Congratulations to Brandan Hallaq, Esq. for winning his first Motion for Summary Disposition before the Honorable Archie Brown in the Washtenaw County Circuit Court. Mr. Hallaq successfully drafted and argued the motion on behalf of a condominium association against a co-owner for numerous bylaw infractions and violations of the Michigan Condominium Act. In addition to obtaining an order compelling the co-owner to comply with the condominium documents, the Court granted an award of attorneys fees in the association’s favor.
Mr. Hallaq graduated with his Juris Doctor, cum laude, from Wayne State University Law School in May 2016 before joining our Livonia office. Mr. Hallaq focuses his practice in the areas of community association, business, and real estate law. He may be reached at (734) 261-2400 or firstname.lastname@example.org.
Everybody knows of the problems of aging adults, however few give it the serious attention it needs. The failure to address these issues appropriately can result in serious financial distress and/or a loss of independence. I have outlined five common mistakes made by aging adults and tips on how to avoid making them.
First Mistake: Doing nothing
If you do nothing to deal with aging you have a good chance of lifetime probate. That means the probate court must appoint a guardian or conservator to handle your affairs. One study found that the number one cause of probate guardianship was the need for emergency medical treatment when the patient cannot give consent.
The cost of probate over your lifetime can be enormous and you lose control over your life. It’s like being a child again.
Second Mistake: Only planning for death
Many people think they are “all set” if they have a will. A will is only effective at death. We are talking about lifetime issues, not what happens after we die. For example, in a hospital or a nursing home an empowered advocate can mean the difference between life and death.
Third Mistake: Joint property with children
Many seniors think they are all set if they have a daughter or son on their bank accounts with them. The thinking goes “that way they can pay the bills if I cannot.” There are many problems with joint accounts.
The first is that it solves only one problem of aging: paying bills. Joint accounts give the child no ability to help the parent in any other way. If the child calls the insurance company they will ask “Are you the insured?” The child will say “No. But, I’m joint on the bank account.” That goes nowhere.
The more serious problem is the risk of loss of life savings to a child who has financial bad luck. The same can go for the house. If a child is a joint owner, then if the child is sued, divorced or goes in bankruptcy so does your property.
And finally, joint accounts can be the source of probate battles after the death. What if a parent makes an account joint with one child? After the parent dies, will the child share it with the other children? What if the parent’s will says to share equally? Unfortunately there are no absolute legal rules and questions like these are often answered after a bitter battle in probate court.
Fourth Mistake: Paying employees under the table
People who perform personal services in the home are “employees.” The recipient of the services is the employer, who is responsible for collecting and paying income, social security, Medicare, and unemployment taxes.
Let’s make it personal. Suppose the lady falls down the stairs carrying laundry. She can file for workers’ compensation and have her medical bills and her wage loss paid by the employer – you. If you “let her go” because daughter can now do it, the lady could file for unemployment. And then you start hearing about back taxes, interest, and penalties
Fifth Mistake: Not getting legal advice for “means tested” government benefits
Veterans “Aid and Attendance” and Medicaid nursing home benefits are very valuable to elders. But, they are “means tested.” They have asset and income limits. Few people know that these programs allow some common sense solutions to losing all your life savings before you get your earned benefits. Like the income tax you need to know what “deductions, credits and exemptions” the programs allow. When it comes to these government benefits get legal advice.
Conclusion: It is really easy to do it right
For the average person a “life care” plan is no more difficult than preparing for “death and taxes.” All you have to do is identify your trusted assistants and give them legal authority to do what they will need to do – everything. And then make sure they know when to get professional advice. Do that and you are 99% there to having aging go as smoothly as it can be.
Jim Schuster, a Certified Elder Law attorney, is an Of Counsel attorney at the law firm of Cummings, McClorey, Davis & Acho, P.L.C. He has been licensed to practice law since 1978 and practices entirely in the area of Elder Law. Mr. Schuster helps elders stay independent and in control and helps children of aging parents with the advice and legal documents they need to carry out their parents’ wishes and take care of their needs. Additionally, he assists clients with the complex Nursing Home Medicaid application process.
Attorneys in the Estate Planning and Elder Law practice group at Cummings, McClorey, Davis & Acho, P.L.C. are available to answer any questions about the five common mistakes outlined above. We offer compassionate, common sense solutions for seniors worried about the future. Contact us at (734) 261-2400 or www.cmda-law.com. To learn more about additional issues impacting elder law, follow our blog at cmdaelderlaw.com.
