Judge David Viviano

For the first time since Justice Neil Reid retired from our High Court in the mid-1950s, a jurist from Macomb County will be seated on the Michigan Supreme Court.  Yesterday, Governor Rick Snyder announced his decision to replace disgraced former Justice Diane Hathaway with Macomb County Circuit's Chief Judge, David Viviano.

Although he comes from a family of jurists, [his father, Antonio Viviano, was a long-serving probate, then circuit court judge, and his sister, Kathryn Viviano, is a sitting judge in the Macomb Circuit Court's family division] David has practiced in several challenging areas of the law and has been outstanding.  In addition to working at the Dickinson Wright law firm in Detroit, he also worked at Jenner and Block in Chicago.  Those are some serious legal chops folks.

We here at the Law Blogger have observed Judge Viviano to be fair, honest, and a judge's judge.  He went to the University of Michigan Law School which, for us, is a big plus.  The attorneys in our law firm have appeared in front of all the Viviano judges.

Of course, an appointment like this one is going to ruffle political feathers.  The Freep, for example, noted that Governor Snyder's appointment was his second consecutive male appointment to the High Court, following Brian Zahra back in 2010.  Along these lines, Oakland County Circuit Court Judge Colleen O'Brien was rumored to be on Snyder's short list.

One thing consistent between the incoming and outgoing justices [Hathaway and Viviano]; they both come from families well-clothed in black robes.  In Judge, soon Justice, Viviano's case, however, that is of less import than the judicial temperament and intellect he will bring to this important job.

www.clarkstonlegal.com

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The Sixth Commandment proscribes adultery unequivocally: "Thou shall not commit adultery".  Many people consider the Ten Commandments to be the laws of God.  The subsequent laws of man, however, do not always follow suit.

In 2011, the Michigan Legislature amended [rewrote] the Paternity Act to open the door, slightly, for an unwed biological father who sires a child with a married woman.  The bachelor's parenting rights, however, are contingent upon the consent of the mother.  

The new paternity laws have given rise to a few cases that have garnered media attention.  Fathers that have availed themselves of the new law in order to correct one of the more painful gaps in our tranditional family laws; denying standing to any putative father who's baby-momma was married at the time of birth. 

The new paternity leglislation basically thanks the bio-dad for his sperm donation, but does not afford him any substantive parenting rights without the mother's consent.  If the bachelor can offer some proof to the family court that he was clueless about the baby momma's marital status, he has standing to bring a claim under the paternity act.

Aaron Grimes filed a case when his relationship blew-up.  Grimes conducted a two-year relationship with a woman he knew was married.  The couple took trips together, attended family functions, and otherwise held themselves out as a couple.  According to Grimes, she never wore her wedding ring.

When the baby was born, the mother had a change of heart according to Grimes; she reconciled with her husband, hired a lawyer, and has dened Grimes any contact with his son. 

Father's subsequent paternity cause of action was immediately dismissed by the Wayne County Circuit Court.  Dad is considering challenging the provisions of the new paternity act.

Compare Grimes' situation with Daniel Quinn, who, unlike Grimes, was able to claim cluelessness about his baby mamma's marital status; she was [secretly] married to a man doing time in prison.  Under the present legislative scheme, the bachelor's knowledge of the marriage is the deciding factor.   Unless the alleged father is in the dark, the baby momma is driving the bus.

So the difference goes to the heart of modern adultery.  To commit the sin, indeed, the felony, of adultery, one must presumably have the "mens rea"; the proverbial guilty mind.  If you do not know if your woman is married, are you nevertheless comitting the sin of adultery in the eyes of God; in the eyes of the law?

This is what the Michigan legislature has recently contended with; an imperfect piece of legislation, to be sure.  We here at the Law Blogger wish that the new act was more direct in advising the court to consider the best interests of the child rather than the relative standing of the parents.  Also, the paternity act should first "disestablish" the rights of the baby momma's husband prior to allowing an alleged father to proceed on a paternity claim.

