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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Thursday, October 12, 2017

Child Custody, Vaccination, and Incarceration

child custody
The bodies are hitting the floor in family court this month. And the kerfuffle is over whether a parent can refuse court-ordered vaccinations of their minor children.

Here is a summary of the two media cases exploding in the Oakland County Family Court.

The Matheson Case

This morning Oakland County Family Court Judge Karen McDonald will again address a child custody dispute between parents concerning the vaccination of their children.  The custody hearing on-tap today is the second one this month to receive media scrutiny because the mothers are facing [or have done] jail time as a result of refusing the court-ordered vaccinations.

Lori Matheson opposes vaccination but her ex-husband is seeking to have their daughter vaccinated. Judge McDonald patiently listened to Mom's testimony about various childhood diseases for about an hour before continuing the hearing at a later date. She gave Mom until today to present DNA evidence that her daughter may be predisposed to what Mom characterized as "vaccination injury".

Here's the problem for Mom: when Judge McDonald swung-open her courtroom doors this morning to continue the hearing, there was a "suprise" witness; a physician prepared to offer testimony in "adversomics". Unfortunately for Mom, however, her attorney could not get her qualified as an expert witness on vaccinations under the court rules, much to the exasperation of Judge McDonald.

What Mom needed in this case is an immunologist; a physician specializing in the science dealing with the immune system and the cell-mediated and humoral aspects of immunity and immune responses; preferably in children at that. So the testimony from the physician Mom proffered was limited to that of a general physician on topics of general medicine.

We here at the Law Blogger, however, wonder whether any immunologists out there would actually testify about the benefits of adversomics. Can Mom find a competent expert witness in the antivaxx camp?

The Bredow Case

Earlier this month, Ferndale Mom Rebecca Bredow was warned by Judge McDonald that she now only had seven-days to arrange for the vaccination of her 9-year old son; the judge reminded Bredow that the vaccination had been ordered -through the consent of both parents- back in November of last year.

When Bredow showed-up in court last week reporting that the boy remained un-vaccinated, Judge McDonald sent Bredow to jail for a week, as promised and expected. For her part, Bredow said she would rather go to jail for her beliefs -both medical and religious- then give-in to something so contrary to those beliefs.

Well, Dad called bunk on Mom's position, asserting that she does not adhere to the tenets of any organized religion. He did point out to the court, however, that she and her husband both had medical marijuana cards.

Oakland County Circuit Court records show that Mom has been twice-charged with domestic violence against Dad. The Freep reports that, for her part, Mom has accused Dad of having a pornography addiction to which their son has been exposed. Yes, custody in this two year split has been messy and contentious.

Mom was sprung from jail yesterday, but then learned that not only was her son vaccinated against her wishes and pursuant to court order, she had lost physical custody of the child. The children temporarily live in Dad's home.

These cases now have the attention of the national press. When this blogger was traveling between courts today, the cases were each profiled on CNN radio.

So what is the general consensus about vaccinations? The American Academy of Pediatrics, the American Medical Association, the Center for Disease Control, and the American Osteopathic Association all recommend careful scheduled vaccination of children. In addition, there is informative literature available -to attorneys as well as the general public- from the CDC, the National Institute of Health and the Food and Drug Administration on this topic.

Often, the folks in the antivaxx camp tend to resort to anecdotal evidence compared to the rigors of scientific experimentation and testing.

So the question involved in both cases is how vaccination -and medical treatment in general- affects custody. Disagreements over health-related issues of the children are common among parents sharing joint custody.

Custody determinations are performed pursuant to the child custody act; the act contains "factors" on which family court judges make findings. The factor relevant to vaccinations states:
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
In these vaccination cases, where the parents disagree on the issue of whether their child should receive a vaccination, the family court judges face a tough decision. On the other hand, the parent in the antivaxx camp has a tough row to hoe from an evidentiary perspective.

We here at the Law Blogger will continue to monitor these cases and report their ultimate resolutions.
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Wednesday, September 27, 2017

When A Business Discriminates Against Same-Sex Couples

Business owners are sometimes known for the customers they refuse to serve. Old-fashioned soda counters, for example, refused to serve African American patrons for decades until the civil rights movement of the 1960s addressed, and eventually eliminated, the discriminatory practice.