A school district refuses to allow the service dog of a student with disabilities into the classroom because the student was assigned a one-on-one instructional aide by the school district, rendering the service dog superfluous. The parents remove their child from the school district and ultimately sue the school district and the school’s principal for violations of Title II of the American’s With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). The parents did not sue the defendants under the Individuals with Disabilities Education Act (IDEA), nor did they allege in their lawsuit their child was denied a Free Appropriate Public Education (FAPE) under the IDEA. The question remains: Do the parents have to satisfy the administrative requirements of IDEA, even though they are not alleging an IDEA violation?
In this case, the Supreme Court said yes. On February 22, 2017, the Supreme Court published its ruling in Fry et vir, as Next Friends of Minor E.F. v. Napoleon Community Schools et al Fry 580 U.S. __ (2017), in which the court sought to clear up confusion about how the IDEA, ADA, and Section 504 interact. Five justices signed off on the majority opinion, with Justices Alito and Thomas writing a separate concurrence.
The court’s opinion dealt with the confusion that occurs when a violation of a disability right is alleged in the educational setting. In addition to the IDEA, in 1986 Congress passed the Handicapped Children’s Protection Act, 20 U.S.C. §1415(l), establishing a “carefully defined exhaustion provision” indicating that a person seeking relief under the ADA, Section 504 or similar laws available under the IDEA must first exhaust IDEA’s administrative remedies. The issue in Fry was when does §1415(l) actually come into play. Fry helps clear up when the IDEA administrative remedies must be satisfied.
First, where the gravamen of the lawsuit does not involve a denial of a FAPE under the IDEA, there is no requirement to satisfy the IDEA’s administrative requirements. If the lawsuit alleges the student was denied a FAPE, then IDEA’s administrative requirements apply, even if the lawsuit is brought under the ADA or Section 504 – and does not cite an IDEA violation.
The court noted that there is some overlap between the statutes. It is important to look at the central issue of the case, and the nature of relief being sought. The court offers a suggested diagnostic test in the form of two hypothetical questions to determine whether the IDEA and FAPE are at play. First, could the plaintiff have brought the same claim against another public facility that was not a school? Second, could an adult at the school have brought essentially the same claim? If the answer is yes to these questions, it is unlikely the complaint involves a claim under the IDEA.
In addition, the court notes that prior actions by the plaintiff should be considered. If the IDEA administrative remedies were pursued earlier in the process, those efforts may be, in the court’s words, “strong evidence that the substance of the plaintiff’s claim concerns a denial of FAPE, even if the complaint never explicitly uses that term.” Fry at Page 3 ¶1(b).
The partial concurrence by Justices Alito and Thomas gives an insight into how plaintiffs may attempt to counter the holding in Fry. Justices Alito and Thomas disagree with the majority’s suggested diagnostic test. The hypothetical questions are based on a claim that there may be some overlap between the IDEA, ADA, and Section 504. Justices Alito and Thomas do not see any overlap, therefore there is no need for the diagnostic test, and, accordingly, plaintiffs may seek to challenge any associated analysis. Secondly, Justices Alito and Thomas note parents may begin the investigation process thinking they should pursue an IDEA cause of action, only to learn they are going down the wrong path towards relief or decide they want a different form of relief, something the IDEA does not provide.
Justices Alito and Thomas’ concern about using pre-litigation efforts to establish whether a case’s core issues involve a FAPE violation under the IDEA is reasonable. There does, however, appear to be interconnections between the IDEA, ADA, and Section 504 from the way the term “disability” is defined to the way the laws interact. For example, Section 504 addresses the concept of FAPE, which the IDEA and the 1986 Handicapped Children’s Protection Act build upon.
No solution is perfect, but the Fry decision does give defense attorneys a stronger hand when faced with education-related lawsuits that try to avoid the administrative requirements outlined under the IDEA.
Christopher A. McIntire is an attorney in our Riverside, CA office where he focuses his practice on public entity defense, employment law, premise liability and mass tort defense. He may be reached at (951) 276-4420 or email@example.com.
The Family Medical Leave Act (FMLA) allows an eligible employee to take an unpaid, job-protected leave for a specified family and medical reason with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. A few of the common points of FMLA that may be forgotten by the employer are outlined below.
