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

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.

www.clarkstonlegal.com
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 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
www.clarkstonlegal.com


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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
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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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