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Thursday, June 28, 2012
Tuesday, June 26, 2012
Military Divorce: Part II
Thursday, June 14, 2012
Michigan's Paternity Act Revoked to Provide Rights to Putative [Biological] Fathers
Yesterday, Governor Rick Snyder signed Senate Bill 557 and Senate Bill 558 into law, revoking our 1956 Paternity Act to allow claims to be filed by a putative [biological] fathers, even when the mother is a married woman; married, that is, to someone other than the putative father.
The original paternity law, that presumes that a married woman's husband is the father of any child born during a marriage, was considered by many family law practitioners to be a throwback from a lost society; a law [poorly] designed to protect the sanctity of the marriage institution.
The new law, introduced by Senator Steven Bieda of Livonia, was supported by the 2,100 members of the State Bar of Michigan's Family Law Section, among them, yours truly.
Five and a half decades after the original paternity act was passed, the real world came crashing up against that law. Little Maeleigh is now nearly 7-years old and has not been allowed to see her father in over 4-years due to the now-repealed paternity act.
At the time of her birth in 2005, Maeleigh's mother was married, to a convicted drug-dealer. She was separated from her husband, however, and conducted a long-standing and open affair with Daniel Quinn, Maeleigh's biological father. For nearly three years, Quinn was an involved father in his daughter's life, with the trio living as a family unit.
All that changed when Maeleigh's mother reconciled with her felon husband, removing Maeleigh from Quinn's custody, and moved out of Michigan. Quinn's claims of paternity, filed in the Livingston County Circuit Court, were rejected on grounds he lacked legal standing to bring an action because Maeleigh's mother was married at the time of her birth and the husband was irrebutably presumed to be the father.
Quinn is now expected to file a paternity claim under the new law. For his sake, and the sake of his daughter, he may be able to take advantage of his prior filings to come within the scope of the new law.
The new paternity act, however, lays out very specific limited circumstances under which a family court judge can declare a child to be born out of wedlock when the mother is married, and to make paternity findings. The putative father [referred to as an "alleged father" in the act] cannot have knowledge of the mother's married status. There is a three year time limit for the putative father to bring the action to the family court. There are other limitations set forth in the act.
The new paternity act is hailed as "progress" among my colleagues who have seen first-hand, the heart break that is caused by a law that slams the door in the face of a biological father. Senator Bieda's public rationale for sponsoring the new law is that the old law was passed in a simpler time, before DNA paternity testing.
The unspoken inference, however, is that we now live in a relatively more permissive and morally lax era. Don't go thinking that a married woman's children are the issue of her husband. In our post-modern era, you just cannot operate under that assumption.
And what does that say about us...?
Monday, June 11, 2012
A Tale of Two Designer Drugs
Spice, K2, synthetic marijuana; this drug has been grabbing all the headlines lately, particularly here in Oakland County. Also known by a variety of street names [Blaze, Dream, Aroma, Eclipse, and Red Dawn] this still-legal substance is ubiquitous; sold over-the-counter at gas stations and party stores.
What is spice? Mostly natural organics [vanilla, lotus and blue rose] mixed with a laboratory compound designed to duplicate THC. The drug is particularly dangerous to our youth because the primary ingredient binds tightly with the cannabis receptors in their still developing brains.
There is no question that kids use spice because they crave the high.
Tied to two springtime suicides, and through association with Oakland County's patricide du jour, municipalities are racing to outlaw this substance of many names.
Quickly drafted bills are now instantly pending in Lansing. Last week, in a largely symbolic gesture, the Oakland County Board of Commissions passed a resolution supporting the criminalization of synthetic marijuana. All the while, party store owners race to unload their inventory onto the suburban streets.
More subtly, another designer drug has been sneaking into our schools. Many young academic overachievers are increasing their focus, and attempting to gain an edge on exams by ingesting a variety of amphetamines and other stimulants designed to alleviate the effects of attention deficit disorder. Adderall, Ritalin, and Focalin, all used to treat the disorder, are among the most addictive substances with legitimate medical uses.
