Tuesday, July 7, 2015

The Dignity of Gay marriages was part of SCOTUS decision: Will that bring about "dignity codes" which are against the First Amendment?

A George Washington University professor says "perhaps."

Article here (via aba journal).

George Washington University law professor Jonathan Turley says the opinion recognizing the dignity of gay marriage could pave the way for dignity codes that trump free-speech rights.
Turley says “the most direct way” the majority could have upheld a right to gay marriage in Obergefell v. Hodges would be to find that sexual orientation is a protected class under the 14th Amendment’s equal protection clause. That would have made a refusal to issue gay-marriage licenses illegal discrimination, and would have clarified the standard in areas such as employment discrimination and refusal of public accommodations, Turley says.

Wednesday, July 1, 2015

Two petitions approved for Marijuana legalization in Michigan

One group wants to give the legislature the ability to tax & regulate marijuana, the other wants it to be legal, but not under control of the legislature.

Article here (via the Freep).

What does this mean to the average Michigan voter? It means these two groups will be circulating their version of the petition, and if there are at least 253,000 signatures, and then it is "passed on" by the legislature, voters will see it on a ballot.

See more here: Michigan Cannabis Coalition website, and ballot language.

and here: Cannabis Reform Committee website, and ballot language.

Tuesday, June 23, 2015

Just in case: Ottawa County clerk's plan to alter marriage license form if Supreme Court overturns Michigan gay marriage

The Ottawa County clerk will manually update marriage forms to accommodate same-sex couples in the event the U.S. Supreme Court overturns Michigan's gay marriage ban. It's not clear if Kent County's clerk, or some others around the state, will take the same step.

Article here (via mlive). 

The Supreme Court is expected by the end of the month to rule on whether Michigan's 2004 voter-approved gay marriage ban is constitutional.
County clerks say they will comply with the court and issue marriage licenses to same-sex couples if the court overturns Michigan's law. But they may not have updated paperwork right away.

Takings clause applies to personal property, US Supreme Court rules

The U.S. Supreme Court has ruled that the Fifth Amendment’s takings clause requires the government to pay compensation for takings of personal property.

(Blogger's note- Typically, the takings clause is applied to real property (land, mineral rights, etc.) and not personal property. )

The court ruled in the case of raisin producers contesting a government set-aside program. SCOTUSblog calls the decision (PDF) “a major blow to government’s program of trying to boost prices by keeping crops off the market.”

Chief Justice John G. Roberts Jr. wrote the majority opinion, which was joined in full by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Three other justices agreed that the set-aside program was a taking, but disagreed on valuation.

Article here (via abajournal).

Tuesday, June 16, 2015

Update- Employment law and the Michigan Medical Marihuana Act

In an earlier post, this blog gave you a nutshell of how the Michigan Medical Marihuana Act is supposed to work.

Q: A reader sent me the question based on the previous blog: What if I am fired from my job for use of marijuana? Do I have a way to sue my employer for wrongful discharge?
A: Courts have already answered that question, and the answer appears to be "no, you don't."

The issue: Michigan law, in the MMMA (Short form of Michigan Medical Marihuana Act), says that 
A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use  . ( . . . ) (MCL 333.26424 (a))
 And that
There shall be a presumption that a qualifying patient or primary caregiver is engaged in the medical use of marihuana in accordance with this act if the qualifying patient or primary caregiver:
(1) is in possession of a registry identification card; and
(2) is in possession of an amount of marihuana that does not exceed the amount allowed under this act. The presumption may be rebutted by evidence that conduct related to marihuana was not for the purpose of alleviating the qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition, in accordance with this act. (MCL 333.26424 (d)).

This sounds as if an employee can't be fired for medical use. And that the law presumes that if a qualified patient keeps his or her registry current, and doesn't show other "evidence" that the use wasn't medicinal.

But courts have ruled otherwise. A lot of employers have a "zero tolerance" policy. This means that the employer is aware that the MMMA exists, but will fire an employee who has tested positive for cannibis, even though the employee's use is medical. Again, Courts say this is OK.

This question was specifically addressed in a somewhat recent case, in Michigan. An employee sued Wal-mart for firing him for his positive drug test, since the positive result was based on medical use. The employee, Joseph Casias, suffered from inoperable brain cancer, and was prescribed marihuana use by his oncologist when the MMMA went into effect.  (article here.) He didn't use while on the job, tested positive, and was fired.

Casias  sued in US District Court, lost, and appealed to the 6th Circuit Court of Appeals. The Appeals court upheld the decision of the District Court, saying that the MMMA doesn't offer protection from private employers' actions against an employee, only to prevent criminal charges against someone's medical use.

Additionally, the Court said that
Michigan voters could not have intended such consequences and that accepting plaintiff’s argument would create a new category of protected workers which would ‘mark a radical departure from the general rule of at-will employment in Michigan.’”
Casias v Wal-Mart Stores, Inc., et al,  See also this article,  full text opinion here.

It's hard to say how this could change in the future. There are some open questions from this case, such as: Did Michigan voters mean to create an Act that would exclude medical users from being fired for medical use? How would the law be altered to reflect that? (Answer: legislative change could bring this about, or a petition to change the law could end up on future ballots, I suppose).
Joseph Casias, brain cancer patient and fired Wal-mart employee.

Michigan law would allow adoption agencies to refuse service if reason for refusal is religiously based.

The law’s backers say the bill will ensure that faith-based adoption agencies remain open so that as many children as possible can be adopted, report the Detroit Free Press and the Associated Press.

The American Civil Liberties Union, on the other hand, is considering a legal challenge.

“The Constitution doesn’t allow discrimination based on religion and you can’t do that with state funds,” ACLU lawyer Brooke Tucker told the Detroit Free Press. “We’re looking at our legal options and especially looking to hear from people who will be adversely affected by this.”

Article here (via aba journal). 

Monday, June 15, 2015

Defendant gets new trial at Federal appeals level after judge told him to "shut up."

A federal judge who criticized a defense lawyer’s questioning as “flimflam” and told him to shut up created the appearance of bias during a jury trial, a federal appeals court has ruled.

U.S. District Judge John O’Meara, criticized a defense lawyer’s questioning as “flimflam” and told him to shut up created the appearance of bias during a jury trial, a federal appeals court has ruled.
The Cincinnati-based 6th U.S. Circuit Court of Appeals granted a new trial to the defendant, saying the trial judge “belittled” the defense lawyer, the National Law Journal (sub. req.) reports. The judge also erred when he answered a juror’s question about reasonable doubt with an improvised instruction, the court said.

The story identifies the judge as U.S. District Judge John O’Meara of Ann Arbor, Michigan.
The judge made several “sua sponte” statements in front of jurors criticizing lawyer Marvin Barnett, who was defending Reginald Daniels on gun crimes charges, the appeals court said in the June 8 unpublished opinion (PDF). The appeals court cited several instances:

• During closing arguments, O’Meara ordered Barnett to “shut up.” O’Meara also criticized the defense theory that police have reason to lie as “over the top … mendacity.” ( . . . )

Article here (via aba journal).