Columns

The Michigan Uniform Power of Attorney Act (UPOAA), signed into law by Governor Gretchen Whitmer on November 7, 2023, took effect on July 1, 2024.

The Michigan Uniform Power of Attorney Act (UPOAA), signed into law by Governor Gretchen Whitmer on November 7, 2023, took effect on July 1, 2024.  Michigan has joined 30 other states in adopting this model statute. The Act replaces the prior Michigan power of attorney law, which was part of the Estates and Protected Individuals Code (EPIC.)

The UPOAA is designed to promote standardization, consistency and ease of use. The Act will help alleviate problems with enforcement previously caused by laws that varied from state to state. The Act provides the agent with broad powers while protecting the principal against abuse and fraud. It also provides the agent with reimbursement for expenses as well as reasonable compensation, unless specifically prohibited by the terms of the power of attorney.

The Michigan UPOAA contains four sections:

ARTICLE 1 sets forth general provisions, including definitions, scope of applicability, presumption of durability, execution requirements, validity of the power of attorney, agent duties and liability, reimbursement and compensation, resignation and termination of the power of attorney.

ARTICLE 2 fully describes the parameters of the general and specific grants of power and authority by the principal to the agent over various types of property, interests, claims, benefits and rights.

ARTICLE 3 contains three statutory forms: the statutory power of attorney form, agent’s acknowledgment form and certification of the validity of the power of attorney form.

ARTICLE 4 includes miscellaneous provisions about uniformity and the Act’s effect on existing powers of attorney. This article highlights some of the key provisions of the UPOAA.

Durability of the Power of Attorney

The Michigan statutory form creates a durable power of attorney. The Act changes prior Michigan law by providing that if a power of attorney is executed in compliance with statutory requirements, it will automatically be durable without any need for an affirmative statement of durability in the power of attorney.

A durable power of attorney is particularly advantageous because, unlike a general power of attorney, the agent’s authority will remain in effect upon the principal’s incapacity. This will help to ensure the principal’s wishes are followed in the event of a serious illness, debilitating injury or devastating accident. The statute defines incapacity as the inability to manage property or business affairs due to impairment in ability to receive and evaluate information or to make or communicate decisions even with assistive technology, or if missing, detained, or outside the United States and unable to return.  

Statutory Forms and Legal Consultation

Arguably, the most useful aspect of the Act is the statutory forms. These forms make it possible for individuals to create a durable power of attorney without having to retain an attorney. A potential positive outcome is that fewer guardianships and conservatorships will be necessary.

The statutory power of attorney form is self-explanatory and user friendly. It includes instructions and the specific language required for a valid power of attorney. If the form is properly completed, it is enforceable.

The UPOAA encourages individuals to exercise care in using these forms that govern important rights. The Act contains cautionary language in bold print warning the principal to seek legal advice before signing the form if they have any questions about the wisdom of granting authority to the agent.

The statutory form refers to the importance of seeking legal advice or counsel six times. While the Act encourages, but does not require legal advice, legal consultation is advisable to ensure capacity and understanding, to describe the scope and options, to explain consequences of a power of attorney, and to ensure voluntary appointment by the principal and knowing acceptance by the agent. Trust is essential; once a power of attorney is in effect, there is no judicial or direct oversight of the agent's activities by anyone other than the principal.

The Act also contains an agent acknowledgement form, which the agent must sign to acknowledge they will comply with the duties to act in the principal’s best interest, in good faith, and within the scope of the authority granted. The Act also includes a third form to certify the validity of the power of attorney, which is designed to be used by an agent or attorney who represents either the principal or agent.  

General and Specific Authority

ARTICLE 1 of the UPOAA describes, in detail, general and specific grants of power and authority. The statutory power of attorney form enumerates those powers. Essentially, general powers include authority over real and personal property, banking, stocks, bonds and other financial investments, insurance, annuities, litigation and claims, retirement and governmental benefits, and taxes. The form allows the principal to grant some or all the general powers to the agent.

Special powers may include authority to create, amend, revoke, or terminate an inter vivos trust; make a gift; create a joint account; create or change a beneficiary designation; waive the principal's right to be a beneficiary of a joint and survivor annuity; access the content of electronic communications; or authorize another person to exercise the authority granted under the power of attorney. The statutory power of attorney contains an explicit warning that granting the special powers would give the agent the authority to take actions, which could significantly reduce the principal’s property or change how property is distributed upon the principal’s death. The form also raises the question of whether the principal is certain that they have designated the right person to serve as agent and requires the principal to initial next to each special power granted. These additional safeguards are included due to the serious, potential consequences of granting these special powers.

