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, May 5, 2015

Hands Free Vehicles Legal For Now

Over the years, we have reported on the self-driving Google vehicles and the telematics associated with removing a human driver from the highway experience.  Now, several vehicle manufacturers are bringing hands-free driving options on-line in the upcoming months.

Tessla, Audi and Cadillac are all rolling-out serious hands-free options within the next model year. Mercedes-Benz and Infiniti have had limited versions of hands-free driving for the past few years.

As these options expand, the question becomes: is operating a vehicle "hands-free" legal?  So far, the answer is "yes".

Only New York has a state law, dating back to 1967, that requires that drivers keep one-hand on the wheel. Most other states have no regulation whatsoever regarding the specifics of the steering wheel.

The manufacturers are careful to market the hands-free options merely as temporary relief from the tedious components of our daily drive and not as a way for drivers to completely unplug from the road. This blogger, however, immediately sees the potential to switch on the hands-free option in order to, say, text or email the drive away and get things done.

If this happens, the law will move in; especially as soon as folks start getting seriously injured or killed.  For now, however, the manufacturers are easing these hands-free options into a regulatory void.

Industry professionals consider hands-free driving just the next step in the design evolution of the automobile. Like past innovations such as cruise control and anti-lock brakes, there are no specific government regulations affecting the technology.

But there is a personal injury bar. Once folks start clicking on the hands-free option, tuning out from the road, and picking-up their cell phones, things are bound to go South.  And when they do, the personal injury lawyers will be there to pick-up the pieces.

While the federal government regulates the design and crash-worthiness of vehicles, the states regulate the drivers. Here in Michigan, the home of the automobile, there are specific state laws allowing autonomous technology under certain limited circumstances.

In addition to negligent design product liability lawsuits, there is also local law enforcement standing by to temper the hands-free driving experience.  The road patrol officer will decide, on a case-by-case basis, whether the driver in a crash was at fault [careless or reckless] due to hands-free operation of the vehicle.

Once these vehicles begin rolling out, and crashes start happening, we will know more about the utility and cost-effectiveness of this next step in the evolution of the automobile.

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Friday, May 1, 2015

SCOTUS and the Same-Sex Marriage Cases: Now What?

Justice Anthony Kennedy
Earlier this week, the Supreme Court heard oral argument on a landmark case that had consolidated a group of same-sex marriage cases from the Sixth Circuit Court of Appeals. The decision in the Sixth Circuit -encompassing the states of Michigan, Ohio, Kentucky and Tennessee- upheld state laws banning same-sex marriages.

In all the states in the Sixth Circuit, and in nearly all the other states in the Union, these state law bans have been challenged by well-organized and often well-funded same-sex litigants. The Sixth Circuit case upholding the state law bans was unusual to the extent that it was the first federal circuit court of appeals to rule this way; all the other federal circuits that considered the issue struck down the state law bans against same-sex marriage as unconstitutional.

This is exactly the type of case that is accepted by the United States Supreme Court. Now that the High Court has heard oral argument in the case on Tuesday, following the submission of nearly 100 briefs, that august body is actively considering how to decide the matter.

There has been and will be much legal analysis forthcoming on this case. Most of the speculation focuses on whether the Supreme Court will issue a sweeping constitutional ruling like it did in the 1967 Loving v Virginia case [invalidating state laws that prohibited interracial marriage].  Some legal scholars predict the Court will find a fundamental constitutional right to marriage.

If so, all state laws prohibiting same-sex marriage will be voided. The High Court, in granting certiorari in the 6th Circuit cases, gave itself a compromise exit. It certified a second issue: the question as to whether states are required to recognize valid same-sex marriages from other states.

Thus, even if the Court does not find a fundamental right to marry, it can still require states to recognize valid marriages from other states. For example, although Michigan's law against same-sex marriage would remain on the books as a valid state law, a same-sex couple that was married in Massachusetts could move to Michigan as a married couple and their marriage would be legally recognized here in Michigan.

