred by denying his motion to suppress his statements to the police. Defendant asserts that the police improperly continued to interrogate him after he “implicitly” invoked his right to remain silent by failing to answer the officers’ questions. We disagree.

The record discloses that defendant was advised of his Miranda rights and, according to the interrogating officer, verbally acknowledged that he understood those rights. Contrary to defendant’s argument, the record does not demonstrate that defendant asserted his right to remain silent. Although defendant refused to sign the advice of rights form, he continued to talk with the officer, albeit sporadically. He answered questions with brief responses, or by nodding his head, but never said he did not want to talk or that he was not going to say anything. “When a defendant speaks after receiving Miranda warnings, a momentary pause or even a failure to answer a question will not be construed as an affirmative invocation by the defendant of a right to remain silent.” The trial court did not clearly err in concluding that defendant voluntarily waived his right to remain silent and that he did not subsequently invoke his right to silence. Defendant’s statements were properly admitted into evidence.

The Michigan Supreme Court declined Defendant's invitation to further review his case.

Once a convicted defendant exhausts all avenues of appeal in a state court, that defendant can avail himself of the federal courts via a petition for habeas corpus.  Thompkins habeas petition was denied in the United States District Court for the Eastern District of Michigan (in Detroit).

In a remarkable opinion from the United States 6th Circuit Court of Appeals, Thompkins' conviction was reversed.  The federal appellate court was unimpressed with the above analysis from it's Michigan counterpart; inferring that their unpublished opinion was weak on judicial application of significant precedent.  The federal appellate court also believed the state appellate court got the facts of Thompkins' interrogation wrong.

The 6th Circuit relied on the prior and seminal SCOTUS decisions of Miranda v Arizona and North Carolina v Butler, which establish an accused individual's right to remain silent, and imposes a "heavy burden" on the state to demonstrate that a suspect, once advised of this right, has waived his privilege against self-incrimination.

In reversing the 6th Circuit, the SCOTUS held that by answering "yes" to the detective's questions about God, Thompkins gave an "implied" waiver of his rights and further, that from now on, defendants must expressly and unambiguously state their intent to remain silent to their interrogators.  Also, police are no longer required to obtain written waivers executed by a defendant.

The case provides a slight advantage to police interrogators in that they can now continue to question a suspect until he affirmatively asserts his Miranda rights.  In the police interrogation context, many people are simply not inclined to do so thus, our Miranda rights may have less meaning under the hot lights of persistent, aggressive and skillful police interrogation.

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Posted in: Elizabeth Jacobs,habeas corpus,Judge Michael Warren,Judge Richard Kuhn,Lawrence Kaluzny,Miranda,Oakland County Prosecutor,police,SCOTUS

Dividing Retirement Assets: Who's Loss; Who's Gain?

In mid 2008, many divorce attorneys faced the problem of apportioning sudden significant losses in the stock and real estate markets.  Those cases depended on valuing IRAs and 401(k) plans to neutralize the risk for both parties.

The economy fell too fast and too far, however, for many sagging marriages.  During the first two quarters of 2008, many divorce litigants locked-in on values established over appreciable time.  Unless their divorce attorneys had the qualified domestic relations order (QDRO) ready at the trial date (a rare bit of forethought), significant value was lost each day of the delay.  In some cases, more than six-figures.

One such case decided during that era by Oakland County Family Court Judge Elizabeth Pezzetti, Skinner v Skinner, was upheld earlier this month in an opinion by the Michigan Court of Appeals.

Skinner is a guide for divorcing partners relative to what constitutes premarital or "separate" retirement property and defines "passsive income" relative to retirement assets.  The case also illustrates the consequences of stipulating to division dates for retirement assets, then suffering a long delay prior to full-resolution of the divorce litigation.

In Skinner, Husband stipulated to a date for purposes of valuation of the couple's retirement assets, including the pre-marital portion of his 401(k).  A two or three day trial and other dispositive court hearings were then spread over the next 3-months, during which time investment portfolios tanked, eroding nearly half the accrued value in retirement assets, across the board.

The issues in the case were: how to classify the significant interest income generated from Husband's pre-marital, and thus separate, retirement asset; and what date to use for division of the parties' IRA.

Coming into the marriage, Husband had invested approximately $15,000 in his Ford Motor Company 401(k) plan.  Over the course of the couple's 23-year marriage, more than $150,000 in marital earning contributions were made to the Ford plan.

As of the (pre-Great Recession) trial date, the value of the parties' other significant retirement asset, an IRA, was nearly $500,000.  By the time the judgment of divorce entered in mid-November, the IRA was only worth $330,000, and the Great Recession was upon us.

At trial, Husband presented a mathematically sound formula to calculate the interest generated from his pre-marital investment; these calculations were uncontested.  In her opinion dividing the marital estate, however, Judge Pezzetti ruled that 100% of the appreciation on the retirement plan was part of the marital estate.

