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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, January 31, 2019

Arctic Man Goes to SCOTUS

As extreme sports go, Arctic Man must be a trip. To paraphrase Chief Justice John Roberts, when you put 10,000 mostly drunk people in the middle of nowhere, 8 cops are just not enough to keep the peace.

We here at the Law Blogger would add: the object of the event is to determine who can ski the fastest being pulled behind a snowmobile. Physical limitations and judgment come into play from the outset, to be sure.

Nevertheless, that was the situation in central Alaska that led to Nieves v Bartlett which has been winding its way to the SCOTUS for the past 4-years. The state troopers perhaps best set the stage in their petition for certiorari:
Every spring, thousands of extreme skiers, snowmobilers, and spectators gather in the remote Hoodoo Mountains of interior Alaska for Arctic Man, a multi-day festival centered around a high-speed ski and snowmobile race. Campers congregate at night to drink and party, and rampant alcohol use compounds safety concerns at the event.
On the last day of Arctic Man in 2014, Troopers Luis Nieves and Bryce Weight were on duty, patrolling a large outdoor party where minors appeared to be drinking alcohol. Nieves encountered respondent Russell Bartlett at the party and attempted to speak with him, but Bartlett declined to talk to Nieves. Meanwhile, Trooper Weight spotted a minor who appeared to be drinking alcohol and began speaking to him at the edge of the crowd. Bartlett marched up to Weight, loudly demanding that Weight stop talking to the minor.
Trooper Nieves asked Bartlett to identify himself and requested that he move a tapped keg inside his tent. Instead, Bartlett refused the trooper's commands exhibiting belligerent behavior toward the troopers.

In front of the troopers, Bartlett instructed the minor not to answer their questions; no parents or guardians of the boy were anywhere to be located.

Bartlett's conduct resulted in resisting arrest and disorderly person charges. When his criminal charges were dismissed, Bartlett filed suit against the troopers.

His separate civil rights law suit was filed in a federal court under 42 USC 1983; now, the case has made it all the way to the SCOTUS. Oral arguments were presented last November; a decision will be issued this spring.

This case is the latest in a series of what is known as "contempt of cop" or "retaliatory arrest" cases: an arrest based on an officer's perceived slight, with the occasional emphasis on the content of the accused's speech. The collateral civil litigation in Arctic Man claims that the subject of such an arrest was merely exercising his right to free speech under the First Amendment to the United States Constitution. To arrest someone under such circumstances, the claim goes, violates the speaker's fundamental right to free speech and thus constitutes an illegal seizure under the Constitution.

On the other hand, the petitioners, Alaska State Troopers, assert an age-old common law principle that law enforcement officers are immune from civil liability wherever probable cause to arrest exists. The troopers argue they had probable cause to arrest Bartlett on multiple charges thus, they are immune from his civil rights law suit.

The civil rights law at issue in the case, 42 USC 1983, provides a cause of action where a state actor, under the color of state law, subject a person to the deprivation of any right provided by the Constitution; in this case, the First Amendment and its attendant right to free speech.

How far can you go in your speech when interacting with a peace officer? Can you insult, challenge, disparage, offend, mischaracterize, or demean the officer?

Not to put too fine a point on it, but the precise issue argued at the SCOTUS was whether Bartlett, the declarant, had the affirmative duty in his civil lawsuit to demonstrate that the troopers lacked probable cause to make an arrest. Which party shoulders the burden of evidence production affects the trajectory of the case.

Alaska argues that under the civil rights statute, Bartlett must prove a negative [i.e. that no probable cause existed allowing the officers to intervene] or he must prove his arrest was executed pursuant to a municipal policy of retaliation.

The Troopers' reply brief frames the issue posed in this case, facing officers each and every day as they go about fulfilling their duties:
A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.
Of course, the officer must have the power to exercise his professional discretion to make an arrest in light of probable cause that a crime is being committed. Our safe society depends on this basic law enforcement power.