Of course, there is also the possibility that the Court rules against marriage equality on both issues, leaving the matter to be determined by the states through their respective legislatures and referenda. Depending on how Justice Anthony Kennedy [the so-called swing vote] sees the case, this is a real possibility.

The SCOTUS is expected to issue their decision in late June, probably just before they close their session for the summer. Then we, as a society, will know whether we are free to select our marriage partners for ourselves, or whether the government will tell us who to select.

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Monday, April 27, 2015

Lawyer Expands Twitter Defamation Claims

Attorney Todd Levitt
Mt. Pleasant lawyer Todd Levitt has sued a local newspaper, a reporter, and its parent company for defamation [libel and slander], false light and other torts. The 19-page complaint, coming on the heels of the trial court's dismissal of Levitt's separate defamation suit against other defendants, contains 147 allegations spread across eleven counts.

Interestingly, the new defamation lawsuit also names the opposing counsel in the first case as well as two professors who teach in Central Michigan University's College of Business Administration.  For his part, opposing counsel has filed a grievance against Levitt.

Mr. Levitt became a plaintiff litigant when a student at CMU allegedly adopted Levitt's business and law firm persona in a fake Twitter account and began emanating a series of tweets that Levitt says were designed to defame, embarrass and harass.  This time last year, the complaint asserts, Levitt had 4500 followers [no easy feat] and was employed as an adjunct professor at CMU.

Last year, Levitt sued the CMU student but the defamation suit was tossed by the trial court and is now on appeal. We blogged about that case in this post.

Levitt has appealed the trial judge's order granting the tweeting student's motion for summary disposition on the basis that for over two months, the student's false Twitter persona gave no indication whatsoever that it was a parody and that the student intended to cause harm to Levitt's law practice through his micro-blog posts.

In the new case, Levitt is claiming that the local newspaper, Mt. Pleasant's Morning Sun, along with one of its reporters and the parent company, tortiously covered his battle with the Tweeting CMU student by intentionally [or recklessly] making misrepresentations about Levitt. Specifically, the complaint attacks one front-page headline that trumpets that Levitt made up a false award -Top College Lawyer- in order to enhance his electronic profile.

There are many many other examples set forth in the complaint. Fellow CMU business professors and adjunct instructors have a separate set of allegations reserved for their purported misdeeds.

We shall see where all of this goes; what a messy brawl.  If Levitt prevails in his tort case, it will definitely establish limits to what can be posted about a business on social media.

Meanwhile, Scribd, Volokh Conspiracy via the Washington Post, the ABA Journal, and even named defendant Morning Sun have all started following and reporting on this dispute as it involves the juicy intersection between social media and defamation. So stay tuned for updates and analysis as this case unfolds over the next few years.

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Sunday, April 26, 2015

Privacy and the Family Court: Sealing the Files

Oakland Family Court
Judge Joan E. Young
Over the years, our law firm has supported a privacy policy developed by veteran Oakland County Family Court Judge Joan E. Young. This policy involves restricting sensitive private information, usually taking the form of exhibits attached to a motion, to a "bench memorandum" that only gets filed with the judge; not with the clerk of the court.

Normally, when an attorney files a motion in family court, just like in any adversarial proceeding, all motions, briefs and attachments are included in the court record which is available to the public. Members of the public can then obtain [for a fee] any of the documents filed with the Court.  These documents are even available through the Internet via the Oakland County Court Explorer.

Like other adversarial proceedings, motions filed in family court result from conflicts that are irresolvable through informal means. In family court, motions can get particularly viscous and personal, depending on the skills, experience and decorum of the attorneys involved.

Recently, there has been some discussion among local family law professionals about sealing family court files from the public and making them available only to the parties and their respective counsel. A private divorce filing system was adopted in New York which now serves as a model for other states.

