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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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Wednesday, September 26, 2012

Michigan Supreme Court Selects [Another] Medical Marijuana Case

The criminal defense bar saw all this litigation coming from a distance.  At this blog, we knew that the Michigan Medical Marijuana Act would be challenged, diced, and spliced for years after its passage in 2008. 

Well, no disappointment on that front, as the Michigan Supreme Court has selected yet another medical marijuana case for briefing and argument during their term which will commence next week.  This case will follow the Supreme Court's seminal Kolanek decision and nearly a dozen opinions from the intermediate appellate court issued over the past four years.

This time, the action arises from Kent County and the issue involves the collective farming and distribution scheme of a certified "care provider".  The case, People v Bylsma, was decided by the Michigan Court of Appeals in a published decision one year ago.

The care provider was the subject of a raid conducted by the Grand Rapids PD which yeilded more than 88 plants from a grow operation housed in a commercial rental facility.  Problem: this care provider only had two certified "patients"; a person is allowed up to five under the Act.  You may possess up to 12 plants for each patient.

In the trial court, Mr. Bylsma asserted the immunity afforded by the medical marijuana act, and moved to dismiss the case.  He also argued that the Act does not prevent multiple care providers from collaborating their grow operations.  The lower court denied the motion to dismiss, and Bylsma's appeal to the Michigan Court of Appeals resulted in that decision being affirmed.

Now, the Michigan Supreme Court will take a look.  Its decision will further develop our growing medical marijuana jurisprudence.

This case presents an opportunity to further address one of the primary tensions that have developed between care providers attempting to distribute medical marijuana, and perhaps turn a profit in doing so, and the law enforcement agencies that have been uncertain about what is legal and what remains illegal.

The Kolanek decision smoothed out the mechanics of the immunity and affirmative defense provisions of the Act.  Prosecutors took a very restrictive view of the latter, while the criminal defense bar argued for a broader application of the defense.

We here at the Law Blogger recently had the opportunity to brief this issue in a case pending before the Court of Appeals.  Both Kolanek and now Bylsma will affect the outcome in our case.

As for Bylsma, let's just sit back and see whether the Supreme Court will interpret the Act in a manner which will allow these pot farmers to make some money.

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Thursday, September 13, 2012

Is it Ethical for a Lawyer to Have Sex With a Client?

Attorney Henry Baskin
Technically, the Michigan Rules of Professional Conduct do not expressly proscribe a lawyer from having sexual relations with a client.  The lack of a specific ethics provision, however, did not prevent the Michigan Attorney Grievance Commission from issuing a reprimand and assessing costs against well-known Birmingham attorney, Henry Baskin, for allegedly conducting a long-term physical relationship with a female divorce client.

We here at the Law Blogger know Henry, having worked with him on a few matters over the years.  So we are compelled to ask, Henry...Henry...of all the women you could persuade to, er, date you, why select a client; and a divorce client to boot?

The Attorney Discipline Board [a panel of lawyers assigned to decide Henry's case] had this to say in disposing of this matter:
Although there is no evidence of actual injury to the client, the potential injury under these circumstances is clear to any lawyer, and certainly to someone with [Baskin's] experience.
Never one to shirk the white-hot spotlight, Henry has publicly commented that he disagreed with the decision, and thought the matter should have been resolved privately long-ago; the relationship apparently was conducted from 1999 through 2004.  Henry also noted with some apparent pride, that his client was well-served in the divorce to the extent she received a record-breaking alimony award.

Perhaps this ruling will have some interesting future implications.  For example, what if the lawyer has a long-standing committed and pre-existing relationship with the client, say in a probate or commercial matter?  Obviously divorce clients are always going to be "taboo".  Or what if a lawyer represents his spouse?

The Attorney Grievance Commission always takes the unique facts and circumstances of a particular case into account.  We have to agree with this one.  Of all the people a divorce lawyer may elect to date, it just should not be from among the corps of that lawyers clientele.

So folks, beware of the horny divorce attorney!  Caveat emptor on that one for sure...

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Friday, September 7, 2012

Unemployed Lawyer Questions President Obama on Reddit

If you have a child under 25 that is technologically oriented, wired, so to speak, I bet they have a Reddit account.  You know, Reddit; the social media Q&A site that we here at the Law Blogger find to be somewhat exasperating and, well, just hyper.