Against this tapestry is also the backdrop of the Roberts Court's vigorous protection of First Amendment freedom of speech, and its contrasting penchant to defer to law enforcement's discretion of how they do their job, assuming probable cause exists to intervene with the citizenry.

We here at the Law Blogger will anxiously await the Supreme Court's decision.

Post #623

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Sunday, January 13, 2019

The Bezos' High-Value Divorce

This post was primarily authored by Austin Probst of the Clarkston Legal law firm.

After a Quarter-Century of marriage, one of world's wealthiest and best known couples, MacKenzie and Jeff Bezos filed for divorce. Jeff announced the split on his Twitter feed: "After a period of loving exploriation and trial separation, we have decided to divorce and continue our shared lives as friends."

As two of the wealthiest individuals in the world, the property division in this divorce will be complex. This complexity could deepen given the couple's desire to continue as business partners in joint ventures and other projects. 

The World's Wealthiest Couple

According to Forbes, Jeff Bezos is estimated to be worth $137 billion dollars. His wealth thus eclipses Warren Buffet and Bill Gates; Bezos is arguably the world’s richest man. The Bezos marital estate will undoubtedly be comprised of complex stock grants, vesting schedules and shareholder agreements. The marital estate will also include business interests separate and apart from Amazon, like the aerospace company Blue Origin, the venture capital firm Bezos Expeditions, and The Washington Post

While Michigan is a separate property state, and the law differs from the state of Washington, the Bezos' divorce is nevertheless instructive. This divorce is instructive here in Michigan from a high-value property division perspective. 

Lack of a Prenuptial Agreement

Much already has been written about this inchoate divorce in the press. Monday morning analysts remark how strange it is that the world's richest couple purportedly do not have a post-nuptial agreement. Well, when you think about the fact that this couple was relatively young when they met, that neither was wealthy, Amazon did not exist, and that they may have been in love, the lack of a post-nuptial agreement is really not surprising. Even if Amazon was around at the time of the Bezos nuptials, MacKenzie was a laboring oar during the company's early years and added value during the marriage. Thus, any pre-nuptial agreement would have come under close scrutiny in the court of equity that is the family court.

Property Division in Divorce

The key issue for resolution in a high-asset divorce is the division of property. Different states have different rules relating to the division of the marital estate. Michigan, unlike Washington, is a separate property state, which operates on a principle of equitable distribution. Equitable does not mean equal. While often times a marital estate is divided approximately 50/50, this is not always the case.

As a practical matter, most stock has some value. In the case of Amazon, the stock has significant value; its value has increased markedly over the past 3-years.

Jeff Bezos owns approximately 16% of Amazon stock, worth over $130 billion. Unlike a traditional financial instrument like a 401k or IRA, this stock position often complicates the property division in divorce. 

Generally, stock acquired during marriage is subject to division. Often, however, such stock is neither marketable nor liquid at the time of a divorce. 

In the Bezos’ divorce, the couple was married at the time Jeff began developing Amazon. Little known fact: MacKenzie helped Jeff grow and develop the company when they moved to Seattle in 1994 during the first year of their marriage; MacKenzie functioned as Amazon's first controller.

Since both spouses added value to the venture during the marriage, they each have an interest in Jeff's stock position. This begs the question, how should the Bezos' Amazon stock be divided? The answer: it depends. There are a number of legal and equitable considerations that must go into the division of the Amazon stock. These considerations present a set of pros and cons that may benefit or detract from a spouse's position. 

Stock Split

One approach splits the stock in like kind. This would result in Mackenzie being awarded about $65 Billion in Amazon stock. It would make her the second-largest shareholder in the company and the world’s richest woman in front of Alice Walton of Walmart, Laurene Powell Jobs of Apple and Disney Co., as well as Francoise Bettencourt Meyers of L’Oreal. 

Such a stock transfer could significantly impact the value of Amazon. However, this seat change may have an effect on the stock value as a whole. Recall the fervor resulting from Steve Jobs’ untimely death and the ensuing mania regarding the future of the company and its value devoid of one of its key founders.