Agent Duties and Liability

The agent's duties include acting in accordance with the principal's reasonable expectations, in good faith, within the scope of the authority granted; and maintaining reasonable records of receipts,
disbursements, and transactions. In addition, unless the power of attorney provides otherwise, the agent must act loyally for the principal’s benefit, and with the care, competence and diligence of a prudent person, must preserve the principal’s estate and cooperate with a person with authority to make health care decisions.

The UPOAA provides for appointment of an agent, successor agents, and coagents at the option of the principal. The Act and form also contain the option for nomination of a guardian and conservator in case it becomes necessary for a court to appoint a guardian or conservator. Successor agents serve one at a time in succession. A successor serves after the original agent resigns, dies, becomes incapacitated, or is no longer qualified to serve. In contrast, coagents serve simultaneously and can exercise powers independently of one another.

An agent who acts in the best interest of the principal and exercises the care, competence, and diligence of a prudent person would not be liable solely because the agent also benefited from the act or had a conflicting interest in relation to the property or affairs of the principal.

If, however, the agent violates the UPOAA, or acts outside the authority granted in the durable power, they may be liable to the principal or the principal's successors for harm or loss, as well as any profits made by the agent related to the violations. They also may be subject to civil or criminal penalties and responsible for reimbursement of attorney’s fees and costs paid on behalf of the principal to address the misconduct.

If the agent embezzles or wrongfully converts the principal’s property, the agent is liable for three times the value of any property that was embezzled, converted, or wrongfully withheld from the principal or the successors in interest. These provisions are intended to prevent financial abuse, neglect, exploitation, or abandonment by the agent and protect elder, disabled or otherwise vulnerable principals and their successors.  

A successor or coagent may be liable for reasonably foreseeable damages caused by the misconduct of another agent if they have knowledge of a breach or imminent breach of fiduciary duty by the other agent and fail to notify the principal or take appropriate action to safeguard the principal’s interests.

Alternative Dispute Resolution

The UPOAA does not specifically mention mediation or arbitration, however, it contains several references to alternative dispute resolution.   The portion of the statute addressing a general grant of authority over claims and litigation explicitly includes the agent’s power to submit a dispute to alternative dispute resolution unless the power of attorney indicates otherwise.

Mediation or arbitration could be pursued to address disputes between coagents or disputes between agents and successors in interest as well as to resolve disputes with third parties.  If a principal is incapacitated, but still able to communicate their wishes, their participation in mediation or arbitration should be considered if it is feasible and would be helpful in addressing issues in the case.

If a principal wants to limit alternative dispute resolution to a particular process, for example, mediation only, then the principal would need to include that direction under the special instructions portion of the power of attorney.  

Execution of the Power of Attorney

Under the Act, signing the power of attorney before two witnesses, other than the principal and agent, is sufficient to make the power of attorney effective. However, signing before a notary is encouraged because it creates a legal presumption that the power of attorney contains a genuine signature. This enables a third party to accept the power of attorney in good faith and presume that the principal’s signature is genuine as long as the third party does not have actual knowledge indicating that the signature is not authentic. A third party is required to accept an acknowledged power of attorney unless that third party requests a certification, translation, or opinion of counsel.

The Act discourages third parties, such as banks and other financial institutions, from wrongfully refusing to accept an acknowledged power of attorney and asking for a legal opinion when the circumstances do not warrant such a request.

If a court later finds that the reason for the request is frivolous, the third party is subject to liability for attorney’s fees and costs incurred in providing the requested opinion. These provisions are designed to protect families from having to comply with unnecessary requests for new powers of attorney or compelled use of the financial institution’s form.

Powers not Granted in a Power of Attorney

The UPOAA does not apply to patient advocate designations, which are still governed by EPIC.    A patient advocate is given authority to exercise powers concerning care, custody, and medical or mental health treatment decisions for the individual who granted the patient advocate designation. The Act also does not apply to delegation of a parent or guardian’s authority over a minor child or ward.  

Termination

A durable power of attorney ends upon the principal’s revocation, death of the principal, or by court order. The principal may revoke the power of attorney by providing a written notice of revocation to the agent and any third party who may rely on the power of attorney. The revocation is effective when the notice is received by the agent or the third party.


Existing Powers of Attorney

The Act clearly provides that an existing power of attorney remains valid as long as it was properly executed at the time it was signed. It may be prudent, however, to re-execute the power of attorney and have it notarized to obtain the additional protection under the UPOAA of an acknowledged power of attorney.

Conclusion

The new Michigan UPOAA provides clarity, uniformity and ease of use. Adopting the Act is a positive development in the estate planning process and promotes the use of powers of attorney by allowing individuals to create their own power of attorney, appoint someone they trust to manage their affairs if they become incapacitated, and ensure their wishes are followed. The Act simultaneously protects vulnerable individuals by including several cautionary statements about the importance of the rights assigned and by encouraging legal consultation.

