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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Wednesday, June 29, 2016

Wonder Dog Goes to the SCOTUS

Courtesy ACLU Michigan
Guest Blogger and Clarkston lawyer Laura Nieusma shared her thoughts about the SCOTUS petition of the week.

This October, 12-year-old Ehlena Fry and her Goldendoodle Wonder will be the topic of discussion for the highest court in the country. The SCOTUS granted certiorari to the lawsuit Ehlena's parents filed against Napoleon Community Schools after the school refused to allow Ehlena's service dog into the classroom with her.

The Jackson, MI school has since announced that Wonder would be allowed to attend school with Ehlena, but this announcement was made only after Ehlena attended school without Wonder for six-months, and then was permitted to bring Wonder for a short period of time, but forced to leave the dog in the back of the classroom, not allowing her to perform the tasks she had been trained to perform.
At the end of the 2010 school year, Stacy and Brent Fry made the decision to enroll Ehlena in a different school system, fearing retribution from Napoleon Community Schools.
Wonder is a service animal who is protected under the Americans with Disabilities Act. This Act defines a service animal as "a dog that is individually trained to do work or perform tasks for a person with a disability." Ehlena relies on Wonder to retrieve dropped items, open and close doors, turn on lights, and help her remove her jacket, all tasks that she cannot perform independently as a result of her cerebral palsy.
SCOTUS is expected to focus on the procedural aspect of the case: whether the Fry family was required to exhaust their legal remedies under the Individuals with Disabilities Education Act before bringing suit under the Americans with Disabilities Act. While both statutes provide protection for disabled individuals, the Fry's brought their lawsuit under the Americans with Disabilities Act and not the Individuals with Disabilities Education Act. This distinction is crucial as the former legislation allows for an award of monetary damages, while the latter statute does not.

The parties agree that Wonder is a service dog afforded protection under the applicable statutes and that the Fry family did not exhaust pursue administrative remedies before beginning the lawsuit under the Americans with Disabilities Act. The issue to be decided: when the administrative remedies available do not provide for the relief sought, is a plaintiff required to exhaust those administrative remedies before pursuing an avenue that can provide the requested relief?
We expect briefing and oral argument to take place during the October 2016 term. We will keep you posted on the Fry's case and the fate of their dog Wonder.
Post #547


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Monday, June 27, 2016

Domestic Violence and the Right to Bear Arms

Today, the last day of the term, the SCOTUS announced its 6-2 decision in Voisine v United States which expanded a federal firearm prohibition to include crimes of domestic violence. The consolidated cases, from Maine in the 1st Circuit, tested the scope of the longstanding "felon in possession" laws that disqualify convicted felons from possessing firearms.

Domestic violence is a misdemeanor in Maine as it is here in Michigan and in the majority of states. Justice Elena Kagan wrote the opinion, focusing on the definition of mens rea and the "use of force". The Court expressly adopted the Model Penal Code definitions of the criminal mental state, expanding that definition to include reckless conduct.

This case once again pits the ever-roving intersection between federal and state laws. Mr. Voisine's state law conviction of domestic violence was the predicate to the federal firearm charge; a charge based on a 1996 extension of the federal firearm prohibition.

In Voisine's case, while on probation for a domestic assault, the state learned he possessed a rifle. His ineligibility to do so led to federal charges. In a very well-written opinion, Justice Kagan illustrates examples of a reckless mens rea in the domestic relations context.

When a spouse throws a plate against a wall in anger near the other spouse, for example, the mens rea is reckless. And this is enough to render someone convicted of such a misdemeanor ineligible to possess a firearm.

An interesting dimension to the case is Justice Clarence Thomas' dissent raising a Second Amendment constitutional issue that was not briefed in the case. [Note: this was the case where Justice Thomas asked questions during oral argument for the first time in over a decade.] Justice Thomas asserted that the Second Amendment is treated "cavalierly" when this right -the right to bear arms- can be lost for a lifetime due to a "reckless misdemeanor conviction".

Post #546

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Thursday, June 23, 2016

SCOTUS Shoots Down Executive Immigration Policy

President Obama's immigration reform via executive fiat was all but repealed by the Supreme Court in an unusually brief decision in United States v Texas that stated in its entirety, "[t]he judgment is affirmed by an equally divided  court."

That judgment, issued by a federal judge in Brownsville, Texas, granted Texas' request to enjoin enforcement of the executive policy; a series of recent executive directives made through the Department of Homeland Security known as Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”).