A second option is a buy-out of value whereby Jeff transfers value, but not Amazon stock, to MacKenzie. In this scenario, Mackenzie receives cash and other assets in place of the stock. The limitation of this approach is the couple's liquidity. Is there sufficient cash to make this work? This is a common concern in most high-asset divorces.

The buy-out approach allows Jeff to retain his 16% stock position in Amazon while Mackenzie would be made whole via cash payments and other asset transfers. Here in Michigan, ‘equitable distribution’ is the key principle. In that way, separate property interests can be deducted and taken into account, assuming those interests and their value can be appropriately traced and that the assets have not been co-mingled. 

A third option transfers the entirety of the Amazon stock into a single entity or trust under which the couple would have joint control along with a neutral advisor -a trustee- acting as a deciding vote on all issues related to corporate decisions. In this way, negative investment perception can be assuaged in that, there would not be two separate shareholders with separate agendas and voting rights relative to the company. This would alleviate concerns that there could be an injection of potential divorce-drama within the operations of the company. However, the equity-transfer option is rare and requires the right type of company and divorcing couple to be viable. 

Even with these options, complications often persist. Emotional turpitude, behavioral variants, and the overall relationship history often cause aberrant results. Domestic violence, infidelity, and substance abuse skew a parties’ perception of what is ‘fair’ and ‘equitable’. 

Unfortunately, emotional damage is not well compensated in divorce. Notably, Michigan has a no-fault divorce system which minimizes infidelity and devalues the most of the gain by the faithful party over the adulterer. 

As such, though the process can be difficult, it is to the parties’ advantage to remain as level-headed and financially forward looking as possible. An acrimonious divorce, especially in the Bezos case, could be bad for business. 

Business Ownership in Divorce

Related to stock interests in a publicly traded company is business ownership. Although the Bezos divorce does not exactly present this issue, often times high net worth individuals own separate pass-through companies such as an S-corporations or variants of sole-proprietorships. These business assets are usually subject to a high degree of emotional attachment. Family businesses often pass from one generation to the next. An S-corporation is the brain-child of a spouse, constituting her life work. 

Emotional attachment to a business asset poses the potential for an increase in acrimony, bitterness, antagonism, and even hostility for the divorce. And yes, it also frequently distorts the true value of an asset.

For example, A enters into an agreement to purchase his father’s widget business 6 months into A’s marriage to his new wife, B. A has worked with widgets and his father for 12 years in the company and finally can make the improvements he wishes to implement while his Father can happily retire. Over the next 15 years, A negotiates a myriad of successful contracts, resulting in a spike in business revenue. However, in the sixteenth year, a new administration threatens the price and marketability of widgets. At the same time, B decides that she needs to divorce A.

The problem here is obvious: the business itself is a marital asset. As such, it needs to be valued and equitably divided. However, A has a deep emotional connection to the business and B has never contributed to the businesses success in the eyes of A. Spouse A has a difficult time rationalizing the fact that B will likely need to be compensated for her interest in the widget business. But just how much is that interest?

Often times, parties will engage their own respective business evaluators in an attempt to numerically value a complex asset. However, these evaluations can sometimes lack integral information. In the example, A is the key employee of the widget business. He has negotiated contracts, built relationships, and increased value. Without A, the business may not be as lucrative. Additionally, the new administration guidelines may cause a forecast of the business revenue to substantially decrease given negative market constraints on widgets. There are a number of ways to analyze the division of an asset like this.

First, the business may be valued and A would buy B out of her 50% interest with some other value offset or cash. This option is straightforward and provides B with the comfort of additional liquid assets or otherwise. Meanwhile, A continues to run the business in an attempt to further revenue generation.

Another option would make A and B joint owners, much like the Bezos example of the 16% Amazon stock position. However, this arrangement will likely require ongoing cooperative efforts and a stable relationship between the parties which is, sometimes, unattainable. It can also compromise the integrity and continuing operation of the business. Of course, investor perception is not a consideration in this case as it is assumed the business in this example is a closely-held concern.

