Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Monday, September 29, 2014

Catholic Bishops to Re-examine the Catechism of Divorce

If you are a Catholic that strictly adheres to the catechism of the church, then you cannot partake in holy communion if you are divorced and remarried.  This applies to a lot of Catholics.

Some of the more connected among the faithful can arrange to obtain an annulment of their first marriage, clearing the path to remarriage and holy communion.  This, however, requires the utilization of a priest that knows how to work the "ecclesiastical tribunal".

Next month, a synod of Catholic Bishops convened by Pope Francis, will reexamine the catechism of divorce.  Although the Pontiff's position on the matter is not known, conservative church leaders are meeting the synod head-on with the publication of a book in defense of the permanence of marriage.

Under a proposal advanced by German Cardinal, Walter Kasper, the divorced and remarried, after a period of penance, would be able to take holy communion once again.

If you are a Catholic divorcee, this is what the Church currently and officially has to say about your situation at §2384 of the catechism:
Divorce is a grave offense against the natural law.  It claims to break the contract, to which the spouses freely consented, to live with each other till death.  Divorce does injury to the covenant of salvation, of which sacramental marriage is the sign.  Contracting a new union, even if it is recognized by civil law, adds to the gravity of the rupture: the remarried spouse is then in a situation of public and permanent adultery.
The remarried Catholic divorcee is excluded from communion.  But there is an interesting, and broad, escape clause in the doctrine:
If civil divorce remains the only possible way of ensuring certain legal rights, the care of the children, or the protection of inheritance, it can be tolerated and does not constitute a moral offense.
 In addition to the above, which a good litigator can fit to almost any circumstance, there is the possibility of an annulment, set forth at §1629 of the catechism:
For this reason (or for other reasons that render the marriage null and void) the Church, after an examination of the situation by the competent ecclesiastical tribunal, can declare the nullity of a marriage, i.e. that the marriage never existed.  In this case, the contracting parties are free to marry provided the natural obligations of a previous union are discharged.
Well that certainly clears it up.  So it would appear from the above vague language that there is hope for those divorced Catholics that want to remain faithful to their Church.

The conflict anticipated at the Bishops' synod pits the permanence of sacramental marriage against the erosion of marriage as a modern social institution.  Pope Francis appears to be an inclusive rather than an exclusive prelate.

Let's see what the synod produces next month on the subject.

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Thursday, September 18, 2014

Scotland Contemplates Divorce

Sometimes, here in America, we hear this talk relative to Texas; that Texas is going to secede from the Union.  Personally, I never worry that it will actually happen; that we will have a separate country between us and Mexico.

And we all know that California is a different country, if only in spirit.

Well the United Kingdom is the subject of an important vote today; the polls are open as this blog post is being composed.  Scotland is voting on whether to remain a member of the United Kingdom; or whether to strike out on its own.

Some Scots worry about the currency; the pound.  Others fret about membership in the European Union.  Even the Union Jack may become a thing of the past.

Scotland has been an integral part of the United Kingdom for the past 300-years.  This type of change always has folks on edge.

We here at the Law Blogger must admit, this type of sea-change vote is unnerving.  If you take away Scotland and Wales, is there really anything left of merry ole England except London?

We'll all know the outcome soon enough.

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Sunday, September 14, 2014

Colorado Supreme Court to Hear Marijuana Employment Case

On the last day of the month, the Colorado Supreme Court will hear oral argument on a wrongful termination case pitting legal medical marijuana use against an employer's right to regulate its work environment.  A wheelchair-bound Dish Network employee, disabled since age 16 from a serious car accident, filed suit against his former employer challenging his termination for failing a drug screen; the man used marijuana in the evenings to control his regular painful spasms.

The case highlights how, even as marijuana has gained legal ground and wide-spread acceptance across the country, it continues to pose a tricky policy obstacle to a drug-fee work place.  Contemporary ads for employment in Colorado and Washington, where recreational marijuana use is legalized, routinely warn of companies' zero-tolerance policy.

Basically, it's: "do not bother to apply if you use marijuana."  This Dish Network case tests the legality of that policy.

Employers, like this Blogger, see the advantage of a drug-free workplace: more focus on the job [who wants a stoned workforce]; a safer work environment; and, in some cases, compliance with state and federal laws in order to obtain government contracts.  On the other hand, Brandon Coats, the plaintiff in the Colorado case, argues persuasively that a person can drink to obliteration every night and, so long as they show-up for work the following day, they will not be fired on the basis of a positive alcohol screen.

