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.
For more information email: tflynn@clarkstonlegal.com

Thursday, September 6, 2018

Surfers vs the Billionaire

land use
Martin's Beach courtesy of the LA Times
If you attempt to remove access to a good surf spot anywhere along the Southern California coastline, be prepared to spend some money. That's what billionaire Vinod Khosla, co-founder of Sun Microsystems, has vowed to do: spend his money -and he has a lot of it- to make a legal point in a significant piece of property litigation heading to the SCOTUS.

Martin's Beach is a secluded surfing spot south of Half Moon Bay in California. For more than a century, the owners of this 90-acre sand crescent provided liberal public access to the beach via a service road. In addition to the road, the owners improved the property with a parking lot, restrooms and a small store.

A decade ago, Khosla purchased all 47-cottages that sit along this prime bundle of coastal parcels for a cool $32 million. Then he promptly closed the gate to the access road, hired security, removed the restrooms, shut down the parking lot and shuttered the store. He's been in litigation ever since and the case is now heading to the SCOTUS this fall.

The Surfrider Foundation brought the law suit that has made its way to the SCOTUS. Public access to "the beach" is enshrined in California's state constitution and in the California Coastal Act

Khosla, through his Martin's Beach LLC, is equating the the operation of the state constitution and the Coastal Act to an uncompensated "taking" of his property in violation of the 5th Amendment to the U.S. Constitution which provides that no private property shall be taken by the government without just compensation.

For their part, both the California Coastal Commission and San Mateo County assert that Khosla must maintain the same level of access to the beach, or obtain a permit from the county allowing him to reduce the access. California has developed a long-standing governing principle: the beach cannot be privatized.

Khosla, described in a recent NYT Sunday Business article as a typical venture capitalist -"aggressive, shamless, obsessive and optimistic", has vowed to litigate Martin's Beach for the rest of his life. At age 63, he is the latest billionaire to use his millions to seek privatization of a choice parcel of oceanfront property. Billionaire David Geffen's failed attempt at the turn-of-the-Century to close-off a chunk of Malibu comes to mind.

Along the way in this litigation, the California Coastal Commission offered Khosla $3 million to open the gate to the access road and have his security guards stand down. In rejecting the offer, Khosla, through a phalanx of lawyers, put a much higher price tag for what he sees as a compromise in principle to his privacy and his right to private ownership of property. Ironically, Khosla openly regrets ever purchasing the property and claims to have never set foot on Martin's Beach.

The case wound its way through California's state court system, culminating in a decision by the California Court of Appeal that upheld injunctive relief to beach access granted by the county trial court. Although the California Supreme Court declined further review, Khosla's highly-paid super-lawyers convinced the U.S. Supreme Court to grant certiorari.

SCOTUS, in granting certiorari to the Martin's Beach petition, now considers the following issues:
1. Whether a compulsory public-access easement of indefinite duration is a per se physical taking. 
2. Whether applying the California Coastal Act to require the owner of private beachfront property to apply for a permit before excluding the public from its private property; closing or changing the hours, prices, or days of operation of a private business on its private property; or even declining to advertise public access to its private property, violates the Takings Clause, the Due Process Clause, and/or the First Amendment. 
The case will now be briefed by the parties with several interest groups expected to weigh-in via amicus status. Stay tuned as we update you on the briefing schedule and oral argument, expected to be scheduled some time next spring.

Post #619
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Wednesday, August 1, 2018

FBI Needs Warrant to Download Cell Phone Data

At the end of its term in late June, the SCOTUS decided a Michigan case, holding that police must obtain a warrant prior to obtaining location and other data inside a suspect's cell phone. In so ruling, Chief Justice John Roberts said that modern digital technology allows wireless carriers to collect "deeply revealing" information about its customers.

This poses a problem under the 4th Amendment of the United States Constitution. The ruling was narrow to the extent that the High Court held open the prospect that police still may not need a warrant to obtain information about the location of a suspect on the day a crime was committed.

Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.

Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.

The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In Carpenter, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.

Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.

Historic cell phone location data and "real-time" cell phone location data are distinguished in Roberts' narrow ruling. Only the former would require a warrant, not the latter.

The bloc of conservative Justices asserted that the 4th Amendment, in its original context, did not apply to the method law enforcement used to collect ordinary business records.

