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

Wednesday, February 22, 2017

Oakland County Marijuana Dispensaries Beware

Ever since Michigan passed the medical marijuana act back in 2008, any lawyer truly in the loop of the new law would advice clients that pot dispensaries are illegal. Different county prosecutors handled the new and innovative law in different ways.

The medical marijuana law in Michigan was based on the model adopted in other states and features a small grow operation through limits on the number of plants that can legally be produced. This law, as enacted, however, does not provide for the sale of marijuana or for any large scale operation whatsoever.

This did not stop pot farmers from progressing into massive grow operations. Likewise, dispensary owners openly displayed their wares in stripmall storefronts, mistakenly believing they had cover under the new law.

In some counties, there appeared to be an "out-of-sight-out-of-mind" approach, while other county sheriffs raided and broke-up dispensaries and grow operations. Oakland County has taken a more hands-on approach, raiding dispensaries and recommending prosecution for the operators.

Last September, the Michigan legislature blew the lid off with a new series of laws that creates a complex licensing scheme to grow, test, transport and distribute medical marijuana. The state begins taking applications for those licenses in December.

Until then, the Oakland County Sheriff has warned many of the operating dispensaries to close down or risk raids, seizure and prosecution. Notices have been posted on the doors of many of the most infamous and the largest of the dispensaries and grow operations.

When the licensing takes effect, those that successfully apply for and are granted a license or licenses, will be in the good graces of the law; those that do not have licenses will be illegal and an easy mark for prosecution.

Currently, those that have the expertise to grow a quality product are gearing up to obtain a grow license, while other entrepreneurs will apply for the dispensary license. Get ready for the state regulations to follow; this is going to be a heavily regulated industry to be sure.

At present, there is a small window of opportunity to get in on the ground floor of a booming industry. This opportunity is unique as marijuana is decriminalized throughout the country.

If you have an interest in obtaining a Michigan grow license or a dispensary license, contact our law firm to discuss your options. We offer a free initial consultation.

Post #580

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Friday, February 10, 2017

Ninth Circuit Limits Chief Executive's Powers on Immigration

In the State of Washington vs President Donald J. Trump, the Chief Executive's power to legislate via executive order has been successfully challenged through two levels of federal court proceedings. The Ninth Circuit Court of Appeals upheld a federal district court judge's temporary stay of the executive order.

The President, vowing to take the dispute to the SCOTUS, tweeted: "SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE." Two Democratic appointees and one Republican appointee made-up the Ninth Circuit panel that decided the case.

The at-issue executive order, titled Protecting the Nation for Foreign Terrorist Entry in the United States, imposed a 90-day ban on individuals entering the country from 7 Muslim-majority countries. The appeals court based its decision on the federal government's failure to show a likelihood of success on the merits of the case, as well as a failure to demonstrate how the country would be irreparably harmed by a stay of the new executive immigration policy.

Citing the 9/11 terrorist attacks, the government's argument focused on deteriorating conditions in the target countries due to war, strife and civil unrest, claiming that foreign-born malfeasors have been implicated in subsequent terrorist plans. Due to the speed with which these claims have been put through the courts, the Ninth Circuit admitted it had very little facts on which to make their ruling.

Ultimately, the Ninth Circuit's 29-page decision concluded that the executive order did not provide what the 5th Amendment's Due Process clause requires. The due process elements found lacking are a hearing and notice that the affected individual's right to travel was suspended. The legal analysis of the Ninth Circuit, however, fails to distinguish green-card holders [a group that does have a set of Due Process rights] from visa holders, visa applicants, and refugees [groups that have lessened rights to Due Process].

One of the chief political issues addressed by the appellate court is the executive order's effect on the refugee program, particularly from Syria. Washington State alleged, from a legal perspective, that it was suffering ongoing economic harm due to the detention of university professors and students, key tech industry executives, and other important business people; all foreigners.

