A recent study published by the Bowling Green State University concludes that divorce has replaced widowhood as the primary reason many seniors are single later in life.  No surprise there, as the United States has long held the highest divorce rate in the world.

As the baby-boomer generation ages, more of its members have been divorced than in any prior generation at any point in history.  Add to this the more complex marital biographies of average baby-boomers [second marriage, recently divorced, ever divorced], and you cannot ignore the growing prevalence of divorce in our society.

The study concludes that as widowhood has declined over the past two decades, the divorce rate among the middle-aged and seniors has doubled.  Also of note in this demographic is that, among divorced seniors, they achieved this status much earlier in their lives than in the past.

Another conclusion drawn by this study is that over the next two decades, as the growth of the "older" population accelerates, so will the divorce rate among mature adults.

One option to consider is separate maintenance.  This option, although not for everyone, has the advantage of allowing an unemployed spouse to maintain health insurance coverage.  In most cases, this saves the unemployed spouse approximately $500 per month by not having to  pay an insurance premium.

If you are over 50 and facing the tough options of divorce in Oakland County, contact us for a free consult. We can  provide you with answers to your questions and concerns.

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Governor Rick Snyder

Here in Oakland County, we've had an operational business court pilot since April 1, 2012.  This week, Governor Rick Snyder signed HB 5128 into law, amending portions of the Revised Judicature Act to rescind the so-called "cyber courts" [an idea that was never clear and never got off the ground], and replacing those specialized tribunals with "business courts" for all county circuit courts with more than 3 judges.


The central idea behind the specialized tribunals is to require electronic case and document filings.  According to the recent Senate Fiscal Agency analysis, the business courts would:

• Have exclusive jurisdiction over all business or commercial disputes with an amount in controversy in excess of $25,000;
• Any cause of action arising, in whole or in part, from a business or commercial dispute would be assigned to the business court;
• Require all circuit courts with more than 3 sitting judges to submit a plan for the implementation of a business tribunal to the State Court Administrative Office; 
• Counties with fewer than 3 judges have the option of submitting an administrative order for SCAO review for a specialized business court with concurrent jurisdiction with the county trial court;
• Cases will be assigned to business court judges via a blind draw;
• Business court cases are required to be filed electronically;
• Require that the judges assigned to the business courts be trained by the Michigan Judicial Institute; and
• Any cases that are pending on the various county pilot programs remain on that docket until they are completed. 

Presently, there are several "specialized" courts operational here in Michigan.  Each county has a family court, a probate court, and a court of general jurisdiction.  All district courts have a "small claims" division where people can bring disputes without lawyers.  Some county and district courts have "sobriety courts" focusing on treatment over incarceration.  And some counties have Veterans' court and adult treatment courts.

We will see if this new specialized court prunes the docket of the county courts of general jurisdiction.  Here at the Law Blogger, this seems like a good idea.

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The original "double-dip".

Many of us, when we think of “double-dipping,” immediately envision George Costanza nonchalantly eating chips and dip at a boring party. He bites the chip, dips, bites again, dips again, oblivious and happy.

Meanwhile, a fellow party-goer and disgusted onlooker cannot contain the impulse to put a stop to this obvious dip-contaminating behavior and confronts George. Inane hilarity ensues; check it out here.  [Note: Post-Seinfeld generation and long-time Seinfeld enthusiasts – you’re welcome.]

Double-dipping, in the world of family law, typically refers to the way assets are valued in the division of a marital estate.  A recent Michigan Court of Appeals decision, Loutts v Loutts, addresses this issue of “double-dipping” in the spousal support context.

This divorce case originated in the Washtenaw County family court.  One of the main issues in the case was how to determine an appropriate spousal support award where the marital assets included a business valued at more than a quarter million dollars.

The husband started, owned, and operated the business. When the family court awarded half of the business value to his wife, the question became: what income should be imputed to husband now that half the value of the business had been conveyed to wife?

When determining spousal support, the parties’ incomes must be determined so that the family court may decide how to equitably balance the incomes. The Michigan Court of Appeals has articulated a balancing test such that:

the primary purpose of spousal support is to balance the parties’ incomes and needs such that neither party will be impoverished, and spousal support must be based on what is just and reasonable considering the circumstances.