The court of appeals affirmed Pezzetti's decision, including such gains as a component of the marital estate when a spouse, in this case the Wife, assists in the growth of the separate asset.  In the Skinner case, this assistance took the form of Wife's role as homemaker for the parents' four children.

Husband in Skinner took a double hit due to the losses incurred from the stipulated valuation date and the delay in getting the divorce judgment entered.  He cried "unfair" to the appellate court, to no avail.

In many of these cases, investor(s) nearing traditional retirement age were caught napping; some had a significant portion of their life-savings  invested in stock-based retirement assets rather than a more liquid, diversified portfolio.  Once the Great Recession took hold of the economy, divorce attorneys whose clients had already agreed to valuation dates for retirement assets lost significant value each and every day until their final judgment was entered.

Even when (painfully) aware of the issue, attorneys simply could not complete these divorces fast enough.  One of the parties, like in Skinner, usually came up short, suffering a complete loss of retirement value.

Once an agreement is reached, or when a divorce trial begins, it is crucial for the attorneys to work diligently in order to complete the often painful and emotional process of ending a long-term marriage.  Skinner tells us that no good can come from a delay.

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Posted in: 401(k),divorce,Great Recession,IRA,Judge Elizabeth Pezzetti,Michigan Court of Appeals,Oakland County Family Court,property settlement,retirement assets,Skinner

Family Court's Custody Rulings Must Cite Findings

Last Thursday, the Michigan Court of Appeals reversed a custody ruling of the Eaton County Family Court.  The tortured case, Wilbur v Carter, arose from a paternity suit, not a divorce.

The couple in this case conducted a protracted custody battle over their now 11-year old child.  The case features just about every tool available to the family court judge: supervised parenting time; temporary orders; in camera interviews with the child (twice) and evidentiary hearings.

The family court made a series of custody rulings in Father's favor over the years, keeping Mother's custody hopes alive by scheduling review hearings.  Father had been awarded sole legal custody and the stated purpose of the review hearings were to determine whether joint legal custody could be reinstituted.

Although the unpublished decision does not contain the underlying facts, the family court judge apparently did not approve of Mother's life style, removing her as a joint legal custodian of her child, and ordering supervised parenting time with Mother.

Over the past seven years, the parents kept filing motions for custody.  The lower court flip-flopped on the issue, alternating between temporary orders of sole legal custody to Father; then switching back to joint custody.  What troubled the Court of Appeals was that none of the requirements contained in the Child Custody Act were followed.

Before a family court judge changes custody, it must first determine whether an "established custodial environment" exists with either, or both, parents.  This term is defined in the custody act to mean:

if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.

The Eaton County Family Court neglected to make this determination in the case.  This is important because a court's determination of an established custodial environment determines the burden of proof which the moving parent must satisfy before a change in custody can be made.

In addition, the Court of Appeals was also disturbed because the lower court failed to make any determination that a "change of circumstances" or "just cause" existed to justify the requested custody modification.  Finally, it also reversed the family court because it made no findings of fact based on the 11 statutory custody factors set forth in the custody act.

Often, family courts feel constrained by their crowded dockets and the sometimes "informal" nature of the family court.  Attorneys foster this environment by allowing decisions on custody matters without the requisite findings by the court.

This case stands for the proposition that a family court cannot properly change custody without first: determining whether an established custodial environment exists; then determining whether the requisite "change of circumstances" exists; and finally making a factual determination after an evidentiary hearing as to all 11-factors.

The case calls for good lawyering in each and every custody battle, regardless of the court's resources or the resources of the parties.

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Posted in: child custody,Child Custody Act,court of appeals,Eaton County Circuit Court,family court,family law,John Wilber,Skye Carter

Women To Constitute A Third of the SCOTUS Bench

For the first time in our nation's history, three women will be sitting together on the bench of the United States Supreme Court.  By the time you read this post, President Obama will have conducted his 7:15 am press conference on Monday, May 10, to officially announce that his Solicitor General, Elena Kagan, will be nominated to replace retiring Justice John Paul Stevens.

The nomination requires approval of the Senate, expected later this summer.

Ms. Kagan is used to being first when it comes to the law.  She was the first female dean of the Harvard Law School, where she graduated magna cum laude back in 1986.  During her tenure, however, Kagan sued to prohibit the U.S. Army from recruiting students from the law school to fill the Judge Advocate General Corps.

She also served as an Associate White House Counsel under President Clinton.  She was the first woman to serve in the post of Solicitor General of the United States; the federal government's litigator. In that capacity, she managed the government's SCOTUS docket.

Her judicial experience, however, is limited to a clerkship at the Court of Appeals for the D.C. Circuit, followed by a clerkship with Justice Thurgood Marshall.  Most of her legal career has been spent in private practice and academia.

