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: info@clarkstonlegal.com

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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info@clarkstonlegal.com


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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Saturday, August 30, 2014

Digitizing Guardianships and Conservatorships

It took us three months, but we managed to do it; input pertinent vital information into a private database for nearly 100 individuals over whom we have responsibility in our capacity as a professional fiduciary.

The Oakland County Probate Court has seen a steady increase in the number of open guardianship and conservatorship files.  A guardianship and or a conservatorship becomes necessary when a person becomes incapacitated in some way and is no longer able to take care of their own affairs.

Here is Michigan's legal definition of an incapacitated individual as set forth in the probate code known as EPIC [Estates and Protected Individuals Code]:
Incapacitated individual means an individual who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, not including minority, to the extent of lacking sufficient understanding or capacity to make or communicate informed decisions.
The affairs to which a fiduciary must attend are varied and often unlimited.  Tasks include paying bills, managing income, benefits and services, keeping the ward within a budget, administering medication, maintaining a safe residence, accounting for all income and expenses in the process to the probate court, and many of the other of life's routine yet collateral matters.  Since April, a guardian can also be called upon to execute a DNR for the ward.

Guardianships involve the incapacitated individual's medical issues and living arrangements, while a conservatorship is for the marshaling and conserving the individual's assets.

As one of 8 Public Administrators taking direct probate court appointments, my office staff and I manage over 100 fiduciary accounts.  While it is not rocket-science from a legal perspective [although every case is different], it is very challenging to keep track of more than 100 lives, serving as professional fiduciary and overall substitute decision maker.

Our office has implemented and trained on a software tool we learned about at a recent annual meeting of the Michigan Guardianship Association.  This software allows us to input and manage our ward's vital information in an organized efficient and digitized fashion; vital information at our fingertips needed to prosecute that fast-paced probate docket.

Our associates do not need to leave their work stations to retrieve a physical file, although, sadly, those files are still with us; we're not paperless yet, just paper redux.  We can quickly and efficiently retrieve information from our database that a hospital or doctor needs to complete an important, sometimes critical, procedure for one of our wards.

We can monitor the constantly changing details of the wards' health; of their living situation; and their physical needs.  Despite our recently accomplished digitization, we here at Clarkston Legal are mindful that our most important task is the face-to-face contact maintained with our wards.

If you have a loved one, family member or friend that is in need of fiduciary protection and would like to learn more about the process, consider contacting our office for a free consultation.  Our associates Beth Schlosser and Christopher Kelly are ready to assist.

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