Thus, for now, cell phone records have significant 4th Amendment protection under this narrow ruling. What is less clear is whether other forms of personal digital data will receive the same level of protection.

We here at Clarkston Legal have seen many criminal cases turn on the admission of maps based on cell phone data. The exclusionary rule implicit in the 4th Amendment is directly at issue in such cases.

The SCOTUS has decided a half-dozen significant cell phone related privacy cases. We will continue to monitor the High Court's docket to report on these interesting decisions.

Post #618
www.clarkstonlegal.com


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Tuesday, June 19, 2018

Oakland County Embryo Case Heading for Evidentiary Hearing

An interesting case from the Oakland County Family Court poses the question: is a fertilized yet frozen human embryo property or a person?

Oakland County Family Court Judge Lisa Langton has been assigned the task of deciding this question. One couple on her custody docket cannot agree on the disposition of a group of frozen embryos.

The couple, Gloria Karungi and Ron Ejalu, contracted with an in vitro fertilization clinic whereby 10 of the couple's embryos were frozen from their genetic materials. According to the contract, the frozen embryos are characterized as the joint property of the parties; any disputes between the tissue donors and the clinic are to be settled through arbitration; the contract is silent as to disputes between the donors.

Unfortunately, the parties to the embryo contract have a daughter with sickle cell disease and Mom and Dad are no longer a couple. Mother believes that if she has another child with Father's DNA, using a frozen embryo, genetic material from that child may be able to help or cure her daughter.

Father will not agree with Mother's request to implant one of the embryos to beget a second child. So the matter was brought to the family court where Mother sought a legal ruling on the "custody" of the embryos. 

Judge Langton ruled that she only had jurisdiction over the couple's daughter and limited her decisions in the case to custody, parenting time and child support relative to the daughter. In dismissing the embryo dispute, she based her ruling on a case-code selected by the parties when Mother initially filed the entire matter as a child support case.

Mother appealed Judge Langton's ruling to the Michigan Court of Appeals. In her appellate filings, Mother raised all manner of custody arguments relative to the embryos, claiming that the family court had jurisdiction on the basis that a frozen embryo was a "person".

One indication of the unusual nature of the case is that each of the three appellate judges assigned to the panel wrote a separate opinion. The case was remanded back to Judge Langton in a 2-1 vote.

In the lead opinion, Judge Colleen O'Brien -a former Oakland Circuit Court Judge herself- wrote that the lower court should have treated this case as a contract dispute, not a custody matter. In remanding the case back to the family court, however, the Court of Appeals noted that the record was insufficiently developed to determine whether the family court had jurisdiction.

The appellate court mused whether the subsequent conduct of the parties served to amend the contract; it also wondered whether one or both parties waived the arbitration clause of the contract by their filings in the family court; the court further speculated that the family court, and not the civil division, was the proper court to decide this dispute.

Taking issue with the dissenting opinion, Judge Christopher Murray felt compelled to write a concurrence, emphasizing that the majority opinion properly identified and corrected the family court's error: the lower court improperly dismissed the embryo dispute based on the case caption.

Judge Murray points out that in remanding the matter to further develop the record, the majority opinion merely points out that an issue may exist regarding the family court's primary jurisdiction due to the arbitration clause contained within the embryo contract.

In her dissent, Judge Kathleen Jansen adopts a different approach than the majority, noting that the embryo contract technically was between the biological donors and the clinic, not between each other. Nor is Judge Jansen convinced that the arbitration language binds the former couple regarding the embryo dispute as between themselves. This view, of course, provides a green light to the lower court to conduct further proceedings in order to develop a record from which various custody rulings can emanate.

What Judge Jansen found most disturbing was the majority's characterization of the matter as a contract dispute when neither party raised that issue below but rather, couched all of their filings in terms of a custody dispute. Judge Jansen concluded that, "[t]he trial court ... lacked legal authority to consider the disposition of the embryos in the context of a custody case."