Kagan was a tenured law professor at the University of Chicago in the mid-1990s and undoubtedly wound-up among President Obama's professional contacts from that era.

Since she has never been a judge, Dean Kagan does not have a long list of decisions for the Senate's Judiciary Committee to pour over.  All the more reason Senate Democrats will be pushing to approve her nomination prior to the summer recess. 

In an era where women now make up a majority of all college graduates and law students, it only seems natural that they should occupy a third of the seats on our nation's high court.  Never much of a "good old boys" club, the Court has always been a vital mix of contemporary politics and long-term principles.

This Blog wonders how Kagan will be voting on the issue of same-sex marriage, likely to come up during her first year on the bench.  Until now, she has, by virtue of her brief tenure as Solicitor General, defended the constitutionality of California's referendum outlawing gay marriage in the Perry v Schwarzenneger case.

She really had no choice but to join that momentous fight on the side of upholding the California ban on gay marriage.  California's Attorney General, Jerry Brown, declined to defend the law, saying it was unconstitutional.  Governor Schwarzenneger likewise declined to wade directly into the legal fray, saying he approved of the litigation as it raised important constitutional legal issues that called for judicial resolution at the national level.

Update:  The official blog of the State Bar of Michigan has posted links to all the numerous blogs covering this nomination.

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Posted in: Helena Kagan,Judge Advocate General,Justice John Paul Stevens,President Clinton,President Obama,SCOTUS,Thurgood Marshall,U. S. Supreme Court

Walking Away From Mortgage(s) Can Hurt You in the Long-Run

This is the original post and content of the Wink & Wink bankruptcy law firm of Denver, Colorado.  The topic is timely here in Michigan as many homeowners and divorcing couples, struggle to keep their homes.

Strategic Default. You Walk Away. “Should you walk away from your underwater mortgage?”

These phrases have been reaching fever pitch in the news media lately because of the continuing economic crisis and its huge toll on house values nationwide. The gist of the idea is that if your house is underwater, chances of you ever regaining the equity you have lost are slim to none. However, the media seems to be silent with regard to the risk of deficiency judgment, which often lurks out there like a predator waiting to attack!

The thought of continuing to pay the debt on your mortgage, knowing that your house is now worth much less than the amount you will be struggling to pay for the next few decades, drives people to look for a way out. This is the reason “strategic default”, which occurs when people stop paying the mortgage, even though they can technically afford to keep paying. Because the housing market is in the dumps and appears unlikely to bounce back anytime soon, ‘strategic default’ is becoming more and more common. So common, in fact, that it has been linked to the recent uptick in consumer spending.

The decision to walk away is definitely a way out from underneath that mortgage. But it does not come without a cost. This is because when you walk away, you aren’t simply leaving the debt behind. Oh, No. In most cases the debt is likely still following you, stalking you. Waiting to pounce. Walking away from your mortgage has consequences in most states, such as Colorado, and they go by the name of a deficiency judgment.

What Is A Deficiency Judgment?

When you take out a mortgage, or two, you are liable on the note or deed for that debt in the amount your contract states. When you stop paying your mortgage (either strategically or because you can no longer keep up with the payments) the end result in most cases is a foreclosure sale of the property. At that foreclosure sale, the property is sold, usually at a loss.

If the property is sold for less than you agreed to pay on the mortgage, you are still liable for the difference—the deficiency—between what you agreed to pay by contract and what the lender received through the foreclosure sale. So, if your mortgage is for $300,000 and the property sells at foreclosure for $250,000, you are still liable for the $50,000 your lender is still owed under your mortgage contract.

When you have two mortgages, a first and a second, what often happens is that the first lender often “bids the note” at the foreclosure sale, which means they purchase the property for the same amount as the note. This means there is no deficiency as to the first mortgage. However, it also leaves the second mortgage lender unfulfilled, and holding a claim against you for the entire amount of the second mortgage. (Don’t forget that all these amounts generally increase as a result of the fees and charges that get tacked on as a result of the foreclosure process. They never miss an opportunity to lop on some fees!)

A deficiency judgment is what happens when one of the lenders to which you owe a deficiency decides to sue you to collect on that amount. After the lawsuit, the amount gets converted into a judgment against you, a deficiency judgment. And in Colorado, where I practice bankruptcy law, the holder of a deficiency judgment can garnish your wages – 25% of your wages, to be exact. That is not a risk to be taken lightly.

How Likely Is A Deficiency Judgment?

You may be thinking “but I haven’t heard of anyone getting sued for a deficiency judgment.” And at this point in time, this is mostly true. But this is changing, see “Lenders Pursue Mortgage Payoffs Long After Owners Default”.  The predators (eh..I mean creditors) are getting hungry!

