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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Thursday, January 31, 2013

Social Security Assistance for Low-Income Former Spouses

Worries about finances typically go hand in hand when one begins the divorce process.  Most couples experience serious financial concerns when looking at maintaining two separate residences with the income that once only supported a single marital household.  

During the divorce process, the “we” becomes “only me” and everything from retirement assets to the kitchen pots and pans are divvied up during the settlement process.  Typically, this means a much leaner financial lifestyle for the spouse that wasn’t the earner, at least for a transitional period.  Financial concerns are especially immediate for those who divorce later in life and who haven’t regularly earned income during the marriage.

However, the Social Security Administration may offer a silver lining to those who earn considerably less than their former spouses.  There is the possibility that a low-earner may be able to collect Social Security benefits based on the higher earnings of their former spouse.  The best part is that doing so does not impact your former spouse’s ability to collect their benefits.

In order to collect benefits based on your ex-spouses earnings, the following eligibility requirements must be met:
  • You were married to your former spouse for at least 10 years and you are at least 62 years old.
  • You have not remarried.  If you do remarry, you are no longer eligible to receive social security benefits based upon the earnings of a former spouse.
  • The amount you would receive based upon your own earnings is less than what you would receive based upon the earnings of your former spouse.
Also, if you have been married several times, and are currently unmarried, you may be able to choose the highest yielding benefit from your ex’s as long as you meet the above-mentioned criteria.  

If your former spouse yet to apply for Social Security benefits, you may still apply and receive divorce spouse benefits as long as you meet the eligibility criteria and you have been divorced from that spouse for at least two years.

While the divorced spouse benefit is not a financial savior for everyone going through the difficult ordeal of divorce, it is important to remember that this benefit exists. Every little bit helps when trying to adjust to a new financial lifestyle.

For more information from the Social Security Administration Website, click here.

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Saturday, January 26, 2013

Kent County Prosecutor Challenges Grand Rapids Pot Ordinance

Modeling their voter initiative on the ordinance that has been on the books in Ann Arbor for the past 35-years, Grand Rapids took a stab at de-criminalizing marijuana use and possession.  "Not so fast ...", said the Kent County Prosecutor, William Forsyth, and the GRPD.

Pot lobbyists were successful in Grand Rapids last November getting a pot de-criminalization initiative passed.  Promulgation of the city ordinance, however, has been complicated and now, litigated.

The Kent County Prosecutor claims that the ordinance cannot interfere with a state law, and has requested an injunction from a Kent County Circuit Judge.  The prosecutor's argument is that Grand Rapids cannot turn a state law into a civil infraction.

The Grand Rapids City Attorney and a lawyer for Decriminalize GR, the local pot lobby, assert that the voters passed a legal charter amendment which should now apply to those present within the city limits; just like the Ann Arbor, MI ordinance.  The Michigan Constitution, the City Attorney's argument goes, provides citizens with the authority to decide such issues by voter initiative.

The ordinance injunction issue is currently pending with Kent County Circuit Judge Paul Sullivan.  Whoever winds-up on the short end of his opinion will no doubt appeal the decision to the Michigan Court of Appeals.

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Wednesday, January 23, 2013

Vacancy Tarnishes Michigan Supreme Court

Diane Hathaway with President Obama
Last Friday, the US Attorney filed federal criminal charges [bank fraud] against the now-former Michigan Supreme Court Justice Diane Hathaway; her last official day was Monday, although she has been absent from the bench for weeks.  This is yet another case that gives the public pause, and erodes the confidence we place in our publicly elected officials; especially jurists; especially those elected to the Michigan Supreme Court.

By now, this story is well-known.  Ms. Hathaway and her husband are alleged to have concealed an intra-family transfer of a parcel of Florida real estate in order to get a short-sale approved which resulted in a mortgage loan forgiveness of more than $600,000.

The feds assert that the intra-family transfer was not disclosed to the mortgage lender to intentionally trick the lender into believing the Hathaways were suffering an economic hardship.  Once the short sale was approved, the Florida property was transferred back to the Hathaways.

Seems like a slam dunk prosecution.  Because the federal charging instrument filed in the case was an "information", a guilty plea is expected to be tendered by Hathaway next Tuesday in U.S. District Court.

We here at the Law Blogger have seen many of our divorce clients, while suffering genuine intense economic hardship, have their short sale offers or their loan modification applications rejected.  But even the notion of a sitting Supreme Court Justice applying for a short sale strikes us as untenable.  This whole story falls squarely within the category of: "What were they thinking?"

Thinking back to the November elections of 2008, when Hathaway was elevated from the Wayne County Circuit Court to the High Court, this blog recalls all those attack ads about former Justice Cliff Taylor depicted [via cleaver video editing we might ad] falling asleep during oral arguments.  In the long-run, however, any faith Michiganders placed in Hathaway to replace the pro-insurance Taylor was squandered.

