Legal documents, rules, and cases: they are your friends! More novel concepts in the law

Many times when a client (or potential witness) gets some legal documents in the mail, they become overwhelmed, and don't even read them. Or they read parts of them, and blank out the other parts. This often leads a to missed deadlines, a failure to respond, and makes the case even worse. It's the "ostrich" approach to litigation (If I put  my head in the sand, maybe it will all go away). This approach isn't a very good one.

Same thing goes for attorneys sometimes: they will get some pleadings from another attorney, or a notice from court, fail to read it thoroughly, and miss something important about the case.

Ancient truth: Yes, legal paperwork is sometimes hard to read, but if you break it down into smaller parts, it's easier.

And here's the secret: when you read it, it has to contain the rules (or cases) that it's based on, and those rules are something that you will need to use to argue (with or against) to get to win your side of the case!

In other words, you have to read it all (especially if you're an attorney), to see what else you should be arguing. And most likely the judge will read all of it too.  So if you don't read, the judge will wonder why you left that out of your argument.

Let me get specific here: You're the client, and you have gotten a notice to appear on your case. It will have the case number, name of the hearing, where the hearing will be (the courthouse, room, and street address), the time and date. It will also have how to respond to it listed on that same form. You (or your attorney) will need to contact the court to do something about the hearing, like reschedule it.

Sometimes, however, the form will contain other information, like "if you do not respond by 21 days from the date of this notice, then . . . ." What's the "then?" Possible "thens" : this order will be signed by the judge,  or then you will lose your window of appeal, or then the bench warrant will be issued. That's the trigger to get you into motion.

Or, let's try a different scenario: You're the attorney, and you get a new client, who needs you to do something with the documents. Where do you start? What court are you in? Make the first step of actually reading what the client gives you. (One more hint: it might not say what the client thinks - see above, clients don't always read everything!) But at least what the client gives you will have the court on it, and something about the case so you can at least get more information.If the client doesn't have the right papers, get the copies from the court of everything else in the file, so that you know exactly where you stand right now. Otherwise, your response will not be accurate.

Now: back to Novel concepts in the law: use those same documents to get the basis that you need to start arguing. In this scenario, you're the attorney with new pleadings from the other side. Those pleading should have a rule, or case citation in them. Look at the rule (or case)! It could be that the attorney on the other side is citing the wrong thing (so you will need to mention to the court what should actually be argued), or that your client's situation is somehow different from what's cited. Then you go about distinguishing your client's case from the one cited, and try to persuade the judge that he or she should agree with your version of things. It's the old "the sky is blue, your honor, that's true, but the shade of blue it was on that day was streaked with gray clouds. So when the opposition says "blue," they should really be saying . . . " You get the idea.

Why not ship some beer for Christmas? Well, because it's illegal (at least in Michigan, for the most part).

Cyber Monday has come and gone. But there is still time to buy! But one thing you can't do, for the most part, is have some beer (or alcohol of any kind) shipped to Michigan (for the most part).

Why? Because the Liquor Control Commission says so.

The thing is, the LCC wants to bring as much revenue as it can into the state. It controls that (hence the name). So every consumer who buys alcohol of any kind is violating the LCC's ability to control things.

Here's another article about this (it's old and lists Granholm as governor, but is still accurate.) Here's a link to the LCC page about importation of alcohol.

How do you get around it? It's not easy. This author tried to buy wines from nakedwines.com, but couldn't have the order ship to Michigan. Essentially an online retailer has to purchase a special license from the LCC to be able to ship their products to Michigan. If you happen to shop at an online retailer who doesn't have that license, there's no guarantee that your order will arrive.

Blogging: how it can help you increase your legal market (Or: Novel points in the law, part 3: write about what you know)

Blogging can be pivotal in increasing your law practice, it's true!

See this article (via aba journal).

The theory is (and this actually is fairly true) that people searching for answers use the Internet. If you're writing about an area of law that a lot of people in the general public (or other lawyers, even), don't know about, your blog will get "hits" more often, as you're the only source of information available.

This leads to new clients, more information about cases, and more renown! Give it a try!

The way that I have seen this work: use a blogger profile, in connection with a Google plus page. When you publish a blog article, it shows up in Google (because G+ wants to reward its users). It also shows up with a photo pic of the author. And of course, your Blogger page will have the short bio of you and your area of law as well.

