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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Friday, December 27, 2013

New Mexico 17th State to Recognize Same-Sex Marriage

A proactive clerk in Dona Ana County, New Mexico began issuing same-sex marriage licenses last August in the wake of the SCOTUS' same-sex marriage decision in United States v Windsor.  Other county clerks began doing the same thing, attracting the attention of the New Mexico Association of Counties after a few hundred marriage licenses had been voluntarily issued to gay couples.

In some New Mexican counties, clerks were court-ordered by county circuit judges to issue the same-gender marriage licenses while in still other counties, the clerks rejected marriage license applications from same-gender couples. Uncertainty in the law arose relative to the marriage issue in this state.  One of the lawsuits swiftly made its way through the NM courts.

Last week's case making New Mexico the 17th state in the Union to officially recognize same-sex marriage, Griego vs New Mexico, holds that although state marriage laws do not expressly prohibit same-sex marriage, taken as a whole, they have that effect.  Therefore, New Mexican marriage laws, being subjected to the court's "heightened scrutiny" were found to violate the Equal Protection clause of the NM constitution.

The Supreme Court of New Mexico held:
We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property.  Prohibiting same-gender marriages is not substantially related to the governmental interests advanced by the parties opposing same-gender marriage or to the purposes we have identified.  Therefore, barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution.  We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections and responsibilities that derive from civil marriage under New Mexico law.
 To accomplish this, the NM Supreme Court exercised its power of superintending control, expressly granted by the state  constitution, over all inferior [trial] courts and, by extension, the county clerks where state marriage licenses are issued.  Some legal critics and state legislative opponents will see this as the poisonous fruits of an activist court.

We here at the Law Blogger have been tracking this civil rights movement since the early-days of the Perry case in California back in 2009.  What we are noticing now is the significantly increased and fervent pace of these decisions across the nation.

Most of the legal pundits, commenting last summer as the nation awaited the SCOTUS decisions in Perry and Windsor, assumed that same-sex marriage would evolve slowly like the prior civil rights struggles for racial and gender equality.  As we can see from the brisk state-by-state output, the pace of change is quickening.

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Thursday, December 26, 2013

Same-Sex Marriage Going Federal: Utah and Ohio

Increasingly, same-sex marriage cases erupting across the nation are finding their way into federal court.  In the post United States Windsor marriage jurisprudence, couples are challenging state constitutional bans on gay marriage by leaps and bounds.

Christmas Eve saw two important cases pending in federal courts in Utah and Ohio continue the momentum toward recognition of same-sex marriages.

The latest state to test these waters is Utah where three same-sex couples filed suit in federal court against the Governor and the Attorney General challenging Utah's state law ban against gay marriage.  The federal court judge assigned to the case recently ruled that the Utah marriage law violated the couples' due process rights and their equal protection under the law.

Utah's AG immediately filed an emergency appeal in the 10th Circuit Court of Appeals to stay the federal judge's order while his appeal is pending.  The AG's motion to stay was denied in a concise 2-page order issued by the 10th Circuit on Christmas Eve.

Without a stay in place, the floodgates were opened and exploited by couples awaiting recognition of their marital status: 300 couples were married in Salt Lake County alone.

Meanwhile, in Ohio, the federal court judge presiding over the death certificate challenge, the subject of an earlier blog post, ruled that valid out-of-state same sex marriages must be reflected on Ohio death certificates.

This momentum will undoubtedly continue as the Windsor decision takes root.  As this post is being written, our blog roll is lighting-up with decisions arising out of cases in New Mexico, Indiana and Oklahoma.  Stay tuned as we try to stay abreast of significant developments.

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Tuesday, December 24, 2013

Minors Continue Challenging Facebook Credits in Federal Court

I've never been one to participate in the variety of silly game apps offered by Facebook; particularly the ones for which you must pay.  Most kids, on the other hand, are eager participants.

In Michigan, when a company contracts with a minor, that contract is voidable.  The Internet has taken voidable contracts with minors to another level with the emergence of digital currency.