At Hathaway's inevitable sentencing, she will be ordered to pay back the mortgage deficiency.  But we have to wonder: will she also be sentenced to federal prison?  Perhaps she will be able to avoid a prison sentence by tendering a guilty plea.  Wow, a former Michigan Supreme Court Justice pleading guilty in a federal courthouse.

One of the consequences of Hathaway's resignation from the High Court is the imminent appointment of a replacement.  One name that has been floated is Oakland County Circuit Judge Colleen O'Brien.  And if she gets the appointment, Governor Snyder will also have the opportunity to appoint O'Brien's replacement to the Oakland Circuit.

We can hardly wait.  Stay tuned.

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Tuesday, January 22, 2013

Michigan Civil Service Extends Healthcare Benefits

It is safe to say that healthcare and the availability of benefits are important to all working people in Michigan.  Nothing wreaks havoc on our day-to-day life more than an unexpected illness, especially when we lack the healthcare benefits necessary to secure the proper treatment.  

A recent decision by the Michigan Court of Appeals held that the Michigan Civil Service Commission (MCSC) could expand the eligibility of health care benefits for state employees to their co-residents, if those persons are at least 18 years old, NOT relatives, and have resided within the same household as the state employee for at least 12-months (but not as a renter or tenant).  

This potential coverage expansion applies to employees who do not have an eligible spouse. Thus, the coverage would apply to boyfriends, girlfriends, and/or same sex partners, as long as they meet the criteria for coverage.

The issue arose when the MCSC allowed for the additional healthcare coverage, and the Attorney General sued on the basis of a violation of Equal Protection; the expanded coverage discriminated against married state employees by excluding married employees from being able to cover non-spouses or other blood relatives. The Attorney General suggested that the policy was a way to circumvent Michigan’s “Marriage Amendment,” which prohibits the recognition of any “agreement” other than “the union of one man and one woman in marriage.” 

The Court of Appeals found the Attorney General’s argument unpersuasive and affirmed the trial court's dismissal of the case.  The appeals court held that the new policy, “does not in any way prohibit incidentally benefiting such agreements, particularly where it is clear that an employee here could share benefits with a wide variety of other people.”   The Court further explained that the policy does not, “depend on the employee being in a close relationship of any particular kind…beyond a common residence.”

Further, the Court of Appeals determined that the matter deserved a heightened standard of review, and as such, the policy is “rationally related to advance a legitimate state purpose.”  Specifically, the Court held that as the MCSC drafted the eligibility criteria after negotiating with the unions, “it is not the place of the courts to second-guess the wisdom, need, or appropriateness of the state action.” Lastly, the appellate court recognized the Civil Service Commission as having “plenary and exclusive authority” in setting eligibility guidelines for state workers, “because they are provided in exchange for services rendered by state employees.”

In sum, if you are an unmarried Civil Service employee, you may be able to provide healthcare benefits for anyone who has been living with you, as long as they have done so for at least 12 continuous months, they are not a tenant or renter, they are not a blood relative, and they are at least 18 years old.

Apparently, our court of intermediate appellate review does not wish to tread upon the authority of the state bureaucracy when it comes to providing health care benefits for its own.  We here at the Law Blogger think perhaps that is as it should be under our separation of powers.

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Saturday, January 12, 2013

Michigan's Internet Privacy Protection Act & Social Media

On the last business day of calendar 2012, Governor Snyder signed the Internet Privacy Protection Act.  With that stroke of the Governor's pen, Michigan joins just 3 other states [California, Maryland and Illinois] to enact sweeping employment legislation designed to protect employees' and students' social media accounts.

This law affects all employers, regardless of size, and also applies to public and private schools.  The IPPA prohibits employers or schools from requiring applicants to disclose their password or login information as a condition for admission, hiring or discipline.

Technically, employers and schools are prohibited from accessing a subject's "personal internet account", which is defined in the statute as:
an account created via a bounded system established by an internet-based service that requires a user to input or store access information via an electronic device to view, create, utilize, or edit the user’s account information, profile, display, communications, or stored data.
This definition covers just about every social media account you can think of; and then some.  Arguably, the IPPA applies to all employee's internet accounts of any kind; not just social media accounts.

However, there are broad exceptions to what is out-of-bounds for employers.  For example,
  • Employers can still access devices owned by the employer as well as the data stored on such devices; 
  • Accounts created by the employer and used for the employer's business purpose; 
  • Employers can discipline employees that transfer data owned by the employer onto that employee's personal internet account;
  • Employers can access personal accounts when necessary to conduct an investigation for the purpose of complying with laws; 
  • Employers can access personal accounts when conducting an investigation into work-related conduct, and 
  • Employers can still access any information about an employee or applicant that is available on the Internet without the use of a password or login information.
One interesting context within which the new Act will likely get some early play is in the workmen's compensation arena.  It is nothing new for insurance adjusters to track the activities of injured employees on social media sites.  The IPPA may supply an avenue of protection for employees who have had a post on Facebook taken out of context.