Yet another option may be to sell the business, assuming it is marketable. Often times though, a closely held family business has little market value if any. The point here is that these complex assets need to be dealt with appropriately and professionally. There are no ‘hard and fast’ rules. Whether dealing with closely held corporations, stock ownership, or traditional financial vehicles, when it comes to equitable division, there are a million ways to shear a sheep.

Child and Spousal Support

The Bezos couple has four children. The children have yet to reach the age of majority which generally means child support would be an issue in the divorce. Child support, in Michigan is calculated pursuant to the Michigan Child Support Formula. The formula takes into account several factors: parenting time (calculated numerically by the number of overnights the parents have with the children); the relative incomes of the parties, insurance costs, daycare costs, and other factors. However, it should be noted that given the relative wealth that both parties will undoubtedly see at the conclusion of their divorce, child support should be a minor issue.

Coupled with the discussion of child support is spousal support, traditionally known as alimony. Spousal support is an equitable consideration and is often calculated based upon factors such as length of marriage, income of the parties, ability to pay, and the like. 

In the Bezos case, spousal support may not be a consideration, even with a lengthy marriage, given that Mackenzie will be awarded substantial assets [i.e., in the billions]. In many cases, however, a spouse is not expected to use a property award to provide for their own support. In the Bezos case, the sheer size of the estate distorts these principles.

In many divorce cases spousal support is a highly contested issue. This is particularly relevant given the changes imparted by the new Tax Cuts and Jobs Act.

Beginning January 1, 2019, support payments are no longer deductible to the payer and no longer includable as taxable gross income to the payee. While this may initially shock the conscience of potential higher-earning payer spouses, there are persuasive interpretations and arguments that support formula should adjust for the inclusion of this fact. Thus, the net effect would be that the total obligation is lower than what it would have been had the tax laws remained the same.  

We Can Help

If you have a high-asset divorce with complex holdings, consider scheduling a free consultation with our law firm. This way, you can assess your options.

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Monday, November 12, 2018

Revenge of the Stoners

Of the 33 states that have passed some form of lenient marijuana-use legislation, 10 of those, most recently Michigan, have legalized marijuana for recreational use. The District of Colombia is also in both groups of states.

In Michigan, beginning next month, persons over 21-years of age may purchase,possess and use recreational-use marijuana. The era of prohibition, although not over, is deteriorating rapidly.

Coincidentally, one of the collateral consequences of President Trump’s brusque dismissal of Attorney General Jeff Sessions last week removes from the USDOJ -at least temporarily- an outspoken opponent of pot legalization. In the "old days" of the Obama Administration, the USDOJ's official policy was set forth in the so-called Cole Memo where United States Attorneys were instructed not to pursue federal prosecutions for marijuana possession in states that had some form of lenient marijuana legislation.

Mind you, having just returned from California last week [a state that is a half-decade ahead of Michigan relative to dispensing product] this is not your father’s marijuana; the products are diverse, potent, cheaply and locally produced.

Michiganders must keep in mind that, despite the new recreational marijuana law, it still remains illegal: a) at the federal “Schedule 1” level; b) to smoke marijuana in public places; and c) to drive under the influence of active THC in your bloodstream.

Highlights of Recreational Use of Marijuana

The new recreational marijuana law allows:
  • Persons 21 and older to purchase, possess and use up to a dozen plants;
  • Keep up to 2.5 ounces of marijuana in a locked container at one’s residence;
  • The promulgation of regulations for all aspects of the marijuana business [i.e. growth, testing, dispensing, and transportation];
  • Commercial sales of marijuana-infused products via state-licensed dispensaries; and
  • Municipalities to promulgate ordinances to ban, restrict or otherwise regulate the distribution of marijuana.
Content has exploded across the local press with all sorts of useful tips on how to ride the recreational pot wave. Here are examples from the Freep [which even went so far as publishing a handy stoner's glossary of sorts] and the Detroit News.

