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.
For more information email: info@clarkstonlegal.com

Tuesday, February 25, 2014

Michigan's Same-Sex Marriage and Adoption Case: Battle of the Experts

The family at the heart of the case.
To be sure, there will be a "battle of the experts" in Downtown Detroit this week and next at the Theodore Levin federal courthouse.  Today is the commencement of the trial ordered by U.S. District Judge Bernard Friedman between the lesbian couple seeking to overturn Michigan's adoption and same-sex marriage laws on equal protection grounds, and Michigan's Governor and Attorney General who seek to enforce our state law ban on such arrangements.

Of course there is much publicity surrounding the case today on the Internet; and for a very good reason.  This case stands out among all the same-sex cases percolating across our nation for the reason that Judge Friedman declined to grant either side's dispositive motions back in October, electing to evaluate evidence in the case during a scheduled two-week trial.

Now, bring on the experts.  Both sides claim to be able to support their case with "scientific" evidence.

For their part, the lesbian couple -April DeBoer and Jayne Rowse- plan to capitalize on expert testimony from new studies that conclude children raised by same-sex couples have just as much promise and opportunity as children raised by traditional parents.  Their lawyer told the Freep yesterday:
We have sociologists, child growth experts, and psychologists (who) uniformly agree that child outcomes for children raised by gays and lesbians is just as promising as those kids raised by heterosexuals.
 The State of Michigan's legal team has its own arsenal of experts to provide testimony in this case.  In addition, it has been beating the drum that Judge Friedman, sitting in federal court, should not be making this decision because the voters of Michigan decided the issue via voter initiative back in 2004.

Judge Friedman had the opportunity to make a legal ruling on the merits of the respective positions last October, but ordered a trial instead.  We here at the Law Blogger now wonder whether this trial will be an exposition of modern child development theory, or a parade of junk science.  Stay tuned to be enlightened on these issues.

Whatever Judge Friedman decides, he will be appealed to the Sixth Circuit Court of Appeals in Cincinnati sometime later this year; the case could be headed to the SCOTUS.

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Monday, February 24, 2014

Attorney's Contempt Charge Overturned on Appeal

Genesee Circuit Judge Archie Hayman
This case began in a crowded diner in Flint, MI during a murder trial in the spring of 2012.  The impaneled jury was taken from Genesee Circuit Judge Archie Hayman's courtroom by a clerk to the diner for lunch during the trial.

Local attorney Anthony Lubkin, who was not associated with Judge Hayman's case, was seated nearby; he uttered words like "guilty" and "not guilty" during his lunch conversation.  The clerk that had the brilliant foresight to take the jury en mass, to the crowded lunch spot, recognized the lawyer and engaged him, requesting that he not speak with the members of the jury entrusted to his care.

Not the shirking violet, Lubkin is alleged to have stated:  "What, I can't say the word 'guilty'?  What if I say the word 'innocent'?"  When Judge Hayman heard what had occurred at the diner, he conducted a criminal contempt hearing, characterized Lubkin as a "smart alec", and concluded that Attorney Lubkin:
...willfully and deliberately made a statement before this jury that could interfere with the functioning of the Court.
Following the attorney's contempt conviction, the case went briefly and mildly viral among the law blogs, even getting some love from David Lat's Above the Law.

The Michigan Court of Appeals was not having it, however.  In reversing Judge Hayman's contempt finding earlier this month, the appellate court held that Attorney Lubkin's First Amendment right to speak in a public place prevailed over the factually weak case handed to the county prosecutor by the circumstances of Judge Hayman's perhaps well-meaning, but errant court clerk.

Aside from the obvious lesson here about our cherished right to free speech in a public place, the more subtle lesson is for the law clerks out there.  Clerks: no good deed goes unpunished.  So, when you take charge of a jury, do not parade them around town but rather, keep the logistics simple.

Ordering carry-out would have been far less dramatic and would have got the job done nicely.  In the case of this clerk, his boss certainly did not need the additional attention that his gaff caused.

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Sunday, February 23, 2014

Convictions Pile-Up for Crimes Using Twitter

The United States, the United Kingdom, and now Spain make-up the short list of countries that have courts in which an accused is convicted and sentenced to jail for making a threat via Twitter.  In each of these cases, free speech over the Internet is pitted against law enforcement attempts to identify and contain terrorist threats.

In January, a Columbus, Ohio man was sentenced to 16-months in federal prison for violating the law against threatening to harm or kill the President by tweeting a series of death threats.  In the U.K, also in January, a pair of malicious female tweeters received jail sentences for tweeting vulgar threats from dozens of fake Twitter accounts to a feminist activist [who succeeded in getting Jane Austin's image placed on a Bank of England note].