A lawsuit filed against the mighty Facebook by a pair of minors has been grinding along out in Northern California for the past few years.  Here at the Law Blogger, we've been following developments in the case courtesy of Eric Goldman's Technology and Marketing Law Blog.

The minors filed suit against FB in federal court alleging a variety of claims stemming from their purchase of Facebook Credits; the minors used parental credit cards without authorization.  Facebook Credits are units of credit that are purchased in a user's local currency such as the dollar, pound, drachma, mark, or yen [no bit coins please] for use in say, the Ninja Saga game.

Facebook keeps bringing motions for summary judgment in the case, slowing stripping away some of the claims advanced in the lawsuit.

Last week, the federal judge dismissed the minors' claims for violation of California's unfair competition statute on the basis the minors' did not use their own money, so they did not have standing to make this claim.  Goldman is rightly troubled by the fact that no one seems to have standing to bring a claim under the state consumer protection statute; neither the minors nor their parents.

The court also granted Facebook's motion as to the federal Electronic Funds Transfer Act claims, ruling that the EFTA does not apply to FB because it is not a "financial institution" under the definition of the Act. Goldman characterizes this portion of the opinion as an "oddity" to the extent that Facebook Credits are a form of digital currency.

Arguably the most significant portion of the lawsuit  -the voidability of contracts with minors- survived FB's most recent procedural attack, so the case marches onward.  You can expect to see more of this type of litigation in the future as minors become increasingly active with the various forms of digital currency.

When discovery finally ends in this case, the presiding federal judge will likely be asked to decide yet another round of dispositive motions brought by both David and Goliath.  Stay tuned for those developments as the outcome could have a significant impact on both FB and how business with minors is conducted.

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Sunday, December 15, 2013

Polygamy Gains Ground in Utah Federal Court Ruling

Kody Brown & his 4 Sister Wives
By:  Timothy P. Flynn

Kody Brown, star of the reality-television series Sister Wives, has another reason to go to the bank beside his popular television show.  Late Friday afternoon, a federal judge struck a portion of Utah's 1973 anti-polygamy law in the Browns' federal law suit against the State of Utah.

Judge Clark Waddoups released a 90-page decision in the case; a virtual tour de force of the law of privacy, the First Amendment, marital law and polygamy within the Mormon Church in Utah.  In striking down the Utah law, Judge Waddoups emphasized the Browns' right to privacy in the context of his First Amendment right to the free exercise of religion.

Interestingly, Brown is not a Mormon but a member of a religious sect that believes in "religious cohabitation".

The decision cites to a series of landmark SCOTUS decisions on marital law, starting with Reynolds vs United States, which outlawed polygamy in the US back in 1879.  Judge Waddoups' rationale relied heavily on Lawrence vs Texas, the 2003 case that struck anti-sodomy laws as unconstitutional, and Griswold vs Connecticut, the seminal case for the right to privacy in the boudoir for consenting adults.

Notably absent from the Court's analysis was any citation to the United States vs Windsor same-sex marriage decision.  The Windsor Court's focus was on equal protection and federal benefits; Judge Waddoups, on the other hand, focused on substantive due process and the right to privacy under the First Amendment.

Both cases evidence a willingness on the part of the federal judiciary to re-examine the constitutionality of once prohibited relationships, particularly in the context of the marriage contract.

The Browns' lawyer, George Washington University Law Professor Jonathan Turley, declared on his web site that the ruling was a major constitutional breakthrough in the protection of individual rights.  Professor Turley told the NYT that the ruling was more about privacy rights than polygamy, opining that polygamists and gay couples have a common interest: "the right to be left alone as consenting adults."

If Utah appeals, the case could get some legs and wind up on the SCOTUS docket in a few terms.  We here at the Law Blogger will keep on eye on this interesting case as the definition of "marriage" continues to evolve.

Post Script:  Here is a link to the National Law Journal's interview with the Browns' lawyer.  To dig deeper, here is the SCOTUSBlog post on this ruling.

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Saturday, December 14, 2013

Michigan Supreme Court Embraces "Selfie" Lexicon

Wayne Circuit Judge Wade McCree
By:  Timothy P. Flynn

The Oxford University Press has designated the slang term "selfie" as the word of the year.  For our over-50 readers, a selfie is when a person takes a picture of themself, or a part of themself -usually on their cell phone-  and transmits it to another person.