What is very likely to happen with the huge amounts of deficiency claims lenders are sitting, and that will continue to pile up as the foreclosure rates soar (yes, foreclosures are still spiking, we are far from out of the woods yet) is that lenders will begin to package these debts and sell them to third-party collection agencies, just like the credit card companies. When that starts happening, everyone who though they got out Scott-Free will have to face a painful reality. And they have plenty of time to wait to nail you, too.

In Colorado, they have Six years to wait before they sue you. Six years to sit back and wait to get there ducks in a row, maybe even wait for you to start earning more money, and then Whammo! You’re served a Summons to appear in court and you end up with your wages garnished or your bank account seized to satisfy the judgment.

Bankruptcy Can Shut the Door on a Deficiency Judgment

Bankruptcy generally removes your liability to repay the note on your home. So, whether you file for bankruptcy before or after foreclosure, the lender cannot pursue a deficiency judgment against you. If you file after the deficiency judgment is secured, the bankruptcy can still wipe out your liability for the judgment. It can even stop the garnishment if the lender has proceeded to that level.

All of this means that you should consult a bankruptcy attorney if you are considering defaulting on your mortgage.

For most other people, stopping mortgage payments on an underwater home is not a choice. It is something that the current economic situation has forced them into, and the idea of bankruptcy is likely part of the mix, along with rising credit card debt and stress levels.

However, for the true “Strategic Default”, where the decision to stop paying the mortgage is made even though the money to pay the mortgage is there, bankruptcy is usually the last thing on the radar. Most in this position look at the default as a business decision. They made an investment, it went belly-up, and they are cutting their losses. However, even “strategic” defaulters should take the time to understand their rights.

Bankruptcy can not only shut the door on a possible deficiency judgment, enabling you to move forward without worrying about what lurks behind, it can help you rebuild your credit faster. Think about it – if you walk away from the mortgage without filing for bankruptcy your credit takes a hit (foreclosures stay on your credit report for 7 years) AND you still may be liable for the deficiency, just when you are getting back on your feet and have regained your credit score. If you file for bankruptcy, you get rid of any chance of a deficiency judgment, wipe out any other dischargeable debt you’re struggling with, and start rebuilding your credit from day one.

Additionally, if you plan it correctly you can live in your house rent free until the foreclosure, which in Colorado usually means 8-12 months.

The bottom line is to be prepared, have a plan and explore your options. Walking away without knowing the risks exposes you to what I like to call the stalking predatory of the deficiency judgment. It’s only a matter of time before these debts start being sold to collection agencies, and with those creditors – you need to watch your back!

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Posted in: bankruptcy,Bloomberg,creditors,deficiency judgment,mortgage,short sale,strategic default

Texting While Driving Soon Illegal in Michigan

Distracted driving takes lives.  Many adults have experienced that sick feeling of guilt and relief when you realize you've crossed over the center-line because you were checking your cell phone.

For most of us, we swerve back to our lane, hoping for the best and, statistically, you're fine; you continue to your meeting or appointment.  Others, however, are not so lucky.  Many injuries and deaths result as the incidents of distracted driving sweep over our state's roadways.

The cause is the now-ubiquitous cell phone and our seemingly insatiable need to "stay-in-touch" with everyone and everything at all times.  The electronic criminal lawyer posted on this subject last spring, speculating that it would not be long before the law catches up with our irresponsible habits.

The Michigan Senate has already passed the main legislation and Governor Granholm has indicated she plans to sign the legislation immediately into law.

The proposed fines are $100 for a first offense and $200 for a second offense.  The House of Representatives are now working-out how violations will be recorded by the Secretary of State on a driver's master driving record.

Stay tuned and put your cell phones down when you are driving.

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Posted in: cell phone,distracted driving,Governor Granholm,master driving record,Michigan House of Representative,Michigan Senate,Secretary of State

Interview with Michigan Supreme Court Justice Maura Corrigan

In 1989, I completed an 18-month stint as a research attorney with the Court of Appeals.  My next job was an associate attorney position in the appellate section of Plunkett & Cooney, then a Detroit-based firm.  Another attorney that joined the firm at the same time was Maura Corrigan.

At the time, Corrigan narrowly missed a choice (political) federal appointment as the U.S. Attorney for Detroit in the Bush 41 era.  It was a professional perk to work alongside Justice Corrigan for two-years before she was appointed to the Court of Appeals; subsequently getting elected to the Michigan Supreme Court.

In yet another example of how fast and wide legal information is spread via the Internet, an excellent podcast series known as "Assistance of Counsel" kicks-off with an interview with Justice Corrigan.  Assistance of Counsel is the product of former-Oakland County Prosecutor Paul Stablein, a partner in the Royal Oak firm of Flood, Lanctot, Connor & Stablein.

Stablin says, over time, the other Justices will be interviewed along with jurists from all levels of our legal system.  What a fantastic resource to learn about who our elected jurists are, and what they think.  