Can the employer have communications with the employee while they are on FMLA?
Yes. Under the FMLA regulations, interference with an employee’s leave includes not only refusing to authorize the leave, but also discouraging an employee from using that leave. Asking or requiring an employee to work while on leave can cross the line to interference. There is no bright line test to what is permissible or not. The Courts have classified simple matters, such as an occasional phone call about a certain issue, an inquiry to close out a completed assignment, or an “unburdensome” request for materials to be permissible. On the other hand, it will probably be impermissible to require an employee to substantially update a file or complete a task you were hoping they would have finished prior to leave.
To summarize, although the employer can communicate with the employee while he or she is on FMLA, it is recommended that the communication be for simple matters only. Further, it is not recommended that the employer accept the employee’s offer to work while on leave. Even if the employee voluntarily wants to work, he or she may later claim it was not voluntarily and an interference charge can be filed.
If the medical certification is completed and returned is FMLA leave automatic?
No. A completed and returned medical certification issued by a health care provider does not mean leave is automatic. The employer needs to approve leave only if the employee has a serious health condition that makes him/her unable to perform one or more of the essential functions of their job. The employee is under the obligation to provide clear and sufficient information to enable the employer to determine if leave is required.
If an employee provides a certification form that is vague, incomplete, or contradictory, the employer has the obligation to request more information prior to leave being granted. Merely stating “I am sick” or “I am depressed” does not give the employer enough information to make the determination on leave. Do not be fooled by a doctor’s note that states the employee is “sick” or “needs a few days off to get better.” The doctor must provide medical facts to support the employee’s need for leave and why the employee is unable to perform the essential functions of their job.
Can the employer request a second opinion?
Yes. If the employer is contesting the existence of a serious medical condition, requiring the employee to obtain a second opinion can be required by the employer. If the two opinions conflict, a third opinion can be obtained. The third opinion will be final and binding.
Can the employer request recertification?
Yes. If the leave is for a period of more than 30 days, recertification can be requested. If the leave is for less than 30 days, recertification can be requested if circumstances described in the original certification have changed or there is reasonable concern of the need for the leave. In the case of intermittent leave, the medical provider should be provided the pattern of absences to determine if they are consistent with the serious health condition.
Suzanne P. Bartos focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.
She successfully defends civil rights, wrongful discharge, and discrimination claims in state and federal courts. She has defended municipal entities at both the grievance and arbitration level and has worked with a variety of administrative agencies and tribunals including the U.S. Equal Employment Opportunity Commission, Michigan Employment Security Commission, Michigan Wage and Hour Division, National Labor Relations Board, and the Internal Revenue Service. She has also achieved outstanding results for clients in premise liability, breach of contract, collections, warranty disputes, and consumer protection. Further, she is a trusted legal advisor to school districts and community colleges on a variety of educational and governance issues.
She may be reached at (734) 261-2400 or firstname.lastname@example.org.
On Thursday, April 20th Norman E. Richards (Gene), a partner in our Livonia office, will join other elder law experts to present a panel discussion on Understanding Long Term Care Needs. The seminar will be held at Waltonwood Cherry Hill in Canton and is open to the public. For more information, please click here.
Norman E. Richards (Gene) focuses his practice on estate planning and elder law. He assists clients with the development of customized estate plans to address their specific needs, including family owned businesses, senior adults concerned about long term care needs, and special needs trusts for children with special needs. He may be reached at (734) 261-2400 or email@example.com.
An autonomous vehicle, also known as a driverless car, self-driving car, or robotic car is a vehicle that senses its environment and operates without human input. On December 9, 2016, Governor Rick Snyder signed 2016 PA 332 into law and amended the Michigan Motor Vehicle Code to make Michigan the first state that allows for autonomous vehicles to be operated on a public street or highway. Michigan Senate Bill 995 amended MCL 257.2b(2) and now defines an automated motor vehicle as follows under Michigan law:
(2) “Automated motor vehicle” means a motor vehicle on which an automated driving system has been installed, either by a manufacturer of automated driving systems or an upfitter that enables the motor vehicle to be operated without any control or monitoring by a human operator. Automated motor vehicle does not include a motor vehicle enabled with 1 or more active safety systems or operator assistance systems, including, but not limited to, a system to provide electronic blind spot assistance, crash avoidance, emergency braking, parking assistance, adaptive cruise control, lane-keeping assistance, lane departure warning, or traffic jam and queuing assistance, unless 1 or more of these technologies alone or in combination with other systems enable the vehicle on which any active safety systems or operator assistance systems are installed to operate without any control or monitoring by an operator.
