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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Thursday, October 30, 2014

IRS Announces Curtailment of Civil Asset Forfeiture Practice

Imagine one day that you wake-up, get your coffee, and check your bank account to discover that the balance has vanished.  Imagine also that, upon further investigation, you discover that the IRS has swept in during the night and seized your account, not because you have evaded taxes, but on the basis that you have "structured" some of your deposits.

Federal banking regulations require that any deposit in excess of $10,000 be accompanied with identifying paperwork supplied by your bank and submitted to the U.S. Treasury.  Making a series of deposits purposely under the $10k threshold is called "structuring" and it is illegal.

This is the realm of a little known but powerful unit within the IRS: the Criminal Investigations unit.  A federal law designed to catch major drug dealers and terrorists based on their financial activity has apparently, according to Sunday's NYT, devastated some small business owners and ordinary folks over the past 18-months.

Unlike other crimes that involve forfeiture, however, the law empowering the IRS to seize your funds does not require the IRS, or the Department of Justice, to charge you with a specific crime.  As for getting your funds returned; best of luck to you.  Be prepared to hire specialized legal counsel.

The NYT article detailed at least three examples of regular ordinary folks that, for legitimate reasons, made a series of deposits just under the $10,000 threshold, only to have their accounts seized and not returned; at all.  When some of the data was shown to CI's chief, Richard Weber, he agreed to curtail the IRS seizures by focusing only on those cases involving criminal acquisition of the deposited cash, issuing a written statement:
This policy update will ensure that C.I. continues to focus our limited investigative resources on identifying and investigating violations within our jurisdiction that closely align with C.I.'s mission and key priorities.
Cases involving "exceptional circumstances" will also continue to be targeted, as before.  So, per usual, the power remains in the hands of the IRS.

We here at the Law Blogger are never comfortable with statutes designed to catch one type of criminal -in this case, folks purposely attempting to evade federal detection of their ill-gotten gains- but which sweeps up law abiding hard-working individuals in its net.  Also, laws that allow government seizures without bringing a formally charged crime to which people can assert valid defenses are always suspect due to their potential for misapplication, as in the cases detailed in the NYT.

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Wednesday, October 22, 2014

Telematics Designed to Eliminate Distracted Driving

Although they know they shouldn't, drivers succumb to the lure of operating their cell phones while simultaneously operating a vehicle.

Cell phones have become ubiquitous.  No longer is it good enough to have a cell phone; the thing is plastered to our faces all hours of the day and night, especially when we are driving.

Our culture now demands immediate connectivity, especially among the youth.  In business, the standard is instant availability around the clock.  This is how teenagers live their lives; this is how business gets done.

The problem arises when physics gets in the mix on the highways and byways of our nation.  People that multitask while driving, especially when manipulating the screen of a smart phone, are several times more likely to cause a high-impact collision even than, say, a drunk driver.

The Statistics.  81% of licensed drivers recently surveyed by the insurance industry lobby admitted to using their cell phones while operating a vehicle.  Consistent estimates developed in a series of studies since 1996 conclude that drivers using cell phones are four times more likely to cause a car crash.

According to estimates provided by the National Safety Council, published by the NYT, of the 5.6 million car crashes that occurred in 2012, as many as 1.48 million of those crashes -26%- involved  a cell phone based distraction.

The Technology.   Telematics is an interdisciplinary field at the intersection of telecommunication, vehicular technology, and computer science designed to control, measure and supply advanced function to vehicles on the move.  Recently, start-ups, insurance companies, and at least one mobile provider -Sprint- have invested in the development of technology that blocks the use of a driver's cell phone.

The cell phone manufacturing industry lobby, with the onset of "unlimited' data plans, have begun to shift their opposition to national and state safety regulations on the use of cell phones by car drivers.  Now, Sprint has taken the lead to develop the technology designed to take the choice out of drivers' hands; if you are driving, you cell phone becomes inoperable.

At the forefront of this developing technology comes an American start-up company -Katasi- that has designed a small black box  -about the six of a matchbox- affixed to the steering column of a vehicle that prevents the driver's cell phone from receiving or sending calls or messages.  Apparently, the telematic design of this device allows passengers to continue to operate their phones, while only the driver's cell is disabled.

The problem, however, is that at five years in, the company is no longer a "start-up", and its product still sits on the sidelines because the technology has not been adopted by the big boys: the insurance industry and the cell phone carriers.