Curiously, the decision does not even mention the applicable federal law that grants POTUS broad powers, on national security grounds, to regulate who gets to come into the United States:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
If the panel's decision is the subject of an en banc review [i.e. further review by the entire bench of the Ninth Circuit] or by the SCOTUS, this failure to properly analyze the law could result in a reversal.

Also, rather than bringing the case at the state level, the constitutional "standing" requirement calls for a particularized injury. Thus, bringing the cases of individuals actually affected by the executive order travel restrictions may have been the better approach. This approach was scrapped in order to get the suits filed instantaneously.

Today, U.S. Department of Justice lawyers are preparing a petition for writ of certiorari to the United States Supreme Court. What normally takes years, will unfold in a matter of weeks, if the SCOTUS agrees to take the case.

If the petition for cert is granted, the Court may hear the case without its 9th justice; presumably Judge Gorsuch, if he is confirmed by the Senate. If the petition is denied, then the Ninth Circuit's decision becomes the law of the land.

This case is an important illustration of the checks and balances set out in the United States Constitution. Executive power, which ebbs and flows from decade to decade, has its limits.

Here at this blog, while we recognize the state's strong interest in the robust screening of foreign applicants for entry into the United States, there certainly is a downside to unchecked executive power. When the Chief Executive deigns to rule via executive order, and the orders that overreach are not immediately challenged, either by Congress or in the federal courts, then one executive order becomes a dozen, then a hundred. Before we know it, our civil liberties are eroded, not just those of foreigners.

Federal lawsuits, on the other hand, especially those that challenge the scope of the executive's powers, must properly articulate an injury-in-fact; not just attenuated claims of injury absorbed by a few states.

Post #579

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Monday, January 30, 2017

Federal Judge With Michigan Ties Blocks Deportations

New York federal judge Ann Marie Donnelly was born in Royal Oak, MI and attended the University of Michigan in Ann Arbor. She went to law school at Ohio State.

Over the weekend, her previously low-key tenure on the bench of the United States District Court for the Eastern District of New York blew-up. That is because of a two page order granting an emergency injunction, brought by the ACLU, blocking deportations of refugees and visa holders pursuant to an executive order signed by President Trump late Friday afternoon.

In issuing her order, Judge Donnelly found, after conducting a hearing in Brooklyn, that the emergency petitioners, and other similarly situated individuals, would likely prevail on the Due Process based challenge to the deportations. Further, the judge found that the petitioners would suffer irreparable harm without the stay, while the respondent -the United States government- was not likely to suffer any harm during the period of stay. Shortly after her ruling, another federal judge, in Alexandria, Virginia, also issued a stay.

Now, the matter will come back before Judge Donnelly for a full hearing on the merits of the petition [although the court order does not provide for this] and President Trump's executive order eventually will be subjected to judicial review. No doubt, whatever ruling Judge Donnelly makes on the merits will be appealed to the United States Court of Appeals for the Second Circuit.

Of the approximately 175 people who were in-transit and thus affected by President Trump's Friday afternoon order, over 80 persons received waivers based on their green card status following case-by-case reviews.

After serving as a state court prosecutor for 25-years and as a state court judge in New York, President Obama appointed her to the federal bench in late 2014.

Post #578

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Saturday, January 28, 2017

Oakland County Family Court Judge Gets Amicus Assist

Legal professionals have mixed views of what the Michigan Supreme Court will do with the Judicial Tenure Commission's misconduct finding and suspension recommendation regarding Oakland County Family Court Judge Lisa O. Gorcyca. Here at this blog, we've asserted the position that the JTC was not the appropriate forum to conduct what amounted to a review on the merits of one of Judge Gorcyca's decisions in a highly-contentious child custody case.

The case gained world-wide media attention in the summer of 2015 when Judge Gorcyca held the three Tsimhoni children in contempt of her court and put them in jail for refusing to spend time with their father pursuant to her orders. Judge Gorcyca has since recused herself from the case, but her contempt ruling has burgeoned into a challenge to her professional standing as a family court jurist courtesy of the Michigan Judicial Tenure Commission.