Similarly, on March 20, 2017, Senator Gary Peters announced that he was working on federal legislation to regulate autonomous vehicles, which are anticipated to become ubiquitous in the not so distant future, as many automakers have announced plans to introduce driverless cars to the market. By way of example, the Audi A8, which will be released later this year, will feature driverless technology. Ford intends to have a driverless car on the market no later than 2021. General Motors anticipates having an autonomous vehicle by 2020 or sooner as well. It is estimated that there will be ten (10) million self-driving automobiles on roadways by 2020 (referring to vehicles with features allowing them to accelerate, brake, and steer with limited or no driver input, categorized as fully or semi-autonomous). Accordingly, condominium and homeowner associations will have to deal with the benefits and detriments associated with autonomous vehicles in the near future and should be proactive about dealing with this technological advancement. The purpose of this article is to discuss the issues that autonomous vehicles may pose for condominium and homeowner associations in the next few years.
Can condominium associations and homeowners associations preclude co-owners from using autonomous vehicles on private roads?
MCL 257.74 of the Michigan Vehicle Code defines a street or highway that is subject to the Michigan Vehicle Code as follows: ” ‘Street or highway’ means the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Accordingly, a road that is privately maintained by a condominium association or homeowners association is not required to allow autonomous vehicle traffic. However, community associations that desire to exclude autonomous vehicle traffic on private roads would need to amend the condominium bylaws or declaration of restrictions to prohibit the use of autonomous vehicles, as most governing documents would permit the use of any type of vehicle on private roads. Accordingly, condominium and homeowner associations should review their governing documents to determine whether autonomous vehicles would be allowed on private roads, as the drafters or the documents likely did not contemplate the existence of such technology.
Should condominium associations or homeowners associations preclude co-owners from using autonomous vehicles on private roads?
Proponents of autonomous vehicles claim that they are safer and reduce human error that may cause accidents. Unlike a human driver, an autonomous vehicle would not drink and drive, text and drive or fall asleep at the wheel. Additionally, elderly co-owners that are not physically capable of driving would have increased mobility. Accordingly, there are many potential benefits to autonomous vehicles.
However, autonomous vehicles are not fool proof. One of the biggest concerns about autonomous vehicles is that ability of the vehicle to make moral choices. If a child kicked a ball into the street, would the vehicle decide to crash the car into a tree or run into the child if it was unable to stop? Moreover, an autonomous vehicle could have a software error or it is possible that the owner of an autonomous vehicle could attempt to modify the operating system in a manner that could cause it to malfunction. In fact, Michigan Senate Bill 998 amended MCL 600.2949b and specifically exempted a manufacturer and subcomponent system producer from civil liability if any of the equipment used in the vehicle for automatic mode had been modified. Accordingly, given that autonomous vehicles are a developing technology, it would be reasonable for a condominium or homeowner association to preclude use of autonomous vehicles until this technology is more fully developed.
For community associations that desire to allow autonomous vehicles, associations should take proper precautionary measures. First, associations should require that owners of autonomous maintain adequate insurance. In Michigan, the minimum required insurance policy only covers $20,000 for injuries or death to an individual, up to $40,000 per accident if multiple parties are injured and up to $10,000 in property damage. Accordingly, given the unknown risks involved with autonomous vehicles, community associations that allow autonomous vehicle traffic may want to amend their bylaws or create rules that requiring higher insurance coverage in the event that damage to person or property occurs on common elements and also require co-owners to provide proof of insurance. Second, while not currently required, the association may also want to mandate regular safety inspections as a condition of autonomous vehicle use. Finally, associations should review their current bylaws to ensure that appropriate indemnification provisions are in place in the event that a co-owner’s autonomous vehicles causes damage to the common elements.
What impact will autonomous vehicles have on parking in community associations?
One of the touted benefits of autonomous vehicles is that it will reduce the need for parking in urban areas, where parking is often a premium. In short, co-owners will no longer need to be within walking distance of a car if the car is capable of parking itself and later picking up the co-owner. It is estimated that the need for parking space should decline more than 5.7 billion square meters as a result of driverless cars by 2035. Experts speculate that individual car ownership will eventually become a thing of the past, and that individuals will purchase a subscription service or buy into a “cardominium” where an autonomous vehicle, that no longer needs to be parked on-site, will arrive and take an individual to their desired destination.