So my advice (back to novel points in the practice of law) is to write about what you know! If your practice area is intellectual property, focus on that. It will help increase your own knowledge, and other people - legal professionals and potential clients - will be drawn to that.

Law suit in Flint Michigan seeks over $1 million from ambulance drivers who "missed" attending to car crash victim

FLINT, MI – A lawsuit is seeking more than $1 million after a pair of ambulance workers failed to spot a man in the driver's seat of a car that crashed into a tree.

The lawsuit was filed Nov. 24 in Genesee Circuit Court by the law firm of Geoffrey Fieger on behalf of the estate of the car crash victim, Cortez Lionel Cheathams, against the ambulance campany, Mobile Medical Response.

Article here (via mlive). 

Is lower admission standard to blame for less lawyers gaining admittance to California bar?

As law schools receive fewer and fewer applications for admission, is one tactic for their own survival to admit students who are unlikely to ever pass the bar exam?

Article here (via the lawyerist). 

The article notes the low passage rate of the July 2015 California bar - at 46.6% of takers having passed that exam. By comparison, the Michigan Bar exam passage rate for the same exam was 61%.

Lawyer disbarred for recording clients for his own amusement (Oh, and he appropriated clients' funds too)

According to the opinion, Steele had taken virtually all of the funds in the client trust account, making it difficult to return unearned fees. When a client requested the money, Steele told his staff to inflate the client’s legal bills to deplete the retainer. Sometimes, Steele returned fees with retainers paid by new clients.

Steele also recorded conversations of clients and potential clients for his own personal amusement, and shared those recordings with staffers and relatives. He “openly mocked” the recorded individuals in conversations with others and in a meeting with the state disciplinary commission.

Article here (via aba journal). 

Michigan Court Rules have changed for garnishment

Any garnishment issued after September 30, 2015:

 1. only expires after the garnishment is paid (instead of after 6 months like prior garnishments would have);
2. creditors have to pay $35 to each garnishee; and
3. wage garnishments must be served in accordance with Michigan Court Rules. 

This means, once you have a judgment in your client's favor, and 21 days have passed (during which the Defendant hasn't filed an appeal of that judgment), you will need to prepare a Request for Garnishment, (use the SCAO form, that's easiest) file it in court, serve it on the defendant, and mail to the garnishee (employer, IRS, whoever is paying that defendant).

A defendant will have the chance to object to garnishment, as long as the defendant does so within 14 days after being served with the Writ.

For more information go to the Michigan Court Rules. Look specifically at MCR 3.100 et seq.

(snore snore! I know, right?)

The July 2015 Michigan Bar Exam results have been released

The list of certified passers (before appeals) of the July 2015 Michigan Bar Exam has been released by the Board of Law Examiners.

See the list here. 

The federal government wants to adopt plain language - really! (Novel concepts in the law, Part Two)

One of my favorite parts of law school (please excuse this trip down memory lane) was taking writing classes. My school required two of them: Research and Writing (first year class), and Advanced Writing (usually a third year class). Research and Writing taught a research method and introduced the concept of "plain language." Advanced Writing made more targeted use of those skills through writing briefs, usually intended for an appellate case. (I also took another writing class, because I am a glutton for punishment, which I did as a directed study. Ask me if you ever want to see it, it's about the US Supreme Court's interpretation of the Americans with Disability Act, and other cases related to that).

The idea behind plain language is that a legal writer should make it easy for a reader to find the meaning in any document, and be able to understand what the writer is trying to convince the audience to do. This means using almost no "legalese," which might confuse the reader. Legalese would be something that sounds traditional and impressive, but actually makes its meaning more difficult to determine. For example, the phrase, "indemnify and hold harmless," where both terms could mean the same thing to a reader.

Brian Garner is often given credit for many of the plain language ideas. He's written books on the subject, and has (what I would think is) a dream job -- he edits other people's work to make it more reader-friendly, for use in legal briefs, and other documents. He is also cited as a source for
this government article on writing for your audience.

