By: Timothy P. Flynn

There is no doubt that a divorce proceeding affects any professional's work routine; that includes, of course, corporate executives.  The distraction of a divorce in the board room, however, affects others outside the company; it pulls the corporate shareholders within its scope.

We're not just talking about guys like Mad Men's Don Draper, whose divorce temporarily but significantly affected the partners of a successful NYC advertising agency.  A CEO's divorce can affect the bottom-line for the shareholders in the company.

There are several ways that an executive's divorce could affect the company for which he or she manages.  First, if the executive has a significant stake in the company, the divorce could affect the executive's controlling interest.  The divorcing spouse will want a portion of the value owned by the executive and that value could affect control of the company.

Second, the divorcing executive's corporate focus and energy levels will be impacted by the trajectory of his or her divorce proceeding.  It is no surprise that business studies and surveys have shown that well over one-third of companies report a negative productivity impact directly arising from the divorce of an executive.

Third, the divorcing executive's strategic decision making can be influenced by the divorce proceeding.  If, for example, the executive is funding her divorce settlement with personal assets so that she can retain her share of corporate ownership, her outlook toward risk could be impacted: i.e. she may become more risk-adverse in the short term in order to protect her suddenly less-diversified and more concentrated net worth.  Being less risk-adverse may not be good for the company or its shareholders.

All of this affects a shareholder's interest in the company.  In many cases, perhaps because of the above examples, corporate divorces are handled as privately as possible.

The collaborative model we prefer here at Clarkston Legal serves the executive, and thus her company, very well.  The collaborative model is where the divorcing parties, and their team of professionals, meet and negotiate a settlement before a divorce proceeding is officially filed with the family court.

If you or your spouse are considering a divorce and there are corporate implications, you should give serious consideration to the collaborative model.  To learn more, contact us for a free consultation.

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The same-sex marriage issue is unfolding differently throughout the states of our union.  Here it comes, Jersey-style.

Despite New Jersey Governor Chris Christie's recent veto of the NJ legislature's approval of same-sex marriage, the High Court of that state has unanimously rejected Governor Christie's attempt to temporarily stay the application of a recent court ruling that overrode Christie's veto.  Consequently, same-sex marriage licenses will be issued in New Jersey starting on Monday.

We are seeing county judges getting more active in this civil rights movement.  In Jersey, for example, at least one judge, with many more in the wings, declared Governor Christies' veto unconstitutional in light of the SCOTUS Windsor decision. 

Governor Christie applied to the NJ Supreme Court to stay the legality of any same-sex marriage until that Court decides case on its merits in January.  If the unanimous 7-0 decision is any indication, it would appear that the New Jersey will become the 14th state in the union to allow same-sex marriages.

In a classic compromise indicative of his aspirations to occupy the White House, Governor Christie publicly approves civil unions, legal in New Jersey since 2007.  Gay couples roundly reject such middle ground, however, viewing such status as the modern equivalent to our national experiment with "separate but equal" legislation in the mid-20th Century.

We here at the Law Blogger view this issue as the civil rights issue of our era and will be tracking the issue throughout the nation.  In the process, it provides interesting insight into the machinery of our government and judiciary.

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By:  Timothy P. Flynn

This week, the SCOTUS will hear oral arguments from the Michigan Solicitor General, John J. Bursch, and Detroit lawyer George Washington in the affirmative action case of Schuette -v- Coalition to Defend Affirmative Action.  This case tests whether Michigan's public universities can ban race considerations altogether in the college admissions process.

This case represents the "flip-side" of the college admissions cases that have made it up to the High Court over the past two decades.  Instead of deciding whether a state actor [i.e. a public college or university admissions board] can take race into account relative to dispensing a public service, this case considers whether the state can, through a voter initiated law, outright ban race as a consideration in the dispensing of the public service.

Michigan Attorney General Bill Schuette seeks to uphold Proposition 2, a voter initiative that passed by 58% in the 2006 general election, which outright bans any public use of preferential treatment based on race, color, national origin or ethnicity.  Just last spring, SCOTUS decided the Fischer case from Texas which held that race could be given some deference in the admission process of a public university, but the school's criterion was to be subjected to "strict scrutiny" if challenged in a court.

