A Judge, a DUI and a Purse

As attorneys we tend to be a fairly serious bunch most of the time. Additionally, it is incumbent upon attorneys to demonstrate judicial deference for that is how the entire system has operated for centuries. However, the legal profession also needs to see humor and irony when it stares them at the face.

The New Hampshire Union Leader reports:

A Boston-based federal judge wore a black cocktail dress, fish-net stockings and high heels when police arrested him for drunk driving after he rear-ended a pickup truck last week, sources said.

U.S. Bankruptcy Court Judge Robert Somma, 63, struck a plea deal with the city Wednesday in which he pleaded no contest to a first-offense misdemeanor driving while intoxicated charge in Manchester District Court. In exchange, the judge agreed to pay $600 in fines and penalties and a 12-month license suspension, which can be reduced to six months if he proves he successfully completed a driver education and alcohol awareness course, court records show.

The arresting officer made no mention of the judge's attire in the written report police provided to the media other than to note the judge "had a difficult time locating his license in his purse."{emphasis added}

It is certainly not our place to judge the Judge lest we be judged ourselves.

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Michigan passes new driver's license bill

Due to the interpretation of an Attorney General's opinion, on January 22, 2008, Michigan became the first state in the union to restrict drivers licenses to legal non-immigrants, including students, executives, research scientists and professional workers. While immigration advocates were quite vocal in their opposition, it was the Michigan Chamber of Commerce that finally had the political muscle to change the law which Governor Granholm is expected to sign shortly. Here is a copy of the final bill.

2007-HEBS-4505 final bill.pdf

NICHOLS & EBERTH, PC ask:

1. Do you think that illegal or undocumented aliens should have drivers licenses?

2. If you do not think so, how do we track those who are in this country?

As always, please visit us at our webpage:

www.MichiganAttorney.com

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Amy Winehouse denied visa- A Case of Changing Values

If you listen to some people's perspectives, one would imagine that 2008 is a society filled with utter debauchery and sleaze. It isn't. Compared with the 1970's this is a time of moral righteousness. For example, the Bad News Bears was rated PG in the 1970s, while today, it would, undoubtedly, be rated R. For a far different example, we only need to turn our attention to Amy Winehouse. For those not following the story, Amy Winehouse was the breakthrough artist of 2007 and, as such, she was invited to the Grammys. Amy Winehouse is also known for more than her music, due to her frequent skirmishes with the law in England and elsewhere in Europe. As such, the United State State Department refused to grant her a visa to come to perform at the Grammys.

Now I explain this to people and they say "well, she knows the rules, so she gets what she deserves" In short, there is little sympathy. I will not take the position on whether she deserves or does not deserve sympathy, but I will suggest that we have changed our position on this matter over the years. I only have to mention three well-known names to prove my point: Paul McCartney, John Lennon and Mick Jagger. All three of whom had multiple drug busts around the world and yet all three were permitted non-immigrant visas to come to the US and perform. By today's standard, nearly every major act of the 1970's and 1980s would not be permitted to work in the United States. In an ironic twist, both Mick Jagger and Keith Richards have expressed that they have little sympathy for her troubles.

If we examine the reciprocal nature of immigration law (that is to say, that the UK and the US have mutual agreements where we allow their citizens to come here without a visa and vice versa), both Paul Simon and Art Garfunkel would be prohibited from playing in London as Paul has admitted to using marijuana recreationally (itself a bar for a visa) and with Art's arrest (with Garfunkel being arrest only a few years ago). Additionally, there is reference to Paul's arrest at a demonstration in Me and Julio Down By the Schoolyard. Anti-government protests can also be used to deny a visa. Somehow I do not think that Simon & Garfunkel are a threat to London's security.

No one questions that the United States, as a sovereign entity, has the absolute right (or in legal parlance, plenary power) to control who comes into the country. The US had an absolute right to deny Ms. Winehouse a visa and I have not heard anyone say anything to the contrary.