But - back to Novel Concepts in the Law: Plain language is a great way to win cases! Write for your audience, even if the audience is different from each other. The judge will know the law, go ahead and write a brief on what you're doing. But don't get all technical & weird in the writing. Make sure 1) your client understands why you're doing what you're doing, and it's good if they can understand your argument in the Brief and 2) the judge will have an easier time agreeing with you if you can make the writing easy for him or her. Just show that you know the law, too, and that it agrees with what you're trying to do for your client!

Backers of Marijuana petitions feel confident regarding ballot proposals

Competing groups racing to put marijuana legalization questions on Michigan's 2016 ballot claim they are raising enough cash to get to the finish line, but one has temporarily "paused" signature collection and both still have miles to go.


The Michigan Comprehensive Cannabis Law Reform Committee, known as MI Legalize, raised about $137,000 in the latest fundraising quarter and has now pulled in around $308,000 for its petition drive, according to campaign finance records filed with the state on Monday.

Article here (via mlive). 

Michigan law maker proposes new Sex Offender Registry changes after 1,000 ft radius declared unconstitutional

Portions of the Sex Offender Registry (SOR) law were declared unconstitutional earlier this year. That's because the requirement that people on the SOR were supposed to stay at least 1,000 feet from a school at all times.

Article here.

But never fear, Michigan law makers are ready to amend the 1994 legislation - yet again- to re-include the 1,000 ft requirement, and in such a way that the law would not be considered over-broad.  

More details to follow. . . .

Korean War veteran suprised to receive his medals . . . 63 years late

 Dennis Williams still has the government-issued U.S. Army combat boots he received in 1951, when he was drafted to fight in the Korean War.

But it was the surprise he received a few weeks ago that will complete his collection of memorabilia. After fighting 63 years ago in the war, Williams received three medals — two Korean Service medals, one with three Bronze stars, and a National Defense medal.

"Somebody contacted me from the Pentagon," the 85-year-old said. "They sent me a letter."

Article here (via mlive.com) 

Do you know the first step in becoming a foster parent?

The Michigan Department of Health & Human Services has a number to call where you can speak to experienced foster parents. It's 855-642-4543.

(The first step is to be licensed as a foster parent.)

U-M Library acquires Dr. Jack Kevorkian's papers

The doctor was best known for his advocacy in favor of physician-assisted suicide and in addition to manuscripts, drafts, photographs and court records, the collection now open to public study contains extensive "medicide" files.


Those files, organized under the term Kevorkian used for assisted suicide, include medical histories, photographs and recordings of consultations with patients relating to many of the cases.

Article here (via mlive.com)

Insane Clown Posse fans (aka "Juggaloes") have standing to sue US Department of Justice

The United States Court of Appeals for the Sixth Circuit recently released a published opinion holding that the plaintiffs, four self-described "Juggalos" and two members of the band Insane Clown Posse, had standing for their claims against the US Department of Justice and the FBI that they suffered violations of their First and Fifth Amendment rights.

Article here (via Speaker law firm blog).

This case arose out of a Congressional report for the National Gang Intelligence Center. Back in 2001, the report determined that Juggaloes are in fact, members of a gang, although loosely organized. In return, some Juggaloes filed suit, claiming that this had a chilling effect on their First Amendment rights to association.

Cyber-squatting case in Grand Rapids: Defendant denies "nefarious intent"

Joe Bliss, who has been accused of cyber-squatting Grand Rapids businessman and triathlete Ryan Leestma, acknowledges he set up a website using his former boss' name.

The man admitted posting news stories about Leestma and sharing his Facebook posts, originally published on others' pages.

But a "nefarious intent?" No, he said.

Article here (via mlive).

Unlicensed "attorney" represents clients in New York, and New Jersey

Operating from a New York City law office, Mikhail Perlov represented clients in court in criminal matters in Brooklyn, Long Island, Manhattan and Queens, as well as Belmar and Rahway, New Jersey.

But there was one big problem: He wasn’t licensed to practice in New York, New Jersey or any other state, according to the New York attorney general.

Article here (via abajournal). 

Man sues federal investigators after spending 17 years in prison falsely convicted

A mentally and cognitively disabled man who spent 17 years in prison after being wrongly convicted of rape and murder has filed a federal lawsuit against investigators who allegedly coerced him into confessing while clearing the actual killer.