Good luck with the podcasts Paul; and keep your informative posts about our state's great common law tapestry coming.

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Posted in: Justice Maura Corrigan,Michigan Court of Appeals,Michigan Supreme Court,Oakland County Prosecutor,Paul Stablein,Plunkett and Cooney,U. S. Attorney

Same-Sex Marriage Cases Go Constitutional

A federal law suit filed last year by two California same-sex couples (one gay; one lesbian) has raised constitutional issues in the gay marriage context and is unfolding in a momentous trial.  In Massachusetts, another federal case tests whether a federal statutory provision containing a sexual-preference distinction is constitutional.

The complaint in Perry v Schwarzenneger, filed in the Northern District of California and assigned to Judge Vaughn R. Walker, has high-powered lawyers seeking far-reaching relief for the rights of (gay) individuals.  The case is another chapter in the tumultuous evolution of Californian sex-gender politics.  The "all-in" nature of the Perry case, however, will have effects that touch most families in America.

You may or may not recall that back in 2004, the newly-elected young and dashing San Fransisco mayor Gavin Newsom made an international splash by presiding over same-sex civil marriage ceremonies conducted at City Hall.  The California Supreme Court squashed the practice in about 30-days, voiding all the marriage licenses issued as a result of Gavin's project.

In a May 2008 change of course, the California Supreme Court decided (4-3) the case known as In Re Marriage Cases, holding that any California laws, "that treat persons differently because of their sexual orientation should be subjected to strict scrutiny..."  The California high court decision also effectively preempted proposed state legislation seeking to ban same-sex marriage on the grounds the initiative violated the California constitution.

Six months later, in yet another change of course, the California electorate (narrowly) approved Proposition 8, defining marriage as between opposite-sex couples only.  The California Supreme Court swiftly followed suit in Strauss v Horton, upholding the passage of Proposition 8, but applying that referendum prospectively, thereby preserving the approximately 18,000 marriages that had been performed prior to the passage of the referendum; and perhaps unwittingly creating an arbitrary class of persons to which other gays can point in an equal protection analysis.

Enter the lesbian couple Kris Perry and Sandy Stier (Berkeley) and gay couple Paul Katami and Jeff Zarrillo (San Fernando Valley), pictured in the above link emerging from the federal courthouse following the first day of court proceedings.  The couples, very carefully selected by well-funded and well-connected gay rights activists, were apparently up for the arduous task of prosecuting constitutional federal litigation.  Neither couple were among the tens of thousands to take advantage of the narrow 6-month window to obtain a marriage license in mid-2008, making them ideal constitutional-litigants.

Some gay rights activists have criticized the suit as premature and ahead of the public opinion curve on the same-sex marriage issue.  While the concept seems to be gaining ground in abstract opinion polls, to date, only 5-states allow same-sex marriages:  Connecticut, Iowa, Massachusetts, New Hampshire, and Vermont.  On the other hand, 29-states (including Michigan) have amended their Constitutions to outright ban gay marriage by defining a marriage as between a man and a woman.

Many in the front-lines of the gay rights movement prefer the slower, state-by-state approach to "resolving" the same-sex marriage issue.  They worry that the Supreme Court could hand their movement a serious setback by issuing a neutral or worse, an anti-gay, decision along the lines of the 1986 Bowers v Hartwick decision (upholding a Georgia sodomy law on the basis there was no constitutional protection for sexual privacy).  It took the high court 17-years to reverse the dubious Bowers decision in the seminal 2003 case of Lawrence v Texas, which expressly overruled their prior decision as defining the liberty and privacy interests of two consenting adults too narrowly to survive a Due Process analysis.

There is also a notion that gay-marriage was removed via the ballot box and that's where the battle should be won.  In our Democracy, however, core individual rights (once defined) are not subject to the ebb and flow of majority rule.

Other gays are tired of waiting, however, genuinely offended by the series of referendums passed which discriminate against their sexual orientation.  For example, California already has a progressive civil union statute to protect property rights and employment benefits.  But the Perry case is about much more than property rights and benefits; it is about individual liberty and the sacred right to chose one's life partner, one's spouse, without interference from the state.  Court watchers equate the Perry case to that of Brown v Board of Education (abolishing the "separate but equal" fallacy in public schools) and Loving v Virginia (holding that a state could not prohibit interracial marriages).

Whatever the outcome of the trial, an intermediate appeal to the Ninth Circuit is guaranteed to send this one to the United States Supreme Court.  Plaintiffs are represented by the unlikely but outstanding duo of Ted Olson and David Boies of Bush v Gore fame.  The former represented President Bush as Solicitor General; the latter represented former VP Al Gore in the famous case settling the 2000 presidential election.