This case, and the other marijuana employment cases, also highlight the persistent conflict of law issue that begs resolution: despite 23 states legalizing medical marijuana use, and two states legalizing its recreational use, marijuana remains a Schedule I controlled substance under the federal Controlled Substance Act.

Therein lies the cover that the Colorado Court of Appeals used in affirming the trial court's summary dismissal of Mr Coats' case.  The Court of Appeals held:
Thus, forbidding a Colorado employer from terminating an employee for federally prohibited off-the-job activity is of sufficient policy import that we cannot infer, from plain statutory language to the contrary and silence in the legislative discussions, the legislative intent to do just that.
Moreover, a review of Colorado statutes shows that if the legislature had wanted to insulate employees from discharge for off-the-job activities illegal only under federal law, it knew how to do so.
Long ago, Congress placed marijuana in the same category as cocaine, heroin and opiates: the dreaded Schedule I [i.e. no known medicinal value, with significant potential to harm].  In more recent times, SCOTUS held in 2005 that state marijuana laws [California] did not circumvent the federal prohibition.

Over here at the Law Blogger, we are not going to hold our breath until Congress removes marijuana from Schedule I, as that day will probably not come within the lifetime of anyone now living.

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Friday, September 5, 2014

Life Without Parole For Repeat Pot Offender

Great Grandfather
and Lifer Jeff Mizanskey
Missouri, like several other states, has a three strikes and you're out law.  That means on your third offense, the sentence is life without parole.

In the case of Jeff Mizanskey, all three of his convictions involved possession and distribution of marijuana.  In 1996, he was sentenced by a circuit court judge in Missouri on his last case -possession of 7-pounds of pot- to life without parole; the bullet, as we say in the industry.


Now, approaching two decades later, even the prosecutor who put him away is calling for his release.  As applied to Mizanskey, when Missouri's 3-strikes law is predicated on all-marijuana convictions, his life sentence does not seem fair.

Much of the perception of unfairness in Mizanskey's case stems from the evolution of our marijuana laws.  With two states legalizing recreational use and nearly half the other states, including Missouri, legalizing medical marijuana, a pot-related life sentence takes on a draconian flavor.

On the other hand, as my prosecutor friends would point out, this is the law that the Missouri legislature put on the books; federal sentencing guidelines are also very harsh.  When the legislatures pass the laws, there should be an obligation to follow them; typically, sentencing judges do.

Yet some sentences are so harsh, their inherent unfairness forces change.  This happened in Michigan to the so-called drug lifer laws of the 1980s.  Governor John Engler not only signed a law nullifying the drug lifer laws, the nullification included retroactive application to all inmates sentenced under the revoked law, making each lifer eligible for parole.

In Mizanskey's case, there is momentum for Missouri Governor Jay Nixon to grant his clemency petition.  There are believed to be approximately 20 people sentenced to life terms for marijuana-related convictions.

As the legalization of marijuana unfolds over time across our nation, these individuals stand-out as markers of a failed prohibition policy.  Following the letter of the law vs doing what is right under the circumstances is an age old struggle in our free society governed by laws.

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Tuesday, September 2, 2014

Novi's Judge Dennis Powers Retires

This is not a resignation, he says.  Judge Dennis Powers, having served on the district court bench in Novi for the past 16-years, told Michigan Lawyers Weekly that he submitted a letter of retirement, not resignation.

Today is the first day Judge Powers' courtroom sits empty following his sudden change in plans.

The embattled judge was facing a trial this month at the Judicial Tenure Commission over allegations of improper expense reports, a "ghost docket", threatening a "whistle blower" staff member, and other judicial improprieties.  Up until 2-weeks ago, it looked like Judge Powers, 72-years old and thus ineligible by age to run for another election under state law, was determined to fight the charges to the bitter end.  Judge Powers' lawyers at the Vandeveer Garza law firm were gearing-up; now they have withdrawn from the matter.

Not to condone judicial impropriety [these allegations will never carry the weight of a judicial conviction in light of the Judge's sudden retirement], but we here at the Law Blogger will hate to see Judge Powers go.  He was always a gracious and reasonable jurist in our experience.  Personally, I had one of my biggest felony cases begin in the Novi District Court, and Judge Powers handled it very well; for that I will always be grateful.

That said, however, this is truly a bad end to an otherwise outstanding judicial tenure.  When judges are accused of impropriety -something that has been rampant out in Novi- the effect is that the foundation of the justice system erodes and the community loses faith in the concept of achieving justice as a civic goal in our free society.  This is not a good result in a free society governed by laws that are ruled upon by a judiciary elected from the community.

The next step out in Novi is for Governor Rick Snyder to appoint a lawyer to finish-out the remaining two years of Judge Powers' term.

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