Jamie Lee Peterson was cleared last year by DNA testing that was not available in 1996 when Geraldine Montgomery, 68, was raped and killed in her Kalkaska home.

Article here (via mlive). 

But you knew this already, right? Study: you are wasting way too much time checking email

Smart phones, tablets, etc. etc. It never ends! Why don't we give up already? (But you can probably include blogging, voicemails, and texting in this survey as well).

We will never get out from under this email burden, however, if we don’t stop checking our email all the time, everywhere, all day (and all night) long. Adobe did a survey looking into our email habits, and surprise! we are all terrible.

Article here (via the lawyerist). 

Cindy Gamrat shouldn't be on the ballot, say other legislators

The Michigan Secretary of State will not stop expelled Rep. Cindy Garmat from appearing on the ballot as she runs for re-election, but one of her opponents could still try.

Rep. Kurt Heise, an attorney who sat on the special committee that recommended expulsion for Gamrat and fellow Rep. Todd Courser, said Tuesday that the SOS determination is not binding and should be tested in court.

Article here (via mlive). 

Man allegedly stabs his wife, then robs a dollar store for getaway money

Police say Brandon Moore was in an argument with his wife in an apartment near Breton Road SE and 44th Street in Kentwood, when he pulled out a knife and repeatedly stabbed the woman before fleeing in a car.

As the stabbing occurred, Moore said, "I should have finished what I started," the victim allegedly told police.

Article here (via mlive). 

Police body cameras are important, says DOJ

The DOJ said it had expected to award only 50 grants and added another $2.5 million to meet the increased demand when requests soared. An additional $3.9 million has been allocated for training, technical assistance, and a study to analyze the effectiveness of the program.

Instead, the DOJ awarded  19.3 million dollars. Article here, (via aba journal).

Agency to lose license for poor placement of Omarion Humphrey

 The state says the foster agency that placed 9-year-old Omarion Humphrey, the severely autistic boy who went missing and drowned in a Davison Township park, should lose its license.

The state said Alternatives for Children & Families Inc., the Burton-based agency, failed to ensure foster parents received adequate training on how to care for children with autism, committed multiple violations and should lose its license, partly because of the severity of the violations.

Article here (via mlive).

Follow up: Agency may appeal report. 

Practice tips: don't be afraid to look at a rule book, or read a few cases

Novel thoughts in the practice of law: Number 532 - Know the law.

So it might be a good idea, if you're a practicing lawyer, to know the law from time to time. Or know that, before beginning an argument, you might need to point the judge to the fact that you know it exists.

Here's another way to look at it - knowing the law is a way to win cases and make your clients happy. If you can show the judge "hey, here's the law" and then show the judge "but here's the facts of my case" you have a better chance of winning an argument. Which means more cases, and more clients, since happy clients will refer other people to you.

In other words, cases, laws, and rules are your friends. Here's the thing - cite the law, case, rule, statute, what have you. The judge needs to know that you know it. Besides, you went to law school for a while, then passed the Bar exam to practice, and you are probably proud of that fact. Then argue that -for certain reasons - your case is unique, so the law, case, rule etc. shouldn't apply, or that it applies in the way that you and your client want it to.

Make it easy for the judge to agree with you!

Also - if you have somehow become an attorney who doesn't do this, this small fact gets known. It's easy - and maybe a little lazy - to jump right into arguing, and repeat facts to the judge and ask the judge to rule your way - but if the law's not on your side, or you can't argue that it should be, that is the first thing that opposing counsel will point out to the judge, and the thing that they will point out to their client.

Here's a good place to start - Michigan Rules of Court (MCR). (via Michigan Courts).

Lack of minority representation in jury pool gets new trial for convicted murderer

A Hispanic man convicted of second-degree murder in 2001 deserves a new trial because a computer glitch left minorities underrepresented in his jury pool, a federal appeals panel said Friday, Sept. 4.

Antonio Garcia-Dorantes, 37, was convicted in the Oct. 22, 2000, stabbing death of Jose Delores Gomez and wounding of Manual Garcia.

Article here (via mlive). 

12 year-old convicted of murder of 9 year old

A year after 12-year-old Jamarion Lawhorn executed a bizarre suicide scheme where he would kill another child so that he would be executed for the slaying, a jury has found him guilty of murder.

