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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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Friday, December 1, 2017

Attorney General Candidate's Over-the-Top Ad Garners National Attention

Until recently, you would have to be an attorney to have heard the name Dana Nessel. An outspoken lesbian, she assisted in the struggle for marital equality in the DeBoer same-sex adoption case that went to the SCOTUS.

Earlier this year, Ms. Nessel tossed her cap into the race for Michigan Attorney General. This week, she blew the lid-off and garnered some national attention with a controversial campaign ad that cuts to the very quick, and then some, of the workplace sexual harassment pandemic.

Here is a look at the candidate's angry message:

Of course, this ad is now drawing a significant backlash, starting with the Michigan GOP. They released a statement wondering why Ms. Nessel has not publicly called for the resignation of long-serving Democratic Congressman John Conyers; one of many powerful men outed during the past month for inappropriate acts against women in the workplace.

We here at the Law Blogger must admit, when we first viewed the ad, it was difficult to ascertain whether the candidate was serious, or whether she intended a parody. The flames in the fireplace in the background are burning fast and hot to match Ms. Nessel's mood.

The Attorney General is one of three state-wide offices here in Michigan; the other two are, of course, the Governor and the Secretary of State. Michigan's Attorney General is the chief prosecutor in the state.

Our concern with Nessel's angry message is that she paints all men as potential sexual transgressors; all men, no exceptions. All you have to have, according to her ad, is a penis, and if you do, according to Nessel, you're not fit for the AG's office.

In her seemingly home-made ad, Ms. Nessel impatiently slaps-up the paint on the wall with the broadest of brush strokes. This brings into question whether she is suited for our state's top prosecutor post; a demanding job that takes focus, good judgment, and fortitude to do the right thing.

All instances of sexual assault and harassment in the workplace or anywhere else should be condemned in both civil and criminal forums. Jumping on a bandwagon, however, as Nessel has done, by casting doubt on all men, is not what Michigan needs for an Attorney General.
Post #611

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Thursday, November 9, 2017

GOP Tax Plan Eliminates Alimony Deduction

The recently-proposed GOP tax plan eliminates an above-the-line deduction for alimony payors. This proposal would reverse 75-year-old legislation that protects spousal support payors, and divorcing families in general, with a significant tax break.

Characterizing the existing deduction as a "divorce subsidy", the House Ways and Means Committee proposal, at section 1309, states:
Alimony payments would not be deductible by the payor or includible in the income of the payee. The provision would be effective for any divorce decree or separation agreement executed after 2017 and to any modification after 2017 of any such instrument executed before such date if expressly provided for by such modification.
One of the Committee's stated considerations in proposing the elimination of the alimony tax deduction is that a divorcing couple receives better tax treatment than a married couple under the current tax code.

In their commentary on the House proposal, joint-committee legislative staffers had this to say about section 39:
Under the proposal, alimony and separate maintenance payments are not deductible by the payor spouse. The proposal repeals sections 61(a)(8) and 71 of the Code. These sections specify that alimony and separate maintenance payments are included in income. Thus, the intent of the proposal is to follow the rule of the Supreme Court’s holding in Gould v. Gould, in which the Court held that such payments are not income to the recipient. The treatment of child support is not changed.
Well, we here at the Law Blogger note that the SCOTUS case relied on by the legislative staffers was decided in 1917, and was subsequently wholly supplanted by IRC sections 61(a) and 71.

Today, the Senate releases its version of the tax proposal. Legislators in both chambers point-out that the specific tenets contained in the proposals, including section 39 of the House plan, are up for discussion.

To the extent that the provision would require the support payor to pay his obligation with after-tax dollars, it hurts divorcing families just as they are at their most financially vulnerable. A spousal support recipient will always have a lower marginal tax-rate then the support payor.

Although the support recipient currently pays taxes on the "income" received in the form of alimony, that payee pays significantly less in taxes due to the lower marginal rate. By closing this gap, the GAO estimates the United States would re-capture approximately $8.3 billion in additional tax revenue over the next decade; truly, the proverbial "drop-in-the-bucket".

This government savings would come at great cost and confusion to divorcees, say many divorce and tax professionals. The loss to the payor under the proposal would be much greater than the paltry gain to the payee. Some critics of the GOP's plan say this amounts to a morality-tax imposed on divorcees.

As a policy matter, elimination of the alimony deduction cuts against the progression and liberalization of divorce laws since the 1950s, seriously complicates spousal support negotiations, and would, in most cases, hurt both the support recipient and the payor. If the alimony deduction is eliminated, spousal support negotiations would become an exercise in "sharing-the-pain".