Last fall, a special master made a series of findings regarding how Judge Gorcyca handled the matter; several of those findings addressed Gorcyca's decision to use her contempt powers. Based on the special master's findings of misconduct, the JTC has recommended Judge Gorcyca be suspended.

As is her right, the judge has requested a trial -really an oral argument- before the Michigan Supreme Court; the argument has been scheduled for March. Last week, the Michigan Supreme Court granted the request of the Oakland County Bar Association and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file an Amicus Curiae brief.

In the introductory paragraphs to the Amicus brief, the OCBA states:
It is often said: “In criminal cases, judges see bad people at their best; and in family law cases, judges see good people at their worst.” In family law, where emotions often run high, judges require both broad authority to issue orders and a full arsenal of powers to implement their orders. They cannot and should not be burdened by “political correctness”. Indeed, one of the cornerstones of our judicial system is the recognition that judges provide justice for all, including, when appropriate, supporting the minority or unpopular causes.
The Amicus brief highlighted points of contention with two of the JTC's findings: 1) the alleged intemperate comments made by Judge Gorcyca; and 2) the alleged error in the mechanics of her contempt ruling.

Characterizing the proceedings as a "disingenuous prosecution", the Amicus concluded, and we here at the Law Blogger wholeheartedly agree, that Judge Gorcyca, in the worst case, made an error of law; she did not transgress judicial norms or canons; she did not commit judicial misconduct.

At the heart of the Amicus brief is the rationale that if judges are subjected to punishment based on their substantive rulings, then a chilling effect will seep into the judicial fabric of our county court system like a damp cold fog. This chilling fog will distort the mechanism of justice for many families at the very time they need the county family court the most.

This blogger recently experienced the chilling effect of the Gorcyca case first hand. During argument in a parental alienation case, we represented the target parent, attempting to break through a stubborn wall of parental alienation. In her reluctance to enforce the terms of a previously entered parenting order, the family court judge specifically referenced Judge Gorcyca's case.

For all of these reasons, we here at the Law Bogger sincerely hope that the Michigan Supreme Court is persuaded by the OCBA's amicus brief. Errors of law belong in the Court of Appeals, not before the Judicial Tenure Commission.

Post #577

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Wednesday, January 25, 2017

The Price of Jury Duty

Just before the holidays, I spent time carefully arranging my calendar for March. Booked a trip to Chicago for the ABA's fabled Tech Show one week, and booked a trip to Washington DC for the Big Ten basketball tourney with some college friends I had not seen in a few years.

Then, last week, a jury summons showed up in the mail. Not just any summons; this one was for federal court. The only other time in my life that I was called for jury duty [2002] was also for federal court in Detroit.

Here's how federal jury duty works: the summons advises that you are on call for two weeks. The prospective juror is required to call a number every night and listen to a recording advising whether you have to appear at the Theodore Levin federal courthouse in Detroit the next day.

In my case, the two weeks overlapped with both trips for which I had just completed payment. As I thought about how to go about postponing my commitment, a sinking feeling overcame me as I dialed the number on the summons.

After entering my juror number and following the recorded prompts, I could tell the court's administrative office was waiting for prospective jurors like me. Who among us doesn't have something significant in any given week that, in our minds, constitutes good cause to avoid reporting for jury duty? I hung-up the phone.

Instead of trying to write the requisite missive to the court explaining all of my carefully laid plans and how they conflicted with my prospective jury service and awaiting their response, I set about cancelling my trips.

At first, I thought, what a shame; having to cancel two trips for being on juror call when I would never be sworn in as a juror anyway due to my status as a practicing lawyer. I was really looking forward to getting to Chicago as I had not been in a while. Same thing Washington DC.

Then I got to thinking how important jurors were when selecting them for one of my own trials. How much the Court and the litigators counted on those jurors to arrive at the courthouse on time each morning to pay close attention so we could put on our case without delay; how much we counted on them to "get it right".

Serving on a jury is one of the most important services we can perform as citizens. Our service allows trials to proceed through a verdict that will determine the outcome of a dispute. Jury service is therefore one of the hallmarks of our civil society.

Post #576

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