Olson's conservative credentials have led some to wonder whether he is serving as a "double agent" planted to hand the movement a serious setback at the high court.  Something tells us that Olson should be taken at his word when he states that, separate is not equal and that a "civil union" is not the same as a marriage.  With 44-wins already before the high-court, Olson likes his chances at that level; he genuinely believes he's on the correct side of this issue.

In the meantime, the Perry case has already been to SCOTUS; Judge Walker's decision to televise the trial on YouTube was appealed from the other end of the state by Senator Dennis Hollingsworth, (R San Diego), the political clout behind the named defendants in the case.

The appeal stayed the trial judge's decision to stream the trial to the Internet and subject all of us to reading about the case, or suffering through a painful re-enactment of the trial.  Several key depositions (Paul Nathanson and Katherine Young) taken last fall, however, have been leaked to YouTube, and effectively convey the background surrounding what is shaping-up as our next great civil rights struggle.

5-votes will be required to establish precedent once a writ of certiorari is inevitably issued by the high-court in the case.  Olson and Boies will probably need to persuade Justice Anthony Kennedy, an oft-breaker of ties at the Court.

SCOTUS-watchers figure the so-called liberal bloc of Justices (Ruth Bader Ginnsburg, Sonia Sotomayor, Stephen Breyer, and John Paul Stevens) will vote to condemn Proposition 8 as unconstitutional on Equal Protection grounds.  Since Justice Stevens announced his retirement on Friday, effective at the close of this session of the Court in June, President Obama's second high-court nomination takes on critical importance in the Perry case.  Justice Stevens' replacement will most-likely be a confirmed sitting Justice by the time Perry is on the high-court's docket sometime in 2012; the "day-after-tomorrow" in Supreme Court-time.

Of note:  Perry is not the only "gay-rights" case percolating through the federal courts at the moment; also destined for certiorari is Gill v Office of Personnel Management.   That case presents a more narrow constitutional challenge to a specific provision of the Defense Against Marriage Act preventing same-sex couples from receiving benefits that other non-gay federal employees receive for their families.

Plaintiff's counsel in Gill, Mary Bonauto, prevailed in the Massachusetts case that legalized gay-marriage in that state.  While Bonauto acknowledges that her case is not the left-coast headline-generator that Perry is, she is mindful that both cases seek to expose the federal government's "double standard" when it comes to same-sex marriage; she notes the feds recognize a wide-variety of marriages once they are licensed by a state, except in the case of gay-marriages.  Bonauto and other legal professionals fear that Perry seeks too momentous and far-reaching relief; the decision, after all, could invalidate anti-gay-marriage laws in nearly 40-states.

Michigan Connection:  In addition to those of us who have a family member involved in a same-sex union (my brother) or who are themselves involved in such a union, the left-coast Perry case could invalidate the 2004 Marriage Amendment to Michigan's constitution.

Also, the Law Blogger (yours truly) will be admitted to the bar of the United States Supreme Court on the final day of this session, June 21st; Justice Stevens' final day of his long career on the high-court.

Stay tuned for the outcomes of these cases folks.  The Law Blogger will strive to keep you informed of significant developments.

May 2010 Update:  President Obama nominated Elena Kagan to replace retiring Justice Stevens; her nomination is expected to be confirmed over the summer.

April 2011 Update:  As predicted, this one is going to go all the way, taking prisoners along the way.  The first judge that had the case, now-retired Vaughn Walker, is coming under fire for showing portions of a hearing at a recent speech he gave.  Covered by the WSJ's Law Blog.

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Posted in: Dennis Hollingsworth,Jeff Zarillo,Kris Perry,Mary Bonauto,Paul Katami,same-sex marriage,Sandy Stier,Schwarzenegger,SCOTUS

ACLU Tests Constitutionality (i.e. Quality) of Court-Appointed Criminal Defense

Prior to the Civil War, Michigan was one of the first states to get in on the ground-floor of providing legal defense to the poor and the accused.  The constitutional right of the accused to an attorney was enshrined in the seminal case of Gideon v Wainwright, 372 US 335 (1963).

Things have changed.  Michigan has gone from the "first-floor" to the cellar in terms of the quality of court-appointed criminal defense; at least as measured in terms of compensation.

The ACLU is challenging the public defender system in the case of Duncan v State of Michigan.  The ACLU's brief argues that the quality of court-appointed legal defense in Berrien, Muskegon and Genesse Counties falls below the Sixth Amendment's guarantee of effective legal counsel.

The case was filed in the Ingham County Circuit Court where the trial judge certified Plaintiff's case as a class-action.

Defendants Governor Jennifer Granholm and the State of Michigan are represented by the Michigan Attorney General, Mike Cox.  The AG's brief asserts that the duty to appoint and compensate public defenders falls to the local circuit court judges.

