Carl Hainer sans license.

By: Timothy P. Flynn

At age 85, Carl Hainer has not had a traffic citation in 70-years, i.e. his entire driving life.  That did not stop the Secretary of State from denying his recent renewal application on the mysterious grounds that Mr. Hainer was an unfit driver due to unspecified health reasons.

Well, apparently they messed with the wrong retired engineer.   The octogenarian from Grand Rapids is representing himself in a federal law suit he filed against the Secretary of State, presumably raising constitutional claims.

The Secretary of State has the authority to restrict or deny a driver's license based on the applicant's ability to safely operate their vehicle.  The SOS gets referrals for a driver's examination from many sources: police, family, guardians, medical care providers, concerned neighbors and even, as apparently in Hainer's case, SOS workers.

Michigan's motor vehicle code provides for a driver's re-examination whenever information comes to the SOS about that driver's ability to safely operate their vehicle.  The process balance the important liberty interest associated with the freedom to drive, and the public safety interest that all licensed drivers are capable of handling the multitude of conditions and situations that arise on a moment-by-moment basis on the road.

In Hainer's case, he claims he has been singled-out and discriminated against due to his age.  He asserts that it was all-bad from the moment he stepped into the SOS office to renew his license, and that he was treated rudely at the counter.  As for his overall health, he is puzzled as to why his license was pulled because the man is apparently in good health.

Unfortunately for Hainer, his law suit is misplaced to the extent that the State of Michigan has immunity in such matters.  It would have been better had Hainer hired a lawyer to appeal this administrative decision.

If you or a family member have experienced an adverse administrative decision affecting your driver's license, give our law firm a call for a free consultation.  We may be able to assist.

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By: Timothy P. Flynn

Recently, a WSJ Law Blog post described law school in six words. The post was inspired by a law professor at Marquette University Law School who, in turn, was inspired by the master of lean prose: Ernest Hemingway.

After all, legal prose should be concise and to the point. Simple declarative sentences should be the rule in legal papers.

Hemingway is said to have once won a bet by writing a story in just six words.  His contribution, scribbled on a bar napkin, was:

• For sale: baby shoes, never worn.

Here is what the WSJ's blogger came up with to describe various facets of law school:

• For sale: law degree, no promises.
• Three years later, they weren't ready.
• You'll get hired, so they claimed.
• "But I'm tenured", the professor replied.
• The former dean pleaded not guilty.

Here is our contribution:

• Legal profession: not easy to enter. 
• A divorce lawyer? Are you sure?
• Top tier law school: good salary.
• Tier Three law school: huge debt.
• Cooley Law School; marketing in action.

To the law students and legal professionals out there among our readers, post your law school "stories" to our comments.

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By:  Timothy P. Flynn

An adult guardianship is a probate court proceeding that protects an individual that cannot take care of his own affairs by appointing a fiduciary -a guardian or conservator- to care for the incapacitated individual.  In our free-society founded on individual liberties, guardianships although disfavored as a legal status, are sometimes necessary to protect individuals made vulnerable through age or mental illness.

As a Public Administrator, I have served the Oakland County Probate Court by accepting appointments as the guardian and conservator for individuals deemed by a judge to be incapacitated, but who do not have suitable family members to serve as their fiduciary.  Currently serving as guardian for just over 75 protected individuals, and for hundreds over the past decade, I have acquired vast experience in dealing with all aspects of adult guardianships and conservatorships.

Two weeks ago, companion bills were introduced in the Michigan Senate to amend the guardianship provisions of the Estates and Protected Individuals Code -Michigan's probate code- to adopt the Uniform Guardianship Jurisdiction Act.  The companion bills seek to restrict the subject matter jurisdiction of the county probate courts by adopting a complicated three-tier test to ascertain the allegedly incapacitated individual's contacts with the forum state prior to granting a guardianship.

Under the present probate code, a guardianship can be granted for any incapacitated individual physically present in Michigan.   One benefit touted by supporters of the Senate bills is prevention of conduct known as "grannysnatching" whereby a person takes a vulnerable individual into Michigan from another state and immediately files for guardianship in order to control the person's income and assets, and to prevent contact by other family members.