Here Come the Regulations

If the regulations accompanying last year’s expansion of medical marijuana licenses are any example, you can expect similar recreational-use state regulations and local ordinances that: a) favor heavily-capitalized producers; b) segregate different phases of the process [i.e. testing, growth, dispensary and transport]; and c) tax the hell out of the still-cash-only revenue stream; a very healthy revenue stream predicted to be on the par with liquor and tobacco combined.

If Colorado, California and the State of Washington are comparable examples, Michigan can expect well-run, fun stores that adopt the Apple mode of retailing their in-demand products. It’s as if a “50-Shades of Grey” mentality has taken over the populace now that these goods are so smartly distributed at the retail level. Just as you can browse for a fine –and expensive- cigar in a smoke-friendly cigar store environment, you can now browse the isles and wall display units for a $25 doobie. With taxes, you’ll part with nearly $30 for a high-quality joint.

Michigan’s Department of Licensing and Regulatory Affairs [LARA] seems proactively positioned to utilize what our state government has learned from the medical marijuana regulations for this next quantum leap. LARA certainly recognizes the revenue potential to such the cash crop that is marijuana, whether medicinal or recreational.

Expungement of Prior Marijuana Convictions

Now that both medical and recreational use of marijuana are legal in Michigan, some county circuit court judges may favorably consider petitions to remove marijuana-based convictions from a person’s criminal record. Currently, the state legislature has a bill pending to require judges to consider such expungements. Also, governor-elect Gretchen Whitmer has already indicated her willingness to utilize her clemency powers to expunge low-level marijuana-based convictions and remove scores of inmates doing prison time for such offenses.

Here is a link to the Law Blogger post detailing how a twice-convicted marijuana possessor and distributor is serving a life-sentence in Missouri.

This must come as good news to the 3600 marijuana-based felons and the nearly 50,000 people convicted of marijuana-related misdemeanors over the past 5-years.

Getting Off Schedule 1

Getting off Schedule 1 will be complicated. There will have to be a Democratic majority in both houses of Congress for the stars to align for this prospect. Some Republican legislators acknowledge the job-growth and tax revenue attributes to a strong marijuana industry. So far, however, the political will to make this happen has not been exhibited.

Complications, no doubt, arise in the context of the war on drugs which has its roots back to the 1971 Controlled Substance Act which listed marijuana on Schedule 1 in the first place. In the decades since, many of the United States' multilateral treaties have marijuana prohibition as one of its central policy planks. A few referendums spread across a few states are not -yet- strong enough to derail these long-standing treaties.

Yes, it is very complex. To the North, Canada has legalized marijuana across all nine of her provinces. In Central and South America, to our South, multilateral treaties have provided the framework for the decades-long war on drugs, with military style interdiction of drug manufactures and couriers.

Until marijuana is off schedule 1, the industry has certain distinct risks. For example, do not look for marijuana-based business transactions to be conducted within banks for the next half-decade or so. Same for insurance.

Therefore, in the short term, marijuana will continue to be a strictly-cash business. This will slow down its growth. Some people don't think this is a bad thing.

We Can Help

Marijuana prohibition is a thing of the past. The new law in Michigan, and the general decriminalization process, will create some interesting opportunities for those individuals who have been burned by now-outdated laws.

If you or someone you know has a marijuana-based conviction, simply click on the link below and give our office a call to schedule a free consultation to assess your options under the new landscape.

Post #621

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Saturday, October 6, 2018

Justice Kavanaughaustion

Unless we miss our guess over here at the Law Blogger, D.C. Circuit Court of Appeals Judge Brett Kavanaugh will be confirmed by the United States Senate later today. Kavanaugh will fill the SCOTUS seat vacated by Justice Anthony Kennedy.

Advice and Consent of the Senate

Article II, section 2 of the United States Constitution, where the rubber meets the road on the concept of balancing the branches of government, states:
[The President] shall have Power, by and with the Advice and Consent of the Senate ... [to] appoint ... Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law...

