Judge Hoort sentencings

As a starting point, my ‘norm’ is to impose five years probation if the guidelines allow for a prison sentence, and the person is not going to prison.  If the guidelines are in the x to 17 range, four years probation may be appropriate.  If the guidelines are in the x to 11 range, three years probation may be appropriate.  Two years probation seems appropriate for the significantly less than one year range offender (i.e. x to 9); and one year probation would seem to be appropriate for defendants who really don't have any issues to address on probation; or possibly no probation.  I sometimes use the possible maximum sentence plus the sentence guidelines as a reference point whether somebody should even be on probation.  Unless there are substance abuse, assaultive or sexual conduct issues ‘requiring’ probation, a low sentence guidelines and/or low possible maximum sentence may be a sufficient indicator that probation is not appropriate.

Unless there is significant restitution, I don’t necessarily need to put somebody on probation or have probation extended to collect restitution.  We have pretty good collections programs otherwise in both counties.

I do not like to ‘warehouse’ a defendant in jail for one year.  If probation is imposed that means saving approximately two months jail for sanctions.  Otherwise, if it’s going to be a one year incarceration, my preference is the prison sentence.  Especially now that there are re-entry programs available to parolees and often in excess of what we can offer via probation.

If probation, and there are non-marijuana substance abuse issues I generally require NA meetings at a minimum of 2 or 3 times per week and random drug testing at a minimum of 2 or 3 times per week as directed by the field agent.  If its marijuana, random drug testing two times per month.

I am more and more requiring in all my probationary terms a curfew whereby defendant must be in his/her approved residence between the hours of 11 p.m. and 6 a.m. unless excused by first obtaining written permission from the field agent.  (And I’m wondering if it should start at 10 p.m.) and that a probationer cannot use or possess without a court order any controlled substance or substance for hallucinatory purposes or drug paraphernalia; or be with anyone you know to use or possess these items.  If a medical marijuana exception is actually medically appropriate (and we do have two or three such cases), my ‘norm’ is to require the same to be in tablet form.

I do like to use SCRAM and/or tether as a means of keeping a probationer on the ‘straight and narrow’.

I do not like to do community service if there is any chance the probationer may take advantage of an innocent third party. 

I generally do not mind giving a defendant the benefit of HYTA, 7411 or DSA if through no fault of their own, defendant was not able to comply with all of the terms of probation.  This does require a good faith effort by the defendant to comply with all required terms.  Many times the issue is non-payment.  Unless payment was a 'mandatory requirement' (which I sometimes do), the above rule applies.  What happens then is that if the defendant, through no fault of their own, has made a good faith effort, but been unable to pay off all of the monies owed, s/he will receive a satisfactory discharge, but the case will not be actually dismissed until all monies are paid.

I generally don’t allow a defendant to do community service in lieu of payment unless they are in the

Mental Health Court

.  I do sometimes also make an exception if so convinced by the assigned probation officer.  My philosophy is that if a person can do community service, he/she can also work.  It might be odd jobs or menial labor, but then that is also maybe an appropriate consequence for their actions.

I generally do not allow for an early release from jail except as recommended by the PSI writer or if by sentence agreement, but sometimes to make an exception for my MHC probationers.  The idea being what is in the best interest of this person with mental health issues and what is necessary or appropriate for the protection of the community.

As a general rule before I allow for an early discharge from probation for an offense involving CSC or a crime of violence, I would ask that the victim and prosecutor be given an opportunity for input.

Finally, I can be wrong.

Divorce trial related rules in my court

I try to remember what it was like being a family law practioner by allowing discovery up until seven days before trial; briefs three days before trial; information from the internet; expansion of the seven day order time frame, etc. 

However, the highly contentious nature of divorce proceedings mandates other rules to help me make the right decision.  i.e. If there is going to be a trial, I do have some very specific rules in my scheduling order . . .

If there are more than ten items of disputed property, the parties shall prepare a joint list of disputed property, with any agreed upon values and encumbrances, for entry as court Exhibit #1.  If there is more than ten items of unsecured debt to be divided, the parties shall prepare a joint list of unencumbered debt to be divided, with any agreed upon dollar amount owed, for entry as Court Exhibit #2.

Non-compliance with requested discovery of exhibits or witnesses by this date shall bar introduction of said exhibits or witnesses at trial.

Three (3) days before trial the parties shall file with the judge’s office and opposing party a brief covering all issues to be decided; applicable law; statements to be introduced under MRE 803(24); Court Exhibits (if applicable) and proposed division of property and debt, with proposed findings of fact regarding their assets and incomes, including mathematical calculations.  Exhibits shall be attached to the Judge’s copy and the opposing party’s brief but, to avoid identity theft, shall not be filed with the court.

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This type of procedural requirements were recently upheld in Engerman v Engerman, unpublished opinion per curiam of the Court of Appeals, issued [7/7/2011] (Docket No. 295687).  In Engerman the Court of Appeals remanded to the circuit court to make specific findings of fact regarding the value of the financial accounts encompassed in the property division.  In do so the Court recommended the trial court order: “both parties to prepare detailed proposed findings of fact regarding their assets and incomes, including mathematical calculations.”

Finally, please remember that non-compliance can result in loss of evidence, costs being assessed, adjournment of the trial or other delay.

Government Liability for its employees under respondeat superior.

In Hamed v Wayne County and Wayne County Sheriff’s Department, __ Mich __ (#139505, 7/27/2011) the Michigan Supreme Court considered the scope of an employer’s vicarious liability for quid pro quo sexual harassment affecting public services under Michigan’s Civil Rights Act (CRA).     In Hamed, the Supreme Court held that Wayne County and its sheriff’s department may not be held vicariously liable for a civil rights claim under MCL 37.2103(i) based on a criminal act of a deputy sheriff committed during working hours but plainly beyond the scope of his employment under traditional principles of respondeat superior.

The doctrine of respondeat superior is well established in this state: An employer is generally liable for the torts its employees commit within the scope of their employment.  It follows that “an employer is not liable for the torts . . . committed by an employee when those torts are beyond the scope of the employer’s business.”  This Court has defined “within the scope of employment” to mean “‘engaged in the service of his master, or while about his master’s business.’” Independent action, intended solely to further the employee’s individual interests, cannot be fairly characterized as falling within the scope of employment.  Although an act may be contrary to an employer’s instructions, liability will nonetheless attach if the employee accomplished the act in furtherance, or the interest, of the employer’s business.

The general rule that an employer is not liable for acts of its employee outside the scope of its business, however, does not preclude vicarious liability in every instance.  This Court has consistently recognized that an employer can be held liable for its employee’s conduct if “the employer ‘knew or should have known of [the] employee’s propensities and criminal record’” before that employee committed an intentional tort.  This inquiry involves an analysis of whether an employer had (1) actual or constructive knowledge of prior similar conduct and (2) actual or constructive knowledge of the employee’s propensity to act in accordance with that conduct. Under this two-pronged approach, the conduct at issue may be so close in time to prior similar conduct that knowledge under the first prong gives rise to a valid inference that the conduct was foreseeable under the second prong. Conversely, if an employee’s actions were temporally distant and the employee’s recent record suggested a change in character, foreseeability would not be established.  

In summary, an employer’s liability for the criminal acts of its employees is limited to those acts it can reasonably foresee or reasonably should have foreseen.