If adopted, the Senate bills would revise our guardianship act, making the initial establishment of a guardianship much more difficult, and complicated.  Under the present guardianship procedures there are effective safeguards already in place.  For example, prior to the establishment of a guardianship, a Guardian Ad Litem is appointed by the probate court to function as the "eyes and ears" of the court; to investigate the guardianship petition and make a recommendation to the judge.

Also, under the present law, all "interested persons" -other family members- must be served with a copy of the petition and can appear at the hearing on the petition and object to the guardianship or to the appointment of the nominated individual.  Such notice provisions, along with the GAL's report to the probate judge, operate as an effective set of safeguards against cases of reprehensible "grannysnatching".

We here at the Law Blogger see these companion bills, SB 465 and SB 466, as more trouble than they are worth.  If adopted, probate court staffs across the state will need to absorb and digest the complex provisions of the Uniform Guardianship Jurisdiction Act and the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act; this will require staff training and increase the administrative costs associated with the delivery of these public services.

Such cost and complication will come just as the Oakland County Probate Court has managed to trim staff and control expenses to stay on-track with Oakland County's perennially-balanced budget; a rarity in this day and age, especially considering that the services provided by the probate administrative staff have remained first-rate.

For these reasons, we say "no" to the companion bills and urge the Michigan Senate to leave well enough alone.  The present guardianship system in Michigan is not broken thus, it does not need to be "fixed" by a uniform act.

Related Note:  A documentary on elder abuse titled, Last Will and Embezzlement, was profiled in today's Freep.  The film, which takes a look at the ways criminals take advantage of the elderly, is playing in Clinton Township and West Bloomfield.

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When we represent an individual accused of committing a major felony, we are mindful of the new statute in Michigan requiring police to record a custodial interrogation of that individual.  Although the statute took effect last March, some local law enforcement agencies have not been able to comply with the law due to funding limitations and budget cuts.

The express wording of the statute requires the police to make a time-stamped audio-visual recording of the entire custodial interrogation, including the Miranda warning component of the interrogation.  The statute also requires that equipment be utilized in this process that prevents editing or altering the original content of the recording.

When the police conduct a custodial interrogation for a major felony they are not required to secure the consent of the suspect, nor are they required to inform the suspect of the recording.  If the suspect objects to the recording, that is noted, and the interrogation continues unless the suspect invokes a right to have an attorney present.

Major felonies are defined in the new law as any felony that has life imprisonment, or a maximum punishment of 20-years; this includes Criminal Sexual Conduct in the 3rd degree [i.e. victim between age of 13 and 16].  In our experience with such cases, most interrogations have long been recorded.

Making a recording helps the system to the extent that such a recording makes compelling evidence at a criminal trial.  If the suspect confesses, then "the cloth is cut" as we say in the criminal defense bar.  When an accused's confession is recorded, and the criminal defense lawyer is unable to suppress the recording, a guilty plea usually results.

On the other hand, sometimes the recording depicts an individual ardently asserting their innocence, non-involvement, or an alibi.  Once produced, as required by the new statute, the defense attorney is entitled to a copy of the recorded statement.

If local law enforcement is unable to produce the major felony recording, either due to malfunctioning equipment [happens more than you would think] or because there is no equipment due to budget cuts, then the defendant is entitled to a jury instruction advising the jurors of the statutory requirement for a recording, and further advising jurors they can take the missing recording into account.

A more effective remedy, from the criminal defense perspective, is the preclusion of the substance of any unrecorded statement into evidence during the trial.  The best evidence is the actual recording of the accused's statement, not the officer's summary or re-telling of such a statement.

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By:  Timothy P. Flynn

Well, you had to see this one coming.  Something just does not seem right when a federal court adjudicates in secret, even if done under the provisions of the Patriot Act.

When Edward Snowden released a cashe of classified national security-related information earlier this summer, many in the legal blogosphere began to take note, and the Federal Intelligence Surveillance Court [FISC] was suddenly in the spotlight.

Much of the Snowden-generated furor involved government tracking and storage of email and cell phone transmissions; data, big and raw.  Here is our take on the issue in this post.

Thanks to the ACLU of Washtington, D.C., the FISC is again in the spotlight on a motion, brought pursuant to the Freedom of Information Act, to release certain opinions of the secret court which deal directly with the constitutionality of the court.  Opinions deciding the FISC's own constitutionality; now there is an interesting method of judicial review.