—————

Laura A. Athens is an attorney, mediator, facilitator and arbitrator in Michigan with over 30 years of combined litigation and alternative dispute resolution (ADR) experience. She currently devotes her practice exclusively to ADR.
Athens is an associate of Professional Resolution Experts of Michigan, LLC (PREMi).

With this column, we announce two more winners (losers) of our distinguished (despicable) Pence Outstanding Hypocrite Award (POHA), bringing the number who have received a POHA to 14.

With this column, we announce two more winners (losers) of our distinguished (despicable) Pence Outstanding Hypocrite Award (POHA), bringing the number who have received a POHA to 14.

We can say without equivocation that none of the previous losers was so deserving of this highly coveted (despised) honor. The latest two winners are the second and third two-time dis-honorees (Senate Minority Leader Mitch McConnell was the first two-time winner).

The second two-time winner of our dis-honor role is Donald Trump’s choice for his running mate, Ohio Senator J.D. Vance. He stands heads-and-shoulders above the rest (OK, not by much; they are all pretty much moral/ethical degenerates whose moral/ethical compass always points south.)  

Here are some of things Vance said about the Republican nominee for president:

--Vance said he was a “never-Trump guy,” adding “I never liked him,” and exclaimed, “My God, what an idiot.”

--“I can’t stomach Donald Trump. I think he’s noxious” and once called him “America’s Hitler.”

--In 2016, Vance described Trump as “a terrible candidate” and a “cynical asshole like Nixon.”

--Trump was “cultural heroin” and his “actual policy proposals, such as they are, range from immoral to absurd.”

--"He (Trump) makes people I care about afraid.  Immigrants, Muslims, etc.”

--He even expressed admiration for President Obama and, in 2016, said he might vote for Hillary Clinton or a third-party candidate.  

--In an article in Atlantic Magazine, headlined, “Opioid of the Masses,” Vance wrote: “In 2016, during this election season, it appears that many Americans have reached for a new pain reliever. It enters minds, not through lungs
or veins, but through eyes and ears, and its name is Donald Trump.” Then he added Trump was not the solution.

Vance has deleted all his negative social media posts on Trump.

His plaque in our POHA Hall of Shame will be right next to a previous Trump vice president, Mike Pence, the first plaques visitors will see when entering the inner-sanctum.

Which brings us to our thrid two-time loser, Nikki Haley, a Trump challenger for the GOP nomination in the primaries.

She “won” her first POHA when she dropped out of the race but pledged to vote for Trump, whom she described in the primaries in terms similar to those of Vance.

Then she spoke at the GOP convention, and exclaimed that she is in full support of Trump’s nomination which, she said in the campaign, would be like committing suicide for the country. We can conclude she has a death wish.

“I’ll start by making one thing perfectly clear: Donald Trump has my strong endorsement, period,” she “proudly” told the convention, adding, “For the sake of our nation, we have to go with Donald Trump.”  

Now to some of the things she said about him. They rival some of Vance’s descriptions of the GOP leader.

Trump, she said, at one point, is “unhinged,” “unsafe to be president,” and “unqualified to be president of the United States.”  

After January 6, she criticized Trump, saying, “He let us down.  We shouldn’t have followed him…and we should never have listened to him.”

She also has questioned his mental fitness, after Trump confused her with former House Speaker Nancy Pelosi.

“The concern I have is – I’m not saying anything derogatory,” she said while saying something derogatory, “but when you’re dealing with the pressures of a presidency, you can’t have someone else that we question whether they’re mentally fit to do this.”

Asked whether Trump would abide by the Constitution if elected, she said, “I don’t know, I don’t…I don’t know…I mean you always want to think someone will but I don’t know.”

When Trump mocked Haley’s husband, Michael, who serves in the South Carolina Army National Guard, and was on a year-long deployment in Africa with the 218th Maneuver Enhancement Brigade, Haley said:

“If you don’t respect our military, how should we think you’re going to respect them when it comes to times of war, and prevent war…If you don’t have respect for our military and our veterans, God help us all if that’s the case.

“He showed that with that kind of disrespect for the military, he’s not qualified to be the president of the United States, because I don’t trust him to protect them.”

With her total embrace of Trump, she apparently also doesn’t remember Trump’s racially-charged comments about her heritage.

Trump repeatedly referred to Haley, the daughter of immigrants from India, as “Niambra” and suggested, falsely, that disqualified her to run for president.

Haley was born in Bamberg, South Carolina, as Nimarata Nikki Randhawa.