Now our High Court is moving on to the pointed and specific question of whether a state can ban race altogether as a college selection criteria.  The Supreme Court's repeated consideration of cases involving race-based public university admission has a long history with several stops here in Michigan.

 In 2003, SCOTUS released two decisions stemming from admissions policies of the University of Michigan: one involving the law school, the other concerned UM's undergraduate admission policy.  In the law school admissions case, the Court ruled that a publicly funded law school could make a limited use of race in their  admissions decisions.  In the undergraduate case, however, SCOTUS struck down an admissions policy that relied too heavily on race factors.

In addition to the contradictory rulings arising out of Michigan's public universities, the federal appellate circuits, the 9th Circuit in particular [San Fransisco, CA], are conflict-laden on the affirmative action question.  As is so often the case, SCOTUS will attempt to set the matter straight once and for all by resolving the conflict within the federal appellate circuits.

For SCOTUS to do so, the spotlight will once again focus on Justice Anthony Kennedy; the so-called swing vote.  Only 8 justices will partake in this case as Justice Elena Kagan has recused herself, presumably due to her involvement in the case when she was the United States Solicitor General.

If Proposal 2 is held to be constitutional as the Michigan Attorney General argues [Schuette says there's nothing more equal than equality], then affirmative action is effectively dead in the water here in Michigan and, eventually, in other states.  On the other hand, if Proposal 2 is struck as unconstitutional then the admissions policies of our public colleges and universities will continue to receive "strict scrutiny" from the courts, but race would continue to be a factor in the admissions equation.

Weighty stuff, to be sure...

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By:  Timothy P. Flynn

Tampering with digital evidence in a criminal trial can get you into big trouble.  Although rare, a perjury charge often carries a higher potential prison term than the underlying crime.

Last summer in Traverse City, a woman testified on behalf of her boyfriend at his child abuse trial.  The victim in the boyfriend's criminal case was the woman's teenage son.

Problems arose in the TC household when the woman's boyfriend tossed the teen out of the woman's home.  When the boy returned a short time later to retrieve some of his personalty, a physical confrontation between the teenager and the boyfriend ensued [we've seen this movie before], resulting in criminal charges of 4th degree child abuse.

At the man's trial, the Mom brought printouts of her son's Facebook page and testified that her son was actually engaged in a FB conversation at the time of the alleged beat-down.  The prosecutor wasn't buying it, and questioned the witness about whether she had altered the documents she brought into court in any manner.

When the Mom responded "no" to the prosecutor's line of questions, the proffered evidence was subjected to a forensic examination which revealed that the computer's time zone setting was altered to line-up the FB posts with the time of the beating.  A simple but effective "gotcha" moment that prosecutors live for.

Apparently, this woman must now answer to a felony warrant for perjury and tampering with evidence.  The woman's exposure in her criminal case is 15-years in prison; a much steeper penalty than the one faced by her violent boyfriend.

This case illustrates the principle that, when digital evidence is involved, every key stroke can be verified.  Perjury is rarely charged due to the inherent difficulties with proofs.  In this case, however, the digital evidence supports the charges, and the accused does not garner any sympathy; at least not from us over here at the Law Blogger.

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By: Timothy P. Flynn

Earlier this year, I was arguing a medical marijuana case before the Michigan Court of Appeals.  My case was probably about the 100th time a panel of our intermediate court of appeals had to address some facet of the Michigan Medical Marijuana Act over the past 5-years.

I could tell from the panel, which included Judge Christopher Murray, that the novelty of the MMA was wearing thin on the judges.  "Oh boy, here we go again; not another medical marijuana case."

Now, these cases are percolating up to the Michigan Supreme Court, which will be hearing arguments tomorrow on yet another medical marijuana case; this one with an interesting twist.  The case, Ter Beek v City of Wyoming, involves the legal challenge brought by a card-carrying pot smoker against his hometown for an ordinance that was passed in response to the MMA.

The challenged Wyoming ordinance subjects people to a violation for possessing marijuana on the basis of the federal prohibition of marijuana as a Schedule I drug, as set forth in the federal Controlled Substance Act. John Ter Beek, a qualified medical marijuana patient, challenged this ordinance in his law suit which seeks a declaratory judgment that the ordinance is invalid because it directly conflicts with state law: i.e. the Michigan Medical Marijuana Act.