For condominiums that are located in densely populated urban areas, on-site parking spaces are currently sold between co-owners at premium rates. In most cases, on-site parking spaces are limited common elements that are associated with an individual unit. The Michigan Condominium Act, specifically MCL 559.139, allows for limited common element parking spaces to be transferred as follows:
(1) Assignments and reassignments of limited common elements shall be reflected by the original master deed or an amendment to the master deed. A limited common element shall not be assigned or reassigned except in accordance with this act and the condominium documents.
(2) Unless expressly prohibited by the condominium documents, a limited common element may be reassigned upon written application of the co-owners concerned to the principal officer of the association of co-owners or to other persons as the condominium documents may specify. The officer or persons to whom the application is duly made shall promptly prepare and execute an amendment to the master deed reassigning all rights and obligations with respect to the limited common element involved. The amendment shall be delivered to the co-owners of the condominium units concerned upon payment by them of all reasonable costs for the preparation and recording of the amendment to the master deed.
(3) A common element not previously assigned as a limited common element shall be so assigned only in pursuance of the provisions of the condominium documents and of this act. The amendment to the master deed making the assignment shall be prepared and executed by the principal officer of the association of co-owners or by other persons as the condominium documents specify.
While autonomous vehicles will likely decrease the value of on-site limited common element parking spaces, autonomous vehicles may also help solve parking problems for condominium associations that do not have sufficient parking. By way of example, MCL 559.136 allows for common elements to be added to a condominium as follows:
The master deed may provide that undivided interests in land may be added to the condominium project as common elements in which land the co-owners may be tenants in common, joint tenants, or life tenants with other persons. A condominium unit shall not be situated on the lands. The master deed, or any amendment to master deed under which the land is submitted to the condominium project shall include a legal description thereof and shall describe the nature of the co-owners’ estate therein.
Accordingly, if a condominium association that had insufficient parking desired to purchase a vacant lot that was 10 miles away and add the land to the condominium as general common elements, or add limited common element parking spaces on the land, it may be able to do so in order to alleviate a parking problem. Accordingly, autonomous vehicles may revolutionize the manner in which condominium associations think about parking.
The technological advancements in autonomous vehicles will likely create new issues related to liability, insurance and parking for condominium and homeowner associations to consider. As with any new technology, the law is typically slow to evolve and the regulation of autonomous vehicles in community associations will largely be dependent on the governing documents. Given that an ounce of prevention is worth a pound of cure, condominium and homeowner associations should be proactive in amending their governing documents and making decisions about whether to allow autonomous vehicles and what conditions to impose on autonomous vehicle use before problems arise in the next couple of years. Additionally, community associations that have parking issues may want to consider the possibility of acquiring additional land or planning to re-develop unused parking spaces in the future.
Kevin Hirzel is a Partner at Cummings, McClorey, Davis & Acho, P.L.C. and leads the Community Association Practice Group. Mr. Hirzel can be contacted at (734) 261-2400 or firstname.lastname@example.org. Please view The Michigan Community Association Law Blog at http://micondolaw.com for additional resources on Michigan Community Association Law.
Advocacy is an important need of older adults as they strive to preserve their independence and protect their interests. For example, strong advocacy is needed to: protect life savings, deal with incapacity, find quality long-term care (whether at home, in assisted living or a nursing home), and qualify for government benefits to pay for long-term care (such as Medicaid and VA benefits). Elder Law attorneys use specialized legal tools and strategies to augment the “advocacy power” of older adults facing these situations.
Older adults require specialized estate planning. Classic estate planning focuses on avoiding probate, protecting assets from creditors, reducing taxes, and distributing inheritances. Older adults today, however, have the added concerns of financial security in post-retirement years, preserving independence and dignity, and having enough money to pay for good quality care. CMDA’s elder law attorneys help older adults balance all these concerns through comprehensive, holistic planning and precisely tailored estate plan documents.
As people age, their estate plan documents may not be aging with them. Young and middle-aged clients typically engage in planning before there is any hint of a chronic illness or threat to mobility or capacity. Many make the mistake of thinking their legal documents will suffice for every situation. The reality is that legal and estate plan documents need to be tailored to the specific needs of the present season of life. A 75 year-old person with grown children may be less concerned about their children’s inheritances than they are about the implications of a diagnosis of Parkinson’s or dementia. As people age and transition through the different seasons and circumstances of life, they should make sure that their plans are transitioning with them.