At 13, the boy will be the youngest convicted murderer in West Michigan.

After more than four hours of deliberation Friday, Sept. 4, the jury comprised of seven men and five women found Jamarion guilty of first-degree murder in the Aug. 4, 2014, stabbing death of 9-year-old Connor Verkerke as they played on a Kentwood playground.

Article here. 

Michigan's licensing board rejects adding autism to medical marijuana treatment under MMMA

In a four-page “Final Determination,” Zimmer said that allowing the use of medical marijuana for autism might do more harm than good to mildly afflicted autistic children.

That view followed corroborating testimony in Lansing by Dr. Harry Chugani, chief of pediatric neurology at Children’s Hospital of Michigan and a national authority on autism.

Article here (via freep). 

Juvenile Plaintiff's case dismissed regarding MDOC's failure to protect them from abuse

The Michigan Court of Appeals dismissed a lawsuit filed by seven juvenile prisoners who alleged prison staff didn't do enough to protect them from sexual and physical abuse.
 
In a decision dated Tuesday, the court ruled the seven John Does who were the plaintiffs in the lawsuit did not meet the disclosure requirements of the Prison Litigation Reform Act. The court also disagreed with the plaintiffs' assertion that an amendment to the Elliot-Larsen Civil Rights Act violates the rights of prisoners because it does not allow them to sue the Michigan Department of Corrections (MDOC) for civil rights violations.

"We have reviewed all remaining issues and find them to be without merit or unnecessary for the disposition of this appeal," wrote Judges Michael J. Riordan and Pat Donofrio.

Article here (via mlive). 

Federal Appeals Court holds that chicken sandwich isn't copyrightable

A ham sandwich, as popular lore has it, may well be indictable.

But a chicken sandwich isn’t copyrightable, a federal appeals court has ruled.

Agreeing with a trial court’s decision, the 1st U.S. Court of Appeals on Friday held (PDF) that a fast-food worker seeking a $10 million share of the profits allegedly reaped from his chicken sandwich concept is out of luck.

Article here.  (via abajournal).

Not exactly a shot gun wedding, but: Texas man marries to avoid 15 days in jail from the judge.

At a July hearing, Judge Randall Rogers offered Bundy probation in the Smith County case, but conditioned it on Bundy’s getting counseling, writing out Bible verses and marrying Jaynes within 30 days, says the station, which reviewed the court transcript. Otherwise, Bundy was going to get a 15-day jail term.

Bundy was willing to do the time, but both he and Jaynes were concerned he would lose his job if they didn’t marry. So, although unhappy about the rush to matrimony, they tied the knot in a summer courthouse wedding.

Article here (via aba journal).

PS - the couple already had had plans to marry, but didn't feel comfortable being rushed into it. 

Rosalyn Bliss makes Grand Rapids history as first female mayor of GR

A day after her 40th birthday, Rosalynn Bliss has been elected the city's 59th mayor, and she becomes the first female to win the job.

Rosalynn Bliss introduced as Grand Rapids mayor-elect Bliss received two-thirds of the vote Tuesday, Aug. 4, to win the city's mayoral primary election.

A commissioner representing the city's Second Ward since 2006, Bliss received solid support throughout Grand Rapids and cruised past the 50 percent threshold needed to avoid a runoff election in November. Runner-up Robert Dean, a former city commissioner and state lawmaker, received 30 percent of the vote while John George and Willard Lee had little impact with a combined 4 percent.

Article here (via mlive).

Related: This election means that a seat will be available on the Grand Rapids City Commission, second ward. Who will be appointed? Mayor Heartwell continues to serve as mayor until January, then is unseated by Bliss. Anyone who's at least 18 years old and who has lived for at least six months in the city's Second Ward, which is mostly east of the Grand River north of Wealthy Street, is eligible for appointment.. 

Michigan Supreme Court says judges don't have to follow sentencing guidelines

Who should decide how a defendant is sentenced? A jury or a judge?

This was the question before the Michigan Supreme Court in Lockridge.

This case involved a defendant who had been convicted of involuntary manslaughter in Oakland County.  The mandatory sentencing guidelines scoring called for a minimal sentence of 43 to 86 months.