Today, this issue arises when same-sex couples are refused the services or products of a business. There are a few very interesting cases percolating through the courts, including one here in Michigan.

Last month, a dispute between a cider mill in Eaton County and the City of East Lansing produced an interesting federal court ruling. A ruling that is sure to be appealed as the gay civil rights struggle pushes into new spaces.

For the past five years, the Country Mill was a crowd-pleasing participant at the East Lansing farmer's market. This season, however, the cider mill was not invited back to East Lansing when the city learned of the mill owner's anti-gay views.

Apparently, the Country Mill is a popular and picturesque destination for weddings. Problems arose during the 2016 season, however, when the owner of the mill, Steve Tennes, refused to host a lesbian wedding.

One of the betrothed posted a complaint on Facebook, precipitating a wide-ranging discussion about Tennes' Catholic religious views on the ubiquitous social media platform. For his part, Tennes took the bait and posted his religious-based opposition to same-sex marriage.

Eventually, after email exchanges between Tennes and East Lansing, the Country Mill posted the following policy statement regarding wedding ceremonies at the cider mill:
This past fall our family farm stopped booking future wedding ceremonies at our orchard until we could devote the appropriate time to review our policies and how we respectfully communicate and express our beliefs. The Country Mill engages in expressing its purpose and beliefs through the operation of its business and it intentionally communicates messages that promote its owners’ beliefs and declines to communicate messages that violate those beliefs. The Country Mill family and its staff have and will continue to participate in hosting the ceremonies held at our orchard. It remains our deeply held religious belief that marriage is the union of one man and one woman and Country Mill has the First Amendment Right to express and act upon its beliefs. For this reason, Country Mill reserves the right to deny a request for services that would require it to communicate, engage in, or host expression that violates the owners’ sincerely held religious beliefs and conscience. Furthermore, it remains our religious belief that all people should be treated with respect and dignity regardless of their beliefs and background. We appreciate the tolerance offered to us specifically regarding our participation in hosting wedding ceremonies at our family farm. 
When his sixth annual application to sell produce at the farmer's market in East Lansing was denied, Tennes filed a lawsuit in the United States District Court for the Western District of Michigan claiming First Amendment violations and several state law transgressions. The Country Mill immediately sought to enjoin the denial of the application, and sought court permission to participate in the market this fall.

The offending ordinance, promulgated in typical college-town fashion back in 1972, states:
It is hereby declared to be contrary to the public policy of the City of East Lansing for any person to deny any other person the enjoyment of his/her civil rights or for any person to discriminate against any other person in the exercise of his/her civil rights or to harass any person because of religion, race, color, national origin, age, height, weight, disability, sex, marital status, sexual orientation, gender identity or expression, student status, or because of the use by an individual of adaptive devices or aids. 
The Country Mill claims that this ordinance was then hastily amended to include the following language:
VENDORS WILL EMBODY THE SPIRT OF THE MARKET BY: Multiple factors that affect the success of every vendor are considered. . . . m. Complying with the City of East Lansing’s Civil Rights ordinances and the public policy against discrimination contained in Chapter 22 of the East Lansing City Code while at the ELFM and as a general business practice. 
Country Mill's application was denied in March in a written communication to Mr. Tennes citing the above ordinance language. In the federal lawsuit, Tennes claims that the denial was in direct retaliation of his lawful exercise of his First Amendment rights.

Federal Judge Paul Maloney agreed, granting the cider mill's motion for injunctive relief and holding that East Lansing cannot deny the cider mill's application based on constitutionally protected First Amendment activity. In granting the injunction, the court felt Tennes would prevail on the merits of his protected speech-based activity and was troubled by how East Lansing singled-out Tennes' application and how it specifically instructed its committee to handle the application.

We will monitor this case to see what happens next. Perhaps the city will appeal the ruling from last week, but only time will tell.