The Court of Appeals struck down the Wyoming ordinance on the grounds the ordinance is preempted -swallowed whole- by the medical marijuana act.  In addressing the potential federal preemption of the Controlled Substance Act, the appellate court noted that Congress has traditionally left matters of public health and drug regulation to the police powers of the states.

Tomorrow's oral arguments before the Michigan Supreme Court should prove to be very interesting.  We here at the Law Blogger, having predicted back in 2009 that the MMA would be a great ride, will monitor this case and will post the MSC opinion as soon as it is made available sometime next spring.

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We've all seen the damage a relentless campaign of bullying can do once it takes to the Internet, especially among young students on the ubiquitous Facebook platform.  In some cases, the victims resort to suicide to escape the scathing humiliation.

The Maryland Attorney General and Facebook are teaming-up with educators to put a quick stop to cyber-bullying among students.  This pilot program consists of a dedicated channel, the Educator Escalation Channel, where designated teacher-censors flag objectionable content by transmitting a content-removal report for expedited FB processing.

The program was rolled-out by the Maryland AG in conjunction with recently-passed legislation enhancing the state's Internet harassment crime.  While these coordinated efforts advance the interest of eliminating school-originated cyber-bullying, some legal pundits warn of their potential to stifle free speech in the process.

Commenting for the WSJ's Law Blog, noted Gotham criminal defense lawyer Scott Greenfield remarked that the teacher-censorship program could, "institutionalize a process where the teachers appear capable of making a determination on the value of speech outside the realm of school."  By our calculus here at the Law Blogger, that amounts to government censorship.

Greenfield said it best in his blog post on the anti-cyber-bully initiative:

While Facebook may be a private enterprise, fully entitled to decide what content is acceptable on its platform and similarly entitled to decide that its users will no longer be allowed to write “Suzy is a poo poo head” on the wall, it’s not that simple when the censor is a state actor and the content at issue is deemed offensive not because it violates any law, but because someone is empowered to stifle speech that doesn’t comport with their vision of redeeming societal value, whatever that means.  By doing the bidding of teachers, Facebook becomes the agent of the state.  Not so private anymore.

Neither the Maryland AG nor FB admit that the censorship of objectionable posts comes from the state.  While it may emanate from a state actor [i.e. a teacher], they say it is FB, in conjunction with its published community standards, that will make the final decision.

This program illustrates the tension between our interests in stopping the school yard bully, and avoiding the government censor.  Where do you land on this calculus?  Tell us with a comment.

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By: Timothy P. Flynn

Earlier this year, United States District Court Judge Bernard Friedman held in abeyance the case challenging Michigan's ban on gay marriage until SCOTUS decided the United States v Windsor case in June.  Now, in the wake of Windsor -which struck down the Defense of Marriage Act banning federal benefits to gay couples- a hearing has been scheduled for mid-October in the Michigan case.

April DeBoer and Jayne Rowse, a lesbian couple from Hazel Park, filed the federal law suit because Michigan law prevents them from adopting each other's children.  The Michigan Attorney General is opposing the suit, asserting the couple's claim merely seeks to avert a valid Michigan law: the 2004 constitutional amendment defining a legal marriage as solely between a man and woman.

This case has been attracting much attention with Judge Friedman allowing several groups to file briefs in the case.  The Michigan Catholic Conference, on one side, asserts that the 2004 Marriage Amendment advances a valid state interest: the preservation and proliferation of family life through traditional marriage.  On the other side, a group of law professors at the Cooley Law School, along with other constitutional law scholars from across the country, assert that Michigan's Marriage Amendment should be subjected to a "heightened scrutiny" on the basis the amendment does not advance a legitimate state interest.

Whatever Judge Friedman does in this case, his decision will be appealed to the Sixth Circuit Court of Appeals in Cincinnati and then on to the SCOTUS, with perhaps a post-Windsor companion case or two. We here at the Law Blogger knew that it would not be long before Michigan joined in the fray of what has become the civil rights issue of our time.

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