However, the sentencing judge found that the minimum sentence should be increased because there were factors not accounted for in the scoring of the guidelines.  These included a probation violation, the defendant killing his wife in front of their three children, leaving the children at home with their mother dead on the floor, and prior domestic violence.

Article here.

Eventually, this case was heard by the Michigan Supreme Court, based on the use of the sentencing guidelines. Sentencing guidelines outline what the penalties for a particular crime should be (say, forgery, which is a felony of one year to up to 14 years), and whether the minimum sentence should be enhanced or increased based on other factors.

In an opinion released July 29, 2015, the Michigan Supreme Court held that in view of existing United States Supreme Court precedent, Michigan’s sentencing guidelines were unconstitutional to the extent that they require judicial fact finding beyond facts admitted by the defendant or found by the jury beyond a reasonable doubt to score offense variables that increase the minimum sentence range.

Man with gunshot wounds won't cooperate with investigators

The victim, so far, has refused to cooperate with investigators and is offering little information on what happened. Police are working to identify a possible suspect.

Article here.  (via mlive).

The alleged shooting occurred in an area where another shooting recently took place.

"W" reports for jury duty

Former President George W. Bush reported for jury duty in Dallas on Wednesday, but he was not selected to serve.

Bush posed for photos and was personable and very friendly, potential juror Sheri Coleman told the Dallas Morning News Scoop Blog. Another potential juror, Desiree Bryant, posted a photo of her posing with Bush on Twitter, Zap2it reports.

Article here (via aba journal). 

Cecil the lion - if the US were to prosecute this, what would the legal basis be?

Following news that the U.S. Fish & Wildlife Service was seeking to question a Minnesota dentist who has been linked to a high-profile lion-poaching case in Zimbabwe, Africa, observers wondered what the legal basis might be.

There is speculation that American officials may be looking for possible violations of the Lacey Act, reports Reuters.

If so, any potential prosecution would likely be an uphill battle, experts say, since the connection between the U.S. statute and illegal hunting activities in foreign countries is tenuous at best.

Article here (aba journal). 

Six legal technologies that should be obsolete

The list: copiers, fax machines, dictaphones, typewriters, Blackberrys, and Windows XP.

I must confess that I rely on #1 - copiers - on a daily basis.

I also must confess that I sort of miss typewriters, or at least the process of using a typewriter to write. (Now, I do have access to a typewriter in my office - it's an IBM Selectric - to type on forms that I can't get a PDF of online). But back to the writing process: Typewriters were sort of permanent, like an early PDF. In order to use one, your thought had to be pretty complete, or you knew you'd have to edit the pages you types, and then re-type them.

I hand wrote all my exams, which made the writing process more interesting, since I couldn't use "copy, paste" to re-organize my thoughts, while other exam takers with their laptops could edit while typing. But I think the handwriting process was important: It made me write a short outline on the exam book or note paper, then fill out the outlines as I wrote. If I'm stuck now, while writing a brief or whatnot, I will still resort to writing longhand, then typing (but not on a typewriter) the notes I wrote. I know it's very old school, but the multi-step process seems to solidify my thoughts better.

Article here via the lawyerist.

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.

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.

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).

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). 

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).

Robin Williams' heirs, widow at odds over personal effects and cash from his estate

The widow and three adult children of actor Robin Williams are still at odds over the ownership of some of his personal belongings and the money needed to maintain his widow’s home.

Article here (via aba journal). 

Michigan medical marihuana law - a Q&A

Q: What areas of law does the Michigan medical marihuana act cover?
A: This act (referred to as the MMMA) ensures that someone who qualifies as a registered user or caregiver (what is a qualifying condition, see below) can't be arrested, or subjected to other prosecution, simply because they are registered. It also ensures that those registered users/ caregivers can't lose privileges, such as work-related licenses.

Q: Can a registered user or caregiver also "deal" marihuana?
No. The MMMA only provides protection against prosecution for caregivers/users when they are using it for medicinal purposes. That means if a registered user/caregiver does sell to someone, they are then charged with a felony of up to 2 years + $2,000 fine possible, in addition to other criminal penalties for distribution of marihuana. For example, the prosecuting attorney can also charge use, possession, possession with intent to distribute, and so on, which all have separate possible penalties, as well as the penalties under this act.

