Tuesday, February 9, 2016

Michigan's primary is March 8 (but yesterday was the deadline to register for that primary)

Only a month away is Michigan's primary election. Yesterday was the deadline for registration (if you weren't already a Michigan voter) for that primary.

 If you missed registering to vote in the primary, you can still be eligible to vote in future elections.

More information here.(via Secretary of State website)

Ethics problem: Former Texas prosecutor disbarred for creating false testimony.

A former prosecutor who used false testimony and withheld evidence to send a now-exonerated man to Texas' death row has lost an appeal to overturn his disbarment.
The Dallas Morning News ( http://bit.ly/1TPB1fq ) reports that the Board of Disciplinary Appeals on Monday upheld the decision of the State Bar of Texas to disbar Charles Sebesta. The board's decision is final.

In case you were wondering, yeah, it's illegal, and even more: prosecutors are supposed to held to a higher standard as they often have access to information that others do not. 

What's an unmarried man's rights to an unborn child? Can he claim paternity?

Q: I'm an unmarried father-to-be. My concern is that my ex (things went south after we found out she was pregnant), will try to move out of state, or keep my from seeing my child. Even though our relationship went south, doesn't mean that I want to be uninvolved with my child's life. What can I do? Can I claim paternity right now? 

A: No, you can't. or at least, not yet. 
Barring exceptional circumstances, a Michigan court is not going to issue an order to grant custody to the unmarried father of an unborn child.

The law currently will place custody of the newborn with the mother, unless there are those circumstances that would show the mother is a risk to the child already.

If a couple is married, there is a legal presumption that any child of those adults is a product of the marriage (although that presumption can be rebutted). By contrast, an unwed dad can't claim paternity, parenting time or custody rights (which are typically accompanied by a need to pay support for the child) until the child is born.

Once that child is born, the father needs to act to claim his rights to paternity, etc. He can do that by acknowledging paternity through singing the birth certificate, or through the assistance of an attorney (if, for example, the mother hides her pregnancy from the father who is then unaware of the child until after it is born).

Novel ideas in law: don't believe the click-bait! Or: Proposed change to MI Animal law includes ban on oral sex, or does it?

Maybe you've seen this article on your social media. It's claim is that Michigan, through it's senate, will ban some types of sex, and penalize it up to 15 years.  (article from Freethought). It even is posted with an alluring bedroom photo.

If you were thinking to yourself "That can't be true, it seems so outdated," then you're probably right. The article is written mostly to get you to click on it (hence the term click-bait, the sad substitute for journalism that's ad-driven instead of fact driven.) 

The article isn't accurate. Michigan's senate was attempting to amend the laws currently on the books to make it illegal for someone who's already been convicted of animal abuse to be able to adopt an animal from a shelter or rescue.

Here's the original  law, which is at MCL 750.49 et seq. It was originally written in 1931, and has been amended time after time, as it contains all of Michigan's criminal laws and penalties. 

Here's the proposed changes to the act (full text). If you start reading from the top, you will see that the bill focuses on animal abuse.

However, the thing is the click-bait article only SAMPLES from the full text of the bills, and ignores the fact that the Senate was trying to amend law regarding animal abuse. This makes the click-bait quite misleading.

And the news ran an article on the proposed changes to the law, which didn't mention the "sex" portion of the bill at all. (Here's the article on Mlive). 

But there is some accuracy to it - since the law it's sampling from seems to say "these types of sex are illegal."  So it also leads one to ask the question: why not clean up the original language of the bill while the Senate was busy writing new parts of the law?

Your guess is as good as mine as to why they didn't do a little "housecleaning" on the bill. My thinking is that maybe the Senate didn't know it needed to.


But the rule that "don't believe everything you read" should be followed here.

PS: The Michigan Legislative website is a great resource for what's currently in the law in Michigan, and what's being proposed as changes to the law. I use it almost daily! Hints from your local law nerd.

Friday, February 5, 2016

Federal Appeals Court rules gun legislation must be held to "strict scrutiny" standard (instead of rational-basis)

For the first time, a federal appeals court has held that a state’s ban on “assault” long guns and “high-capacity” magazines must be held to the highest level of judicial scrutiny. In a 2–1 decision, the Circuit Court of Appeals for the Fourth Circuit (which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia) held that Maryland’s Firearm Safety Act must be evaluated under the same stringent standard that courts routinely use to strike down race-based governmental discrimination and categorical bans on speech, since, like them, the law seeks to restrict a core constitutional freedom.

Read more at this link
 (via National Review). 

Just so you know: the difference between rational basis review and strict scrutiny is pretty big. Rational basis means that if a court hears a case that is trying to determine the constitutionality of a law, and the court itself can devise a reason why it might be constitutional, then the court can allow that law to then be constitutional * (this is my explanation of the more complete, wordier version that you can read here on Wiki).

Strict scrutiny, by contrast, is the highest (hence using the word strict, and scrutiny) level of review for cases that are about constitutional issues. When a case is touching on fundamental rights, that are part of the Bill of Rights or other parts of the Constitution, they will be presumed to have violated the Constitution unless it can be 1) justified by a compelling governmental interest, and 2) it is narrowly tailored, and 3) it is also the least restrictive means for achieving that interest. Laws often (not surprisingly) fail this test. (again, read the Wiki outline of SS here).


** RB review: "if the court can merely hypothesize a "legitimate" interest served by the challenged action, it will withstand rational basis review"
 
 

Friday, January 29, 2016

LGBT Ballot proposal withdraws campaign - due to financial concerns

The proposal to add civil rights for LGBT people to Michigan's constitution will no longer aim for the 2016 ballots, its organizer announced during a taping of public television show Off The Record Friday morning.

Article here (via mlive). 

Wednesday, January 27, 2016

Michigan Court of Appeals: Ruling on what's considered "usable marijuana" under the Medical MJ Act.

GRAND RAPIDS, MI – In a split decision, a state appeals panel said that harvested marijuana being kept in canisters to dry does constitute usable marijuana.

Alenna Marie Rocafort, 47, said she intended to make hash oil out of drying - and thus not usable - marijuana.

(article here - via mlive). 

The defendant had earlier been charged with being beyond the legal limit of what's allowed under the MMMA law for medical caregivers.  Caregivers are allowed to possess up to 2.5 ounces of marijuana per patient. She would be allowed to possess 15 ounces for five patients and herself.

The Kent County Circuit court ruled earlier that she was above the limit - and in violation of the Act. But the Court of Appeals disagreed.

"The trial court concluded that, although the seized marijuana may not have been dried to the ideal extent, it was 'largely dried,' and therefore denied defendant's motions," justices Jane Markey and William Murphy wrote.