She always used her middle name and took the surname “Haley” after her marriage in 1996.  In response at the time, Haley said:

“I’ll let people decide what he means by his attacks. What we know is, look, he’s clearly insecure if he goes and does these temper tantrums…”

Here is what she said about politicians who flipped-flopped on Trump (as she and Vance have done):

“Many of the same politicians who now publicly embrace Trump privately dread him. They know what a disaster he’s been and will continue to be for our party. They’re just too afraid to say it out loud. Well, I’m not afraid to say the hard truths out loud. I feel no need to kiss the ring.”  

During a presidential debate in the GOP primaries, she was one of six candidates who raised her hand when asked by the moderator if they would support Trump even if he were a convicted felon.  He has been convicted on 34 felony counts.

Vance and Haley give the word “hypocrisy” and entirely new meaning.

—————

Berl Falbaum is a longtime political writer and author of several books.

In marking our firm’s 25th anniversary, we were provided a special opportunity to look back at some of the important contributions made by our clients who changed the law in a meaningful way.

JJ Conway
J.J. Conway Law

In marking our firm’s 25th anniversary, we were provided a special opportunity to look back at some of the important contributions made by our clients who changed the law in a meaningful way. Their cases have been impactful. From healthcare for children to pension security, the work of our clients is still making a difference in the lives of others to this day.

As we know, in law, we must always keep looking toward the horizon. And when we do, one of our clients who is working on improving the lives of others is Rachel Cuschieri-Murray.

Rachel has been at the forefront of passing a comprehensive mental health parity bill in Michigan. She and her husband became advocates in the children’s mental health community following a healthcare fight seeking mental health benefits for her son.

Rachel has organized advocacy groups, established a nationwide clearinghouse of information for parents seeking assistance with medical reimbursements, and is now working to bring a comprehensive mental health parity law to Michigan. Rachel’s thinking is ahead of the curve nationally and is needed in our state.

The federal Mental Health Parity and Addiction Equity Act was a bipartisan legislative achievement. The MHPAEA was based on solid public policy reasons and sought to improve upon an aspirational parity law passed earlier that didn’t really do much.

The bill’s two chief sponsors, Paul Wellstone, a Democratic Senator from Minnesota and Pete Domenici, a Republican Senator from New Mexico worked together to secure its passage. It was signed into law by President George W. Bush. Both senators had personal family experiences with mental illness and mental health issues. They wisely recognized that mental illness and addiction is nonpartisan.

So, they crafted a law that sought to destigmatize mental illness and create a kind of “parity,” or equality, in the delivery of healthcare benefits. The law and its regulations targeted such things as artificial treatment limitations, unfair cost-sharing obligations, and other barriers to care like onerous preauthorization requirements.

Following the law’s passage, plans could be required to show that coverage for mental health related issues was no more restrictive than for claims seeking medical or surgical treatments. The law’s scope was again expanded in 2010 under the Patient Protection and Affordable Healthcare Act which was signed into law by President Barack Obama.

While the law was a significant legislative achievement, health law and employee benefit practitioners quickly learned of its limits. For example, there is no private right of action to sue under the MHPAEA. There is no right to a jury trial. This is usually the product of lobbying efforts to water down a law’s strength.

Also, there is no real relief beyond a traditional breach of contract remedy, so there is occasionally a duplicative aspect to mental health parity claims.

Oddly, the MHPAEA works best in a class action setting since entire coverage groups can be scrutinized and the limitations of widely issued policies can be better examined statistically for their impact on mental health coverage.

So it was that Rachel, in recognizing the disparity of care particularly for teens and adolescents in crisis, set about to change the law. She heard the stories from others about difficulties in securing care. She knew that insurers continued to play to stereotypes in this area.

Realizing just how much was at stake (the lives of children with mental health challenges) and how inadequate the state’s regulatory system is — an ineffectual insurance commissioner, a broken external medical review system, Rachel thought bigger. She and a number of advocates began working to create a mental health parity act for Michigan that would mean something. If her vision becomes reality, the disparities of care will be eliminated. The enforcement rights of those with such claims will be enhanced.

This is no small feat, and it is a game changer. Rachel and those working towards the law’s passage almost succeeded last year during the state’s legislative session. News reports indicate that Michigan’s largest insurer set out to stop the legislation, and this last-minute push succeeded in blocking the bill.

To provide some cover, the state passed a duplicate mental health parity act which essentially mirrors the federal law. Passage of a more ambitious law awaits, but with Rachel Murray in the fight, the future looks bright for those who need it most.


—————

John Joseph (J.J.) Conway is an employee benefits and ERISA attorney and litigator and founder of J.J. Conway Law in Royal Oak.

We seem to live in a world where many have forgotten the importance of civility in business, politics and the law.