The family court can only perform this balance test on a case-by-case basis – typically unwilling to follow any bright-line rules for determining the rate and term of a spousal support award.

The family court in Loutts, after awarding wife half the value of the business, imputed approximately $130,000 income to husband.  This imputed income was utilized to “equitably balance” the incomes of the parties.

In doing so, the family court judge relied on case law to determine that “the value of a business may be used for the purpose of either property distribution or spousal support, but not both.” On appeal, wife argued that the court should have used the full-value of the business in determining her spousal support award.

The Court of Appeals disagreed, remanding this issue back to the family court for a re-determination of spousal support based upon the specific facts and circumstances of the case.  In their opinion, the Court of Appeals stated that the trial court’s reliance upon the Heller v Heller case was misplaced to the extent that, “the appellate court stated that its determination that a double-dip was inequitable was based on the facts of that case alone and was not a determination that double-dipping is never permissible.”  [The emphasis is ours.]

The obvious "take-away" from this recent case is that, when it comes to determining spousal support, bright-line rules simply do not apply. Rather, the family court judge should consider a variety of factors, including: the conduct of the parties, their ability to work, their ages, needs, health, present situation, prior standard of living, ability to pay alimony, and general principles of equity.

Double-dipping might be ok – given specific factual and equitable circumstances.  Exactly what those circumstances are remains a fuzzy, mutable, arguable enigma, ripe for the art of legal persuasion.

The one constant is that each case before the family court is unique and should be considered so by the judge.

Also of note in the Loutts decision is that the Court of Appeals wasted no time in upholding a 3-year non-compete provision that applied to the business and to which wife agreed, but appealed.  The Court held that you get what you bargain for.

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Secretary of State
Ruth Johnson

October 1st, a new law, supported by the Michigan Secretary of State Ruth Johnson, took effect to eliminate some of the more "pesky" of the series of drivers' responsibility fees.

The new law eliminates drivers responsibility fees for the following tickets:

• Operating a vehicle with an expired license;
• Operating without a valid license;
• Having more than one license;
• Failure to surrender license from another state;
• Failure to maintain mandatory vehicle insurance;
• Failure to produce proof of insurance;
• Providing false evidence of insurance.

Some of these fees were required to be paid for two consecutive years at the rate of $150, while some of the transgressions on the above list cost $200 for two years.  If your ticket was issued after October 1st, there is no fee; if the ticket was pending prior to that date, the drivers' responsibility fees are still owed.

The more significant drivers' responsibility fees for the alcohol-related driving offenses are, of course, still in place.  These fees range from $500 to $1000 for two years.

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Readers of this blog know that we have tracked the medical marijuana issue through the court system over the past 3-years.  Now there is an interesting twist in the on-going debate: can an employer condition your job on being pot-free, even if you have a medical marijuana card?

The answer is "yes", courtesy of the United States Sixth Circuit Court of Appeals in the seminal case of Casias v Wal-Mart Stores, Inc.

In theory, the 2008 enactment of the Michigan Medical Marijuana Act (MMMA) provides a statutory right for patients and their caregivers to cultivate and use medical marijuana.  Unfortunately, the Act is wrought with ambiguous language, resulting in befuddlement on the bench and a potentially misinformed public, many of whom believe, sincerely, that the MMMA provides more protections than it actually does.  

Joseph Casias of Battle Creek, Michigan, lost his job over his medical use of pot.  Casias worked at the local Wal-Mart, earning “Employee-of-the-Year” honors the same year the pot act received electorate endorsement.   

When hired in 2004, Casias passed a mandatory drug test as a prerequisite for employment.   In 2009, however, after injuring himself on-the-job, Mr. Casias took another drug test required by Wal-Mart corporate policy.  This time he failed the test and was fired from his job.

 

Casias, having been diagnosed with sinus cancer and an inoperable brain tumor since the age of 17, routinely used pain medications for a number of years, as prescribed by his treating oncologist.  When the MMMA was enacted, Casias obtained a valid registry card allowing him to use medical marijuana for treatment of his chronic pain. 