The AG brought a motion for summary disposition which was denied by the trial court.  The court, however, granted the AG's motion to stay further proceedings until appeals from the decision were decided.  The Court of Appeals affirmed the Ingham Circuit Court's rulings granting class certification and denying summary disposition.  In a lengthily dissent, Appeals Judge William C. Whitbeck asserted that the case, which he described as a "fundamental challenge to Michigan’s system for operating and funding legal services for indigent criminal defendants" essentially could result in an unconstitutional violation of the separation of powers doctrine.

The case is scheduled for oral argument before the Michigan Supreme Court on April 13, 2010.  Meanwhile, the state legislature is considering HB 5676 which seeks to establish a state-wide public defender system, along with the essential funding.  The sponsors of the proposed legislation, Bob Constan and Justin Amash acknowledge they will have a very tough time to get this type of funding approved in the midst of the sustained economic downturn.

Never short on resources, however, the ACLU is bringing their game, on this same issue, to the United States Supreme Court in the case of Vermont v Brillon.

The ACLU's suit, and the proposed legislation have attracted national attention.  (The Law Blogger picked-up on a National Public Radio feature that addressed the critical state of Michigan's court-appointed criminal defense.)  The most likely result of all these efforts will be, "more of the same".  The defense bar will continue to soldier on, as underpaid under-resourced champions of the constitution.

Defendants, for the most part, will continue getting convicted.  No tears shed here, unless the accused is truly innocent.  Then it's a real tragedy as well as a threat to our individual rights and the criminal justice system.

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Posted in: ACLU,Attorney General Mike Cox,Bob Constan,Judge William C. Whitbeck,Justin Amash,Michigan Court of Appeals,Sixth Amendment

Child Support Still Owed When Parental Rights Involuntarily Terminated

There has been some buzz among family law practitioners this week concerning the Michigan Court of Appeals' decision in the DHS vs Beck case.

The COA held that a father, so neglectful and abusive that his parental rights were terminated, nevertheless remained obligated to pay child support for his two children.  The decision, arising from an Oakland County abuse case, will be published and thus binding on all Michigan family courts.

The father did not appeal the termination of his parental rights; only the family court's ruling that he remained obligated to pay support for his children.  On appeal, the father argued that he was denied due process because he was arbitrarily deprived of his property (i.e. his support payments).  The intermediate appellate court, however, was unimpressed, ruling that the father failed to articulate how, exactly, his due process rights were implicated.

One of the issues to arise in the Beck case was that the parental termination provisions of the Juvenile Code are silent as to the corresponding "parental responsibilities".

The Court went on to analyze the rights and duties implicated by a family court's decision to terminate parental rights while continuing to obligate support payments.  Michigan common law has long established a minor child's right to support from both parents.  The Court also recognized a parent's right to the "companionship, care, custody and management of his or her children."

In upholding the Oakland County Family Court, the COA ruled that a child's right to support cannot be bargained away in a termination proceeding.  The Beck panel decided that if the legislature had intended to terminate a parent's obligations along with his parental rights, it would have said so in the statute.

The Court also relied on it's earlier decisions that held support obligations continued in the wake of a voluntary termination or adoption.

Also of note in the dicta of the Court's decision was an express acknowledgment of the current "times of difficult financial circumstances."  The Beck panel realized that in such difficult economic times, public policy is served by not shifting all support and maintenance obligations onto the custodial parent or, in some cases, the state.

Finally, in deciding the case, the COA was careful to avoid the unintended consequence of encouraging the neglect and abuse of innocent children by seeking a parental termination.  Since an irresponsible parent cannot escape his support obligations by abusing or neglecting his children, the better interests of those children are served.

This is a sound decision by the intermediate appellate court.  Good thing the COA granted father's delayed application for leave to appeal (a discretionary appeal as opposed to an appeal of right). This case should have a positive effect on the charging and collection of child support.

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Posted in: child abuse,child neglect,Elliot Parnes,juvenile code,Lawrence Michael Beck,Michigan Court of Appeals,Nancy Plasterer,parental termination

Second Amendment Litigant is Unlikely Handgun Advocate

Otis McDonald grew tired of the pattern of intimidation brought to bear upon him by some of the drug-dealing urban youth of his Chicagoland neighborhood.  At times, they would curse him and brandish their weapons just a few feet from his porch in Chicago's Morgan Park.  According to McDonald, some of these "punks" even threatened to "put him down."

Consequently, McDonald sought to even the odds by acquiring a gun, even if it meant he had to violate Chicago's anti-handgun ordinance to do it.

The 76-year old South-side Democrat, a retired grandfather and journeyman building engineer, who spent his career at the University of Chicago after serving in the military, is the petitioner in a case up for oral argument today at the United States Supreme Court.

An unlikely advocate for the right to "bear arms", at least in the organized sense, McDonald is not a card-carrying member of the NRA.  That group, however, will join him today in addressing the High Court and requesting that the handgun ban be struck down as unconstitutional.

