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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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Friday, August 30, 2013

IRS Recognizes Same-Sex Marriage

By: Timothy P. Flynn

Yesterday, in the wake of the momentous SCOTUS decision in June striking down DOMA as unconstitutional, the all-powerful Internal Revenue Service formally announced recognition of same-sex marriages for all income, gift and estate tax purposes.  While same-sex couples must be legally married, they do not need to reside in a state that recognizes such marriages at the time of the tax filing.

In announcing the new IRS ruling, the Department of Treasury stated:
Under the ruling, same sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA, and claiming the earned income tax credit or child tax credit.
The IRS also made clear, however, that same-sex unions, domestic partnerships, or other similar formal relationships will not be recognized for tax purposes.

One immediate benefit of the new policy is that legally married same-sex couples can seek tax refunds by filing amended returns for the years 2010, 2011, and 2012.  Additionally, empolyees who are in a legally recognized same-sex marriage that purchased spousal health insurance coverage from their employers can now exclude the insurance premiums from their taxable income.

The policy ruling certainly provides clarity on fiscal issues that have plagued same-sex marriages for decades. Treasury's press release provides coherent tax filing guidance for contributing tax payers that happen to be in same-sex marriages; now such couples can attain the benefits and protections to which every tax-paying citizen is entitled.

To date, 12 states recognize such marriages with several more that appear to be on the way.  While most state legislatures are getting around to addressing the issue of same-sex marriage, either through constitutional amendments banning such marriages, or through legislation recognizing them, New Mexico is addressing the issue through its judges on a county-by-county basis.  This will be the topic of the next Law Blogger post.

If you wish to apply for an income tax refund, use IRS Form 1040X Amended Individual Income Tax Return; refunds from estate or gift tax payments; use Form 843 Claim for Refund and Request for Abatement.  Good luck.

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Sunday, August 25, 2013

SCOTUS and High Court Activism

Ruth Bader Ginsburg in 1953
By: Timothy P. Flynn

Three years ago, when sworn into the SCOTUS Bar in Washington, D.C., I was lucky enough to get a seat toward the front of the Court's chamber to observe the nine Justices, all still on the court today, up-close and personal. Literally, to the far left on the bench was a diminutive woman; Justice Ruth Bader Ginsburg.

Appointed in 1993 under President Clinton, Justice Ginsburg just recently turned 80. When I saw her listen as the High Court's newest opinions were read to the gathered public a few years ago, she was slouched over in her big black leather chair as if asleep.  Later in the session, I realized she was listening closely and taking notes.

At 80, Justice Ginsburg is sharp, on her game, and regularly in the legal news.  Physically, while she admitted wistfully to the New York Times that her "water-skiing" days are over, she is a  proud survivor of cancer [twice] who has maintained a clean bill of health from the National Institute of Health; the NIH tracks her soundness very closely.

SCOTUS retirement politics runs in cycles across the decades, as Justices age and retire or, rarely, die on the bench like Justice William Rehnquist in 2005.  In the late 1990s, for example, rumors circulated every fall about the health of Justice William Brennan, Jr. who remained on the bench well into his eighties.

It seems that when a Justice hits 80, with a president in the White House that has compatible jurisprudential views, legal scholars and politicians of the same bent emphasize the significance of a compatico-appointment; get while the gettin's good, so to speak.  This is now happening to Justice Ginsburg who, amid a growing chorus to step-aside, states publicly that having a Democrat in the White House will not factor into her decision when to retire.

Justice Ginsburg went on a bit of a publicity tour this spring, giving speeches and interviews to Tier One law schools, lawyers' groups and newspapers on the seminal decisions of the 2012 term.  Of particular note, Justice Ginsburg commented on the same-sex marriage DOMA decision, saying she did not think SCOTUS should create a constitutional right to gay marriage, like the High Court did with abortion in Roe v Wade in 1973; far too activist she says.

A little-known secret to those outside the legal industry is that Justices do not always pan-out according to the hopes and wishes of the President that appoints them.  President Regan's appointment of Justice Anthony Kennedy, the centrist on the current SCOTUS, is the most notable example of recent decades.