Q: OK then, so this means that it's supposed to be a closed system, right?
A: Yes. The caregivers and registered users are supposed to keep the M to themselves, use it for medicinal purposes, and not sell to others, period. 

Q: What if I am over at my friend's house - who's an MMMA registered user. Can I get in trouble for that?
A: No. As long as it's being used medicinally, then being in the vicinity of medical use won't get you in trouble with the law, or charged with a crime.

Q: My friend has joint custody of his kids, and he's an MMMA registered user. He worries that his ex will try to use this against him in court. Is that something he should be concerned about? Will he lose custody of his kids?
A: No. Registered MMMA use can't be the basis for denying custody or visitation, unless there is other behavior that creates danger to the kids.



Q: What types of medical condition qualify someone? 

A: The MMMA has a list here of conditions, they include: cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn's disease, agitation of Alzheimer's disease, nail patella, or the treatment of these conditions,  severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis. Other conditions can be approved as necessary, through legislative approval.

Q: Can a drug dealer become a caregiver? 
A: Maybe not. A caregiver has to be at least 21 years old not been convicted of any felony within the past 10 years and has never been convicted of a felony involving illegal drugs or a felony that is an assaultive crime.


Q: How do I apply to become a registered user or caregiver?
A: It's described in detail at the Michigan department of regulatory affairs website.


Have more questions? post them on the blog, or contact me directly: ballastnancyl@gmail.com

Petition for marijuana legalization to be placed on Michigan ballot? Michigan canvassers board to review petition

The Michigan Cannabis Coalition, which has been described as "a loosely formed group of business and political folks," wants to legalize and tax recreational marijuana, devoting any proceeds to education, public safety and public health.

It's one of three marijuana legalization groups eyeing the 2016 ballot, and its proposal is unique in that it would give state lawmakers a prominent role in the legalization process.

Article here. 

Detroit -area attorney charged with mortgage fraud scheme

Steven Barry Ruza, 52, of Orchard Lake and his company, Home Legal Group, promised upwards of 114 victims they could obtain mortgage modifications and save their homes from foreclosure but then did nothing, or very little, to obtain mortgage modifications for the victims, Schuette's office said. They did, however, collect hundreds of thousands in fees.

 Article here. 

School standardized testing: Should it be required by law?

Illinois now allows parents to choose that a student can "opt out" of standardized testing. 

So this week, the aba journal would like to ask you: Should school standardized testing be required by law? Or should individual districts, schools or students decide whether or not to participate?
Answer in the comments.

Do you write fiction - that's legally themed? Enter this contest.

The lawyerist's short-fiction contest is open to all writers. If you have a story to tell (in 5,000 words or less), we want to read it! Submissions are due on June 1st, and the top two entries will receive cash awards and be published right here on Lawyerist.

Submission Guidelines

Entries must be original works of fiction of no more than 5,000 words that feature a lawyer as a prominent character. Entries must be submitted by email to email@lawyerist.com no later than June 1, 2015.

Child Support, Modifications and Arrears: a family law Q &A primer

Q: I've been making my child support payments, but sometimes I can't pay the monthly amount due. What happens now?
A: That amount you didn't or can't pay will become an arrearage.

First of all, the obligation to support a child is with both parents. The Michigan Child Support Formula considers the amount of time each parent has with the minor child(ren), the income of the parties, and other factors when calculating support owed. Typically, the custodial parent will be paid support, and the non-custodial parent will be the payor of support, but this isn't always the case, since it depends on income, number of children, and other factors.

Support will typically be ordered during the pendency of a divorce or custody case (before judgment is entered), or if either parent is receiving state assistance. After the judgment is entered, an adjustment may be made to the support amount, and a new UCSO (uniform child support order) will be issued.

Q: What if I think the amount ordered should be different? I can't pay what I currently owe. 
A: You can request a modification of the support amount through Friend of the Court, or through an attorney.

Either party - the parent who pays, or the parent who receives support  - can request modification, if that parent can show a change in circumstances.