Although the Michigan Supreme Court took a pass on this interesting case, Justice Bridget Mary McCormack wrote separately to opine:
....that the trial court should not avoid the question argued by the parties: whether frozen embryos are persons subject to a custody determination. The answer to that question could prove dispositive regarding whether the contracts resolve this dispute. See Harvey v Harvey, 470 Mich 186, 194 (2004) (stating that “parties cannot stipulate to circumvent the authority of the circuit court in determining the custody of children”). And if the trial court concludes that embryos are not subject to a custody determination, it is still bound to make a determination about the proper legal disposition of those embryos, if not under contract law or child custody law. Under Const 1963, art 6, § 1, it has an obligation to exercise the judicial power to decide the dispute before it. See also MCL 600.605 (circuit courts “have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state”). 
With the case now remanded to her trial court, Judge Langton will re-consider Mother's motion for summary disposition tomorrow morning. She will decide whether a frozen embryo is a spec of property or a human life.

Post #617
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Tuesday, March 20, 2018

Assault Rifles and the Right to Bear Arms

Given the regularity of mass shootings in the U.S., with their attendant state law reactions banning certain assault-style weapons, someday soon there will be a petition for certiorari granted by the SCOTUS to take yet another look at one of our bedrock individual liberties. The last time the high-court considered the merits of a Second Amendment right to bear arms case was back in 2010.

SCOTUS set the legal agenda relative to the right to bear arms in its 2008 District of Columbia v Heller decision. In that case and in McDonald v City of Chicago, Justice Antonin Scalia struck local ordinances banning handguns.

These cases, however, left open the question of what standard should be imposed in reviewing the constitutionality of state hand gun laws. The so-called intermediate standard requires that a state hand gun law be "substantially related to an important government interest". A lesser standard merely requires that gun laws be reasonable and bear a rationale basis to the state's interest in their regulation.

Second Amendment advocates prefer the "strict scrutiny" standard of review. This standard presumes the state law is invalid unless the state satisfied a burden to demonstrate a "compelling state interest" to justify the policy on which the gun law is based.

Over the decades, three principles of jurisprudence have emerged relative to the Second Amendment. First, there is no such right to unlimited gun ownership. In his Heller opinion, Justice Scalia stated that not all weapons are protected under the Second Amendment such as "weapons that are most useful in military service—M–16 rifles and the like."

Second, courts addressing gun law cases in the modern era of monthly, if not weekly, mass shootings, will draw from the principled regulations laid out in the Heller case. These principles include: a general ban on assault or military grade weapons; required child protection devices such as trigger locks; banning classes of individuals such as convicted felons and the mentally ill from gun ownership; and universal registration requirements.

As has been demonstrated by past decades of mass shootings, however, nearly every one of these laws, both federal and state, are broken by a  murderous shooter. With shocking ease, the mentally ill person, the terrorist, or the felon, wind-up at a gathering of many many innocent people, gun in hand, ready to deal-out death to everyone in range.

Third, with the absence of a clear ruling by the SCOTUS adopting a specific standard to review state gun laws lower appellate courts will have continued influence in shaping this area of law.

In this regard, we take note of a recent en banc decision coming from the 4th Circuit Court of Appeals. In the wake of the Sandy Hook tragedy, where first graders were shot to death, Maryland passed a comprehensive package of laws totally banning assault rifles. In the decision upholding this package of tough gun laws, the 4th Circuit took a significant step in establishing precedent and providing a gun control guidepost for the other circuit courts of appeal across the nation.

Kolbe v Hogan was decided by the entire 4th Circuit bench and holds that state gun laws are reviewed under the [more lenient] "intermediate scrutiny" standard. This means that the state gun law is more likely to withstand the so-called "intermediate" scrutiny. The first three-judge panel of the 4th Circuit -the panel originally assigned to decide the case- struck the Maryland law by utilizing the "strict scrutiny" standard.

Gun advocates will curse the decision. Consider, for example, this well-thought-out Op Ed piece from the Washington Post's Voloch Conspiracy. Of interest to Second Amendment proponents, this piece draws a technical distinction between military weapons and assault-style automatic weapons like the long-infamous AR-15.

America must await another Second Amendment case for SCOTUS to finally weigh-in on the proper standard under which state gun laws should be reviewed. Interestingly, last month the SCOTUS declined to hear the Kolby case.

Will tougher gun laws prevent mass shootings? Unfortunately, we here at the Law Blogger say, probably not. But it's a start.