There are several examples of normally private matters that are subjected to the public eye in a family court proceeding when lawyers, paid to advance their client's agenda, are less than discreet:
  • Income and employment information;
  • Valuation and other disclosures regarding assets;
  • Business records;
  • Estate planning information;
  • Embarrassing conduct detailed in an affidavit or other sworn testimony;
  • Police reports and witness statements in unrelated cases;
  • Therapy or counseling information;
  • Children's academic records;
  • Statements about children's conduct;
  • Medical or mental health information about the parties or the children;
  • Sensitive information about other family members.
The list could be much longer given the diversity of situations presented to the family courts on a daily basis.

A motion is a vehicle in litigation whereby a specific legal issue is decided in the case. Attorneys routinely attach all manner of documentation to a motion in support of their legal position and factual assertions.

Once these documents are attached to a motion, they become part of the record in the case. This is critical because, if one party appeals the lower court's decision, only the documents contained in the record can be considered on appeal.

Therefore, sealing a family court file may create problems relative to appellate review. Also, sealed records may make abusive or unreasonable conduct more difficult to prevent unless the malfeasor knows he faces exposure.

The state courts in New York work around this by enumerating a comprehensive list of professionals in the procedural rules that have access to the family court records; they include those needing the documents for an appeal, and those involved in the prosecution of a distinct but related criminal matter.

Judge Young's policy on the privacy of family court filings has evolved over the years. At first, she made it known among family court practitioners that we should be attaching exhibits to the judge's copy of a filing only.

Over the years, however, she has come to adopt an "all or nothing" approach given the difficulty in arriving at a list of items, even a comprehensive one, that are to be afforded privacy.

At present, the bottom line is that disclosure of sensitive information is up to the discretion, skill and experience of the lawyer. If a lawyer reacts emotionally to an emotional issue, attaching emails, screen shots, pay-stubs, mental health assessments, or affidavits to documents that are filed in court, then this sensitive information becomes part of the permanent record in the case, subject to public scrutiny.

Unless or until the law changes, parties facing such public exposure can only avail themselves of the court rule that contemplates sealing a court file. In cases where a party seeks to seal an otherwise public record, the matter rests with the discretion of the family court judge assigned to the case.

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Thursday, April 23, 2015

Ashley Madison Adultery Website Going Public

Since 2001, has been around for married cheaters. The controversial website touts discrete electronic profiles for married folks interested in committing adultery.

Four years ago, the Canadian business attempted to go public on the Toronto Stock Exchange but could not raise sufficient capital or interest. Now they're at it again, this time planning an IPO for London, England sometime later this year.

The risque dating website claims over 35-million members and posted revenues of $115 million last year. They hope to raise $200 million in their IPO.

Perhaps the British and European dating markets are more sophisticated, but we here at the Law Blogger have to wonder about the public value of a company with Ashley Madison's business model. Company executives have long-admitted they sell the "darker side of dating."

Classically understated; folks get killed out that way. Also, they are selling a product that arguably encourages the erosion of the institution of marriage and that is illegal in many jurisdictions, including here in Michigan.

The company does have its marketing analytics down to a fine yet devious art form. If a person gets married in the United States and files their marriage license with the county, as required in most states, AM obtains that now-public information and begins sending advertisements and other electronic communication to individuals with a certain type of profile.

The illegality of adultery does not bother company execs who point to the case of South Korea. When AM began its operations in South Korea, where adultery was recently illegal, government censors blocked the web site. But then the Supreme Court in South Korea changed the 63-year old law, and AM has been allowed to operate with impunity.

In going public in London, the company will be directly competing with the French web site, Gleeden. One thing is for sure; across the globe, Ashley Madison has become synonymous with marital infidelity; apparently, that's a billion dollar a year industry.

For our part, we here at the Law Blogger have handled more than a few cases where one spouse alleges the other has created a profile on the Ashley Madison website. Therefore, despite the need to diversify the nationality of our investment portfolios, we will not be among the investors should this company go public.

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