Not long ago these drugs were mostly ingested by college students pulling all-nighters trying to prepare for multiple exams. Now, they are beginning to trickle down to high school honor students cramming for multiple AP finals. At least so reported the Sunday NYT; above-the-fold, at that.
[My college-aged daughter, now a Sophomore at the Ohio State University, shared with me that many of her fellow-students took stimulants when preparing for, and during, their final exams.]
Unlike spice, the ADHD drugs are not ingested for the high but rather, for their stimulating effect on the brain; for creating what the NYT article described as, "a laser focus, instant recall, and the ability to crush any test in [the user's] path." Wow, sounds great!
But, just as in the case of spice, it is an addictive crutch; a false-promise; a potential launchpad for prescription pain pill abuse. At some point, these students will have to produce, to perform, without their crutch. And then what...
So while the motivations may be different, the fact remains that drug abuse is drug abuse. We must teach our children to rely on themselves; to avoid pills and look within. Whether hatched from boredom or forged from the will to succeed, it is that craving for a magic elixir, for a little something extra, that once again permeates our youthful culture.
Thursday, June 7, 2012
Oakland Circuit's Spousal Computer Privacy Case Rejected by Supreme Court
|Leon Walker with his former |
spouse in happier times
Last Friday, the Michigan Supreme Court denied Leon Walker's application for leave to further appeal from a Michigan Court of Appeals order that similarly rejected his effort to quash the criminal information filed in his case.
On appeal, Walker's lawyers have asserted that the legislature did not intend to criminalize the domestic relations nature of his conduct. Also, although Walker did not challenge the constitutionality of the statute, he simply asserted that the evidence adduced by the prosecutor at the preliminary examination did not comport with the proscribed conduct set forth in the statute.
The case now goes back down to Oakland Circuit Judge Martha Anderson for further proceedings and trial.
Back in 2009, Walker suspected his wife was having an affair. Employed as a computer technician for Oakland County, he had expertise on how to access computers. Allegedly, he hacked into a computer that the prosecutor alleges had been gifted to his wife, discovering evidence of the affair.
This blog covered the case in an earlier post when the matter seemed to be heading for trial.
In speaking with Mr. Walker yesterday [he contacted our law firm], he said he is looking forward to his trial when all the facts will come out before a jury. Among those facts, he says the laptop computer at issue in the case was premarital and that he never gifted it to his former wife.
Walker also claims that the Oakland County Sheriff, or their computer expert, may be responsible for evidence spoilation; they claim to have lost or misplaced his laptop.
Although the Supreme Court declined to decide the case at this time, some of the Justices hinted at their concern that the language in the statute is very broad and could be used to criminalize otherwise legal conduct.
Justice Marilyn Kelly, who voted to hear the appeal, stated her concern in the High Court's order:
Justice Kelly goes on to note that the Michigan legislature submitted a bill to the House Judiciary Committee last year seeking to amend the unauthorized computer access statute. This bill would carve-out an express exception in the statute for spouses, provided that certain conditions were satisfied.The factual basis for one of the charges against defendant is that he allegedly accessed his wife’s e-mail account without her permission. This may be the first time in the 33 years since MCL 752.795 became law and the 16 years since it was amended to its present form that the statute has been used as the basis for criminal charges for the behavior in question.
We will be keeping an eye on this hot case.
Tuesday, June 5, 2012
Michigan Supreme Court Rules on Medical Marijuana
This week, the Michigan Supreme Court decided an important case involving Michigan's Medical Marijuana Act. The case, People v Kolanek, consolidated the separate convictions of Alexander Kolanek, and Larry King; the former an Oakland County case, the latter from Shiawassee County.
As detailed by this blog over the past three years, the Michigan Medical Marijuana Act has had a brief and tortured existence. Prosecutors, law enforcement and even judges have taken a restrictive view of the use and immunities provided by the Act. With much success, until now, they have managed to limit the use, or even the assertion of the affirmative defense set forth in section 8 of the Act.
Not surprisingly, several cases have percolated up through Michigan Court of Appeals. Two of these cases culminated in the High Court's Kolanek decision.
In the King portion of the decision, Larry King grew six marijuana plants in an enclosed locked dog kennel. King had a valid medical marijuana registration card.