After his failed drug test in December 2009, Joseph showed his registry card to Wal-Mart management, explaining to his supervisor that he never used marijuana before or during work.  Wal-Mart nevertheless fired their “Employee-of-the-Year” for failing the drug test per corporate policy.   

For his part, Casias went straight to a lawyer and sued his former employer in federal court.  The case was dismissed for, “failure to state a claim”; Casias appealed the dismissal to the Sixth Circuit Court of Appeals.

The Sixth Circuit affirmed the dismissal in its September 19, 2012, decision holding that Casias was both out of luck, and out of job.

Many employees recognize that “at will” employment means that a person can be fired for good cause, bad cause, or no cause at all.  Mr. Cassias, however, assumed that the medical pot law afforded him some manner of employment protection, or exception to the company policy, for his pot use.  He badly miscalculated.

The MMMA prohibits “disciplinary action by a business or occupational or professional licensing board or bureau” against a valid, registered cardholder.  The is silent, however, as to whether such protection applies to employment.

Casias, in filing his complaint against Wal-Mart for wrongful discharge in violation of public policy and the MMMA, argued that the term “business” should be interpreted as applying to private businesses, and should include employment. 

The Sixth Circuit disagreed, holding that the word “business” is a descriptive term as applied to the type of “licensing board or bureau.”  The short answer is that the Sixth Circuit does not believe that the Act provides any employment protections for registered patients; at least not as the Act is currently written. 

Of primary concern of the appeals court was that if they agreed with Casias’ interpretation of the Act, then private business would be unable to discipline employees who held valid registry cards; employee could use pot to insulate them from a variety of performance-related deficits.

 

We do see loads of litigation arising from such an interpretation.  Not to be, however, as the Sixth Circuit’s narrow application of the Act to private business preserves the decision-making actions of private employers, and leaves patients and caregivers to continue twisting in the ambiguous winds of the MMMA.

 The Sixth Circuit did insert a sliver of hope to those who would disagree with this decision, saying that their Casias decision is solely based upon how the MMMA is currently written.  The Act just does not ly address the issue presented in this case.

Perhaps this decision works well to illuminate yet another area where the MMMA requires clarification.  Perhaps the legislature should consider amending the Act to expressly include employment sanctions within its protective scope, as apparently intended by the electorate when approving the pot resolution 4-years ago.  

As with many of the cases that have arisen since the enactment of the medical pot law, the hard truth is that the scope of the protections under the Act are limited; those who find themselves embroiled in these initial “test” cases risk losing their property, employment, and liberty. 

Remember, the MMMA, as it currently stands, provides limited protections against state action, i.e. criminal prosecution.  While it may keep you out of jail, it simply cannot protect your job. 

Therefore, we here at the Law Blogger advise employees to proceed with caution. 

www.clarkstonlegal.com

info@clarkstonlegal.com

A few years back, this blog touted Oakland County's "virtual work release" program.  To alleviate chronic jail overcrowding, the Sheriff developed the program which utilizes a global positioning system to ensure that offenders are truly under "house arrest" when they complete their work day.

There is a certain class of offenders, however, that cannot take advantage of the virtual work release program, and must do their time in a physical jail cell.  The Michigan Court of Appeals' decision in People v Pennebaker takes the "house arrest" option away from sentencing judges in felony drunk driving cases.

In Pennebaker, a case originating in the Oakland County Circuit Court, the Court of Appeals held that people convicted of a felony drunk driving offense must perform a minimum of 30-days incarceration pursuant to the drunk driving statute, and that "incarceration" cannot involve "house arrest", no matter how technologically sound the GPS tether system.

 Oakland Circuit Judge Phyllis McMillen, impressed with the Oakland County Sheriff's relatively new virtual work release program, decided to utilize the tether-based monitoring system for the drunk driving punishments she was meting out.  Sounds logical to us over here at the Law Blogger.

Problem: The Oakland County Prosecutor took issue with the meaning of the word "incarceration", arguing at both Pennebaker's sentencing and on appeal that house-arrest does not cut it; felony drunk drivers must actually sit down for a minute in the county jail.  The Court of Appeals agreed, reversing Judge McMillen's sentence, and sending the case back to McMillen for re-sentencing.