The one-year limitation for a claim to be filed seems quick and too arbitrary; often, an alleged or putative father would have no reason to suspect his baby's momma is married.  Closing the door so fast on a bio-dad seems harsh.

Thus, the drama is destined to continue.  To men: the best course of action is to be very sure of the marital status of your partner prior to beginning the procreation process.  If you are in the position of Mr. Grimes, however, and you know that your partner is married, you need to also know that the current paternity act allows her to drive the bus when the baby comes.

To women: be sure to keep your child's best interests in mind and ask whether it is better in the long-run for your baby to know his or her true paternity. 

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Barbara Hernandez

Barbara Hernandez was convicted in 1991 of first degree murder and sentenced to life in prison; she was sixteen years old.  The facts adduced at her trial were that she coaxed her victim, a 28-year old auto mechanic, into a vacant crack-house in Pontiac where her boyfriend, or pimp, depending on who you believe, stabbed him 25-times. 

The motive: robbery to obtain funds to fuel said boy friend's raging crack habit. Sympathy rating on scale of one to five; zero.

More than 20-years after her capital conviction, views on the Hernandez case remain polarizing.  For example, in an AP article detailing the murder, the prosecutor that tried Hernandez here in he Oakland County Circuit Court recently reflected on the case she submitted to the jury.

During her years with the Oakland County Prosecutor, Donna Pendergast, now an Assistant Attorney General, tried many high profile murders.  She had this to say about Hernandez:

Contrary to her assertion that she's cowering around the corner under some sort of influence of her boyfriend, quite the contrary. She's right in the mix and the evidence shows that.  At 16 years old, when you're involved with a scheme of that (kind of) deadly ramifications, you know what you're doing.  

On the other hand, one of the now-retired investigators who took a statement from Hernandez soon after the incident, recently claimed that he no longer recalls her saying that she may have held the victim; he told the AP:  "why I testified to that; who knows?"

Although the U.S. Supreme Court recently decided in Miller v Alabama that mandatory juvenile lifer laws violate the 8th Amendment's prohibition against cruel and unusual punishment, critical aspects on the application of this decision were not addressed by the SCOTUS.  For example, recent cases percolating through the appellate courts here in Michigan address whether SCOTUS' Miller decision should be applied retroactively.

In People v Carp, the Michigan Court of Appeals recently held that the SCOTUS' Eighth Amendment ruling did not apply retroactively.  In doing so, Judge Michael J. Talbot conducted a tour de force of juvenile and capital sentencing jurisprudence, mandating lower courts with pending cases to take a juvenile offender's tender years into account; exhorting the legislature to address this perceived gap in our justice system; but nevertheless refusing to retroactively apply Miller on a collateral review.

Of course, Raymond Carp's attorneys have applied for further appellate review to the Michigan Supreme Court.  The briefs are in, with the Michigan Attorney General having just filed a brief in opposition earlier this month; and [update] an op-ed piece in the Detroit News.

Juvenile lifers recently received a big boost by a decision of United States District Court Judge John O'Meara who ruled that the SCOTUS Miller decision was retroactive for the 350 lifers convicted as juveniles and that prisoners so convicted deserved a chance at parole.

Convicts in Barbara Hernandez's position await the outcome of this decision while their lives burn-down like a candle.  Michigan's oldest juvenile lifer is 68; convicted of murder in 1962.

We here at the Law Blogger have to wonder: do murdering teens deserve a second chance in life?

www.clarkstonlegal.com
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Across the state, doctors who have been taking fees for rubber-stamping, falsifying, or pre-authorizing written certifications for folks applying for medical marijuana cards are collecting criminal convictions.  In order to receive a pot card, the patient must demonstrate they have a "debilitating medical condition".

The Michigan Medical Marijuana Act requires a prospective patient to present medical records to a physician within a bona fide physician-patient relationship.  The physician must then make an evaluation as to whether the patient has a debilitating medical condition.

In doing so, section 4 of the MMMA affords doctors immunity from prosecution simply for providing the requested certifications.  In this regard, the Act states:

A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.