In July, we posted about a case scheduled for argument at the SCOTUS in the upcoming term involving this issue. A cake shop owner refused to provide his wares to a same-sex couple based on his sincerely-held beliefs about same-sex marriage.

These type of same-sex discrimination cases are becoming more common. So common that we here at the Law Blogger have to ask: does the owner of a private business have the right to decline service to a customer based solely on that customer's sexual preference?
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Saturday, August 26, 2017

Ousted Arizona Sheriff Pardoned by Trump

That an outlier POTUS like Trump would pardon a firebrand like former Maricopa [Arizona] County Sheriff Joe Arpaigo should surprise no one; they're views are tightly aligned on the illegal immigration issue. It's just that, in this case, the pardon comes right on the heels of the conviction, and at the beginning of the President's term rather than in the traditional eleventh-hour of an administration.

More than a decade ago, a civil rights lawsuit was filed against the ousted Sheriff, alleging that he systematically violated the U.S. Constitution by profiling Latinos and arresting suspects based solely on their nationality in violation of the 4th Amendment's probable cause requirement. Like Trump, former Sheriff Arpaigo has had his differences with federal judges.

In Arpaigo's case, two judges enjoined the sheriff from detaining Latinos based solely on their appearance, and in the absence of any specific evidence that a law had been violated. The sheriff kept up the practice anyway.

Last month, Arpaigo's defiance resulted in a criminal contempt of court misdemeanor conviction. The swiftness of the presidential pardon made it one-of-a-kind.

Normally, presidential pardons are granted only after the appellate process has been exhausted and the convict has been in the penitentiary for several years, if not decades.

In Arpaigo's case, although federal judges Susan Bolton and G. Murray Snow issued an injunction against Arpaigo back in 2011, Snow followed-up with a series of subsequent orders. Thumbing his nose at the judiciary just like Trump has done over the past 18-monts, the sheriff insisted his law enforcement tactics were legal and he kept-up a rigorous campaign of Latino arrests until his ouster.

Article II of the U.S. Constitution grants the president the power, "to grant reprieves and pardons for offenses against the United States..." The SCOTUS has interpreted this power to extend to all federal crimes thus, its scope certainly includes Sheriff Arpaigo's contempt conviction.

One of the problems with wielding the presidential pardon power in real-time is that it seriously intrudes into the realm of the other branches of government. In the Arpaigo case, this pardon lessens the effectiveness of the Constitution as well as our civil rights laws. Also, the case obviously impedes the effectiveness and the powers of federal Article III judges.

Trump [being Trump] might realize just how much power he really has under the Constitution relative to the legislature and the judiciary. Wielding this power from the 4-corners of the document on a real-time, case-by-case basis to prosecute his political agenda could quickly burgeon into a constitutional crisis.

One of the legal challenges arising from this pardon is whether a chief executive can pardon a government official whose illegal conduct affects the constitutional rights of others. For her part, Judge Bolton has invited briefs on this legal issue rather than simply dismissing Arpaigo's case prior to the sentencing hearing.

There is no question Trump has the power to pardon at any point during his term. The constitutional/legal/political question is, should a chief executive exercise his Article II pardon powers to undo a recent conviction based on the political agenda of his administration, especially where the state actor's conduct affects individuals' constitutional rights.

No doubt, there are well-articulated answers on both sides. We here at the Law Blogger would like to hear from our readers on this one. Should Joe Arpaigo have been pardoned? And so soon after his conviction?

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Thursday, August 17, 2017

Cancer Survivor Sues Apartment Complex Over Second-Hand Smoke

Phyllis Davis is an asthmatic cancer survivor who has many other serious health conditions. She filed a lawsuit last month in federal court claiming that the second-hand cigarette smoke from a neighbor's apartment is making her sick.

The lawsuit, naming the owners of the Farmington Hills apartment complex as defendants, was filed in the United States District Court for the Eastern District of Michigan. Prior to filing the suit, Davis' lawyer sought to have the apartment complex do something about eliminating all second hand smoke from the facility.