Charles A. Lawler
Clark Hill

Unfortunately, civility is hard to codify or legislate, but you know it when you see it.  It’s possible to disagree without being disagreeable.
 Sandra Day O’Conner

Politeness and civility are the best capital ever invested in business.  
P.T. Barnum

We seem to live in a world where many have forgotten the importance of civility in business, politics and the law.  Merriam Webster defines civility as a; civilized conduct, especially courtesy and politeness, and b; a polite act or expression.  Is this really that hard?  Is this something that we, as advocates of the law, should try to practice daily?  I would assert that we all should consciously try to be more civil in our daily practice and in our daily lives. We all can make the world a better place through daily conscious acts of trying to be more civil.  We can make the world a better place one activity at a time.

Bryan Cave Leighton Paisner’s Irvine, California office adopted a Code of Civility for its office.  The Code is below in bold with my comments on each portion:

We greet and acknowledge each other.

This is simple act of kindness which requires little effort on our parts.  Think of the many times that a simple hello and acknowledgement has brightened up our day.  It costs nothing to say hello and it might help someone you encounter to have a better day.  Especially when many are returning to their offices, the opportunity to meet and greet each other will warm the souls of many.

We say please and thank you.

Our parents and other influencers in our lives have taught us this simple act of kindness.  Think of how many times someone has said thank you to you and what it has meant to you. The use of please and thank you drives us to continue to help others and serve society.  I would suggest we consider taking this one step further and say, “you’re welcome.”  Positive social interaction is good for our mental wellbeing.

We treat each other equally and with respect, no matter the conditions.

This one might require some more effort.  This just requires us to take a step back and be respectful.  The individual we are interacting with deserves this type of treatment.  Furthermore, if the conditions are difficult a respectful ethical approach to the individual has a greater chance of moving the interaction to a positive result. We can control how we interact with others. “A drop of honey is worth a gallon of vinegar,” Dale Carnegie.

We acknowledge the impact of our behavior of others.

This is one that I personally struggled with for years.  My wife, Karen, has helped me become more aware of my body language and behavior’s impact on others.  Watch the visual cues you are getting.  It is easy to see if your behavior has had a negative impact on someone and take the time to correct.  Please keep in mind how is the message I am delivering going to be taken.  There is more than one way to accomplish your goals. Maybe we should consider actions that will not be taken in a negative way.

We welcome feedback from each other.

This is important to understand how our actions are being perceived by others.  Ask your co-workers how they interpret what you discussed.  Enable your coworkers to be willing to share their feedback with you.  Feedback from individuals in your inner circle will help you achieve your goals.  Those who love and respect you will help you achieve your goals and point out situations where your actions weren’t received as intended.  We all need to constantly strive to be a better person today than we were yesterday.

We are approachable.

The door is always open. The key is do you really mean it.  We, as part of the legal profession, have been given or earned great opportunities.  With opportunity comes obligations.  As I have stated many times, I believe those in our profession have an obligation to help others.  You never know when you are going to have the chance to make a difference in someone’s life.  Leave that door open and welcome the opportunity to help others.

We are direct, sensitive and honest.

Honest, open and empathic conversations will garner the best results.  I enjoy conversations with my partners, because they always tell me what they think and are completely honest.  They tell me when I might be off base, whether in my professional or personal life, and challenge me to reflect.  I appreciate and welcome these conversations.  These conversations are good for all of us.

We acknowledge the contributions of others.

Good leaders continually praise others.  Generals don’t win wars, it is those in the trenches.  I know that my legal career would have never been as successful as it has been without my long-time assistant Kinneitha Thomas.  Without her I would not have become a member, had the number of clients I have or become member-in-charge of Clark Hill’s Lansing office.  Furthermore, we should acknowledge others because it is simply the right thing to do.

We respect other’s time commitments.

We, as attorneys, should easily understand this one.  That said, everybody’s time is valuable.  When opening discussions or starting telephone conversations, maybe our first comment should be, “is this a good time?”.  Everybody’s time is important to them let’s all try to keep that in mind when going through our busy days.

We address incivility.

This one might be the most difficult but might be as important as any of the above to develop the culture we want in our offices and work environment.  We should take the opportunities that we encounter to encourage others to treat each other with respect, kindness, dignity and civility.  At times the individuals who we choose to address regarding incivility probably aren’t even aware of how their actions are being perceived.  Let’s all try to be more assertive with regard to situations we encounter where incivility persists.

I truly believe that all of us in the legal field are uniquely situated to lead our country to a better place.  All the division and the pandemic have led to some people beginning to judge and lash out against others.  Let’s all try to make a conscious decision to be more civil in how we treat everyone in our life.  Let’s all try to make the world a better place one interaction at a time.  It is a pleasure to have had the opportunity to work in the legal environment.  It has changed my life and I hope that I am able to make the world a better place for others.

As Nike says, “Let’s just do it.”

—————

Charles A. Lawler is a member of Clark Hill in Lansing.

When, if ever, is it permissible for a news reporter to engage in unethical means to obtain a story?