NICHOLS & EBERTH, PC poses the following question: is this the best use of our immigration policy? Could this dampen the artistic interdependence between: US, Canada, Australia, UK and Western Europe?

As always, please visit us at our webpage:

www.MichiganAttorney.com

Your Internet Link To All Things Legal

Are sealed records truly sealed?

It is expected that the Michigan Court of Appeals will rule on whether to uphold Judge Colombo's decision to release documents pertaining to the alleged relationship between Mayor Kwame Kilpatrick and his Chief of Staff. While it seems that the public has the right to political transparency, the judicial process survives on settlement agreements to be kept under seal. Thus, we have competing interests in this matter. The entire process of judicial sanctity is called into question when a sealed settlement agreement is leaked. This could potentially reek havoc on the entire ADR field. However, this case was not like any other case. It was a case involving the entire City of Detroit and, unfortunately, the Mayor chose to put his concerns over the concerns of his constituents.

QUESTION: How does one balance the interests of providing the public with full transparency, while, at the same time respecting the confidential nature of settlement agreements? Further, where does private life start and public life begin?

Judge Posner makes the conservative argument for amnesty

About two years ago, immigration was a purely bi-partisan issue. McCain, along with Kennedy, put forward a very comprehensive approach that no one truly liked. It is an axiom of politics that if all sides to a debate disagree with the proposed legislation, it probably strikes the proper balance. The pro-immigration group did not like the work-permit provisions as, they argued, it fosters a permanent subclass of citizens as it has done in France. The anti-immigrant movement, which has been gaining momentum over the past few years did not like it either. The anti-immigration 'movement' seems to be directly related to the economy. As the economy is inching towards a potential recession, the sentiment has only garnered strength.

Unfortunately,there are no simple answers. It is altogether doubtful, if not logistically impossible, to deport all 11 million illegal immigrants. Further, of these so-called illegals, many of them came to the US legally and let their status lapse; a fact that seems lost on many in this country. This is highly relevant as it is demonstrative of the intellectual dishonesty that both sides engage in. Whether we like it or not, our economy is inexplicably linked to illegal immigration. Thus, it is appropriate to cite the position by Judge Posner, one of the most lauded jurists of our generation and widely regarded as the chief authority on economics and the law. Read it here.

Vice President Cheney, the best VP in history. You Decide

At the CPAC convention this morning, President Bush proclaimed Vice President Cheney to be the best VP in US history.

What are your thoughts?

Michigan Supreme Court elections

"In November, Michigan Supreme Court Justice Clifford Taylor will be running to retain his seat. Although elections are technically non-partisan, everyone knows that Taylor is a Republican. There has been much speculation as to whom the Michigan Democratic Party will seek to have run against Taylor. So far, the following names have been rumored:

Deborah Thomas

Dennis Archer

Jennifer Granholm

Jim Blanchard



What have you heard?"

On Immigration Politics

As a law firm dedicated to providing exemplary professional services, Nichols & Eberth, PC does not make it a point to weigh in on the side of purely political issues. Such conversations are more appropriate among friends and colleagues and are inappropriate in most circumstances. With that said, as a provider of immigration services, it is incumbent upon us to correct the mischaracterizations on immigration that is en vogue today. One of the chief purveyors of the "blame everything on the immigrants" mantra is Michelle Malkin. Many may know Mrs. Malkin from her frequent appearances on Fox News and her now famous fight with Geraldo (as seen below). However, Mrs. Malkin also peddles her vitriolic sentiments in a immigration-centric spin-off of her widely-read blog. Going forward, Nichols & Eberth, PC will take articles of hers of interest and provide a necessary rebuttal or alternative perspective on the topic. Unlike many firms that practice immigration law, Nichols & Eberth, PC does not always agree with the positions espoused by the American Immigration Lawyers Association, the chief professional organization for immigration attorneys. However in the interest of full disclosure, we do have attorneys who are members of AILA. Immigration is far too complex to have a either/or mentality on. As always, we welcome your feedback and your thoughts.