Well, as with all things "medical marijuana"-related, schemes have popped-up within the medical community.For example, in Macomb County, Lois Butler-Jackson was jury-convicted last month of conspiracy and health care fraud.  The Macomb County Prosecutor and the Michigan Attorney General teamed-up to prove that Dr. Butler-Jackson was pre-authorizing certifications for unseen  patients; stacks of the certifications were then distributed, presumably for a fee, by other individuals to pot card-seeking members of the public.
Up in Cadillac, MI, Dr. Edward Harwell has been charged by the Michigan Attorney General with a series of felonies for allegedly issuing medical marijuana certifications to undercover law enforcement officers without obtaining proper medical verification of the requisite debilitating medical condition.

We here at the Law Blogger have long-suspected that the, er, "medical" nature of the Act is a ruse created by dedicated pot-lobbists whose real goal is to use the fashionable medical marijuana legislation as a proverbial Trojan-Horse for outright legalization.

This legalization highway, however, is getting littered with casualties such as the less-than-forthright physicians featured in this post; and the marijuana dispensaries recently outlawed by the Michigan Supreme Court.

www.clarkstonlegal.com
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This post takes a look at two bloggers that are on the radar of their respective court systems by blogging as participants in litigation; one is a family practice doctor and criminal defendant, the other a parent embroiled in a family court custody dispute.

Dr. Linda Sue Cheek is charged with over 150 counts of distributing pain medications such as oxycodone, methadone, and morphine without having a valid drug license from the DEA.  She is scheduled to go on trial in Roanoke, Virginia this morning.

Since her indictment back in May of last year, Dr. Cheek has maintained a steady commentary about her case on her blog.  Her comments have included things like: she has been unable to practice medicine due to government collusion; that she and other pain management physicians are being treated by the federal authorities like Colombian drug lords; and that her trial will be "the beginning of the end of government persecution for doctors treating pain."

These comments were deemed sufficiently vitriolic by the local U.S. Attorney, a gag order was sought last week on the basis that Dr. Cheek's posts could pollute the jury pool.  U.S. District Judge Glen Conrad declined to enjoin Dr. Cheek's speech, stating that her First Amendment right to free speech is not suspended because she is on trial.  We here at the Law Blogger could not agree more.

In the family court matter, Daniel Brewington of Indiana has been blogging about his custody case for some time.  Like Dr. Cheek's blog, Brewington does not mince words but rather, takes the direct approach.

Brewington's 2007 divorce proceeding turned ugly early on, resulting in a court-ordered parenting evaluation performed under seal by a clinical psychologist.  The psychologist concluded that, due to the communication breakdown between the parties, sole physical custody should be awarded to Mother.

Dan Brewington took great offense and began to send the psychologist correspondence demanding that he withdraw from the Brewington's divorce case, retract his custody evaluation and report, and that he turn over  his entire file to the Father.

When none of his demands were met, Brewington next filed a complaint with the psychologist's state licensing body and started a blog which contained posts about his case, and his deep disappointment with the psychologist.  Father also posted on other websites, frequently referring to the  psychologist as a "very dangerous man who abuses his power."

Although some of Brewington's conduct was allegedly criminal, his case is noteworthy to the extent of examining his right to free speech in the context of family court litigation.  After Father lost custody of his child in the Indiana family court, he was prosecuted and convicted in a separate proceeding on two counts of "intimidation", attempted obstruction of justice, and perjury.

In the criminal case against Brewington, he was alleged to have characterized the family court judge on his blog as corrupt, unethical, and engaged in illegal behavior.  He also repeatedly referred to the judge as a child abuser.

Brewington was sentenced to 5-years in prison for his deeds.  The 44-page opinion of the Indiana Court of Appeals affirming his conviction and sentence has drew the attention, and criticism, of First Amendment scholars.

The problem that Brewington's case illustrates is that one can be imprisoned in Indiana for what one says, or blogs, so long as the speech is perceived as a "threat".  The First Amendment scholars have issued a call to action, led by UCLA Law Professor Eugene Volokh.