When, if ever, is it permissible for a news reporter to engage in unethical means to obtain a story?

That is the bottom-line question raised by the controversy over one, Lauren Windsor, posing as a Catholica conservative while secretly recording Associate Supreme Court Justice Samuel Alito at a gala recently sponsored by the Supreme Court Historical Society.

Windsor’s recording made headlines when she “caught” Alito, after being goaded by her, agreeing that the country needs to return to a “place of godliness.”

For this column, we’ll put aside the question whether that comment deserved the massive coverage it received because it lacks any context.

We really have no idea what Alito meant.  We’ll also skip the legality of the taping because that issue is very complex with various states dealing with it differently nor are we addressing Alito’s alleged unethical conduct in accepting gifts or his political conflicts of interest given his wife’s “political” activism.  We are only examining the issue of ethics in journalism.

The answer to the question posed at the top of this column is a resounding “no.”  I can’t be any stronger.  It is never permissible for reporters to misrepresent themselves or to record and/or photograph people without their permission. End of story.

I’ll skip the comments from those who agree with my position and just focus on those that defend Windsor, who is described as a “documentarian.” We’ll begin with the Code of Ethics of the Society of Professional Journalists (SPJ).

It stipulates that news people “should avoid undercover or other surreptitious methods of gathering information unless traditional, open methods will not yield information vital to the public.”

I taught journalism ethics at Wayne State University for decades and always marveled at that “ethical” edict. I still can’t believe someone really wrote that and it’s been on the books for years. In effect, it says it’s wrong to steal unless you can’t get the money you need any other way.

Who decides what’s “vital to the public”?  A documentarian seeking publicity?  A publisher losing subscriptions?  A reporter pressing his editors for a raise or promotion?

Parker Molloy, in her newsletter The Present Age, summaries the Windsor defense cited by many, writing, “Ultimately, the public interest should be the guiding principles in journalism.  Regardless of how they are obtained, Lauren Windsor’s recordings shed light on the beliefs of a Supreme Court justice -- information that the public has a right to know.”

Regardless of how the information was obtained?  Would Molloy support Windsor breaking into Alito’s office and rummaging through his files?  Would she approve of wiretapping the justice’s office?  If not, what is the difference with wiretapping his office and secretly recording him at the dinner?

Indeed, two local reporters, in a book on investigative reporting published in the 1970s, recommended bugging the offices of public officials, of course, to serve the public interest.

I still remember their suggestion of dropping a small mic that looks like a cockroach on the rug while the reporter is in the mayor’s office.  I think that meets the SPJ code.

What are the limits -- are there any -- for Molloy, Windsor and the others who defend misrepresentation and secret recordings?

As a society, we don’t even permit law enforcement agencies to wiretap without having probable cause or approval from a court.

I think it would be more in the public interest to rid us of organized crime figures, murderers, rapists, arsonists, etc.  with secret recordings than garner a one-sentence quote from a Supreme court justice. Yet, we forbid it because of a commitment to protecting civil liberties, privacy and possible abuse.

Moreover, government agencies can be held accountable for unethical practices such as wiretapping while Windsor escapes any accountability as do all those who published her “exclusive.” They too compromised journalistic ethics and gave her the publicity she craved.

It is also vital to understand the First Amendment (freedom of the press) is not restricted to The New York Times, Wall Street Journal, The Washington Post, CNN, NBC or other major media outlets.  It even protects someone who publishes a small newsletter in a residential subdivision.

Thus, under Windsor’s warped understanding of media ethics, in effect, anyone can wiretap public officials if they consider it in the public interest.

Other important factors to note:

--Windsor has not made the full recording public. Might there be something on it that gives us more information, that puts the conversation in context? Some skepticism is warranted given that Windsor already has engaged in unethical conduct.

--She admits she lied but “for the greater good.” I guess we should all feel indebted to her.  

--Alito did not actually say the country needs to return to a “place of godliness.” Windsor said it and he responded, “I agree with you.”  Might he just have been courteous?

--Another fair question: Is it really about the public interest or increasing traffic and the number of likes on websites?

Sadly, the media continues to lose the trust of the public which questions their accuracy, fairness and commitment to unbiased reporting.

Poll after poll reveals a growing lack of respect which is hardly healthy for a democracy that needs a vibrant press dedicated to the highest principles of truth and honesty.

Surreptitious and underhanded behavior on the part of the media does not help in restoring public confidence in the press. Defending unsavory behavior only adds to the public’s distrust.

Given this brouhaha, consider how Windsor and her defenders might instruct their children on ethics: Never lie or cheat unless you cannot get what you want any other way.

—————


Berl Falbaum is a longtime political writer and author of several books.

Reflection comes from the Latin word introspicere, which means “to look within.” It has been requested, that I share my reflections, from the bench.  Thank you. I will do my best to honor this request.