In doing so, the intermediate appellate court quoted the following language from one of its earlier decisions on point:

Under no circumstances can we reasonably  conclude that confinement in one’s
home or apartment is the equivalent of confinement “in  jail.”  This is so even
where, as here, the conditions of home confinement require the person confined to
go directly to work, to return home immediately from work, and to be at home at
all times unless approval is given by  a probation officer.  Home detention does
not include the highly structured setting of a prison or jail.  One cannot remain on
the phone for extended periods, invite friends for extended visits, order a pizza,
watch television during periods of one’s own choosing, or have free access to the
refrigerator in jail.   

 We here at the Law Blogger would like to know what you think about the difference between tether-based "house arrest" and a jail sentence.  We welcome your comments.

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The West Memphis Three

There is a no-man's land in the criminal justice system.  This land exists between a plea hearing where an accused admits his guilt, and where serious capital counts are left on the table by the prosecutor in exchange for not having to conduct a difficult trial.

This is the land of the Alford plea.  In this rarely used procedure, the accused tenders a technical guilty plea through which he maintains his innocence while acknowledging that the prosecutor has evidence sufficient to convict him, of something...

Used following a mistrial, for example, or upon remand for a new trial, due to the always sea-changing grounds of "newly discovered evidence", the accused is prompted to accept this plea in exchange for a charge reduction, immediate release from incarceration, or dismissal of some of the more serious among an array of charges.  

The Alford plea received media attention last year upon the release of the notorious "West Memphis Three" from Arkansas prisons after serving 18-years of their capital sentences for the murders of three young boys in Arkansas in 1993.  One of the defendants, Damien Echols, formerly on Death Row, published his memoir, Life After Death, about his Job-like life, and is now the subject of a new documentary, West of Memphis, scheduled for wide release on Christmas Day.

The Alford plea was accepted by each of the West Memphis Three thus, each defendant pled guilty while maintaining their innocence relative to the grisly murders; the three were released for time served, but not vindicated.

The plea was fashioned by the United States Supreme Court in the case of North Carolina v Alford, decided by the Court in 1970.  In that case, the accused maintained his innocence in the face of first degree murder charges largely based on circumstantial, but nevertheless damaging, evidence.  Rather than face the death penalty, Alford agreed to plead guilty to second degree murder; the trial court accepted the plea, even without Alford's confession of guilt.

As a general rule, a court will not accept a guilty plea without an actual confession of guilt. SCOTUS fashioned the Alford plea as a flexible compromise to resolve situations where:

[f]aced with “grim alternatives,” the defendant's best choice of action may be to plead guilty to the crime, and the courts must accept the defendant's choice made in his own interests.  [Justice Byron White]

In the case of the West Memphis Three, both newly discovered evidence and DNA testing aided the Defendants' cause; a cause celebre that picked-up steam through early-era social media, drawing the attention of celebrities such as Johnny Dep, and rock stars like Eddie Vedder, Metallica, Slash, and the demigod, Henry Rollins.

Reasonable doubt seeped into the West Memphis case throughout the appeal process.  There was a huge evidentiary chasm wherein the prosecutor's theory -that the defendants ritually slaughtered three young boys right where the corpses were discovered on the banks of a creek that ran through the Robin Hood Hills- fell apart in the long-run due to a complete absence of blood or other physical evidence tying any of the Defendants to the murders.

Experts that examined the evidence post-trial opined that the cuts on the bodies were more consistent with animal predation [turtles] than with the serrated knife admitted into evidence at the trial.  Mr. Echols' trial, however, was all about Satanic rituals rather than the markings of a common swamp predator.

Looking back nearly 20-years later, there is a consensus among legal professionals that the police investigation was botched, and the court-appointed criminal defense lawyers for the defendants were ineffective, ignoring alibi witnesses and failing to really develop available defenses.

The West Memphis Three were fortunate to secure real legal counsel on appeal.  Appellate counsel had the case heading back to the trial court.