Not so with Justice Ginsburg.  President Clinton knew her liberal roots were sunk deep and she has not disappointed.  Justice Kennedy's "swing-vote" centrism, and Justice Ginsburg's senior liberalism is what gives the current Court it's 5-4 flavor on the seminal cases it has been deciding over the past few years.

Every fall, as the High Court begins its work of listening to the oral arguments of the selected cases, and drafting the decisions opinions, there is perennial commentary about the degree of activism of the Court. According to Justice Ginsburg, the Roberts' Court is among the most activist she has seen during her tenure on the bench.

Liberals fear that unless Justice Ginsburg steps-down soon, a Republican President may likely have the opportunity of appointing a conservative justice mid-decade.  These are the ways politics affect our delicate social fabric on the major legal issues of our time.

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Thursday, August 22, 2013

Epic Divorce Battle: 17-Years and Counting

Law Professors should know better.  In what has to be one of the longest-running open cases in U.S. history, the divorce proceedings between two law professors continues to rage in Hamilton County, Ohio.

The two now-adult children produced from this ill-fated union have never known anything other than their parents locked in an epic divorce battle during which each parent has alternately won, then lost custody.  How utterly embarrassing.

The judge currently presiding over the matter recently chastised both parties for their non-exemplary behavior in the latest hearing conducted in the matter last month.  Over the years, several of the family court judge's rulings have been appealed by both parties; this, no doubt, has gobbled-up some of the years this matter has been pending and active in the courts.

Michigan Connection:  Law Professor Sharlene Boltz, one-half of this divorce disaster, is a graduate of the University of Michigan Law School.  We here at the Law Blogger wonder whether she ever took a family law course.

Here in Michigan, county family court judges are under a directive of the Michigan Supreme Court to complete all divorce proceeding within one year.  While this is a good rule-of-thumb, it is difficult to accomplish in some cases.

One of the ways we attempt to reduce protracted delays in the divorce matters we handle at our law firm is utilization of the collaborative divorce approach.  In a collaborative divorce, the spouses communicate directly about the ultimate settlement in the case prior to actually filing the initial pleadings.

Once a divorce is filed, the spouses and their minor children are subjected to the public jurisdiction and the timetable of the local family court.

The negotiations in a collaborative divorce proceeding, on the other hand, are conducted privately, often with the assistance of at least one lawyer and, if necessary, a counselor or therapist.  A team approach is used with an emphasis on cooperation and without concern for court-imposed deadlines.

Unfortunately, this divorce model does not suit every family.  For the collaborative divorce model to work, both spouses must commit to on-going communication and mutually reasonable objectives; if one of the spouses insists on the adversarial process, the collaborative model will not be possible.

If you are contemplating divorce and believe you have a rational cooperative spouse, perhaps you should give the collaborative divorce model a try.  To learn more, contact our law firm for a free consultation.

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Wednesday, August 14, 2013

AG Holder Signals Change in "War-On-Drugs" Policy

AG Eric Holder @ ABA Annual Meeting
By: Timothy P. Flynn

Addressing the ABA's House of Delegates in San Francisco last week, U.S. Attorney General Eric Holder announced a significant shift in federal drug policy that could have an impact on our decades-long "War-on-Drugs".  The policy initiative will effectively gut the tough anti-drug sentencing policies that have been a staple of federal legislation for the past quarter century.

Holder indicated that sentencing guidelines would be reduced for non-violent low-level substance abuse offenders.  Stringent mandatory minimums would be eliminated.

In making the surprise high-impact announcement, the U.S. Attorney General said, "too many Americans go to too many prisons for far too long and for no truly good law enforcement reason."

Going forward with the new policy, known as the "Smart on Crime" initiative, Holder said that US Attorneys will be exercising their prosecutorial discretion to charge defendants with minor crimes [i.e. possession] better suited to their substance abuse conduct, rather than charging such low-level participants with distribution crimes that carry hefty minimum sentences.