How can older adults make sure they have the right plan and estate documents in place?
- Plan as early as possible. Too often, older adults wait until a crisis hits before asking an attorney for help. Usually the crisis triggers with symptoms of dementia, onset of a chronic illness or admission to a hospital/rehab unit. At that point, some planning opportunities may no longer be available. Thorough pre-planning can preserve options and reduce complications when a crisis hits a family. An attorney should be contacted as soon as there is a hint of a health problem with long-term implications.
- Update existing estate plan documents. As a rule of thumb, estate plans should be reviewed at least every five years to account for changes in life, assets, and laws. Older documents may not include important powers needed by older adults for creative problem solving such as allowing transfers of assets between spouses, authority over retirement plans, and the ability to take steps to qualify for Medicaid, VA, and other government benefits. If important powers are missing, responsible family members may not have authority to make significant decisions or be able to take advantage of legal strategies that could save assets.
- Carefully select caregivers and money managers. A plan is only as good as the persons authorized to execute it. Older adults should carefully select the persons who will act on their behalf, especially when facing the increased likelihood of incapacity. A spouse or the oldest child is not always the best choice. It is important to carefully distinguish between persons who will make good health care decisions and those who will make sound financial decisions. If necessary, two or more persons can serve at the same time. Accountability can be built into documents to reduce the risk of inappropriate decisions and attempt to prevent family squabbles.
- Position for government benefits, if available. Long-term care is extremely expensive, with nursing homes costs averaging between $85,000 and $100,000 per year. Long-term care costs are usually not covered by Medicare or health insurance, and many older adults do not have the personal resources to privately pay for the care they will need. Public assistance may be available through Medicaid and the VA to help pay for care, but these programs have strict financial and legal requirements. CMDA elder law attorneys routinely guide clients through the confusing legal maze and help them steer clear of mistakes that can jeopardize eligibility for benefits. With advance planning and the help of knowledgeable attorneys, many older adults can position themselves to qualify for the maximum government benefits available to supplement their personal funds, and protect spouses or disabled children from impoverishment.
- Avoid costly mistakes. When faced with a health crisis and the threat of costly care, older adults and their families often make knee-jerk decisions that hurt them financially. Examples of potentially costly mistakes include: giving money/property away; adding children’s names to accounts or deeds; selling assets; buying inappropriate financial products; and acting without legal advice. These and other mistakes can result in unnecessary loss of assets and ineligibility for Medicaid and VA benefits.
- Recognize special planning situations. Some situations require navigating multiple solutions and the attendant, complex legal issues. An older adult facing any one, or combination of, the following scenarios will benefit greatly from the knowledge and guidance of the elder law team at CMDA: 1. Married couples where only one spouse needs skilled or nursing home care. 2. Older adults with fading mental capacity. 3. Older adults without surviving or dependable family members to oversee their care or manage their assets. 4. Older adults with real estate or business interest with limited cash available to pay for assisted living or nursing home care.
- Build a team of professionals. The best plans are built from the combined knowledge of an experienced team. The team may include select family members, attorneys, physicians, care coordinators, and financial advisors. When surrounded by a team, an older adult can face the future with assurance that their needs will be met and decisions will be made in their best interest.
Today’s world presents many threats to the well-being and financial security of older adults. In order to overcome these challenges it is essential to have up-to-date estate plan documents that are tailored to specific, present needs. The elder law attorneys at CMDA skillfully and compassionately provide older adults and their families with the right plan for the right time.
Norman E. Richards (Gene) is a partner in our Livonia office where he focuses his practice on elder law and estate planning. Drawing on 20 years of experience, his mission is to help clients safely navigate life’s transitions through the skillful, practical, and compassionate application of comprehensive elder law and estate planning services.
As an elder law attorney, Gene guides senior clients in planning for their future care needs. This includes maximizing financial resources to pay for the cost of long-term care. As an estate planning attorney, Gene develops customized legal documents for each client’s unique needs, such as wills, trusts, and power of attorneys; disability and special needs trusts; estate plans for blended families; and business succession plans.
He may be reached at (734) 261-2400 or email@example.com.
