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.
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Tuesday, November 18, 2014

SCOTUS Considers Review of Michigan Same-Sex Marriage Case

Last June, I was preparing for oral argument in a wrongful death case before a panel of the United States Sixth Circuit Court of Appeals in Cincinnati, Ohio.  In that file preparation, we learned that one of the judges on our panel, Jeffrey S. Sutton, a George Bush appointee, was the former law clerk to SCOTUS Justice Antonin Scalia; it does not get more conservative than that.

Judge Sutton was the presiding judge in the DeBoer case and authored the 64-page, 2-1 appellate opinion; his analysis was consistent with his conservative judicial philosophy.  As is now widely known and reported, the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order from last year invalidating Michigan's ban on same-sex marriage and adoption on constitutional grounds.

As is often the case in federal appeals, the DeBoer case was combined with several others, from other states in the 6th Circuit: Ohio, Kentucky and Tennessee.  The portion of the caption in this case, listing the myriad attorneys glomming onto the file, goes on for 3 and 1/2 pages; it's getting ridiculous.

We predicted that attorneys in the DeBoer case and its companion cases would act quickly and yesterday, petitions were filed for certiorari in the case with the United States Supreme Court.  We here at this blog were pleased to see one of our guest bloggers, Wayne State Law Professor Robert Sedler, to be listed among the corps of esteemed legal counsel of record in the case.

The sole and simple issue raised on appeal is whether state denial of the same-sex right to marry [and adopt children] comports with our federal constitution.  In the petition, DeBoer asserts that hers is the ideal case because:
  • there was a 9-day trial with a fully-developed record [actually, it was more like a battle-of-the-experts, as so many high-profile case are these days]; 
  • unlike other states where the state attorney general declined further challenge after losing in federal court, or at the intermediate appellate stage, the Michigan Attorney General has vowed to carry on the fight to the SCOTUS; and 
  • the Sixth is the first federal circuit to uphold a state law ban on same-sex marriage giving rise to a conflict among the federal circuits for the first time; something that SCOTUS looks for when assessing the hundreds of petitions for certiorari.
Assuming the SCOTUS is of a mindset to address this civil rights issue with this round of cases, and assuming that the various state actors submit their filings by mid-January, the DeBoer case could well be argued this term.

Oral arguments at some point in April will leave the High Court in a position to issue a decision in the case by the end of the term in June.

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Thursday, November 13, 2014

Personal Injury: The Rich Get Foolishly Richer

By:  Timothy P. Flynn

A few years back, I read in the Michigan Lawyers Weekly about a 144 million dollar jury verdict Geoffrey Fieger won against Beaumont Hospital.  My old law firm, PlunkettCooney, defended the hospital in the epic medical malpractice trial.  This verdict has to be one of the largest in Michigan history.

The case involved a true battle-of-the-experts regarding the cause of Plaintiff's birth injuries.  Over a dozen experts battled for the hearts of the jurors.  Plaintiff prevailed.

Last year, I happened to be in Oakland Circuit Judge Rudy Nichol's courtroom when, months after the trial, Fieger and my former boss, Rob Kamenec, argued motions relating to entry of the judgment, remittitur of the damages, and interest.  The motion took over an hour to argue, with Fieger taking snide swipes at Mr. Kamenec and his law firm; for his part, Kamenec stuck to the law and the facts of the case.

Sitting nearby in the back benches that day, seething no doubt, was Plunketteer veteran trial attorney Joe Babiarz on whose watch this verdict appeared.  As an insurance defense lawyer, you never want any part of a nine-figure jury damage award.  That's the kind of day you want the floor to open-up and drop you to China, for good.

Still, in speaking with my old friends at the firm, it seemed like the jury award, which was taking literally a year to enter as a judgment, would be successfully appealed and reduced, if not outright reversed.  Well, guess again.

In perhaps a classic understatement, the Michigan Court of Appeals held last month in an unpublished 74-page opinion, VanSlembrouck v Halperin, that, "although the trial was far from perfect, we affirm."  The Court's decision was newsworthy not just because of the size of the historic jury verdict, but because of the extensive commentary in the opinion about Fieger's trial conduct.

Defendant challenged this conduct on appeal, asserting that Fieger's signature tactics of accusing the hospital of lying, conspiring and covering-up evidence, tainted the jury's verdict.  [Let's face it, Fieger has become wealthy off of his Beaumont verdicts alone.]

The Court of Appeals noted that the attorneys' hostility, intemperance and plain rudness to each other exasperated the trial court judge.  The Court of Appeals also noted:
The unnecessary comments, gratuitous interjections, and pursuit of irrelevant lines of inquiry identified by defendants played little part in this long trial, likely made Mr. Fieger look foolish rather than effective, and do not justify reversal.
Well, we here at the Law Blogger believe that many a lawyer would gladly stand like a fool before a jury that ends up netting their law firm 48 million dollars.

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Saturday, November 8, 2014

Another Encrypted Cell Phone Case Gets Attention

By: Timothy P. Flynn

A judge in Virginia was recently faced with a decision whether to allow a county prosecutor to compel an accused to produce two things: his cell phone passcode and his fingerprint.  In Virginia vs David Charles Baust, the judge granted the prosecutor's request for Baust to produce his fingerprint, but denied the request for his cell phone encrypted passcode.