Statutes provide a low threshold for modification, based on circumstances of the parents or as the benefit of the children require,[1] upon proper application to the court and due notice to the opposite party,[2] and for proper cause shown or change in circumstances.[3]

A change in circumstance is a fact-based question. It could be the parent has changed jobs, has a medical concern and can't work, and so on. Also, the Friend of the Court can request a modification of the support amount.  

A parent who's income changes should notify Friend of the Court of this change, whether requesting a modification or not. 

Otherwise, if no parties request a  modification, a support review will be done, typically every three years. 

Q: I requested a modification and the Court agreed with me. What's next? Will this take care of the arrears I owe? 

A: The modification has to be made into an order. Your attorney can prepare that, or Friend of the Court will send you a copy eventually if no attorneys are involved. 

But typically modifications do not address arrears - they only modify the amount of support going forward.  (This is also referred to as "no retroactive modification of support," see MCL 552.603 (2)) 

If the amount of arrears is owed to the other parent, it's possible that parent can forgive the amount of arrears owed. Talk to your attorney about that. 

Q: The amount of arrears I owe is really high. Is there anything I can do about that?
A: Maybe. The Friend of the Court may let you ask for a payment plan on your arrears amount.  Talk to your attorney about discharge of the amount you owe. Again, the parent receuving support has to consent to this as well. 

Q: Can I go to jail for not paying the support amount?
Yes. 

Friend of the Court can enforce support orders through bench warrants, license restrictions (including recreational licenses), withholding tax refunds, among other means. Friend of Court offices can request through "show cause" hearings that the payor make payments, and explain why payments haven't been made, or go to jail.

In addition, the possibility of felony child support non-payment exists.That can happen when the amount owed is in excess of $20,000 (MCL 750.165). At that point, a warrant can issue to arrest the payor of support. Felony child support violations can carry a penalty of 4 year's imprisonment. No laughing matter. 

---

[1] MCL 552.17 (1): Divorce, separate maintenance, annulment.

[2] MCL 552.45:  Family Support Act.

[3] MCL 722.27 (1) (c): Child Custody Act.

Michigan bar exam results - February 2015

The Michigan Board of Law Examiners has released the list of passers (by name) for its February 2015 Bar Exam.

List here.

Are you a lawyer and billing clients for your time? Do it smarter.

Making sure clients get invoiced is the way you get paid, right? So do it right.

Hopefully that is a no-brainer for everyone who reads this post, but I doubt it. I have known plenty of lawyers who reconstruct time at the end of every month — or every couple of months — from their calendar, emails, and memory. Even if you only put together your bill at the end of the month, you need to track your time as you go. These are the major tools for doing that.

However you decide to track your time, pick a method and stick to it. When you sit down to assemble your invoices, the fewer places you have to go to get the raw data, the better. The more methods you use to track your time, the more mistakes you will make.

Article here (via the lawyerist). 

Melted snow uncovers meth labs

Spring weather means Michigan residents might be more likely to come across debris associated with meth production, police say.

Since many products used in the manufacturing of methamphetamine might have sat snow-covered along roadways and within isolated areas all winter, now is the time they might be visible, according to Traverse Narcotics Team Commander Detective Lt. Daniel King.

Officials with the Traverse Narcotics Team are advising Michigan residents to be on the lookout for materials used to manufacture meth which may have recently become visible with the recent arrival of spring. 

These materials, including chemical components, and bottles with hoses attached, should be reported to local law enforcement, King said.

Article here (via mlive). 

February 2015 Michigan Bar Exam results - published by seat number

This list is the exam takers who have passed, as identified by the seat number assigned when they took the exam. Results by name will be forthcoming in the next few days.

List here.

Update! May 11, 2015: List by name has now been published: link here.  

Lawyers uses $200K in legal fees to make movie about medical malpractice case

Bill Lundy had never made a movie before.

But, inspired by one of the difficult cases he had ever worked on, the Georgia trial lawyer used $200,000 in legal fees from winning a nursing home medical malpractice case to film A Larger Life, recounts the Daily Report (sub. req.).

The 112-minute film stars Lundy as well as well-known actor and former U.S. senator and attorney Fred Thompson, as well as actor Todd Litzinger and other members of the Lundy family (the lawyer’s real-life wife played his on-screen spouse). It premiered last month in Atlanta, as the Standard Journal details.

Article here (via aba journal).