The terse per curiam decision has no precedential effect thus, it does not bind lower courts. But by upholding the lower court's injunction of DAPA, the SCOTUS effectively blunted the power of the President to sidestep a gridlocked Congress through the passage of a series of executive orders.

Fallout from this decision leaves the fate of more than 11 million illegal immigrants and their families unresolved, foreclosing the brief glimpse of opportunity to achieve legal status here in the United States.

Post #545

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Friday, June 17, 2016

Big Law Firm Opens Cannabis Practice

For the past 85-years, Dykema Gossett, one of Michigan's largest law firms, has developed a corporate and commercial transactional clientele. The firm's website touts serving clients in the automotive, energy, hospitality, gaming and financial sectors. 

Just over a month ago, Dykema announced the formation of its Cannabis Law Group. To form the group, the firm pulled together its lawyers with marijuana-related projects in the intellectual property, land use, zoning, tax and employment law sections.

Dykema's cannabis law group also sports its own blog on the firm's website. The posts are relevant and informative in this new and constantly changing area of the law.

While you would not necessarily pair one of Michigan's largest law firms with the marijuana industry, Dykema, in fact, has been in on the ground floor. The firm served as legal counsel to the lobbyist group that drafted our medical marijuana law back in 2008.

The firm's blog noted the failure of the "MI Legalize" effort to get on the 2016 ballot on the sole basis of deficient signatures; about 100,000 short.

Post #544

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Tuesday, June 14, 2016

Judgment Day for the Judge

Should a judge be removed from the bench for a single decision; even a particularly poor one?

Being a judge is a very difficult job. Every decision you make disappoints at least one of the parties standing in front of you; sometimes both parties are disappointed; sometimes bitterly disappointed.

An independent judiciary is mission critical for our democratic system of government. A judge must be able to consider the evidence presented, calling the balls and strikes of a case, and decide the matter within a range of principled outcomes.

When a judge's decision is wrong, the aggrieved party always has an appeal. In a recent media case from Santa Clara County, California, non-parties have mobilized well beyond the scope of an appeal, launching assaults on the very professional standing of the judges making the decisions.

In People vs Broc Turner, Santa Clara Superior Court Judge Aaron Persky, unopposed in his bid for re-election this November, is facing two "recall" or "impeachment" petitions. Judge Persky got into it with the world by sentencing Broc Turner, a student-athlete at Stanford University, to only six months jail for the rape of a fellow student.

In the wake of Judge Persky's decision, there has been a national outcry leading all the way to the White House, calling for Persky's removal or impeachment. It is fair to say at this point that his sentence in the Turner case has made him infamous [yes, he is receiving death threats] and it is not an understatement that his professional reputation will be forever tarnished, the local criminal defense bar notwithstanding, in the eyes of the public and the media.

In criminal cases, once an accused has been convicted, a sentencing hearing is conducted where the judge imposes punishment after considering: a recommendation from the probation department, the statement from the victim, and allocution from the defense lawyer. In the Turner case, Judge Persky's six-month sentence was recommended by probation.

A reader's comment to a recent post about this case in the New York City law blog Simple Justice aptly frames the issue:
The “Social Justice Warriors” have lost their marbles on this one. People who ordinarily post against capital punishment in any context have been advocating the killing of Judge Persky as well as the sodomization and killing of Brock Turner in custody. It is off-the-rails insanity, and reveals the true face of “Social Justice Warriors” as a monstrous composite of the face of McCarthyism and the face of the lynch mob. Eventually (and sooner rather than later if the violence they have endorsed actually occurs), “Social Justice Warriors” will lose their supporters just as McCarthy and lynch mobs have. The only question is how much damage will be done to the justice system and how many lives will be destroyed before it happens.
Writing for Slate in a post aptly titled Justice for None, here is how Mark Joseph Stern characterizes Turner and describes his lenient sentence:
Brock Turner is an odious criminal who committed a heinous act and deserves to go to prison for much longer than his six-month sentence requires. His trial confirmed that both racism and sexism continue to plague America’s criminal justice system, especially where rape is involved. Yet in their rush to condemn Turner’s sentence, far too many liberals have abandoned what were, not so long ago, fundamental principles of progressivism. This willingness to toss due process out the window in sexual assault cases is, unfortunately, indicative of a broader inconsistency that plagues the American left.
The Turner case, and its attendant outrage toward the jurist perceived as too lenient toward a privileged rapist, brings into focus the well-meaning and concerted effort to stop sexual violence. But that cause, however noble, cannot unravel one of the bedrock principles of our justice system: that of an independent judiciary.

Post #543

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