Greg Grant, an attorney in our Traverse City office, recently obtained dismissals on behalf of a Northern Michigan judge and prosecutor in two separate civil rights cases. In both cases, the courts awarded his clients all of their attorney fees and costs. Mr. Grant aggressively defends judges, attorneys, and municipalities as a regular part of his practice.
Greg Grant focuses his practice on municipal law, employment and labor law, insurance defense, and litigation. He has extensive litigation experience in the areas of employment and labor law, police liability, first amendment law, due process, Open Meetings Act and Freedom of Information Act, and has earned dismissals in each of these areas. Additionally, he frequently provides educational and training seminars on municipal topics to clients.
He may be reached at (231) 922-1888 or firstname.lastname@example.org.
In Nelson v. City of Madison Heights, et al., while conducting a narcotics investigation at a motel police walked by the room of Shelly Hilliard (“Hilliard”) and spotted a bag of marijuana through the window. After obtaining her consent to enter the room, police found the bag of marijuana. In order to avoid arrest, Hilliard offered to call her drug dealer and order drugs from him. Hilliard signed a confidential informant form in which the sheriff’s department promised to use all reasonable means to protect her identity.
Police intercepted the drug dealer on his way to the motel. While questioning the passenger in the drug dealer’s vehicle, police revealed Hilliard as the source of their information. The passenger conveyed this information to the drug dealer. The police warned Hilliard the drug dealer knew she had set them up and he appeared angry about it. Soon thereafter, the drug dealer and an accomplice abducted and murdered Hilliard.
Hilliard’s mother (“Nelson”) filed a section 1983 claim against the police departments for which Hilliard served as a confidential informant. The defendant officer that revealed Hilliard’s identity moved for summary judgment based on qualified immunity and the district court denied the motion.
On appeal, the Sixth Circuit noted that government officials performing discretionary functions are afforded qualified immunity as long as their conduct does not violate clearly established constitutional rights. Hilliard’s interest in preserving her life is one such right.
Although the state has no duty to protect citizens from private acts of violence, it cannot cause or increase the risk of harm to citizens through its own affirmative acts without due process. Nelson claimed defendants were responsible for her daughter’s death under the “state created danger” theory. In order to establish liability under this theory, Nelson had to show:
(1) An affirmative act by defendants that created or increased the risk Hilliard would be exposed to an act of violence by a third party;
(2) Defendants’ action placed Hilliard in a special danger, as distinguished from a risk that affects the public at large; and
(3) Defendants knew or should have known its actions specifically endangered Hilliard.
The defendant officer argued that he did not create or increase Hilliard’s risk of violence because she volunteered to be a confidential informant, citing Summar v. Bennett, 157 F.3d 1054, 1056 (6th Cir. 1998). In Summar, the informant was made aware that he would eventually have to testify and reveal his identity. An officer provided the prosecutor with the confidential informant’s name so it could be included in a pleading. The defendant became aware of the pleading and had the informant murdered.
The Sixth Circuit found the facts in Nelson distinguishable from Summar because the officer in Nelson never told Hilliard she would have to testify and reveal her identity. Further, the officer directly disclosed Hilliard’s identity to the person from whom he was supposed to protect Hilliard.
The defendant officer also argued Nelson could not prove he was deliberately indifferent to the risk of disclosing Hilliard’s identity because his decision to do so was a “split second decision that did not involve reflection.” However, the Court held that this was a question of fact for the jury and viewing the evidence in the light most favorable to Nelson a reasonable jury could find the officer acted with deliberate indifference and violated Hilliard’s constitutional rights under the state created danger theory.
Confidential informants are an invaluable investigative tool and it is important for law enforcement personnel to be aware of the risks involved in using confidential informants. Law enforcement personnel should do all in their power to ensure the safety of confidential informants. The Court in Nelson highlighted the importance of making sure informants are fully informed of the extent to which they are expected to cooperate. In Nelson, the Court made much of the fact that the officer did not tell Hilliard she would need to testify and reveal her identity. As a result, the officer’s decision to reveal her identity increased her risk of harm. Tell informants they may be required to testify and reveal their identity even if their testimony is not ultimately necessary. Failure to do so may result in civil liability for the injury or death of an informant.
Matt Cross is an attorney in our Traverse City office where he focuses his practice on business law, insurance defense, law enforcement defense and litigation, and municipal law. He may be reached at (231) 922-1888 or email@example.com.