Reflection comes from the Latin word introspicere, which means “to look within.” It has been requested, that I share my reflections, from the bench.  Thank you. I will do my best to honor this request.

We have all experienced the clamor of a courtroom. It should come as no surprise that courtrooms are cacophonous. Courtrooms are the place, where chaos has a space, to be corralled and calmed.  

Our courtrooms are time machines. In each case, the past is resurrected into the present, for legal reflection and response. In each case, the future hovers. The required recordings of our proceedings constitute the fodder for appellate review. Past, present and future coincide in the moment.  While the past is recorded in the present, the present has already become past. And, it is in the quiet of that space that we reflect.  

It has been said: “For what is in a word, but a sound?  What is in a thought, but a quickening of the mind’s eye?”  So what do we do in that moment? Do we dismember as we remember? Or do we rebuild and renew? The choice is ours. Where might we find common ground in consideration of that choice? Perhaps in the contract that we all share: The Lawyer’s Oath, required for admission to the Michigan State Bar.

Each of us have our individual moment when we solemnly affirmed that oath. Depending on the circumstances, some of those experiences might be more memorable than others. For me it was profound. My parents were still alive and sat in the jury box as witnesses. I was the first in our large and extended family to become a lawyer. I felt their pride in and hope for me as I became a member of our profession. I was sponsored into the Bar by future Judge Richard Conlin, who I was in private practice with at the time.  His brother, Chief Judge Patrick Conlin, father of our current Chief Judge Patrick Conlin, Jr., administered the oath. It was in the same courtroom where I now serve as a judge.

Each time I perform this ceremony, I remember the moment of my own swearing-in as if it was yesterday. I see myself behind that podium where the young attorneys today stand. I see my parents in the proud families, sitting as witnesses in the jury box. I remember the kindness of Judge Conlin as I sit in the chair he sat in when he swore me in.  Each and every time the ceremony repeats, I am acutely aware of the significance our courtrooms have on the human experience. The past is present, the present past, and we send our prayers and hopes into the future with each and every lawyer we admit into our bar.

Our Lawyer’s Oath is our contract. We make solemn promises in exchange for “the privilege to practice law in this state.” Those solemn promises represent the contract we make within ourselves, between ourselves as members of the profession, and to the public we individually and collectively serve. We are architects of society.  As architects we have the responsibility to continuously ask ourselves certain questions.  Among them are the following:  What do we contribute that has value?
What have we built that deserves protection and preservation? What shelter do we provide from storms of chaos, conflict and discord that often time comes our way? What we do matters.  We must never forget that.

In my courtroom, Courtroom 10, our Oath, our contract, hangs framed on the back wall of the courtroom.  Beneath it is a brass plaque with one of the grandfather teachings, shared with our court by our Anishinaabe neighbors.  It is the teaching of Humility.

There are twelve federally recognized Anishinaabe tribes in Michigan. The Nottawaseppi Huron Band of the Potawatomi, the tribe closest to our Washtenaw courts in geographic proximity, shares the grandfather teaching of Humility with the public as follows:

“Humility is to know that we are a part of creation. We must always consider ourselves equal to one another. We should never think of ourselves as being better or worse than anyone else. Humility comes in many forms. This includes compassion, calmness, meekness, gentleness and patience. We must reflect on how we want to present ourselves to those around us. We must be aware of the balance and equality with all of life including humans, plants and animals.”

I encourage you to reflect upon our Oath further. I encourage you to familiarize yourself with the other grandfather teachings:  Respect; Love; Bravery; Wisdom; Honesty and Truth. I encourage you to reflect on the teachings of your ancestors. In reflecting on our common Oath, I invite you to notice how values articulated in teachings are part of our contract.  Like Humility, these values are strengths, not weaknesses.  They guide us in our work, and in our life walk.

The public we serve shares in this work and life walk as well. When prospective jurors sit in the back of Courtroom 10, beneath the framed Lawyer’s Oath, the very first instruction they are given states in pertinent part:

“Jury duty is one of the most serious duties that members of a free society are asked to perform. The right to a jury trial is an ancient tradition and part of our heritage. Our system of self-government could not exist without it. As jurors your sole duty is to find the truth and do justice…”

Their final instruction, before they deliberate, reaffirms:

“When you go to the jury room, your deliberations should be conducted in a serious and respectful manner. It is important that all ideas are voiced and considered during deliberations.”

In closing, I cite the last stanza of the poem “In the Quiet of an Empty Courtroom”:

In the quiet of this space

The past is present, the present past.

What we nurture in each case

Reverberates. To the last.