Here is the FISC Opinion, authored by Judge Dennis Saylor, ordering the federal government and the ACLU to submit a list of constitutional-threshold FISC opinions and a proposed declassification process by which the opinions can be submitted to the judge that authored the opinion for the author's judicial consideration as to whether they should be publicized.

Sound complicated?  Well, at least it is some progress toward openness.  The government list of opinions deemed suitable for publication and a proposed declassification procedure are due by October 4th.

The ACLU's filing sought publication of the FISC opinions directly from the stealth court itself, rather than as a component of separate litigation.  As noted in Judge Saylor's opinion, a similar request was lodged in 2011 by the ACLU in federal court in Manhattan which continues to be litigated.

When they are finally made public, these opinions will be very interesting.  We here at the Law Blogger cannot wait to see how the FISC passed muster on itself.

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By:  Timothy P. Flynn

Last December, on the same day of the Sandy Hook massacre in Connecticut, a high school sophomore in Wilmington, OH exercised his right to free speech along with some incredibly poor judgment and posted the following on his Facebook status:

Kids were shot. Who cares?  Dead kids are dead kids.  Murder is a good thing. This is a serious status, I really think murder is a good thing.  It doesn't matter who is killed, as long as there is killing.  I have been saying for years now that there needs to be another mass murder, I have said this too (sic) many people.  The fact they were just kids makes me laugh.  I'd have done this job myself if I could have. All forms of life are insignificant.  Doesn't matter if they die today, tomorrow, or in 30 years. They are going to die.  I may as well help them out.

Wow!  While the group of people that would agree with such abhorrent commentary is a minute psychotic fringe, the group of people that would support the student's right to spout such venom is much larger.  In the law enforcement community, however, not so much.

Understandably, this young student's problems began shortly after he posted this status, starting with his arrest and detention.  He was charged with violating Ohio's "menacing" and "inducing panic" statutes.

At the student's adjudicatory hearing last January, the principal of Wilmington High School testified that, in light of the events of Sandy Hook that same day, he considered the Facebook post to be a threat, especially in the context of his duty to protect 900 students at his school.  On the basis of this and other evidence [the student, according to detectives, showed zero remorse and seemed not to care about the proceedings against him] the juvenile was convicted.

On appeal, the juvenile asserted that his conviction was based on insufficient evidence to the extent that his words did not constitute a specific threat and he did not name an intended target.  The Ohio appellate court rejected this assertion and affirmed his adjudication as a delinquent last week, holding the criminalized conduct of the menacing statute is much broader and includes such generalized "threats" within its scope.

The Ohio appellate opinion provided the following rationale:

The reach of [the menacing statute] is not so narrow as to be restricted only to conduct constituting an overt threat as P.T. [the Defendant] suggests.  Rather, the statute proscribes a much broader spectrum of behavior by criminalizing any conduct engaged in by a person knowing that such conduct would cause another to believe the offender will cause the other person, or the other’s family, physical harm.  In the present case, P.T. posted on Facebook—knowing that it is a website readily accessible to many individuals living in the Wilmington area—endorsing the events that occurred at Sandy Hook and stating that if he had the means to accomplish such a shooting, he would have "done the job" himself. Although the posts were not made to or about any particular person, it was reasonable to believe that the posts would be viewed and conveyed through Facebook to individuals associated with the Wilmington school district, where P.T. attended school.

Interestingly, the opinion does not indicate whether the student, through his appellate attorneys, raised a free speech defense under the First Amendment.  Also, the opinion is wholly silent as to a First Amendment analysis.

This case could have been the digital version of shouting "fire" in a crowded theater.  Apparently, that did not matter in this Ohio case which focused solely on whether the threat was real.

A close look at the evidence summarized by the appellate court indicates that it was not a credible or real threat.  So where does that leave Ohioans, hunched over their computers typing away at some loathsome post for which they can be punished?  Where does this case leave the First Amendment?

Post Script - Here's the other side of this coin.  A Florida middle school girl jumped to her death as this post was being composed yesterday, apparently distraught from a year of constant bullying by her peers.  Here is a link to the story.  Most of the bullying took place on social media sites where the bullies asked the young girl why she was still alive and to just go kill herself.  Florida has anti-bullying statutes on the books, and the bullies have First Amendment rights.  We here at the Law Blogger have to ask: just where do you draw the line?