This Blog has been tracking the case, as some of the high-crime issues underpinning Chicago's handgun ban are relevant to the communities of Southeast Michigan.  One of our earlier posts covered the lawyers arguing the case today.

There seems to be a consensus among legal professionals that Chicago's ordinance is likely to be declared unconstitutional.  Today, the City of Chicago, through it's retained Washington D.C. appellate lawyer, is expected to argue the safety interests such a ban serves in high-crime areas.

The consensus among High Court watchers that the handgun ordinance will be struck is based on the Court's recent decision striking-down a similar anti-gun law in the nation's capital.  The Supreme Court's decision in District of Columbia vs Heller, however, does not apply to the states since it arose in the District.

There are many reasons Americans feel a deep-rooted sense of righteousness when it comes to our right to possess and carry firearms.  It's in our historic genes; our national tradition.  Otis McDonald, on the other hand, acquired his taste for the right to bear arms out of good old-fashioned necessity.  In order to feel safe in his own crime-ridden neighborhood and to protect his family from local thugs, he armed himself in transgression of Chicago's gun ordinance.

As a result, Law Professor Nicholas Johnson of Fordham University claims that Otis McDonald will be immortalized as a litigant in one of the rare cases that becomes common knowledge among our citizenry and stands for a single proposition; in this case, the right to bear arms.

Local Connection:  Michigan Attorney General Mike Cox joined the NRA in filing an amicus brief in Otis McDonald's case.

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Posted in: Mark J. Konkol,Michigan Attorney General Mike Cox,NRA,Otis McDonald,SCOTUS,Second Amendment,U.S. Supreme Court

Cooley Law School Stadium is a Minor League Ballpark

Thomas E. Brennan, former Michigan Supreme Court Chief Justice, and the founder of Cooley Law School, was in Ann Arbor in October 1982 giving interviews to the Michigan Daily, and the now defunct Ann Arbor News as a Republican candidate for Lieutenant Governor.  It was the early-Regan era and I escorted Mr. Brennan through town as Dick Headlee's campus chairperson.

The former justice was asked by a reporter what he would do if Democrat James Blanchard moved into the Governor's Mansion.  Mr. Brennan paused as though the thought had never occurred to him, then said, "I'll go back to running the law school; we're developing an innovative curriculum at Cooley."

He was true to his vision.  There can be no doubt that Brennan developed the "business model" that is the Cooley Law School.  Cooley has tapped deeply into the American Dream, lawyer style.  As a result, it has enjoyed a healthy balance sheet, boasting one of the largest collections of law books in the country, pioneering the use of satellite "campuses", and swelling the ranks of its students to staggering proportions.

The law school dropped just under $1.5 million this week on it's first baseball park sponsorship; the former Oldsmobile Park inside the Capital Loop in Lansing.  The decision was met with mixed reviews from the law pundits and among the extensive network of Cooley Law Alumni.

Ashby Jones of the Wall Street Journal's law blog interviewed Cooley's dean, Don LeDuc, earlier this week about the sponsorship.  Dean LeDuc explained that the idea for the stadium came from past alumni-student gatherings at Tigers games in Comerica Park.  According to LeDuc, Cooley's stadium now allows them to bring the ball game to Lansing, so their students don't have to go so far.

LeDuc listed the advertising benefits of the sponsorship, sounding more like a marketing director than a law school dean.  In the blog interview, LeDuc admitted his was a revenue-driven operation with a multi-million dollar marketing budget.

The blog, Above the Law, was far less polite, calling out the mamoth law school (3500+ students) as a "diploma mill", and speculating that its graduates will be paying-off student loans with jobs at McDonalds.  The ATL blog critiqued the stadium sponsorship in a post that has attracted more than 150 comments; mostly negative.

A recent Cooley Law alumna admitted to me in confidence when discussing the ballpark sponsorship, "Cooley can't figure out whether it's a law school or a community college..."

The nation's largest law school does seem to attract its share of criticism.  It claims to be "ranked" as high as 12 on its own website, using its own criteria.  Most professionals not affiliated with the school, however, relegate it to "fourth-tier" status all day long.

All this raises the question: "Do we really need some 1200 new lawyers pumped into Michigan's service economy each and every year?"  Oakland County already has nearly 11,000 lawyers to Wayne County's 7000.

Over the past three decades, Thomas Brennan's law school business model has been a fiscal success.  Over those same years, I've come to know many a lawyer from Cooley with outstanding lawyering skills.  Former Michigan Governor John Engler is a Cooley graduate.

These days, however, I just have to wonder how many more lawyers we can take; whether or not they graduated from Cooley.  Brennan's vision of the American Dream has been tapped, but good.

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Posted in: Ashby Jones,Cooley Law School Stadium,Oldsmobile Park,Thomas E. Brennan,Wall Street Journal

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