We base our pessimistic view on the ease with which anyone can acquire an automatic weapon, both seller and purchaser violating laws without a thought. Youtube has featured several recent individuals demonstrating how easy it is to purchase an assault weapon and plenty of ammunition to go along with it.

A decade ago, Australia passed laws that struck at the root of their gun violence epidemic; the government confiscated assault rifles and banned their manufacture and importation. Going after the source of the gun problem -the manufacturers- in this country will ignite a massive legal battle on the level of slavery, abortion, civil rights, and marital equality. We're a long way off from that here in America.

Over here at the Law Blogger, we'll be searching for that case. And while we search, and monitor and wait for the right case to come along, we'll be hoping that none of us come across a deranged killer with a locked and loaded assault rifle like so many of our children do.

Post #616
www.clarkstonlegal.com


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Monday, February 19, 2018

Custody Ruling Impacts Transgender Teen

transgender child custody
Ohio Judge Sylvia Hendon
Interesting custody cases involving transgender-minded teenagers are emerging from family courts around the country. Many of these cases pit the minor children against their parents, and bring grandparents into play.

On Friday, an Ohio family court ruling modified custody of a transgender-hopeful teenager, terminating his parents' rights and awarding custody to his maternal grandparents. Hamilton County Juvenile Court Judge Sylvia Hendon was moved by the high school student's desire to begin hormone therapy; the first step to transforming from the male to female gender.

In this case, known as In re: JNS, the teenager disagreed with his parents about whether he could begin hormone therapy. Eventually, things became so bad at his home over the past year, the teenager reached out via email to a crisis hotline and was admitted to the Cincinnati Children's Hospital. 

From there, the teenager provided details of his home life and mental condition to doctors. The hospital refused to return the teenager to his parents and the matter was referred to the family court.

Over the past two years, the teenager's parents struggled with their son's deep depression. When they sought treatment from Children's Hospital, they were shocked by a diagnosis of acute gender diaspora [strongly identifying with the opposite of one's biological gender]. 

A juvenile abuse and neglect case opened last February and several "best interests" hearings were conducted to determine where the boy should live until he emancipated into adulthood. Placement was an issue because the boy's parents objected to case plans stating that Children's Hospital "would like" to begin hormone therapy consistent with the diagnosis of gender diaspora.

Eventually, and according to the family court judge, inexplicably, the hormone therapy case plan was withdrawn after the abuse and neglect charges were dropped. From there, the boy was interviewed by the judge and a 4-day trial was conducted in January on the maternal grandparents' petition for custody.

During trial, proofs went in detailing the boy's struggle with severe depression; about acute gender diaspora; about the role of the Children's Hospital Transgender Program; and the methods of treatment such as psychotherapy, hormone therapy, and surgical intervention. Judge Hendon expressed concern in her opinion and order that the director of the hospital's Transgender Program testified that 100% of all the patients seen were considered appropriate for continued transgender therapy. 

Therefore, the order changing custody to the maternal grandparents -who purportedly support the 17-year old's transgender ideation- entered last Friday; the order contained a few conditions. First, the teenager will undergo a psychiatric evaluation by a professional not associated with the hospital's transgender program; and the boy's parents were awarded reasonable visitation and were "encouraged to work toward a reintegration of the child into the extended family."

In papers filed with the family court, the boy stated that he fears returning to his parent's home. He claimed his parents are in denial of his gender diaspora and have attempted to reprogram their son by reading passages from scripture for up to six hours at a time.

Judge Hendon carefully articulated her rationale for changing custody:
The parents acknowledged the child expressed suicidal intent if forced to return to their home. It is unfortunate that this case required resolution by the Court as the family would have been best served if this could have been settled within the family after all parties had ample exposure to the reality of the fact that the child truly may be gender nonconforming and has a legitimate right to pursue life with a different gender identity than the one assigned at birth.
The judge's opinion and order also called for legislation to provide a framework for courts to assess a juvenile's request to explore gender therapy. 

We here at the Law Blogger agree with Judge Hendon that many similar cases are "out there". Yet we are perhaps somewhat naively surprised that children have such acute sexual preference awareness and gender nonconformity alienation at such an early age.

Kids these days; they're growing-up fast, that's for sure.

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