Post Post Script - Just days after this post was published, a federal appeals panel from the 4th Circuit held that clicking "like" on Facebook was a form of protected free speech under the first amendment.  Here is the WSJ link to a post detailing the ruling.

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52-4 District Judge
Kirsten Hartig

By: Timothy P. Flynn

This ruling is going to get some attention in high places.  Troy District Judge Kirsten Nielsen Hartig has ruled that Michigan's motor vehicle code provision criminalizing the operation of a motor vehicle with the presence of a controlled substance [marijuana] violates the equal protection clause of the Michigan and United States Constitutions.

The case, People v Sulaka, arose in 2010 when the accused was allegedly speeding and, when pulled-over, could not produce a drivers license.  In the process of making an arrest for this seemingly innocuous violation, the Troy Police officer detected the odor of marijuana coming from the car and took Sulaka to the hospital for a blood draw which yielded a trace amount of THC.

Our friend, Superlawyer Neil Rockind, argued that the controlled substance provision of the motor vehicle code improperly created a strict liability crime, improperly shifted the burden of proof from the prosecutor to the accused, and unconstitutionally created two classes of people treated differently under the law.

Judge Hartig was persuaded to invalidate the motor vehicle code on equal protection grounds.  Here's how the idea works: there are two classes of people subjected to the controlled substance provision of our motor vehicle code.  One group of drivers have medical marijuana cards and are permitted to have THC in their blood stream while driving, so long as the level does not impair their ability to drive [so says the Michigan Supreme Court in a recent case dealing with the medical marijuana act].  The other group of drivers has no such pot card and are strictly liable for operating a vehicle with any amount of THC in their blood.

In her ruling, Judge Hartig relied on a case from the Georgia Supreme Court that held that the effects of legally used marijuana [i.e. medical marijuana here in Michigan] are indistinguishable from the effects of illegal marijuana consumption: the driver is still buzzed under either set of circumstances.  Therefore, no rational public safety interest is served by creating these distinct classes of drivers thus, the equal protection clause of our Constitution is offended.

The case has already made one trip to the Oakland County Circuit Court for the prosecutor's appeal of Judge Hartig's initial dismissal of the case.  Oakland Circuit Judge Colleen O'Brien relied on the now-reversed Court of Appeals decision in the People v Koon case, which ruled that even drivers with medical marijuana cards violated the motor vehicle code when driving with THC in their bloodstream.  [The Law Blogger's take on the Koon case is here.]

Of course, the Oakland County Prosecutor has again appealed Judge Hartig's second dismissal so the case seems destined to grind further through the appellate process.  Regardless of how Judge O'Brien rules in the [second] appeal of right, both sides are heavily invested in this case and can be expected to apply for further discretionary appeal to the Michigan Court of Appeals.

We shall see whether the Court of Appeals will grant leave in light of our High Court's ruling in the Koon case.  At some point, our legislature needs to address the disconnect between the motor vehicle code and the medical marijuana act.

Unlike alcohol, which utilizes a blood-alcohol threshold for driving, there is no similar scale for drivers who recently smoked marijuana.  As long as there are lawyers like Rockind out there to skillfully protect the rights of the accused, this will continue to be a problem for the courts.  Perhaps its time for the legislature to act on this issue instead of leaving it up to local law enforcement, prosecutors and municipal judges.

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As summer concludes and the federal bureaucracy returns to their Washington offices, the fall-out from SCOTUS' United States v Windsor decision continues.  The latest example of bright-line policy declarations comes from Eric Holder, the U.S. Attorney General, regarding veterans benefits for same-sex couples.

In his letter last week to House Speaker John Boehner, the AG instructs Congress that the Executive Branch will no longer be enforcing various sections of federal law dealing with benefits to veterans and their spouses.  To the extent that the targeted portions of the statute mirrored definitions of a married couple as defined in the Defense of Marriage Act, they are stricken.

The effect of this new policy is to open up the availability of federal benefits to same-sex spouses of service members, both active duty and reserves.  Citing the Fifth Amendment's equal protection clause, as well as a recent federal judge's decision that the targeted provisions of the federal veterans benefits statute were unconstitutional on 5th Amendment equal protection grounds, Holder advised Congress that enforcement of these provisions were no longer appropriate.  In doing so, he also remarked that instances where the Executive Branch cannot enforce federal law are, "appropriately rare."