Legal Liability.  One of the factors that has operated to limit the adoption of this technology is the concern for legal liability.  Companies are worried that if one stray text breaks through, and the driver causes a crash, the manufacturer will be on the hook for unknown millions.

While legal experts -mostly law professors and not product liability lawyers- conclude such concerns are overblown given the "do-good" nature of the device, the technology has yet to go on-line with a serious manufacturer.

If it becomes an industry standard, i.e. affixed to every car sold in the United States, the revenue plan is that drivers will have to pay approximately $5 per month to keep the device activated.  Law will need to come into play before that happens.

We here at the Law Blogger ask: if the technology is present, can those laws compelling vehicular integration of the device be too far away?  We certainly hope not, given the statistics cited above.

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Friday, October 17, 2014

Former Clerk Challenges Judge in Novi's Non-Partisan Election

It has happened before in places throughout Michigan, no doubt.  An election that pits the legal mentor, in this case Novi's district court judge, Brian MacKenzie, against his former law clerk, attorney Travis Reeds.

It's getting kinda dirty and uncomfortable over there right now.  That's usually the case with hotly contested races of any kind  -this non-partisan one is no exception.

Meanwhile, down the hall, the selection process continues for a replacement to fill the recently vacated seat of now-retired Judge Dennis Powers.  The Governor's list on that seat is long folks, very long.

The general election is on Tuesday, November 4th.  Be sure to examine the non-partisan portion of your ballot; you will find a full-slate of judicial candidates for all the courts in Michigan, including your local district court judge.

We here at the Law Blogger anxiously await the results for each of these Novi judgeships.

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Thursday, October 9, 2014

Doing Nothing SCOTUS Clears Path for Same-Sex Marriage

Sometimes, doing nothing causes a great impact.  That is what happened this week when the SCOTUS issued an order denying certiorari in a batch of same-sex marriage cases.

Legal pundits, this Blog among them, felt sure the High Court would elect to take a look at the Utah case; one of the oldest and simplest percolating through the federal appellate world.  By not granting cert, the federal court rulings that have struck down state laws banning same-sex marriage in Virginia, Indiana, Wisconsin, Utah and Oklahoma stand.

Let the same-sex wedding ceremonies begin.  Now that the SCOTUS will not be hearing any of these cases, the appellate stays are lifted.  We here at the Law Blogger expect that a similar order denying cert in the Michigan case and the other Sixth Circuit cases could be issued by the end of the year.

By using federal appellate math, this means that same-sex marriage will be legal in 30 states.  At this point, probably the only way a case will be accepted by the High Court would be if a federal appellate circuit upholds a state law ban; so far this has not occurred.  Resolving conflicts among our federal appellate circuits is one of the functions of SCOTUS.

We will monitor this situation as the Supreme Court begins the 10th year of the Justice Roberts' Court.

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Monday, October 6, 2014

SCOTUS Opens Important Term Today

10th Year of the Roberts Court
By:  Timothy P. Flynn

Although they met for their first conference last Monday, the nine U.S. Supreme Court Justices convene today for the first oral argument of this term.  It could prove to be a very important term.

Last week, the Justices selected 11 more cases for briefing and argument during this term to add to their already crowded docket.  Notably absent so far on the docket is an order granting certiorari in any of the many pending same-sex marriage cases.

These days, it seems every other big-city lawyer has his or her mits on a pet same-sex marriage case they want SCOTUS to consider as the High Court draws ever closer to selecting the perfect such case.  These lawyers, it seems, are confident of a "same-sex" victory and thus, they anticipate the raw professional glory that comes from being on the winning side of a landmark case.

SCOTUS has many from which to choose, as cases are now pending from Oklahoma, Virginia, Utah, Wisconsin, and California, with plenty more in the federal pipeline.  Legal scholars believe the High Court will take up either the California or the Utah case.

The case from California features two heavy-hitting lawyers: Ted Olson and David Boies of Bush v Gore 2000 fame; they have joined forces for this epic civil rights struggle.  The Law Blogger has covered their case since its inception in 2009.  Also unique to the California case is that it is a class action law suit.

Utah was the first state to have their state law ban on same-sex marriage struck down by a federal court.  Now three other federal courts have similarly ruled.  One of the attractive features of the Utah case, in addition to being the first considered at the federal level, is that it is simple; involving a single gay couple.