In her suit, Davis alleges violation of both federal [Fair Housing Act] and state law [Persons with Disability Housing Act]. Davis says she suffers from both "chemical sensitivity disorder" and "environmental illness"; she says these co-occurring conditions have rendered her disabled.

For her basic theory of the case, Ms. Davis alleges that the connected units of the complex have a shared ventilation system. She says her adjacent neighbors smoke on a regular basis causing "hazardous, toxic, carcinogenic and irritating gases" to enter her apartment unit through the shared ventilation system.

In addition to violations of federal and state housing laws, the complaint advances a breach of covenant theory against the apartment complex. Davis claims that permitting smoking increases the cost of insurance that the tenants have to secure. Also, she claims that smoking violates the covenant to maintain a safe, clean and sanitary condition for all apartment units.

Smoking is legal. So it will be interesting to see how the defendants respond to this litigation. Plaintiff seeks injunctive relief [no more smoking in the units] and money damages.

If a tenant, albeit an ill tenant, can enjoin a property owner from allowing legal activities on their property, does that interfere with the owners use and enjoyment of private property? If this lawsuit survives a motion for summary judgment and results in relief for the plaintiff, other potential plaintiffs could be encouraged to file their grievances against property owners.

Tenants have been suing landlords for decades for a wide-variety of reasons. This case, however, is particularly compelling due to the fragile health of the tenant.

We here at the Law Blogger can see a medical marijuana version of this case coming down the pipe [forgive the pun] at some point. So we will monitor the procedure in the case, paying particularly close attention to the summary judgment break point.

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Friday, August 4, 2017

Teenage Assisted Suicide Texter Sentenced to Jail

Photo courtesy of the NYT
We've been tracking this sad but interesting case for over a year. The case involves a series of texts [literally thousands] a teenager sent to her friend who was contemplating suicide; the decedent was on-the-fence, but the young girl's texts put him over the edge.

Michelle Carter was sentenced to 15-month county jail term yesterday in Massachusetts for involuntary manslaughter of her friend, Conrad Roy. In June, she was convicted following a bench trial.

Ms. Carter was found to be "virtually present" when Roy committed suicide through carbon monoxide poisoning. She encouraged him -some would say badgered him- to complete the act by sending a series of text messages to his cell phone.

Last year, her defense lawyer moved to quash the indictment; this maneuver went all the way to the Massachusetts Superior Court. The High Court made the following ruling:
It is important to articulate what this case is not about. It is not about a person seeking to ameliorate the anguish of someone coping with a terminal illness and questioning the value of life. Nor is it about a person offering support, comfort, and even assistance to a mature adult who, confronted with such circumstances, has decided to end his or her life. These situations are easily distinguishable from the present case, in which the grand jury heard evidence suggesting a systematic campaign of coercion on which the virtually present defendant embarked — captured and preserved through her text messages — that targeted the equivocating young victim’s insecurities and acted to subvert his willpower in favor of her own. On the specific facts of this case, there was sufficient evidence to support a probable cause finding that the defendant’s command to the victim in the final moments of his life to follow through on his suicide attempt was a direct, causal link to his death.
Rather than take the matter before a jury, Ms. Carter's lawyers opted for a bench trial; a trial where the judge makes all the findings of fact.

Of course, her conviction and sentence will be appealed. Carter's lawyers assert that the lack of a state law banning assisted suicide and the First Amendment to the U. S. Constitution form the basis of their appeal.

Prosecutors sought a lengthily prison term. They asserted that Carter wanted the attention that she thought would come from being the grieving girlfriend.

Some legal experts applaud the relatively light sentence, pointing to the teen aged angst and drama constantly swirling about the Internet. This was an electronic communication crime involving two very young and emotionally challenged individuals.

Both victim and perpetrator struggled with mental illness in this case. The judge apparently sentenced Carter to local confinement -rather than to the state penitentiary- in order for her to be close to her family support network.

One the one hand, Carter was very far away from the decedent on the night he took his own life. On the other hand, when he got out of his truck during the act, texting Carter all the while, she called him and talked him back into the truck.

We will let you know if Carter's appeal gets any traction. What a sad case.

Post #602

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