All of these policy pronouncements coming out of Washington over the past few months points to the massive task of re-writing a significant portion of the United States Code in light of the demise of DOMA, and in favor of valid same-sex marriages.  We here at the Law Blogger, while recognizing the significant gains this civil rights struggle has made, have to wonder how well-accepted these new federal laws and regulations will be across the board and throughout the country.

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By: Timothy P. Flynn

Since the Obama Administration began in 2009, we've seen memos like this at least twice before.  But last week's long-awaited Department of Justice memorandum concerning federal law enforcement policy regarding marijuana appears to be the most significant policy statement yet, and may have the most far-reaching consequences.

In a memo to all United States Attorneys, the Deputy Attorney General, James M. Cole, advises prosecutors that the Justice Department will not be challenging the recently-passed state laws legalizing marijuana in Colorado and Washington.  Also, the memo instructs prosecutors not to base pot distribution charging decisions on the size or profitability of local marijuana dispensaries.

The policy statement was significant to the legal marijuana industry in those states as well as to the medical marijuana growers and dispensary owners throughout the country.  One of the roadblocks to the development of the industry in general has been the confusion and anxiety arising when state laws say "go", but federal law still says "no".

While this memo provides some assurances to the, er, "industry professionals" [some would say, "criminals"], it does not change the basic fact that marijuana remains a Schedule 1 drug: i.e. criminalized due its high potential for abuse, with no proven medical benefits.  Just ask the owners and operators of the dozen dispensaries recently mothballed in Northern California courtesy of Melinda Haag, the U.S. Attorney in California.

The pot lobby views the DOJ's most recent policy statement as "more good than bad."  Their optimism comes from the DOJ's encouragement of large for-profit dispensaries that adhere to DOJ guidelines, and the invitation for other states to legalize pot.

Banks and insurance companies, however, have yet to buy into the transition of the marijuana industry from a craft-oriented enterprise to industrial production.  Until that occurs, the pot farmer will just have to sleep with one eye open.

Post Script:  Here is some of the fall-out to the DOJ's policy shift announcement from Congress, here and here.

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Here come the lawsuits.  In the wake of the SCOTUS ruling in June striking down same-sex marriage bans and granting federal benefits to same-sex married couples, many couples are finding their way to court houses across the country.

Most states that have what could be called "gay-friendly" legislatures, something that we would expect changes over time, have already passed laws specifically granting gay couples the right to marry in a dozen states.  So the strategy among proponents of the notion of gay marriage has shifted from the state capitols to the county courthouses.

In Santa Fe County, NM, for example, a family court judge ordered the county clerk's office to issue marriage licenses to couples without regard to their gender or sexual orientation, ruling within a brief hearing that doing so was now unconstitutional.  At the time of this blog post, 7 counties in New Mexico have followed suit.

In neighboring Texas, the Supreme Court has scheduled oral arguments for November in two cases where same-sex married couples were granted divorces from Texas county family courts.  The Texas Attorney General has intervened in the divorce proceedings, asserting the divorces issued by the family courts are invalid because they implicitly recognize same-sex marriage; something proscribed by Texas law.

Cases in Tennessee and Kentucky are also percolating through the state courts, testing state laws proscribing same-sex marriage.  In one of the several cases pending in Kentucky, one-half of a same-sex married couple is on trial for murder and the issue in the court is whether his "better-half" can be compelled to testify, or whether he should be granted spousal immunity.

In another high-profile case from Franklin County, Kentucky, a same-sex couple filed suit against the Governor on grounds that Kentucky's outright constitutional ban of same-sex marriages violates the Equal Protection clauses of the U.S. and Kentucky constitutions.  This is the same issue that was decided in California in the SCOTUS Windsor case.

Currently, there are too many same-sex marriage cases to track unless you are a law professor or law student writing a law review article on the subject.  Unlike the SCOTUS' 1973 Roe v Wade decision, considered the height of judicial activism, which created a sweeping constitutional ban on anti-abortion legislation, last term's same-sex marriage decision adopted a state-by-state approach.

While the momentum toward recognition of same-sex marriage as a civil right has gained steam since we here at the Law Blogger picked-up on the issue back in 2009, it will take at least a quarter century for the current dust to settle.  At least that is our prediction.

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