If you're wrong, or wrong-headed, on Reddit, you'll be slashed to the quick and run off the site.  My high school underclassman son swears by Reddit.  He trusts the site, and uses it to answer questions on a wide range of pre-selected "interests".  I must admit, although a late adopter myself [I rarely make it into my Reddit profile...], it caught my eye when an unemployed law school graduate asked President Obama a question when the President participated in an AMA ["Ask Me Anything"] session.

Here is the question:
I am recent law school graduate. Despite graduating from a top school, I find myself unemployed with a large student loan debt burden. While I'm sure my immediate prospects will improve in time, it's difficult to be optimistic about the future knowing that my ability to live a productive life -- to have a fulfilling career, to buy a house, to someday raise a family -- is hampered by my debt and the bleak economic outlook for young people. I know that I'm not alone in feeling this way. Many of us are demoralized. Your 2008 campaign was successful in large part due to the efforts of younger demographics. We worked for you, we campaigned for you, and we turned out in record numbers to vote for you. What can I say to encourage those in similar situations as I am to show up again in November? What hope can you offer us for your second term?
 Here is President Obama's answer:

I am Barack Obama, President of the United States -- AMA by PresidentObamain IAmA
[–]PresidentObama[S] 2002 points  ago
I understand how tough it is out there for recent grads. You're right - your long term prospects are great, but that doesn't help in the short term. Obviously some of the steps we have taken already help young people at the start of their careers. Because of the health care bill, you can stay on your parent's plan until you're twenty six. Because of our student loan bill, we are lowering the debt burdens that young people have to carry. But the key for your future, and all our futures, is an economy that is growing and creating solid middle class jobs - and that's why the choice in this election is so important. The other party has two ideas for growth - more taxs cuts for the wealthy (paid for by raising tax burdens on the middle class and gutting investments like education) and getting rid of regulations we've put in place to control the excesses on wall street and help consumers. These ideas have been tried, they didnt work, and will make the economy worse. I want to keep promoting advanced manufacturing that will bring jobs back to America, promote all-American energy sources (including wind and solar), keep investing in education and make college more affordable, rebuild our infrastructure, invest in science, and reduce our deficit in a balanced way with prudent spending cuts and higher taxes on folks making more than $250,000/year. I don't promise that this will solve all our immediate economic challenges, but my plans will lay the foundation for long term growth for your generation, and for generations to follow. So don't be discouraged - we didn't get into this fix overnight, and we won't get out overnight, but we are making progress and with your help will make more.
The "we're all in this together" plank of the Democratic Party is evident in this exchange with the Commander in Chief.  But what's up with the wind and solar power references?  These industries are on par with our legions of unemployed attorneys.  Overcapitalized for their current output; little to none.

Well, we here at the Law Blogger do subscribe to the positive outlook.  And we do take note that a sitting U.S. President spent a moment on a very forward social media platform connecting, briefly, with a random stream of computer users.

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250th Post to the Law Blogger

We here at the Law Blogger began posting for the Oakland Press back in March 2009.  In the three plus years since our first post, we managed to publish two hundred fifty posts of law-related content on our blog.

In that time, our readers have amassed 111,713 page-views of our blog.  Readers have commented on our posts over 350 times.

Thank you to our loyal readers.  We will try to keep posting relevant law-related content that you hopefully find useful.

Thursday, September 6, 2012

The Limits to First Amendment Free Speech & Religion

Two cases involving the First Amendment right to freedom of religion and free speech have caught our attention here at the Law Blogger.  One case is from right here in Michigan, involving an errant blogger, while the other, involving the Amish religion, is being played out in federal court in Cleveland, OH.

First, the Amish case.  Rather than charge a group of Amish Ohioans with simple assault, the U.S. Attorney in the case of United States v Samuel Mullet, et al, charged members of a peculiar Amish synod with hate crimes; charges that involve far more complex proofs.

About two-years ago, ole Samuel Mullet [you cannot make it up] broke away from the traditional fundamentalist Christian Amish church in which he was raised, to start a renegade sect of his own in Bergholz, Ohio.  Appointing himself the lone "Bishop" of his newly-formed cult, Mullet allegedly initiated some very un-Amish practices such as, er, repetitive "sexual" counseling for the wayward young women of the cult, and disciplining male transgressors with chicken-coop confinement.  A very convenient arrangement for his eminence, if you were to ask us here at the Law Blogger.

Eventually, some of the members of Mullet's sect left Bergholz to rejoin the mainstream Amish in Eastern Ohio.  Mullet took great offense to this and allegedly, with the assistance of his sons and other cult members, forcibly cut the beards from these deserters with razor-sharp horse shears, and allegedly cut the hair of the wayward women.