America is Divided

It is impossible to avoid the crush of 24/7 news coverage of Judge Kavanaugh's nomination to the SCOTUS. America is now divided into two intractable camps: those that support Judge Kavanaugh and those that stand by his accuser, Dr. Christine Blasey Ford.

Judge Kavanaugh narrowly emerged from the Senate Judiciary Committee last week, irreparably damaged in the all-important court of public opinion. While the Judiciary Committee voted 11-10 to advance the nomination to the plenary Senate, a political compromise forced an expedited supplemental FBI investigation into Dr. Ford's allegations.

Ford claims that Kavanaugh, when they were at a high school party in the early 1980s, groped her; that he laid on top of her placing her in fear that he was going to rape her; and that he placed his hand over her mouth to prevent her from calling for help. [Criminal conduct on behalf of Kavanaugh, if true; criminal conduct on behalf of Dr. Ford, if untrue.] But for these 30-year old allegations, Kavanaugh, a conservative jurist, should have been a lock for Senate confirmation to the SCOTUS as the latest Trump appointee.

And of course, this being America, these allegations spawned other sets of allegations of more groping and excessive college drinking. All of the sudden, Judge Kavanaugh is no longer the conservative federal jurist from Yale Law School and the Georgetown Preparatory School [where SCOTUS Justice Neil Gorsuch also attended].

Although not a public document, the supplemental FBI investigation into Dr. Ford's allegations was supplied to Senators two days ago; the Senate vote is scheduled for later today. Apparently, in gleaning from statements by a few select Senators, the FBI report failed to corroborate any of Dr. Ford's specific allegations. We here at the Law Blogger would love to have been a fly on the wall when FBI agents interviewed Judge Kavanaugh's Jesuit prep-school wing-man, best-selling author, and general rabble-rouser Mark Judge. Alas, that's for another post.

With all this drama, you would think that the Federalist Society and the White House would have caught some wind of the strange brew wafting their way, and simply avoided all the burnt political capital by going to another conservative choice.

There is no question that Judge Kavanaugh, sitting on the D.C. Circuit through which momentous cases routinely flow, is a credentialed conservative jurist. The Washington Post, from an analysis of his published opinions over the past decade, concluded Kavanaugh was the most conservative jurist on the D.C. Circuit Court of Appeals in every policy area. [Note: consider the source; this is the same newspaper that initially reported Dr. Ford's letter to Senator Feinstein.] Nevertheless, his published decisions are along the lines of Justice Antonin Scalia; he is an originalist and a textualist, meaning that he does not find individual rights by reading "between the lines" of the Constitution. Like Scalia, he is far more conservative than moderate, and exhibits an expansive view of executive power.

This last bit is especially troubling during the Trump era. Listening to President Trump this week, grandstanding for Republicans on the eve of the mid-term elections, trying to minimize and dismiss Dr. Ford's allegations -comparing them to his own women troubles- was pathetic. If he could, Trump would do away with this "Advice and Consent" stuff altogether.  Trump was particularly un-Presidential when he mocked Dr. Blasey-Ford -her diction and her lack of memory on some details.

So here we are, with another Advise and Consent process that has torn the country apart. One thing is painfully clear: someone is lying.

There are no procedural rules for the Advise and Consent process. The Judiciary Committee is not a courtroom subject to rules of evidence and procedure. The nominee is not afforded the same constitutional rights as an individual accused of a crime. Likewise, an accuser does not need to prove allegations "beyond a reasonable doubt", the highest evidentiary standard.

Dr. Blasey Ford's Camp

Dr. Ford's allegations provide yet another high-profile example of the power, yet limitation, of the #metoo movement. Maddeningly for this camp, these allegations are so stale they are nearly impossible to corroborate. Thus, for this group, the allegations are destined to go down in history, like those of Anita Hill and Justice Clarence Thomas, as another unresolved allegation of "he said, she said" sexual assault.

Yesterday afternoon, Senator Susan Collins [R-Maine] focused on a lack of corroboration to an ancient allegation, signaling that she would be voting for Kavanaugh's confirmation. Under the threat of a felony charge [lying to a federal agent], apparently none of the individuals specifically mentioned by Dr. Ford, corroborated any of the basic details of her account to the FBI investigators.