The Act also bars an employer from "shoulder surfing" the employee; the practice of monitoring an employee's social media site by directing the employee to log onto the site so the manager can observe recent posts.

Nor can an employer require an employee to disclose information from which the employer can then access the employee's personal internet account.

Violation of the IPPA subjects an employer to a misdemeanor conviction and a fine of $1000 as well as other civil penalties.  Violators are also subject to paying the employee's attorney fees.

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Sunday, January 6, 2013

Michigan Medical Marijuana Act Does Not Provide Immunity for Collectives

Just prior to the holidays, the Michigan Supreme Court deepened its medical marijuana jurisprudence by deciding another key case applying the Michigan Medical Marijuana Act.  The case, People v Bylsma, arose out of Kent County and is distinctive because it is the first case under the Act that involves a collective grow operation.

Ryan Bylsma was a certified care provider under the MMMA.  He operated a medical marijuana collective with other pot growers.  He claimed that he assisted other farmers with their grow operations and that he only maintained 24 plants in the facility.

Bylsma was busted when a Grand Rapids city inspector observed suspicious wires coming from the structure of the collective.  The inspector forced his way into the structure [without a warrant], observed the extensive marijuana operation, and alerted the Kent County Sheriff.  Nearly 90 plants were seized from the structure.

The collective farmers had a locked facility, but they did not segregate their plants.  All three pot farmers were certified under the act.  Apparently, the structure was traced back to Bylsma from an owership perspective thus, he took the rap for possession of all the plants.

The Kent County Circuit Court trial judge did not buy into Bylsma's assertion that his pot possession within the collective was strictly limited to the 24 plants designated for his two patients.  Bylsma's motion to quash the information was denied and appealed to the Michigan Court of Appeals.

The intermediate appellate court affirmed the trial court, holding that since the strict plant limits and other provisions of the MMMA were not observed by Bylsma, then he could not avail himself of the immunity under section 4 of the Act, nor could he avail himself of the affirmative defenses under section 8 of the Act.

Maintaining consistency with their Kolanek opinion, the Michigan Supreme Court affirmed the intermediate appellate court in holding that, unless an accused complies with all the provisions of the MMMA, the section 4 immunity is not available.  The High Court reversed the Court of Appeals, however, by holding that the Act's section 8 affirmative defenses are available regardless of compliance with the Act.

The decision is significant to the extent that it resolves the issue of whether pot combine owners, partners or participants can combine space and share the protections of the MMMA; they cannot.  Further, this case again emphasizes the shortcomings of the Act with regard to any distribution-for-profit scheme; there are not enumerated in the Act, and the High Court laid the groundwork for striking down any such schemes.

We here at the Law Blogger see the medical marijuana jurisprudence establishing very limited defenses for true medical marijuana pot growers and users.  Those who insist on utilizing the MMMA to turn a profit will continue to be disappointed, while legitimate medical users will be afforded the protections envisioned by the Legislature.

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Tuesday, January 1, 2013

Automated Vehicles and the Motor Vehicle Code

According to Bryant Walker Smith, a fellow at Stanford's Center for the Internet and Society, automated vehicles have been "just 20-years away" since the 1930s.  Lately, however, data giant, Google, and some of the OEMs have started taking the concept seriously.

So serious, in fact, that automated vehicles are now out there folks. 

This has led Mr. Smith to publish a comprehensive study on the legalities of automated vehicles.  Smith concludes that, although automated vehicles are "probably" legal from the national regulatory prespective of the National Highway Traffic Safety Administration, state laws will "complicate" the transition to automated vehicles.

Why automated vehicles anyway?  Many motorists enjoy, at least to some extent, the driving process.  Smith's answers are: safety and saved lives.  If done correctly, there are also long-term cost savings embedded into the notion of automated vehicles; savings of fuel and time.

Smith's comprehensive study takes a detailed look at the three states [California, of course, Florida, and Nevada] that already have included "automated vehicle" provisions in their motor vehicle codes.  The study even includes a comprehensive model bill for progressive state legislators to consider.  Apparently, New Jersey, Arizona, Hawaii (?), Oklahoma, and the District of Colombia all have bills under active consideration.

One legal issue that comes to our simple mind over here at the Law Blogger is the actus reus [i.e. intentional bad act] requirement that a criminal law must contain to pass constitutional muster.  While we do understand the philosophy behind the "implied consent" concept underpinning many provisions of a motor vehicle code, we are compelled to ask, can a human be cited for acts undertaken by a machine?

This could be a small town lawyer's dream.  Imagine the cornucopia of defenses available for any potential automated motor vehicle code.  And if the legislatures go the "strict liability" route, the deep thinking consitutional lawyers will be well-fed.

Also, we cannot forget the product liability inquiry of who is responsible when [not if] something goes wrong, and someone is injured or killed.  Automated vehicles, if they proliferate, will produce a brand new branch of products liability tort law.

It will be interesting to see how far these fancy cars get along the respective legislative highways of the fifty states.  One thing is for sure: the process has begun.

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