Apparently, Amish regard their beards with great religious significance.  Mullet's conduct targeting his former cult members has landed him in federal court on hate-crime charges.

In order to prove their case at trial last week, the two female Assistant U.S. Attorneys in Cleveland called a series of Amish witnesses to testify, not only about the Mullet-led assaults, but also about the Amish religious culture.

The U.S. Attorney has the burden to prove not only the basic facts of the assaults, but the religious-based significance of Mullet's conduct.  As evidenced by the jury acquittals in the Hutaree militia case last year from the United States District Court for the Eastern District of Michigan in Detroit, the bizarre nature of the defendants does not always guarantee a conviction.

February 2013 Update:  Mullet and the other members of his violent cult were found guilty on several of the charged counts by a federal jury in Cleveland, Ohio.  They are now scheduled to be sentenced; prison is the expected outcome.  Accordingly, I think it is now time to cut their own beards.

The other recent jury decision in a local case exemplifying the limits of our First Amendment right to free speech is the case of attack-blogger and rebel without a clue: Andrew Shirvell.

You may recall that Shirvell, a former Assistant Attorney General for the State of Michigan, obsessively blogged about Chris Armstrong, an openly-gay former student at the University of Michigan, and the former president of the Michigan Student Assembly.  Shirvell's blogging became a national news story in early 2010, costing him his position with the Michigan Attorney General.

The blog went so far against Armstrong, accusing him of being a "radical homosexual activist, elitist, racist and liar", among other things, that Armstrong filed a defamation lawsuit against Shirvell in the Washtenaw County Circuit Court.  The case was later removed to federal court in Detroit where Shirvell was hit last week for a $4.5 million dollar jury verdict that he whines he cannot pay, and promises to appeal to the Sixth Circuit Court of Appeals in Cincinnati, OH.

Shirvell represented himself in the jury trial, making a pitch to the jury that they obviously rejected.  He claimed the blog posts about Armstrong were "political speech", and that it was protected under the First Amendment as well as due to Armstrong's status as a "public figure".

Note to our readers: After monitoring the Appellant's case in the Sixth Circuit to see whether the appellate court will uphold the trial court's First Amendment-related evidentiary rulings and jury verdict, we will put this sordid case to rest.  Shirvell's 15-minutes has long expired.

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Sunday, September 2, 2012

Urban Legends of the Michigan Motor Vehicle Code

The other day, our law partner, Peter Keenan, who prosecutes ordinances for Independence and Brandon Townships, was discussing Michigan's Motor Vehicle Code with the judges of the 52/2nd District Court here in Clarkston.  A question came-up among the judges that they wanted ordinance-prosecutor Keenan to answer: is it illegal to drive barefoot?

This led Mr. Keenan to unearth the following "urban legends" of our Motor Vehicle Code:
  • Barefoot Driving.  There is nothing in Michigan's driving laws that prohibits driving without footwear.  In fact, a good argument could be made that a driver has even better control of the vehicle while driving barefoot.  I know that, from time-to-time, I have the occasion to drive barefoot.  It does feel like I have better control in moving between the brake and the gas pedal.  
  • Riding in a Trailer.  Again, nothing in the Motor Vehicle Code proscribes someone from riding in a trailer being towed by a vehicle, regardless of the type of hitch.  Nor is two-way communication required between driver and rider, which is also part of this urban legend.  One issue that could arise, however, is if a child is in the trailer, a child seat would be required.
  • Driving with Headphones.  The Motor Vehicle Code does not specifically prohibit the use of headphones or earbuds; even Dr. Dre's "Beats".  However, to the extent that it interferes with the driver's ability to process available auditory clues of certain situations, it could lead to a citation for careless, or even reckless driving, depending on the circumstances.
  • "Suicide Knobs".  You know, those goofy attachments to your steering wheel, that supposedly help individuals with certain handicaps steer the vehicle.  When used at high speeds, these devices promote "drifting".  Nevertheless, they are not illegal.  In some instances, however, if the vehicle is used in construction or for hauling material, it may be an OSHA violation.
So some of the things that many folks believe are prohibited by law are, in fact, not covered by the specific provisions of the Motor Vehicle Code.  It bears keeping in mind, however, that in the case of a collision, the police investigators will always assess the circumstances [i.e. barefoot, earbuds, trailer] to make a base-line determination about whether the driver was in sufficient control of the vehicle.  

If not, then the driver can expect a ticket for careless driving, reckless driving, or other applicable code infractions.  So be sure to drive carefully out there...

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