We here in the 313 can agree that the word has picked-up some credibility thanks to Judge Wade McCree's legal troubles.  How can we forget Charlie LeDuff's piece in Judge McCree's chambers when the good judge was confronted by his embarrassing instantly viral "selfie".

Well, fast-forward 2-years to the oral arguments this week at the Michigan Supreme Court.  The docket included the Judicial Tenure Commission's case against Judge McCree.  The JTC wants McCree to be suspended for six more years  -he is currently suspended without pay for his selfie-  so that he cannot be re-elected when his term expires in 2014.

McCree is represented by State Bar of Michigan President Brian Einhorn.  During Einhorn's oral argument in defense of the judge, Justice Robert P. Young, Jr. made the reference to the judge's "selfie".  The reference was picked-up and amplified by Justice Bridget McCormack.

A judge taking a nude selfie most assuredly does not inspire confidence in the judiciary.  The big question is what will the Michigan Supreme Court do with Judge McCree's case?

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Tuesday, December 10, 2013

Sign-Toting MSU Fan Sought by Police

Considering that I graduated from the University of Michigan in Ann Arbor, I do not find myself in the position of pulling for the MSU Spartans very often; but last Saturday, I was grateful that another team mustered the power to bring down the Ohio State football machine.

That's just when the trouble started, again, on the Michigan State campus in East Lansing.  In the wake of their impressive victory over OSU, the campus erupted into what arguably could be characterized as a "friendly riot".

Apparently, there must be something in the student orientation material that advises: a) yes, our school will win occasional championships and national titles, and b) yes, you will be asked to participate in a campus riot when this occurs.

While it is debatable whether actual violence erupted in East Lansing after the game on Saturday night, or whether the campus gatherings more resembled a sport-fueled love-fest, it is undisputed that available property was seized, burned or otherwise destroyed.  On this occasion, it was all documented in real-time by a significant portion of the revelers through a variety of social media.

The photo above was taken in Indianapolis while the game was still being played.  Now, the individual holding the sign is being sought by the East Lansing Police; but for what?

Sounds like a waste of time.  The police should be on the lookout for the culprits depicted in the dozens of clips posted to myriad social media sites, and from the clips looping on the evening news, depicting the destruction of property.

Was the guy in the stands at Lucas Oil Field simply expressing his right to free speech; or was he inciting a riot?  If any of the students displayed in the media were actually committing crimes and can be positively identified, the prosecutor will have a variety of potential misdemeanor charges to level:
  • malicious destruction of property; 
  • disorderly conduct; 
  • inciting to riot on a university campus;
  • minor in possession of alcohol; or the catchall East Lansing ordinance -
  • being 300 feet from an "open fire" without reporting it to the police.
Having been up to the East Lansing District Court on several occasions following campus MIP sweeps, I know that the district court judges are tuned-in to the student culture of their precious college town.  But this stuff gets political; the judges are looking to make examples, as they should.

Our concern here at the Law Blogger is that the net gets cast too-wide.  After all, we as citizens do have a right to peaceable assembly.

Some Spartans, however, moved well beyond peaceable assembly.  Now, there is a lot of pressure to sentence the offending students to significant punishment, to say nothing of what the MSU administration will do.  Atta boy Sparty!



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Thursday, December 5, 2013

Judge Cooper vs Judge MacKenzie

Novi Judge Brian McKenzie
By: Timothy P. Flynn

I'm aging myself by belonging to a group of 50-something lawyers that can recall when Oakland County Prosecutor Jessica Cooper was a circuit court judge, then a Court of Appeals judge.  Now she is, of course, the Oakland County Prosecutor.  Impressive career trajectory.

And as the prosecutor, Judge Cooper's career is now intersecting with another local judicial luminary, Novi District Judge Brian MacKenzie. Their career collision comes through a complaint the prosecutor filed   -in the form of a petition for a Writ of Superintending Control-   with the Oakland County Circuit Court, now assigned to Judge Leo Bowman.