Grandparents Permitted Hearing on Visitation

Nichols & Eberth, PC write:

On January 3, 2005, Governor Granholm signed into law a long awaited, and much-debated bill, which now allows grandparents the right to be heard in court should they be denied visitation with their grandchildren. Prior to this new law, grandparents had no "standing" to even bring the issue before a judge much less obtain visitation with their grandchildren. However, the new law only provides grandparents with the right to a hearing on the issue of grandparent visitation. It will still be up to the judge as to whether or not the grandparents will actually get visitation with their grandchildren.

This new law provides the safeguards required by the Michigan Supreme Court protecting parental rights - as guaranteed by the Constitution - while setting in place standards for grandparents who have been denied seeing their grandchildren and gives them an opportunity to come to court and show why they should have a right to see their grandchildren if that request has been unreasonably denied.

Standing

The new law provides grandparents, in the following circumstances, rights to request relief from the courts to see their grandchildren, if they have been denied visitation by a parent:

1. If there is a divorce, separate maintenance, or annulment action pending between the child's parents, or such an action has already been finalized.



2. The grandchild was born out-of-wedlock and the parents are not living together. However, this only applies, to grandparents of the alleged father if he has been declared legally to be the father of the child by a proper court proceeding and the child's father provides child support in accordance with his ability to provide support or care for his child.



3. Legal custody of the child has been given to a person other than the child's parent or the child does not live in the parent's home (other than a child who has been adopted by a person who is not the child's stepparent).



4. A grandparent has taken care of a grandchild during the year before they request visitation, whether or not they have done so by a valid court order.



5. The child's parent, who is a child of the grandparent, is deceased.

If a grandparent falls into any of the above categories and has been denied visitation, they would have a right to bring an action in the court that has heard a prior action, such as a divorce or paternity action. If there has been no prior action filed in the court, then a new action would be brought in the circuit court in the county where the grandchild resides.

Any person, who has legal custody, or an order for parenting time of the child, must be given notice of the grandparent visitation request.

For more information regarding this matter, visit our website at www.MichiganAttorney.com and click on "Grandparent Visitation."

A review of the law of perjury

With so much recent news and discussion regarding perjury and the Mayor of Detroit, Kwame Kilpatrick, a tutorial on the subject may be appropriate. Under Michigan law, perjury is a felony punishable by up to 15 years in state prison. It applies in any civil or criminal case. To commit perjury, there must be (1) an administration of an oath authorized by law, by competent authority; (2) sworn material statement of fact made; and (3) statements or testimony regarding those facts that are willfully false.

A material statement is one that could have affected the course or outcome of a proceeding although it need not actually affect the outcome.

Perjury is not limited to statements made while sworn under oath at a deposition or trial. Anytime a person falsely swears under oath as to a material issue, even in a document, that person can be subject to prosecution for perjury. A statute may authorize or require that an application or affidavit be signed "under penalty of perjury." If it does, signing such a document, when there are known false statements contained within it, would constitute perjury.

Subornation of perjury is procuring another person to commit the crime of perjury. It is a felony punishable by up to 15 years in state prison.

Example: During a contentious divorce proceeding, Joe Plaintiff decides that he has had enough of his wife Jane Defendant. Joe asks John Witness to testify that he saw Jane having an affair with another man. Joe knows that this is untrue but he and John cook up the story to get back at Jane. At trial, John falsely testifies and commits perjury, and because Joe asked John to testify falsely, Joe has committed subornation of perjury.

Incitement of perjury is procuring a person to commit perjury where no perjury is actually committed. It is attempting to suborn perjury. It is a felony punishable by up to 5 years in state prison.

Obstruction of justice is a common-law crime that uses the same standard as perjury except that the materially false statement need not be made under oath.

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