Both cases also point to the multi-faceted threats to free speech that surface again and again in our post-modern, Big Data culture.  You would think that by now, here in America, speech is protected.  As these cases demonstrate, guess again.

We here at the Law Blogger promise to be ever vigilant relative to such threats, reporting them as we see them arise.  Now get out there and express your bad-ass self!

www.clarkstonlegal.com
info@clarkstonlegal.com

The case discussed in this note involves marijuana dispensaries.  They're out there folks; maybe not like Santa Monica Blvd, but they're out there.  Take a look at this Directory of Dispensaries.

The Michigan Supreme Court outlawed medical marijuana distribution schemes pot farmers have been using since 2008 to achieve some basic economy of scale and, imagine this, make money from the effort. The Act provides immunities and defenses for legitimate “patients” and “caregivers”, but pecuniary schemes like the one at issue in this casenote are clearly not protected by the MMMA.

Compassionate Apothecary, a medical marijuana dispensary, or “provisioning center”, was the business model that underwent recent scrutiny by the Michigan Supreme Court in People v McQueen. The Court’s decision spells the end of these easy distribution schemes.

The Compassionate Apothecary (CA) was a “pot club”, if you will. Except for their revenue generation, this club was run about as close to the requirements of the Michigan Medical Marijuana Act as possible. Our High Court, however, determined that the scheme did not comply with the Act, largely on pecuniary grounds.

Brandon McQueen was both a registered patient and the primary care giver to three patients. His business partner, Matthew Taylor, cared for two registered qualifying patients. Together, they ran CA, a membership organization with a physical location consisting of lockers for pot storage and transfer. To be a member, you have to verify your status as a “card-carrying” patient or provider.

The High Court’s syllabus best describes how the collective operated:

To be a member of CA, an individual had to be either a registered qualifying patient or a registered primary caregiver. Caregivers could only be members of CA if a qualifying patient with whom he or she was connected through the state’s registration process was also a member. Patients and caregivers who were members of CA could rent lockers from CA. Patients would rent lockers from CA when they had grown more marijuana than they needed to treat their own debilitating medical conditions and wanted to make the excess available to other patients. Caregivers would rent lockers when their patients did not need all the marijuana that they had grown. Patients and caregivers desiring to purchase marijuana from another member’s locker could view the available marijuana strains in CA’s display room. After the patient or caregiver had made a selection, a CA employee would retrieve the marijuana from the appropriate locker, weigh and package the marijuana, and record the purchase. The price of the marijuana would be set by the member who rented the locker, but CA kept a service fee for each transaction.

CA’s recorded pricing and service fees placed them out of compliance with the Act. Thus, it was a no-brainer for the High Court to affirm the intermediate appellate court and outlaw dispensaries.

In Ypsilanti, Third Coast Compassion Club takes issue with the decision. Without disclosing whether Third Coast charges different prices for various pot strains, or fees to facilitate transactions, their spokesperson said, “ultimately, we’re a private club, not a public store…” Well, good luck with that…

While the decision no doubt spells hardship for those in the, er, budding industry, Jim Lynch of the Detroit News observes “Panicked Uncertainty”. Hardly; but dedicated legitimate patients must now go underground or grow their own.

Free Press coverage touched on the legislative history of the Act; the Freep spoke with pot lobbyist Tim Beck of Detroit, a retired health insurance executive who was one of the scriveners of the original proposal put on the 2008 ballot. Beck indicated the words “sale” or “dispensary” were far too dangerous to use in the ballot initiative, so they were deliberately kept out of the text of the initiative.

The distribution concept integrated into the MMMA is one of: “grow your own”.  Professional horticulturists were not contemplated by the initiative and are not found within the scope of the Act.

Michigan Attorney General William Schuette, who joined the Isabella County Prosecutor in filing the complaint for a permanent injunction against Compassionate Apothecary as a public nuisance, said the Supreme Court’s decision clarifies the MMMA as follows:

 The law does not allow retail sales of medical marijuana.
 Sales or transfers are limited to those between caregivers and their five registered patients.
 Sales or transfers between registered patients are barred.
 Caregivers are not protected when selling or transferring marijuana to unregistered patients.

