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

Saturday, May 21, 2016

East Lansing Riot Ordinance Ruled Unconstitutional

This one got our attention. A district court judge in East Lansing struck down a township ordinance making it a crime to to stand within 300-feet of a fire and not report it to police.

The so-called "riot" ordinance was designed to curb the swell of unruly crowds during the occasional but persistent student riots in and around the Cedar Village neighborhoods.

Our law firm routinely represents students from Oakland County that attend Michigan State University. On a few of those occasions, our clients have been charged with East Lansing's ordinance in the wake of a significant Spartan victory.

On both occasions, at the pretrials, we challenged the ordinance on constitutional grounds. Our argument was that the wording of the ordinance was vague and over broad, including within its scope legal conduct under our First Amendment right to peaceful assembly.

When we made that argument, we were offered plea reductions to trespass or disturbing the peace on both occasions, with the tickets being dismissed following a brief period of non-reporting probation. This, of course, removed the opportunity to further challenge the ordinance.

Now that at least one judge has ruled this ordinance unconstitutional, we shall see whether the township appeals the ruling. If they do, the matter will proceed to the Ingham County Circuit Court and, from there, to the Michigan Court of Appeals by application for leave.

East Lansing Lansing Mayor Mark Meadows stated that the township would either amend the ordinance to remove its unconstitutional bent, or appeal 54-B District Judge Andrea Larkin's order. The local police chief criticized Judge Larkin's order, saying the ordinance was an effective way of controlling large crowds and fires.

In a free society, however, the more a law chills free speech and freedom of assembly -despite its utility as a law enforcement tool- the closer it comes to violating of our fundamental rights. Unfortunately, one of the hallmarks of our free society is that Spartyville erupts following their big victories.

Post #540

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Tuesday, May 17, 2016

Regulation Crowdfunding

StartEngine Co-Founder Ron Miller
Yesterday a new set of SEC rules took effect that could be a game-changer in the way start-up projects obtain venture capital. The new rules, known as Regulation Crowdfunding, are the culmination of a bi-partisan act signed by President Obama nearly 4-years ago.

The Jump-Start Our Business Start-Ups Act introduces a series of technical changes that streamlines the process of raising capital for small businesses. The Act and the SEC regulations that went live yesterday will make it easier for companies to raise venture capital; now the little guy can swim with the sharks.

Many companies hoping to take advantage of the new rules have been gearing-up over the past several years.

StartEngine Crowdfunding is one such company, based in Santa Monica, California, and co-founded by Ron Miller, a 1987 graduate of the University of Detroit School of Law. StartEngine helps Los Angeles-based start-ups obtain venture capital quickly [90-days] and supports the companies with corporate mentoring and other business-related services.

While there is excitement in the air among hopeful start-ups and entrepreneurs, the SEC took great pains in promulgating their rules because they did not want to see smaller investors lose their money. Most start-ups have a rough go of it, going belly-up in a 5-years or less.

Some folks are not above running scams, and of course, everyone wants a piece of the next Snapchat, Instagram or Tinder. But when you put your money into venture capital, getting it out is not as easy as calling your broker and selling shares of stock.

In the years to come, we will see how these new rules operate on this new investment platform.

Post #539

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Friday, May 13, 2016

The Artificially Intelligent Lawyer

Baker Hostetler, a large law firm with offices in cities across the country, has announced it will harness technology in IBM's "Watson" to assist its lawyers with bankruptcy research. The Big Law firm has partnered with Ross Intelligence to tap into Watson's computing powers.

The partnership was announced in mid-April at Vanderbilt Law School in Nashville, Tennessee during a conference on artificial intelligence and the law. Ross Intelligence founder Andrew Arruda claims to have developed the world's first artificially intelligent lawyer.

Apparently, Ross is built atop Watson's cognitive computing and natural language processing capabilities. Ross is given a legal assignment; it then researches the relevant law and outputs a series of highly fact-specific evidenced based responses.

One of the innovative features of this artificially intelligent lawyer is that it learns from its users assignments, allowing it to bring back better results with each assignment. Ross also continually monitors the law, alerting the lawyers who have tasked out the machine to any changes.

The stated goal at Ross is to provide every law firm and lawyer with an artificial intelligence unit to assist in the delivery of legal services to clients.

Of course, this all gives rise to concerns of technology control, ownership, professional liability, and legal ethics. First comes the machine, then the laws follow.

We here at the Law Blogger will enjoy witnessing the dawn of the artificially intelligent attorney. We cannot wait to purchase our own law droid.

Post #538

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Saturday, April 30, 2016

Should a Supreme Court Justice Maintain Regular Office Hours?

Over the years, we have observed Fox 2 Detroit's "ambush journalism" in the context of the judiciary. Who could forget the piece that ended former Judge Dennis Powers' career as a district court judge in Novi; or their -unsuccessful- attempt to put egg on Judge Rae Lee Chabot's robes.

The idea is to get some choice undercover footage of the judge or justice outside the courtroom, preferably out-of-doors, at home, or at a restaurant. Then, when they least suspect it, stuff a microphone in their face as they are walking toward their car and ask them why they are not in court.