We will do what we do here at this blog; monitor the legal developments and report-back to our readers.

Post #610

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Tuesday, November 7, 2017

Roadside Saliva Testing for Marijuana is Here

People are going to abuse marijuana just as they do alcohol. Keeping drivers that are too stoned off the road, just like with drunk drivers, is the task at hand for law enforcement.

The Michigan State Police will soon begin administering roadside saliva tests for THC; the one-year pilot program rolls-out this month in 5 counties, unnamed in last year's enabling legislation. The five counties finally were revealed this week: Berrien, Delta, Kent, Washtenaw, and St. Clair.

This new law enforcement tool comes in an era of decriminalization and at the end of the prohibition of marijuana. For example, Canada will legalize marijuana for recreational use this summer for all 9 provinces. In the process, they too are rolling-out a roadside saliva test designed to catch stoned drivers.

Despite ever more progressive marijuana policies among the states, the drug nevertheless affects driving. Consequently, its use is addressed in the Motor Vehicle Code here in Michigan; criminal sanctions can result from stoned driving.

A challenge for legislators, prosecutors, judges and law enforcement is measuring the quantity of the drug in the driver's body. There is no consensus among experts regarding how much marijuana impairs driving skills.

Unlike alcohol, THC and other controlled substances are difficult to measure with the accuracy required to support a conviction. Today, officers are trained to watch for and observe signs of impaired driving.

A .08 blood alcohol level -which can be easily and reliably determined- is universally accepted as a threshold for the legal operation of a motor vehicle. There is no comparable standard when it comes to marijuana.

Because driving under the influence of marijuana is difficult to detect, Michigan is utilizing specially trained state troopers known as Drug Recognition Experts. These DREs use a 12-point evaluation in making the determination of a driver's impairment by drugs.

Part of the DRE training involves administration of the saliva test. The test is designed to detect marijuana, amphetamines, methamphetamines, benzodiazepines, cocaine and opiates.

Defense lawyers are calling foul, characterizing the saliva tests as "junk science". Not even preliminary breath tests for alcohol -also administered at the roadside- are admissible in court. Rather, the preliminary test results may establish probable cause to conduct a more accurate but more intrusive search: a blood test.

Refusing the saliva test is treated in the same manner as refusing a preliminary breath test when suspected of drunk driving: liability of a civil infraction and exposure to law enforcement being able to use the refusal as a component of the probable cause to arrest calculation.

Obviously, officers making routine traffic stops cannot haul everyone they suspect of driving under the influence of drugs into a nearby hospital for a blood draw. If the saliva test is positive for any of the above-referenced substances, then probable cause is established to conduct a blood screen; a seizure under the 4th Amendment.

Last July, the National Highway Traffic Safety Administration sent a detailed report to Congress calling into question whether the roadside saliva tests could even properly detect THC, let alone verify an amount per milliliter of blood deemed to be officially "stoned". The report concluded:
Many studies, using a variety of methods, have attempted to estimate the risk of driving after use of marijuana. While useful in identifying how marijuana affects the performance of driving tasks, experimental and observational studies do not lend themselves to predicting real-world crash risk.
Some studies suggest that a person's tolerance of marijuana has a significant impact on whether they can drive while stoned -i.e. the more you smoke, the better driver you become while high- while other studies point to the increased number of crashes where the driver had some level of THC in their bloodstream.

The current state of the law is that any amount of active THC in a driver's bloodstream is illegal. As we know, however, the Devil is in the details. False positives, based on residual amounts of THC in the bloodstream, are far too common with saliva swabs.

With the science of the available testing devices lagging behind, we will monitor this pilot program and report on its progress and relevant developments. A scientific breakthrough relative to the collection and processing of forensic data could come at any time.

Meanwhile, if you use marijuana, do us all a favor and don't drive stoned.

Post #609

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Tuesday, October 31, 2017

Divorce Robot

Courtesy of the Wall Street Journal
As a student at the University of Michigan in the early 1980s, I recall taking a computer science class to learn what was then called computer language: BASIC, Fortran, Cobal. We fed stacks of carefully completed cards into a giant computer; the cards contained instructions for the computer and took a dozen just to run a simple math equation.

Today, it's called code. And with artificial intelligence at the assist, the computer is a robot, or Bot.

We here at the Law Blogger have blogged about artificial intelligence and its applications in the legal profession. That's why a Wall Street Journal article about a robot that will "handle your divorce" caught our eye.

Many uncontested divorces have become largely administrative in their processing at the county family courts throughout Michigan. Years ago, we touted a New York City law firm that offered a divorce judgment in an hour.

