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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Friday, September 30, 2011

Saved by the Gun

Ben Wallace
What a difference one-year makes.  Last year, our law firm's web site carried a tweet in our news feed about Big Ben attending law school.

Last weekend, any plans the big fella had of convincing a state bar to issue a law license in his name just became more complicated.  Wallace, recently retired from the Detroit Pistons, and a former Chicago Bull and Cleveland Cavalier, was arrested in Bloomfield Township on Saturday night.

News reports have Wallace failing field sobriety tests and submitting to a breath test allegedly resulting in a .14 blood alcohol content.  The legal limit in Michigan is .08; the year-old "SuperDrunk" threshold is .17.

An unloaded pistol allegedly was found in Wallace's Cadillac.  This could actually help him out.

Apparently, Wallace's case was randomly assigned to 48th District Judge Kim Small; known for her harsh sentences for first time offenders of Michigan's drunk driving laws.

Drunk driving is a misdemeanor if a first offense; misdemeanors stay in the district courts where they originate.  Carrying a concealed weapon, on the other hand, is a felony.  Felonies are bound over for trial, or resolution via plea, at the county circuit court.

Judge Small was all over the national headlines this summer when she sentenced former NBA star, Jalen Rose, to nearly a month in the Oakland County Jail.   Would Big Ben have received the same fate?  We'll never know now.

Wallace will most likely plead guilty to both the felony and the misdemeanor and get probation rather than any jail time.  Carrying the unlicensed pistol may have saved the big fella several weeks of sensory deprivation in the Oakland Hotel.

I was in the halls of the Oakland County Circuit Court on Tuesday when Big Ben was being sentenced by Judge Shalina Kumar.  As predicted, he received probation.

Here's a post to an outstanding criminal law blog that captures the perspective of these local NBA stars' convictions from the national level.

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Wednesday, September 21, 2011

New Apps Flood Lawyers With Information

Attorneys, perhaps more than any other professionals, are awash with information; information about their cases, information about changing laws, a constantly shifting schedule.  The pace with which the information now flows can only be described as instantaneous.

The manner in which a lawyer collects, stores and utilizes this information is a good indicator of that lawyer's professional skill.  In this era of a 24/7 stream of digitized information, mobile devices are beginning to offer specialized apps for lawyers.

Here are some examples:

SCOTUS App.  The Oyez Project has just launched an app that will download U.S. Supreme Court activity to your mobile device.  This will include digitally recorded oral arguments, text of the High Court's decisions, as  well as media coverage and analysis.  Pretty cool, to be sure; but is this information-overkill?  Why not just wait until you get back to your computer?

Mobile Transcript.  This app allows you to download, manipulate, summarize, and transmit deposition transcripts right from your mobile phone.  Great for when litigation data must be processed fast.  Try using this while on vacation, however, and you will likely need to hire a divorce attorney.

Family Law Apps.  Speaking of divorce, there are plenty of divorce-related apps in both the Droid and iPhone markets.  For those residents of Gotham, there is an app to calculate your child support, there are apps to save your marriage; apps to stop your divorce; apps to help you win custody and, or course, apps for various forward-leaning divorce attorneys and law firms.  Exhausting, to be sure.

State Bar App.  Useless here in Michigan, but perhaps a harbinger, the Maryland State Bar Association has produced an  app that downloads their rules of evidence, rules of professional conduct, and bits of professional philosophy right to your handheld device.  Can the SBM be far behind?

Law Blog Apps.  In a case of life imitating art, or perhaps this is best described as lawyers taking themselves too seriously, the blawg "FutureLawyer" announced on Tuesday that there is an app available to download their tech-related posts directly to your mobile device.  As if you just could not live without their updates; now you can digest their posts about the latest tech developments while you wait for your case to be called; could have used this App today.

In 18-months, most of these current apps will be considered obsolete.  The thing about high-tech is that products are constantly being improved.

Soon, you will be able to go to your doctor and just get a "chip" implanted into your skull; that way you'll have all the world's latest data right under your hood.

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Post-Divorce Nesting

Brown Bird Design for Time
This week in Time Magazine, there is a story in the "Society" section about a mode of parenting known as, "Nesting".  This is where divorced parents each secure a residence beyond the former marital home; the couple's children remain in the marital home, to "nest".

The theory behind nesting is that it seeks to minimize the sense of upheaval that children of school age often experience during and after their parent's divorce.

Time's Belinda Luscombe speculates that the nesting mode of post-divorce parenting has emerged over the past decade as an innovative version of co-parenting.  It remains rare, however, to get both parents on the same page be able to pull it off.

In the past decade, I have completed nearly 250 divorces and only two of those featured a nesting arrangement.  Of those two cases, one of nests was destroyed, via foreclosure.