This time, Fox 2 set their sights on the Michigan Supreme Court and Justice Brian Zahra. The ambush occurred outside his parents' home, apparently in the middle of a Tuesday morning; the allegation is that Justice Zahra only goes into his office once a week.

This story raises the issue of whether a Supreme Court justice is required to maintain regular office hours between 9:00 am and 5:00 pm. To address this issue, you have to know something about what a High Court justice does.

Unlike other Michigan courts, the Supreme Court controls its docket by selecting -through a vote of the 7 justices- which cases it will decide. On average, there are about 3000 cases filed with the High Court each year.

The job entails reading an endless supply of briefs written by the best lawyers in Michigan and other states; the job entails staying abreast of the developments in the law; reading lower court opinions; reading statutes; thinking about how those laws apply to a particular set of facts; and, in their assigned cases, writing the opinion that will become binding law on all the lower courts in Michigan.

These days, all appellate briefs -along with the attachments known as an appendix- are required to be uploaded to the court website. As Justice Zahra said in his interview, he has his entire docket and office on a thumb drive.

No one would seriously argue that reading submissions in electronic format requires someone to be sitting at a desk in an office between the hours of 9 and 5. In fact, an argument could be made that a traditional office setting is a place of distraction when it comes to reading, thinking and writing about the law.

Oftentimes, when this blogger has an appellate brief due, I avoid the office for the peace and quiet of my private study in my home. To have a stream of staff walk in and out of my office when trying to complete a brief on deadline is stressful and counterproductive.

My first job out of law school in 1988 was a law clerk position at the Michigan Court of Appeals. In the pre-hearing division, we were assigned an office with a complete set of Michigan reports and statutes; actual books on the shelves; no computers. Our reports to the judges were written-out long-hand on legal pads and then given to secretaries in a typing pool.

Today, an entire law library, along with all the files in my law practice, fit in my laptop computer with instant access. With smart phones, the expectation is that legal professionals are available 24/7.

So who knows whether Justice Zahra works on weekends, late into the night, or early in the morning in order to complete his opinions in the cases assigned to him by the Chief. Does this really matter so long as his output, as one of seven justices on the High Court, is getting done on time?

We are told by the Chief Justice, Robert Young, that his work is timely and exemplary. He gets high marks from his colleagues on the bench; those in the best position to know whether Justice Zahra is doing his job.

Also, a supreme court justice is different than a trial judge that must be present in her courtroom everyday in order to address her docket through hearings, trials and conferences. When trial court judges run late or are absent, the docket starts to back-up, and expensive legal professionals end-up standing around a judicially empty courtroom.

That's a problem for the trial courts. On appeal, not so much.

Post #537

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Tuesday, April 19, 2016

Executive Branch's Immigration Policy Challenged by States at the SCOTUS

It's that time of year when the SCOTUS is awash in oral arguments that will lead to the seminal opinions of this term. So it was yesterday at the High Court in Washington, D.C. for argument in the case of United States v Texas, posing an important immigration policy question that tests the very limits of executive branch power.

This case presented an evenly divided Court -down one justice following Justice Scalia's sudden death in February- with the task of passing muster on President Obama's innovative immigration policy; a series of recent executive directives made through the Department of Homeland Security known as Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).

The objective of DAPA is to provide favorable prosecutorial discretion for otherwise illegal immigrants that satisfy certain express criteria [such as verifiable employment, and having a young adult child that is a citizen of the United States], granting such individuals a limited period of time during which they are deemed to be "lawfully present" in the United States. The term "lawfully present" is at the center of the dispute.

Here are the legal mechanics of the issue, as stated by the SCOTUSBlog:
(1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.
We here at the Law Blogger define the issue as: whether the President or Congress should decide who, among the more than 10-million illegal immigrants in the US, gets to stay in-country, and for how long, despite no legal right to do so.

Texas and 25 other states challenged Obama's executive acts relative to DAPA and successfully had the executive acts enjoined by a federal judge in Texas; the injunction was affirmed by the Fifth Circuit Court of Appeals.

The Solicitor General of the United States asserted that President Obama had the constitutional authority to establish priorities for enforcement of the federal immigration laws. Further, the United States argued that Texas, not being harmed by DAPA, lacked standing under the constitution to even bring the suit to federal court.

Texas, on behalf of itself and many other states that joined the suit, asserted that it would suffer significant administrative costs [i.e. providing drivers licenses and other government services] devoted to a group of people who are in the country illegally.

Chief Justice John Roberts, active during the extended oral argument, was skeptical of the federal government's position, giving rise to speculation that he would not likely join the block of 4 liberal justices. Without five justices signing onto a "majority" opinion, the ruling will lack authority as precedent and the Fifth Circuit's injunction of the federal directives will remain in place for the balance of President Obama's term in office.

President Obama's legacy aside, there are countless lives and families in the balance, along with our national security. This case presents a complicated mess, to be sure.

We will be watching for the SCOTUS opinion on this case so stay tuned.

Post #536

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