Síochána (Peace, in Irish)

Timothy Connors
Judge, Washtenaw County Trial Court


Judge Timothy P. Connors has been a State Court Judge since 1991. For eleven of those years he served as a Chief Judge. Judge Connors is the Presiding Judge for the Peacemaking Court, the Presiding Judge for the Business Court and handles civil and ICWA cases. He is a past co-chair, and current member of the Michigan Tribal-State-Federal Forum. Judge Connors has also served by appointment as Judge Pro Tem for the Little Traverse Bay Bands of Odawa Indians. 

The Native American Rights Fund appointed Judge Connors to its Indigenous Peacemaking Initiative in 2017. The mission of this initiative is to support efforts of tribes and their allies to utilize traditional native methods of dispute resolution whenever those methods might afford desirable outcomes. Judge Connors is incorporating Peacemaking principles, philosophies and procedures shared by Tribal communities into State Court justice systems. This effort is supported by the Michigan Supreme Court. Cases identified as potential beneficiaries of Peacemaking are those where the litigants have ongoing relationships after the court’s adjudication is complete. In addition, cases where litigants need a more complete understanding of and closure to the conflict that brought them into court are also potential beneficiaries of Peacemaking. To date, successful outcomes of Peacemaking efforts have been witnessed in wrongful death suits, elder guardianship disputes, estate distribution issues, custody and parenting time disputes, neglect and abuse proceedings, juvenile domestic violence charges, and adult criminal sentencing circles.  

Judge Connors co-authored a Law Review article on peacemaking entitled Restructuring American Law Schools: Peacemaking in First Year Curriculum; Wayne Law Review, Vol. 69, No. 3, Spring 2024. He is the author of Rights, Relationships, Responsibilities, American Bar Association Human Rights Journal, July 2023.  He is the author of Exit, Pursued By a Bear, Why Peacemaking Makes Sense in State Court Justice Systems; American Bar Association Judges Journal, Fall 2016; Our Children are Sacred, Why the Indian Child Welfare Act Matters; American Bar Association Judges Journal, Spring 2011 and Crow Dogs vs. Spotted Tail: Case Closed?; Michigan Bar Journal, July 2010.  He co-authored, TRIBAL COURT PEACEMAKING A Model for the Michigan State Court System? Michigan Bar Journal, June 2015.

Judge Connors has been awarded numerous honors throughout his career. In 2021, Judge Connors received the Daniel J. Wright Lifetime Achievement Award for Exemplary Services to Michigan’s Families and Children. He was awarded the Tecumseh Peacekeeping Award for Dedicated Service to Protecting the Rights of American Indians from the Michigan State Bar Indian Law Section.

 He was presented with the Patriot Award for Outstanding Service to the Bench, the Bar, and the Community from the Washtenaw County Bar Association in 2009.

Judge Connors is a three-time recipient of the Justice Blair Moody Award for Significant Contributions to Judicial Excellence. In 2014, Judge Connors was awarded the Child Welfare Jurist of the Year Award by the Foster Care Review Board. He also received the Peace Builder Award on behalf of the Washtenaw County Peacemaking Court from the Dispute Resolution Center. This award was given “in recognition of outstanding commitment to the practice of just and humane resolution of social conflict.”

In 2014, Judge Connors was also elected Chairman of the Board of Eversight, a not-for-profit corporation dedicated to the restoration of sight.

In addition, in 2014, dbusiness, Detroit’s Premier Business Journal recognized Judge Connors as one of the “top circuit court judges” in Southeast Michigan. This recognition was based on integrity, knowledge of the law, efficiency and judicial temperament.

In 2015, Judge Connors received the Hilda Gage Judicial Excellence Award from the Michigan Judges Association. The award “honors judges who serve their profession and their communities with integrity, skill, and courage every day.”

In 2016, he was the recipient of the Reverend Thomas H. Smith Humanitarian Service Award from the Brown Chapel African Methodist Episcopal Church.

In 2017, the Youth Justice Fund appointed Judge Connors to their inaugural Advisory Board. Their mission is to assist children upon their release from detention in Michigan’s prisons and jails by providing mentoring, training, services, and resources necessary to ensure human dignity and full participation in the community.

Also in 2017, Judge Connors was the recipient of the National Council of Juvenile and Family Court Judges Innovator of the Year Award for Implementing Tribal Peacemaking Practices in a State Court System – The Washtenaw County Peacemaking Court.

In 2018, Judge Connors received the Thurgood Marshall Civil Rights Award from the NAACP Ypsilanti Willow Run Branch.

He is also a past member of the National Council of Juvenile and Family Court Judges Tribal Leadership Forum. He is currently a member of the Michigan Judicial Council – Expanding Problem Resolution Approaches Work Group.

Judge Connors teaches Civil Trial Advocacy and/or Peacemaking and Restorative Justice at the University of Michigan Law School, Wayne State Law School and Vermont Law School.