The AG also signaled that his boss, President Obama, will be seeking a legislative initiative that would give federal judges more discretion in their sentences for drug-based crimes.  This was very welcome news to the ABA's Criminal Justice Section Chair, Neil Sonnett, who characterized the long-standing federal drug policy as one that features "over-criminalization" and "over-incarceration".

We here at the Law Blogger have seen many a client go "bye-bye" due to these harsh sentencing guidelines, some of which spill over into our state laws.  Remember the mandatory drug lifer law debacle of the 1980s?

With the onset of drug courts and sobriety courts over the past decade that feature treatment over incarceration, the criminal justice system here in Michigan has made great strides toward what Holder announced at the federal level.

Hopefully this momentum will continue after Holder's boss leaves office.  For the opposing point of view, take a look at Georgetown Law Professor William Otis' editorial in USA Today.  Also, here is the NYT's op-ed on the incarceration aspect of this debate; and here is The Economist, calling for "Holder to be Bolder".

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Tuesday, August 13, 2013

Facebook and Vigilante Justice

By: Timothy P. Flynn

On Sunday Morning, I was reading the Detroit Free Press about a rough incident of vigilante justice made possible by Facebook.  As the social media experience accelerates, we can expect more cases like this one.

The Crime.  A 15-year old girl with Down Syndrome was allegedly raped in the Hubbard Farms neighborhood on Detroit's Southwest side on July 17th.  Word got out that the suspect was a 45-year old man, also from Hubbard Farms.

The Consequences.  First, Emails circulated through the neighborhood about the attack and the suspect's involvement, divulging his name and address.  Next, graffiti below the suspect's apartment window pronounced the Hubbard Farms resident a "Rapist".  Once outed by the graffiti and emails, neighbors demanded to know what should be done about the attack, and the alleged attacker, like right now.

An Unfortunate Delay.  For their part, the Detroit Police bungled getting off the dime on the case.  The subsequent investigation into the girl's attack led to a rape kit that included a Buccal swab from the suspect.  The DNA samples, however, were not transmitted to the Michigan State Police crime lab by the DPD for over a week.

We here at the Law Blogger know, from our own cases, that the State Police crime lab is seriously backlogged, taking between 6-months up to one-year before test results are returned.

A Facebook "Call-to-Action".  So in the month since the rape occurred, neighbors who see the alleged attacker still walking the streets, have become incensed with the slow-moving wheels of justice.  They know that the suspect has not been charged with any crime; at least not yet.

This delay in justice was not acceptable to some of the neighborhood residents who recently struck-up a FB campaign calling for street justice; one post even suggested a back-alley castration; others posted equally specific threats.

The Beatdown.  Apparently, due to the e-notoriety of the alleged attacker, he himself was attacked on the street by several members of the neighborhood, beaten with a baseball bat and kicked in the ribs and face according to witnesses.  He survived the beatdown and his family moved him to an unknown location for his own safety.  [Note: Although witnesses to the beatdown contacted the DPD, the police arrived too late, apparently otherwise engaged with a fatal shooting nearby.]

Guardianship Proceedings.  According to the Freep article, the suspect has a mental illness, was committed to a mental health facility last year, and has a Guardianship in the Wayne County Probate Court.

Managing over 75 guardianships in my own law practice as a Public Administrator, I understand the challenges and heartbreak of mental illness.  Mental illness, however, is not a legal defense to most crimes.  When our wards get charged and convicted of crimes, their mental illness is taken into account at the sentencing hearing, but it does not exonerate the criminal act.

Vigilante Justice.  Vigilante justice is not the answer, even when the wheels of justice turn slowly.  While justice delayed is truly justice denied, vigilantism points to a critical breakdown in our society, letting us know just how close chaos looms beneath the surface.

As a criminal defense lawyer, I understand the necessity of the prosecutor to collect evidence to prove the charges in a court of law.  Nearly always easier said than done, especially in Detroit.

In this case, the Wayne County Prosecutor will bring criminal charges against the alleged attacker just as soon as they have sufficient evidence to prevail in court; that's how the justice system works.

We here at the Law Blogger find it ironic that technological advances such as the proliferation of social media serve, at least in cases like this, to accelerate violence in a frenzied rush to judgment.