Victims of sexual assault, for many different reasons, decide to suffer in silence for decades. Professionals in the criminal justice industry know that many survivors take their plights to their graves.

Criticism of the Ford supporters includes calling the detonation-event itself into question: the so-called leaking of Dr. Ford's letter to Senator Diane Feinstein to a ravenous media-machine that simply cannot get enough sexual raw meat. When the media took this ball and ran with it, Dr. Ford was the one that made the down payment up front. Some say she was betrayed by the very people she turned to as a #metoo survivor. For her part, Senator Collins does not believe that her colleague from California disseminated the original letter to the press. These and other Senators are now all running for political cover.

Judge Kavanaugh's Camp

The Judge's supporters are glad that Senator Collins saw things their way and did not find Dr. Ford's allegations persuasive by even a preponderance of the evidence in the Senate record. Certainly not persuasive enough to block Kavanaugh's nomination. Also, the judge's camp is quick to point out that this has become a derailed media circus -which is true- focusing on sex, beer and UB40, rather than the judge's 12-year record from the federal bench.

These supporters emphasize that Judge Kavanaugh has already undergone half a dozen FBI investigations during his storied career as a federal judge. This conservative group is looking forward to possibly 4-decades of right-leaning opinions from this truly conservative jurist, especially when paired with Justice Gorsich, his Jesuit-trained prep school classmate. The Federalist Society recognized that Kavanaugh, unlike his Reagan-appointee predecessor, Justice Anthony Kennedy, who became the infamous "swing vote" on the SCOTUS, will remain true to his conservative faith.

If the right cases come along, you can expect this jurist to increase the powers of the executive branch, and limit individual rights in favor of the powers of the state. In a perfect storm, a case involving abortion may get teed-up for his deciding vote; he may even be assigned by Chief Justice John Roberts to write the historic opinion.

Like Dr. Ford, however, Judge Kavanaugh is not getting out of this process unscathed. His otherwise stellar career as a conservative federal jurist now bears this horrid permanent stain.

As with the Federalist Society, we do not think this episode will affect the tone or tenor of now-Justice Kavanaugh's prospective SCOTUS opinions, yet plenty of questions remain in our minds about this jurist; this person. Despite his apology in the Wall Street Journal, we saw his core-temperment in the heat of battle when he testified; it was not pretty; it was ugly. The picture above truly, is worth a thousand words. Where unproven allegations of sexual abuse are concerned, the smoke usually manifests some type of fire.

While the fire in Kavanaugh's case was extinguished long ago, you won't be seeing this SCOTUS justice giving speeches or lectures at Harvard Law School. He will be hunted and confronted in public until the day he dies.

We shall see if he, like Clarence Thomas, sits silent during oral argument, never asking questions of the lawyers arguing their cases before him; preferring to communicate through written opinions. In any event, a decades-long tenure will be Kavanaugh's best revenge. His place in history, however, already has been set in stone.

America Gets Screwed

Because one of these two people is lying, America gets screwed. If Dr. Ford told the truth, this guy's transgressions, albeit over 30-years ago, belie a violent and abusive core, inappropriate -even disqualifying- for any judge, let alone a Supreme Court Justice. If Judge Kavanaugh told the truth to the Judiciary Committee, then a special place in Hell awaits women that manufacture and weaponize false allegations of sexual abuse. Take your pick; it's all bad folks.

Our take-away from all this drama is that public respect and trust in our all-important judicial system is eroded by spectacles like this one. The lawyers at our firm are constantly advancing the legitimate causes of our clients before county and state judges. We depend on these judges to fairly resolve important legal conflicts.

In times like these, we thank our colleagues on the bench that have remained ever-vigilant for the right result in every case, and who have remained just and impartial despite the strong, often pungent, political currents of the day.
Post #620

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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 will be argued before the SCOTUS this fall with an opinion resolving the matter -once and for all- in the spring.

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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