On the other hand, the difficult real estate market has forced many divorcing couples to hang onto their former marital home; like it or not.  Nesting would seem to be a viable option.  Usually, however, one of the parents "takes one for the team" and remains in the marital home, or the couple "walks away" from the home to begin their new post-divorce lives under the cloud of foreclosure.

Proponents assert that the nesting arrangement eliminates the continuous shuffling between two homes by the children that comes with a traditional parenting schedule; the parents do the shuffling in a nesting arrangement.  Also, for children of a certain age, the arrangement allows them to continue living and going to school in a familiar environment, their childhood home, while they adjust to their parents' divorce.

Most family court judges look upon nesting arrangements with a certain degree of skepticism, if not outright scorn.  In family court, however, parents are free to make whatever arrangements they desire so long as the judge can be convinced it is in best interests of the children involved in the case.

As a temporary post-divorce parenting technique between two cooperating amiable co-parents, nesting can work.  It very well may provide the minor children with a better opportunity to adjust to the strains of divorce.

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Sunday, September 18, 2011

Oakland County Re-Visits Medical Marijuana Drama

The Oakland County Sheriff's interpretation of the Michigan Medical Marijuana Act (MMA) and the Controlled Substances Act has forced two local marijuana facilities to lock their doors.  One of the pot-growing operations, Big Daddy's Hydro, in Oak Park, closed voluntarily; the other facility, right here in Commerce Township where this blog post is being composed, was the subject of a task-force raid.

The Oakland Press ran a front-page story on Saturday about Big Daddy's Hydro.  The facility was on the receiving end of an Oakland County Sheriff's raid back in January.  Since then, the owners were resolved to carry on their operation; an operation they insisted was legal under the MMA.  Sounds like a movie might be in there somewhere.

Before Hollywood came knocking to negotiate the movie rights to this true crime drama, however, Big Daddy's in Oak Park locked its doors.  The decision was based on the observations of its management group that "patients" were being shook down on the street after leaving the facility.  Also, it did not help that four members of the management group were charged with distribution felonies by the Oakland County Prosecutor.

Big Daddy's is consolidating pot growing and distribution operations into their Chesterfield Township facility in Macomb County, and in Detroit.  Therefore, Big Daddy's alleged violations of the MMA or the Controlled Substances Act are now in the hands of Prosecutors Eric Smith and Kym Worthy.

The more recent raid on the Commerce Township facility presents an example of an increasingly sophisticated approach to medical marijuana enforcement by the Oakland County Prosecutor.  This bust was executed by a joint task force with a federal component; the DEA.  [Remember, marijuana remains illegal in any form under federal law.]  Also, the Sheriff has commented publicly that the facility violated the Controlled Substances Act, not the MMA.

Criminal defense attorney Neil Rockind was quoted in the Oakland Press yesterday as saying, "They can try to describe it any way they want.  I know what happened...and if they want to pursue a case then I'll be there."  Yeah, sounds like Neil; never one to shy away from high-stakes criminal defense litigation.

The Michigan Court of Appeals handed prosecutors a serious weapon when it issued its People v McQueen decision last month.  The published, thus binding, decision of the Court of Appeals runs a lance through most MMA distribution schemes; at least if those involved want to make any money from their elaborate growth and distribution operations.

This brings us back to the intent of the medical marijuana referendum that passed overwhelmingly by Michigan voters in the 2008 election.  The MMA is designed to encourage a "grow-your-own" and "trade-among-friends" approach to distribution.

From the outset, those involved in growing pot have been looking to make money from the provisions of the MMA.  Because the Act is silent on pot sales, a legal debate has, er, cropped-up about whether distribution via sale is permitted or proscribed by the Act.

Also, as the Law Blogger has pointed out time and again; the premise of patients getting medical attention from marijuana, although legitimate in a number of cases, is a complete sham in the overwhelming number of patient-care provider relationships.  This scam will likely bring down the MMA in the end.

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Friday, September 16, 2011

Large Man Suing White Castle Over Booth Size

Satisfying my (very) occasional cravings for White Castle sliders, I've never stepped foot into the tiny fast food chain's shoe box stores; I always blow through the drive-through window instead.  I cannot imagine the size of their booths as anything but cramped.

A New York man weighing nearly 300 pounds has filed a lawsuit against the Colombus, Ohio based company in federal court alleging violation of the Americans with Disabilities Act.  Hungry, humiliated and hurting when he slammed his knee into the metal pole beneath the, er, table, this Plaintiff is now seeking unspecified money damages.

In-house counsel ought to have a good time with this litigation.  A spokesman for the company said the store in Nanuet, NY is being replaced by one with larger booths.  In tort litigation such as this, corrective action is not held against the company.

Last night, Jay Leno suggested the man ought to protest the fast-food chain by going on a hunger strike; then perhaps he would fit into a White Castle booth.