What if the mob gets it wrong; where is the appeal filed from that injustice?

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Saturday, August 10, 2013

Social Security Administration and Same-Sex Marriage

There have been, and no doubt will continue to be, some interesting legal developments in the wake of the landmark SCOTUS same-sex marriage decisions from June.  This post details a recent policy adaptation emanating from the Social Security Administration in reaction to the landmark case.

Now known as a "Windsor Same Sex Marriage Claim" in the SSA's Program Operations Manual System, a same-sex couple may apply for social security benefits so long as:
  • the applicant couple were married in a state that permits same-sex marriage; and
  • the couple is domiciled at the time of the application for benefits in a state recognizing same-sex marriage.
BuzzFeed Politics reporter Chris Geidner characterizes this new policy as the federal government's first significant implementation of the SCOTUS' Windsor decision, striking-down the Defense of Marriage Act and its, er, traditional definition of marriage.  According to Geidner, applicants that were legally married in a state that recognizes same-sex marriage, but are domiciled in a state that does not recognize such marriages at the time they apply for benefits, have their benefit applications placed on hold status.

In limbo with the SSA; that's not where you want to be if you've worked for, and are entitled to benefits.  We here at the Law Blogger agree with Stanford Law Fellow William Baude's take on the issue, for the Volokh Conspiracy blog:
But the [SSA's policy] decision has the unfortunate effect of ensuring that same-sex couples will be married for some federal purposes and not for others. My view is that one of the important attributes of marriage as a legal matter is the way it functions as a cross-cutting and trans-substantive. [sic]  So this is not a good thing. This should be a reminder that Congress really ought to step up and enact a choice of law rule, but I am not holding my breath. [Brackets supplied.]
Baude suggests another class of applicants potentially entitled to benefits; civil unions.  Lots of litigation will go down before the line eventually gets drawn.  And if the federal coffers are not to be depleted, there must be a line somewhere.

Until then, we will be looking for the significant cases to emerge from the federal courts that navigate the tricky intersection of same-sex marriages and social security.

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Monday, August 5, 2013

District Courts in Detroit and Pontiac Fiscally Challenged

The thing about district courts is the funding to make them operate; district courts do not have uniform funding across the state.  Funding for a district court depends on getting money from its political parent (the city or the county, or the state) and from the citizens within the community who get ticketed and brought into the court.

The district courts in Detroit and Pontiac are in financial trouble.  This is because they are self-funded courts, meaning they derive a significant portion of their operating budget from revenue generated from tickets and court costs assessed from the folks that appear in those courts.

In Detroit, the 36th District Court also relies on the City of Detroit's budget.  The current budget year has not been kind to the district court.  It requested a "bare bones" allocation of $36 million but only received $31 million.

More recently, the Michigan Supreme Court, concerned about the district court's fiscal health, appointed Court of Appeals Judge, and former Wayne County Circuit Judge Michael Talbot, as a special administrator of the 36th District Court.

In Pontiac, the Michigan Supreme Court has called for the elimination of two judges at the 50th District Court; also a self-funded court.  While the budget for the Pontiac court has gone up, the court's revenues from tickets and courts costs has eroded.

Both courts have seen administrative staff reductions.  Both courts are being asked by the Supreme Court to do more with less.

Like Detroit, the folks getting fined and assessed court costs in Pontiac just don't have the dough; the folks getting ticketed simply cannot afford to pay the fines, or do not pay the fines.  The courts can assess fines all-day-long, but if the local citizens cannot afford or refuse to pay them, then it amounts to phantom revenue.

Our lawyers are going from the 36th District Court, across the street to the Frank Murphy Hall of Justice all the time.  Often, we swing by the 50th in Pontiac on our way Eastside, or up to 1200 N. Telegraph.

So far, we have not noticed a disruption of service with the hard-working employees of those courts.  Let's see what happens as the operating budgets of those courts are brought into line with reality.

In our opinion here at the Law Blogger, while courts must run as efficiently as possible, the cost of justice is not something we can skimp on; the courts must stay open for business no matter what.

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