Keep in mind folks, it is also possible that the SCOTUS will take a pass on the same-sex case menu this year due to a lack of conflict among the federal circuits.  It is in the High Court's nature to move slowly, deliberately waiting for exactly the right case, at exactly the right time.  We here at the Law Blogger sure do think that the time is now.

Meanwhile, the SCOTUS has other matters to decide.  Today, the Court hears whether the 4th Amendment protects a driver who had the tell-tale "broken tail light" which precipitated a cop stop and a search which yielded cocaine.

Tomorrow, the Court considers whether a lifer in an Arkansas prison has the right to grow a beard in accord with his new found Muslim faith; beards contravene the prison rules.  The inmate looks to a piece of relatively recent federal legislation that mandates prisons to allow inmates to freely practice their chosen religion.

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Sunday, October 5, 2014

36th District Court Judges Must Report Attendance

Michigan's second largest court recently regained partial control of its docket after being supervised by Judge Michael Talbot and the Michigan Supreme Court.  The 30-plus judges of the 36th District Court will report their daily attendance to the High Court's administrative office along with progress on their caseloads; the court administrator for the district court in Detroit will continue to provide the Supreme Court Administrative Office with financial reports as well.

The  36th District Court handles one million cases per year according to Fox News Detroit.  The court's own web site, however, proudly touts a docket only half that large.  Perhaps they need to review their own files a little more closely.

Some big-time felony criminal cases get started in the 36th District Court, situated adjacent to Comerica Park and Ford Field in Downtown Detroit.  Many of today's Tiger and Lion fans will walk right past this court on their way to the games.

Some of the court's revenue woes stem from the quarter billion dollars in uncollected traffic tickets and unpaid misdemeanor fines.  Collecting even a fraction of these revenues would go a long way to relieving some of the court's fiscal pressures.

The recently concluded Supreme Court review resulted in the district court significantly trimming its bloated workforce and streamlining its procedures.  These are moves in the right direction.

On one memorable occasion, this Blogger presented with a matter for which the court clerk could not determine the assigned judge, despite reviewing a copy of the notice sent by the clerk to my client.  When the judge was figured-out, I went to the assigned court room at 10:30 am, only to find the doors locked.  Although the lights were on in the court room, and I could see staff in the back, it took another hour to get the matter heard before a judge.

When I left the court around noon that day, I had the feeling that I was lucky to have my matter heard at all.  Hopefully, those days are over.

Pruning redundant staff and streamlining court procedures will help this high-volume court to provide the citizens of Detroit a crucial public service: access to justice and the rule of law.

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Wednesday, October 1, 2014

Negative Online Review Results in Defamation Lawsuit

An interesting defamation lawsuit was recently filed in Oakland County Circuit Court, just in time for bow season which opens today for deer.

Last year, an archery company here in nearby Holly, MI resolved to revamp their website.  They turned to Five Sparrows, a web design and marketing firm based in Heartland, MI.

Apparently, Jim Beasley, owner of Spot Shooter Archery, was not satisfied with the performance of the web design firm, telling the Oakland Press that customers could not access products and the owner could not change prices within the online store created by Five Sparrows.

After some obvious "back-and-forth", Beasley had enough and posted a negative review on G+ as well as sent a letter to the local B2B group that connected the two businesses in the first place.  Five Sparrows' demand for a retraction was ignored and a defamation lawsuit followed.

The lawsuit, now assigned to Oakland Circuit Judge James Alexander, seeks damages in excess of the jurisdictional amount of $25,000.  Beasley's lawyer is none other than our friend down the street here in Clarkston; Robert Kostin.

Although this case was initially assigned to Judge Leo Bowman, we suspect it was re-assigned to Judge Alexander with a determination this was business litigation belonging to the new Business Court.

This litigation will be interesting.  In a defamation lawsuit, the plaintiff has the burden of proving that the statements made were false and were made intentionally or with reckless disregard for the truth.  Truth, by the way, is a valid defense to a defamation suit.

We here at the Law Blogger anticipate that Mr. Kostin will file a motion for summary disposition to dismiss this case.  And we like his chances as we feel this type of suit, always difficult to prove, is especially susceptible to dismissal given the facts of this case.

The Internet is nothing if not a massive functional forum for free speech.  Reviews of local businesses are crucial to the hyper-local evolution of commerce and trade.

Take a look at Spot Shooter's web site for yourself to see whether Five Sparrows constructed a functioning web site.  If you wanted to get outside today for the first day of bow season, would you be able to purchase your equipment on-line from Spot Shooter Archery?  If not, whose fault would that be?

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