Rather than resurrect the rumored Satanic rituals and the local trailer park skater-trash culture from the mid-1990s that tore-out the soul of West Memphis, the prosecution agreed to accept the Alford pleas in exchange for a sentence of time served.  Given that the long-healed scars of the families of the murdered boys now have been ripped open, it is difficult to imagine the released convicts being able to sleep comfortably with both eyes closed.

We here at the Law Blogger have observed sentencing hearings where the accused feel compelled to admit to things that are not true in order to secure a guaranteed [i.e. more lenient] result.  The Alford plea affords the court sufficient flexibility to accept the compromise plea without an admission of guilt.

Assuming the West Memphis Three were telling the truth all along -that they had nothing to do with the sadistic murders- the real horror of the criminal justice system is that three innocent teenagers can do 54 combined penitentiary years, while a serial murderer lurks among the community of unsuspecting, God-fearing Arkansans, still at large.

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The last time we saw our SCOTUS, it announced an historic decision in the Obamacare case on the last day of the term.  The new term opens today with some weighty cases selected for arguments during the term and a possible new alignment among the Justices.

This term SCOTUS will likely decide cases on same-sex marriage, affirmative action in higher education, the Voters' Rights Act, and a collection of tort cases testing the limits of the Class Action Fairness Act.

Same Sex Marriage.  The Defense of Marriage Act [DOMA] is a federal law that only recognizes traditional marriage, for purposes of a variety of federal benefits and other employment-related rights, as between a woman and a man.  The First Circuit Court of Appeals in Boston, MA, has invalidated portions of the Act; both sides have appealed these decisions to the SCOTUS.

In addition to the DOMA cases, a more ambitions same-sex marriage case from California's 9th Circuit, Perry v Brown [formerly Perry v Schwarzenegger], seeks to establish a constitutional right to same-sex marriage.  Recently, Justice Ruth Bader Ginsburg stated publicly that this case could be considered by the High Court toward the end of this term.  If so, it will be a polarizing case, much like the Obamacare drama, with equally significant implications.

Affirmative Action.  The case of Fisher v University of Texas will likely replace the University of Michigan Law School case as the seminal decision on affirmative action.   In the UM Law case, the High Court allowed race to be considered as a factor in the admissions process.  The Texas case, due to the present make-up of the Court, could abolish racial preferences as a factor in the college admissions process.

The case involves a student that narrowly missed the automatic admission of high school students in the top 10% of their class; she was then rejected on the basis of the Texas admissions scheme which has racial make-up of applicants as a factor in the University's admission criteria.  Whether the Texas scheme passes constitutional muster will be decided by the SCOTUS; they may mess with Texas.

Voters' Rights.  Another case to receive much attention is the one challenging the long-standing Voters' Rights Act from the civil rights era.  One portion of the 1965 law requires federal court review of any changes in the election procedures of states once known for bigotry; the South.

In recent decisions leading up to the present group of cases now before the SCOTUS, Chief Justice Roberts has invited Congress to revisit the law, as he has noted that our nation is far different today than when the legislation initially passed in the mid-1960s, but Congress has not taken the bait.

Several lawsuits that have arisen in this election cycle challenge the redistricting and voter registration portions of the Act on constitutional grounds.  

Class Action Torts.  Didn't tort reform sweep the country throughout the 1990s?  Apparently, not in every state.  In several cases up for decision in this term, the SCOTUS will decide the scope of the federal procedural rule on the certification of a class of litigants; class action tort suits

At issue is the Bush-era Class Action Fairness Act, designed to make the filing of "frivilous" lawsuits in state courts more difficult by allowing a mechanism to bring such suits into federal court.  The federal courts arguably have stricter evidentiary standards.  One of the cases involves Comcast and its domination of the market in the Philadelphia area.

Another class action case, from Arkansas, challenges the practice of an insurance company of allegedly "short-changing" its customers on valid claims.  The plaintiffs, a class of insureds, stipulated to damages less than five million dollars specifically to avoid removal of their case to federal court.  Apparently, Arkansas' state courts are famously "plaintiff-friendly" and the plaintiffs' bar has been out there forum shopping.

These and other cases will keep SCOTUS very busy this term as our jurisprudence will deepen and thicken on many vital issues that concern us all.  Stay tuned to the Law Blogger for regular updates.

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