He moved to dismiss the case against him at both the district and circuit courts; the latter agreed that he was entitled to assert the affirmative defense under the Act and dismissed the case. The Court of Appeals reversed the dismissal and remanded the matter back to the trial court.
In Kolanek, the defendant was arrested with a half dozen joints on his person. A week after his arrest, he obtained a statement from his physician that he would receive a palliative benefit from the use of marijuana; Mr. Kolanek apparently suffered from Lyme disease.
Interestingly, the circuit court in this case held that, even though Mr. Kolanek did not obtain his physician's statement until after his arrest, the affirmative defense in the Act was nevertheless still available to him on the basis that he did at least secure a statement from the treating physician.
Kolanek's case also moved through the Court of Appeals, which reversed the circuit court, holding that to avail oneself of the affirmative defense of the MMA, a person must secure a physician's statement prior to one's arrest for marijuana possession. Makes sense, don't you think...
The High Court reversed the Court of Appeals in King, holding that the MMA sets forth two separate defenses: one is the affirmative defense while the other is a broader immunity to prosecution. A defendant charged with possession may assert the affirmative defense, even if that defendant has not yet obtained a medical marijuana registration card. In order to secure a complete immunity from prosecution, however, an accused must have been issued said registration card and otherwise be in compliance with all the requirements of section 4 of the MMA.
The decision is also notable in that it affirmed the intermediate appellate court's decision in Kolanek to the extent that a defendant must have secured a physician's statement prior to asserting the affirmative defense provided for in the MMA.
The local blogosphere has hailed the Kolanek Court as a victory for medical marijuana users. The decision will be cited in support of the following tenets within the medical marijuana jurisprudence:
- The MMA provides for two separate and distinct protections from marijuana prosecution: an affirmative defense available to assert to a jury for accused persons that have received a physician's statement that marijuana is therapeutic treatment of a chronic condition and a broader immunity from prosecution for those issued a registration card;
- The decision affirms the MMA's definition of the legal, albeit limited use of marijuana;
- The immunity set forth in section 4 of the MMA is broadly construed;
- Interpretations of the MMA must give effect to the intent of the electorate through the passage of the medical marijuana initiative.
For now, however, at least defense attorneys can get down to the business of asserting the affirmative defense on behalf of their clients, as provided by the express language of the MMA, and not have this tool removed from the shed by over-zealous prosecutors and wrong-headed jurists.
Folks, as always, the best way to get a marijuana possession charge dismissed is to carefully comply with the requirements of the MMA, and obtain your registration card before you purchase, grow, or possess marijuana. After your registration card has been issued by the State of Michigan, be sure to stay within the strict limits of the Act.
Good luck out there.
Monday, June 4, 2012
Oakland County Business Court
The business court's "pilot" status was created by an administrative order issuing from the Oakland County Circuit Court. The business court is designed to study the effectiveness of implementing a specialized case management system to handle specified business-related litigation.
Judges sitting on the Oakland Circuit's court of general jurisdiction (i.e. civil-criminal dockets) will all receive cases on the business court docket. To be assigned to the business court, a case must involved alleged damages of $500,000.
There are many disputes that will be excluded from the business court. These will include consumer claims against businesses, personal injury and wrongful death cases, medical and legal malpractice law suits, and commercial landlord tenant cases, among a handful of other types of disputes.
So what's going to be different in the business court? Parties, for example, will be required to make various pre-trial disclosures early in the case [i.e. within 42-days of the initial pleadings]; a joint pre-trial report will be submitted to the business court; an initial conference will be scheduled within 21-days after the pre-trial report is submitted; and the judge will issue a final scheduling order after reviewing the pre-trial report.
The idea behind this modified procedure is to identify and hone the issues and to schedule the court's resources in accord with the specific issues to be presented in the case.
Given the budgetary restraints imposed on the circuit court in the past few years, cutting millions from the budget, the Oakland County business court design had to be cost effective. This is why there will be no specially appointed judge assigned to a business docket.
Essentially, this specialized court will have to run within the confines of the existing circuit court.
Saturday, June 2, 2012