The accused deployed technology in his bedroom; he utilized a recorder that sent images of his sex play to his cell phone.  Only, in February, a woman came forward saying that Baust assaulted her and that she believed the incident was recorded.

Jackpot for the prosecutor if they can get their hands on the video; game over for Mr. Baust.  Defense counsel, however, says "not-so-fast"; there are constitutional rights to consider.

Local law enforcement executed a search warrant and seized Baust's cell phone and video recording equipment. The police, however, have been prevented from "entering" Baust's cell phone due to the passcode encryption on the device.

The issue before the Virginia trial court was whether compelling the defendant to produce a piece of incriminating evidence violates his constitutional right against self-incrimination under the 5th Amendment to the United States Constitution; and whether producing the passcode and/or his fingerprint constitutes "testimonial communication".

If his passcode is deemed to be "testimonial communication" then it is protected under the 5th Amendment and Baust cannot be compelled to produce the information.  We've seen this movie before here in Detroit, Michigan: United States vs Kirschner, from the United States District Court for the Eastern District of Michigan.

Like the trial court judge in Virginia, Judge Paul Borman held in Kirschner that compelling an accused to provide a passcode for his encrypted cell phone involved a mental process deemed to constitute "testimonial communication" and was thus protected by the 5th Amendment.

As for the fingerprint, Baust could be forced to produce that all day long; just as he could be forced to submit to a line-up, provide a voice sample, biological sample, or a handwriting exemplar.  These things are not testimonial in nature.

It is a long way from a state trial court to SCOTUS review.  The SCOTUS granted Certiorari in a cell phone data retrieval case from California case last year; presumably, the California case will be argued to the High Court at some point this term.

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Friday, November 7, 2014

Sixth Circuit Upholds State Same-Sex Marriage and Adoption Bans

In what legal scholars are hailing as a surprising ruling, [we were surprised here at this blog] the United States Sixth Circuit Court of Appeals upheld the state constitutional ban in Michigan on same-sex marriages and adoptions.  In doing so, the Sixth Circuit broke away from the other federal circuits to decide the issue.  These state bans have been held unconstitutional in the 4th, 7th, and 10th Circuits.

The case we are talking about here in Michigan is, of course, the Deboer case.  The ruling from Cincinnati, also encompassed state ban cases pending in Ohio, Tennessee, and Kentucky; this ruling will make the same-sex civil rights issue more attractive to the SCOTUS, no doubt.  On that note, Lyle Denniston of SCOTUSBlog, lays out three distinct procedural options that lawyers for the Deboers and the other litigants in the cases pending in the other Sixth Circuit states are analyzing as this post is being composed.

The Sixth Circuit held that states are able to determine what rules govern the institution of marriage.  One consequence of the ruling is that 100s of couples remain in legal limbo that were legally married in Michigan during the brief period between when federal judge Bernard Friedman struck the state law ban, and when the ruling was stayed on appeal.

Michigan Attorney General Bill Schuette stated briefly that he believes and has repeatedly stated that the issue will be ultimately decided by the SCOTUS sooner rather than later; that is as it should be.  Those of us in the legal industry, especially appellate watchers like Mr. Denniston, anticipate swift filings on behalf of the lawyers involved in the cases.

Last month, presumably because there was unanimity among the circuits, SCOTUS took a pass on the issue. Because of this ruling, new filings could hit the High Court by the end of the month.

We predicted wrong in one of our earlier posts; we predicted the Sixth Circuit would uphold the lower courts as the appellate courts have done in Virginia, Indiana, Wisconsin, Utah and Oklahoma throughout the federal circuits; and with more cases in the pipeline.

We here at the Law Blogger agree with Attorney General Schuette that resolution of these civil rights issues needs SCOTUS attention, and the sooner the better.

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Monday, November 3, 2014

Pot is on the Ballot Again: Locally and Nationwide

Tomorrow's election will once again feature a variety of marijuana-based initiatives, across both Oakland County and the nation.  Medical marijuana, legalization and decriminalization are all on the ballot.

Closest to home, Berkley and Huntington Woods have proposals that would legalize the use, possession and transfer of less than one ounce of marijuana on private property.  This type of local ordinance already passed in Oak Park, Ferndale and Detroit in previous elections.

Just down the road in Pleasant Ridge, voters will have the choice tomorrow to decriminalize the same conduct [use, possession, and transfer of less than an ounce].  This means that possession of a small amount of marijuana will result only in a small fine.

Across the nation, Florida has a medical marijuana proposal on its state-wide ballot which, if passed, will put states that do not have medical marijuana laws in the minority.  Meanwhile legalization initiatives are on the ballot in Alaska, Oregon, and the District of Colombia; these states could join Colorado and Washington in the legalization of recreational use.

In New York, while nothing is on the ballot tomorrow, last July, Governor Cuomo passed the Compassionate Care Act, authorizing the NY Department of Health to promulgate regulations for the dispensation of medical pot.  Folks in Gotham are scrambling for position in the high-stakes, tightly-regulated medical marijuana industry.  While significant revenues are a certainty for the lucky few selected to join the New York pot industry, entry onto the playing field may cost seven figures [for the application].

Amazing how fast the legal landscape sometimes changes.  New York's marijuana laws have long been the toughest in the nation until last summer.  And after tomorrow, the streets of our capital may start displaying the green leaf of marijuana dispensaries.

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