Now, the WSJ profiled a bot that will assist with your uncontested divorce. Like the 60-minute divorce, all the stars and planets have to be lined-up for this to work at all, let alone work properly.

The divorce robot was designed by Joshua Browder, only 19, who gained a fair amount of tech fame with his DoNotPay "chatbot", an AI-boosted computer program designed to challenge traffic tickets. With the success of his free traffic ticket appeal application, Browder is forging ahead with a divorce bot.

His idea is to bring family law to the people by offering an application this February that will, according to the WSJ, "generate all the documents necessary to file for divorce, without involving lawyers." The WSJ estimates that a whopping 95% of all divorces are "uncontested"; the implication is that lawyers are essentially unnecessary in those cases.

As divorce lawyers, we can attest to the fact that "one size does not fit all" in the family court. Many cases that appear amicable at first-blush really are in-fact contested.

In most cases, there are several issues that require a family court professional to resolve. Income to determine child support, supervised parenting time, high-net-worth property division and myriad custody issues come to mind to name just a few such issues.

Just this past month, we blogged about block-buster custody issues involving custody and the vaccination of children and the joint custody of a biological father who conceived his child from the rape of the mother.

We would also challenge the estimate that 95% of all divorces are uncontested. Our law firm believes that every case is different; each has at least one or two legal issues that depend on the facts of the family; however subtle.

So we will not plan to hang-up our divorce cleats anytime soon, but do wish Mr. Browder the best of luck in bringing the law to the people. He is most certainly on the right track in that regard.

Post #608

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Thursday, October 26, 2017

Wedding Cakes, the First Amendment and Religion

Jack Phillips courtesy of SCOTUSblog
The first week in December, the SCOTUS will hear argument in a case from Colorado where that state's civil rights commission cited a bakery for not producing a wedding cake for a same-sex couple. Deeply-held religious beliefs and gay rights are on schedule for a high-speed collision in this interesting and much-watched case.

Very similar to the apple orchard case here in Michigan, this Colorado case will test the limits of civil right for gay couples. Should private businesses be compelled -through a state's "public accommodation" statute- to provide services to gay couples when doing so would offend the religious beliefs of the business owner?

Who better to break it all down than Amy Howe of SCOTUSblog in her always-excellent "In Plain English" feature:
Colorado’s anti-discrimination law bars places of public accommodation – that is, businesses that sell to the public – from discriminating based on (among other things) sexual orientation. In 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a cake to celebrate their upcoming wedding. But the couple left empty-handed … and upset. Masterpiece’s owner, Jack Phillips, is a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce. And because Phillips also believes that marriage should be limited to opposite-sex couples, he told Craig and Mullins that he would not design a custom cake for their same-sex wedding celebration.
Phillips' two attempts to dismiss the Colorado Civil Rights Commission's complaint failed and the commission's ruling against the business and its owner was upheld by the Colorado Court of Appeals. SCOTUS granted certiorari when the Colorado Supreme Court took a pass on the case.

Over 50 amicus briefs have been filed in the case, the United States Department of Justice and the U. S. Conference of Catholic Bishops, among many others. An amicus brief is filed by leave of the Supreme Court, allowing groups and organizations that have an interest in the outcome of a case to supply a brief for the justices to consider.

Phillips, the cake artist, told the NYT last month, "it's more than just a cake, it's a piece of art in so many ways." Phillips says the cake he was asked to create was an important symbol for use in a wedding that he does not condone as it is not a wedding between a man and a woman.

His potential customers disagreed; Charlie Craig told the Times, "we asked for a cake, we didn't ask for a piece of art or for him to make a statement for us. He simply turned us away because of who we are." Colorado issued two court orders that found the baker's conduct violated the state's public accommodation law.

In his brief filed with the SCOTUS, Phillips asserts that the Colorado law prevents him from earning a living through the creation of expressive pieces of art and prevents him from living out his religious beliefs freely in the public square. Phillips asserts that his First Amendment right to free speech includes visual expression. Accordingly, he asserts that Colorado's public accommodation law must subjected to "strict scrutiny"; a scrutiny that will demonstrate the state law unconstitutional.

For their part, the civil rights commission and the gay couple assert that the state law passes even the strictest of scrutiny because it regulates conduct only; not speech.

This case has had a tortured journey to certiorari; it was considered at no less than 15 case conferences before getting the requisite 4 votes. Legal scholars were not hopeful the case would be accepted in light of a similar case -involving wedding photographers- getting rejected by the High Court in 2014.

Oral arguments in December will provide an excellent window into the Court's internal debate. The decision -no doubt- will be one of the last to be released next June.

Stay tuned as this case will really have a significant impact on how business gets done in the town square.

Post #607

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