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Sunday, September 11, 2011

Remembering September 11th, 2001

I remember driving to Detroit for a child support hearing the morning of Tuesday, 09/11/2001.  I was just about downtown on I-75, when the "Imus in the Morning" show reported an odd story about a "commuter" plane that had crashed into the North Tower of the World Trade Center.

The matter was being reported in those early moments as an errant plane.  The discussion was about near misses that happen more than we realize.

As Don Imus described what he was seeing on the video monitors, his entire radio show crew erupted when the second jet struck the South Tower.  I slammed my fist into the empty passenger seat of my car, shouting in disbelief.  Along with the rest of the country, I knew instantly what was unfolding in New York was no accident.

By the time I parked my car, cleared security at the Penobscot Building, and made it up to the 9th floor to the Wayne County Friend of the Court, the Pentagon had been struck by another jet and everyone was talking about being under attack.

Everyone's plans changed that day.  Some people were saying that yet another hijacked jet was heading due West toward Cleveland and Detroit.

The FOC hearing room was packed with people associated with more than a dozen cases.  Thinking I would be trapped there all morning, I started to worry about what was happening in New York and Washington D.C.  My brother Terrance lived in Manhattan back then; was he ok?  Could I even find out?

Waiting for the Referee to take the bench, I tried Terrance's cell; no answer.  I tried a second call; this time Verizon did not even make the connection.

By a stroke of luck, my case was called first.  Just as we completed our arguments and received our ruling from the Referee, two Wayne County Sheriffs announced that the Penobscot Building was closing and instructed us to vacate in an orderly but immediate fashion.  Mine was the only case called on the docket that day.

Back on the street, all the intersections were choked with vehicles like it was 5:00 on a Friday afternoon; folks were literally fleeing the downtown area.  So this is what it feels like to be under attack in America.

Later, I found out my brother Terrance had plans to play tennis at courts located near the World Trade Center that morning; they cancelled their plans due to some puddles from a rain storm that lingered on the courts.

Thinking back on it now, while I stood there chirping to the Referee about eliminating my client's child support obligation for children that DNA results said were not even his, those heroes from Flight 93 wrestled control of their jet, executing some major league damage control from which every citizen in this country has benefitted.

In my mind at least, I have always held the belief that Flight 93 was destined for the Capitol Rotunda. We still have our beloved Capitol, the very soul of Democracy, thanks to those men and women on Flight 93.

Now, let's make it count people; we've got to make it count...

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Friday, September 9, 2011

Medical Marijuana Lawyer Seeks Further Appeal on Dispensary Case

This blog has covered the recent Michigan Court of Appeals decision in Michigan v McQueen which outlawed medical marijuana dispensaries as well as patient-to-patient pot sales.  This appeal is the latest chapter in the pot drama that has gripped our state since the passage of the referendum that legalized medicinal marijuana by a convincing 3/4 popular vote in the 2008 election.

Our readers may recall that the oral arguments in this appeal were the subject of some fanfare when journalist Eric Van Dussen sought to record the arguments, as he did in the People v Anderson medical marijuana case.  Jurisprudence in the making is certainly newsworthy; particularly when it concerns our fledgling yet tortured medical marijuana law.

Now this appeal grinds onward to the Michigan Supreme Court.  So promises Matthew R. Newburg, legal counsel to the Michigan Association of Compassion Centers, appearing as an amicus in the case.

The Court of Appeals granted Van Dussen's request to record the argument on behalf of the media; granted the Attorney General, also an amicus, 10-minutes of appellant's oral argument time; but denied Mr. Newburg's request to get in on the action at oral argument; his 10-minutes [of fame] will have to wait for another case, unless the Supreme Court grants his application for leave to appeal.

The Compassionate Apothecary claims it was simply operating a "club" of about 345 legal pot growers who "traded" various strains of medical marijuana.  In exchange for making a clubhouse available for its pot aficionado membership, Compassionate Apothecary took commissions off the top of all intramural marijuana transactions.

The intermediate appellate court ruled that the act does not authorize such commissions or transactions.  The Isabella County Prosecutor has mailed the appellate opinion to all marijuana dispensaries in the county;  advising them to cease any operations that contravene the appellate court's decision.

Going beyond the bald mechanics of his client's business model, however, Attorney Newburg told Michigan Lawyers Weekly that the MMA expressly provides for transfers from caregivers to patients and also allows patients who "grow-their-own".   The Apothecary's legal counsel also noted that the MMA is silent regarding so-called "patient-to-patient" transfers of the type that apparently went down at the club.

With those arguments in hand, the Compassionate Apothecary now proceeds to the Michigan Supreme Court.  Given the mess that this law has become, the High Court may actually take the bait and grant the Apothecary's application for leave to further appeal so they can sort it all out.

We will follow this one as it develops.  Even if the High Court declines this case, there are others building up behind it that are equally, er, "newsworthy".

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