Among the patients and caregivers that commented to the state’s media yesterday, the theme seemed to be, “where am I gonna get my pot now?” Some medical marijuana patients that spoke with the Oakland Press, the Detroit News and Free Press said they were disappointed in the ruling because it will make marijuana more difficult to obtain.

87th District State Rep Mike Callton (R Nashville) introduced a bill last May which he characterizes as follows:

This isn't about restricting anyone's freedom or access to a substance that is now legal for those with a prescription. This is about making sure patients are safe and the product is safe. Since medical marijuana became legal in Michigan, dispensaries are popping up left and right and we need to make sure these places pass the grandma test.

Well, technically, the Act refers to a physician “certification”, not prescription; like the word “sale”, the word “prescription” does not appear in the MMMA.  So, to fill-in this gap, Rep Callton articulates the “grandma test” on his official website:

If you wouldn't feel safe having your grandma go to one of these places to pick up her medical marijuana, as if she went to a pharmacy, then it needs to be cleaned up or closed down.

Bottom line: the Supreme Court’s decision is a rationale application of the MMMA. Legitimate patients can legally obtain and use marijuana. But, growers beware; and take care not to make a profit, least you find yourself on the wrong side of felony charges.

For now anyway, pot farming is a labor of love…

www.clarkstonlegal.com
info@clarkstonlegal.com

Dr. Jonathan Sporn & Leann Leutner

This is a sad tale, yet a sign of our times.  The case illustrates how, despite the oft-progressive status of our modern family laws, and the family law bar, there remains a stubborn bias in the family court that favors the bloodlines of a traditional family unit.

In New York City, Pfizer executive Dr. Jonathan Sporn (54), a divorced man, was in a committed relationship with Ms. Leann Leutner (40), also divorced.  A couple since 2010, the two were inseparable and intent upon starting a family.

According to a petition Dr. Sporn filed in the New York State Supreme Court in Manhattan, the couple resorted to in vitro fertilization following difficulty conceiving; they met with success by using donated sperm for fertilization.  Their baby, Lincoln Sporn, was born last July.

The family law dispute arose, however, when Ms. Leutner, a New York City lawyer and Yale Law grad, retreated to an apartment in New Jersey following an acute bout with postpartum depression.  She discharged herself early from the Mount Sinai Hospital, where she underwent psychiatric treatment, and committed suicide on New Year's Day by jumping to her death from the 14th floor apartment.

Dr. Sporn's custody petition alleges that Ms. Leutner, long-afflicted with mental illness, had stopped taking her prescribed Prozac at the time she was beset with acute postpartum depression.  Ms. Leutner also made prior unsuccessful attempts to take her own life according to the custody petition.

This grim Manhattan custody battle now pits Dr. Sporn against Ms. Leutner's sister from Illinois, who is also seeking custody of Lincoln.  At present, the infant has been placed into foster care somewhere in Gotham in accord with the applicable statute which characterizes the parent-less child as: "destitute".

Like every same-sex couple that splits-up, Dr. Sporn occupies the same position as the partner that lacks any biological connection to the child.  Without that connection, traditional family law says, "you lose" in the inevitable custody war following the split.

Next month, Justice Laura Drager must decide which custodial environment is better for infant Lincoln: the Upper West Side with "Dad", as Dr. Sporn refers to himself, or in Illinois with Lincoln's aunt.  The case is expected to be remanded by the appellate court to the family court for an evidentiary hearing; meanwhile, months will grind by and the infant will become a toddler while in the foster care of strangers.

We here at the Law Blogger wonder, if the aunt was not contesting Dr. Sporn's custody petition, whether he would nevertheless be engaged with a custody battle with the New Jersey Child Protective Services. 

Also, is the aunt's claim thwarting a potential adoption bid for Dr. Sporn?  If so, what a shame.

The case has been tagged here at this Blog, and we will report the outcome.  Let's see just how progressive our family courts can be...