The Writ alleges illegal conduct against the Novi judge.  Judge MacKenzie has struck back hard with a responsive pleading that, on first blush, sure calls into question the propriety of the prosecutor's Writ.

Channel 7 Action News was one of the first news outlets to break the story about the details of Cooper's allegations.  Judge Cooper alleges that over the past decade, Judge MacKenzie handed down sentences that did not comport with the law; that he dismissed cases after guilty pleas were tendered and accepted by the Court; that he dismissed cases stating it was with the consent of the prosecutor when there was no such prosecutorial consent; and perhaps most disturbingly, that he removed these cases from the public files of the Novi District Court.

Judge McKenzie is one of those judges that polarizes public opinion.  Truly, he is an iconic figure in our local judiciary.  Some folks love him; others not so much.

Several of the defendants that have been sentenced by MacKenzie applaud the justice they received in his courtroom; Channel 7 had a few willing to go on camera to defend the judge.  You do not have to look very far around Novi, Milford and Highland to encounter people who respect Judge MacKenzie's brand of justice.

On the other hand, now-retired Oakland Circuit Judge Steven N. Andrews admonished Judge MacKenzie on an appeal from the Novi District Court to the Oakland Circuit Court way back in 2004.  In reversing McKenzie's judgment of sentence, Judge Andrews, in a tersely-worded opinion called-out the district judge for meting-out sentences that did not comport with the law; Judge Andrews characterized MacKenzie's sentences as an illegal "pattern of conduct."

We here at the Law Blogger have always known Judge MacKenzie to be devoted to the Sobriety Court he established and nurtured in the Novi District Court and to the concept of required sobriety for alcohol-convicted probationers in general.  He is also known as a friend of veterans, recently starting a veterans' court in Novi.

There used to be websites devoted to a favorable portrayal of McKenzie and there are websites devoted to the disparagement of the good judge; now all deeply buried in Google's search results by this breaking story.

Some lawyers, vocal but who must remain nameless, view the manner in which Judge MacKenzie conducts a criminal call to be akin to "Kabuki Theater": heavy on drama, light on substance.  Others see him as a champion of justice that has a positive effect on the lives of the people that appear in his courtroom.

We now shall wait and see how the Oakland County Circuit Court Judge eventually assigned to the case assesses the allegations set forth in Judge Cooper's Writ.  Stay tuned for updates on this one.

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Wednesday, December 4, 2013

Driving While Distracted By Google Glasses

By:  Timothy P. Flynn

I swear, for years I have been joking with colleagues about the inevitable computer chips and technological devices that will be available for surgical implants into our skulls.  Are we really that far off?

To be sure, implants are one thing, and glasses, say, Google Glasses, for example, are another thing altogether.  Much less intrusive.  But when it comes to driving a vehicle, the potential for distraction when wearing and operating these glasses is obvious.

Recently, a driver in San Diego was ticketed for speeding.  When the officer pulled the driver over, she was wearing a pair of Google Glasses.  While she advised the officer that she was not actually using the glasses, her ticket (see below) is believed to be the very first to reference Google Glasses as the specific mode of distraction.

For the record, Google Glasses are a device that allows a person to access the Internet, emails, streaming videos, as well as to take video recordings, all through the medium of a pair of specially designed glasses manufactured by Google.  There is a small display that projects onto the lens of these special glasses.

In the modern era of high-speed traffic combined with plenty of opportunity for distraction such as texting, computerized dashboards, in-vehicle touch-screen navigation, and now, Google Glasses, the NTSB and law enforcement organizations are tracking the rise in distraction-related accidents.

Texting while driving now constitutes a separate and distinct violation in most jurisdictions throughout the country.  Every year, however, new technology comes out making it tempting to multi-task while driving.

The state legislatures will undoubtedly continue to amend their motor vehicle codes to outlaw such dangerous driving practices.  Perhaps they will legislate an exception whereby a person operating a Google car can use and simultaneously operate a pair of Google Glasses.  But remember, those Google cars drive themselves; the passengers can just sit back and enjoy the scenery while accessing the web via their Google Glasses.

Go ahead, be productive throughout your day; just don't put the rest of us at risk when you are on the road.


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