In Spain, a 21-year old student, Alba Gonzales Camacho, was convicted for tweeting an invitation for the long-dormant terrorist group Grapo, to assassinate Spain's Prime Minister.  The Spanish constitution prohibits speech that glorifies terrorism.

Ms. Camacho's unfortunate reference to Grapo, the terrorist group active in the '70s and 80s, thought to be responsible for dozens of assassinations, remains a touchy subject in Spain ever since fascist dictator Francisco Franco's regime ended in 1975.  The young student's tweet was a call to arms for Grapo to shoot Spain's conservative Prime Minister, Mariano Rajoy in the neck; she said in a series of tweets that she would tattoo the image of the Grapo assassin on her body.  

In sentencing her to a one year [suspended] jail term, the Spanish judge did not seem to care about Grapo's decades of inactivity.  Per the Spanish constitution, and similar to the Twitter threats that landed the Westerners in prison cells, the judge took the death threats against the country's leader very seriously.

These cases illustrate the enforceable limits on expressing your thoughts and ideas through the social media.  If your expressions constitute a terrorist threat, then you risk jail if the prosecutor can make a case.  

It is not surprising to us here at the Law Blogger that such cases have forced social media into the courthouse.  As with other forms of media, the limits of our free expression make for some great court cases.

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Friday, February 21, 2014

Oregon Joins States No Longer Defending Ban on Same-Sex Marriage

As the same-sex marriage civil rights issue winds its way through our federalist system of governance, there are two distinct paths taken by proponents.  One is where state legislatures promulgate laws allowing same-sex marriages; the other is where state officials capitulate in on-going post-Windsor federal litigation challenging same-sex marriage prohibitions.

Oregon now joins Virginia and Nevada as the latest states no longer willing to defending state constitutional bans on gay marriage in the wake of the SCOTUS Windsor decision.  In 2004, voters in Oregon passed "Measure 36" -a state law banning same-sex marriage- by a 57% margin; two federal lawsuits challenging the constitutionality of Measure 36 were subsequently lodged in federal court and have dispositive motions pending [similar to the recently denied dispositive motions in the DeBoer case grinding onward here in the United States District Court for the Eastern District of Michigan in Detroit].

In one of those lawsuits, Oregon state officials announced their capitulation in a responsive pleading.  The case involves a lesbian couple who were married during the brief interval where Oregon allowed same-sex marriages, prior to the passage of Measure 36.

Two years post-Windsor, we see this civil rights issue picking-up steam.  Significant legal developments occur nearly each week posing a challenge for us here at the Law Blogger to keep up with the pace of the changes.

As always, we will do our best to keep our readers informed.

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Thursday, February 20, 2014

High School Students Get Voice In Juvenile Lifer Case

Juvenile Lifer Raymond Carp
By:  Timothy P. Flynn

Oral argument is scheduled in the Michigan Supreme Court for March 6th in the juvenile lifer case of People v Raymond Carp to determine whether the SCOTUS decisions banning state juvenile lifer laws should get retroactive application.  One of the interesting amicus briefs filed in the case comes from several hundred Ann Arbor high school students.


In May 2006, Raymond Carp was only 15 years old when his half brother attacked and killed their mother's friend with a knife in her home.  Carp was present, but the evidence that he participated in the murder was sketchy at best.

In the weeks immediately following the murder, the accused attempted suicide and reported to having a recurring inescapable nightmare: seeing his brother murder their mother's friend over and over again.  Carp's jury conviction was affirmed by the Michigan Court of Appeals; the Michigan Supreme Court agreed to consider the case last year in order to assess whether the SCOTUS ban on juvenile lifer laws should receive retroactive application here in Michigan.

With the oral arguments in this much-anticipated case only a few weeks away, the High Court's decision to allow the collective student body of a Michigan high school to file an amicus brief has garnered some additional media attention for Mr. Carp's plight.  The amicus brief, from Ann Arbor's Father Gabriel Richard High School, was filed last Friday and signed by 450 high school students.

We here at the Law Blogger have read this brief and note that it raises some very compelling arguments for the retroactive ban of Michigan's juvenile lifer law.  Perhaps the most interesting aspect of the Gabriel Richard brief is the true and honest perspective of the teenager; the brief is written in unabashed teen fashion and does not masquerade as the product of a legal scholar progeny from the AP history class.

This blog applauds the Supreme Court's decision to allow this collective voice to be a part, however small, of this case.  We will monitor the oral argument and report back on the High Court's decision.

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Thursday, February 13, 2014

Revenge Porn: Internet Abuse and its Remedy

Imagine the person with whom you are having an affair does not accept your effort to break it off.  Imagine further that you've had the bad judgment to allow this person to take nude digital images of you during your tryst.

What seemed like a good idea in the heat of the moment now threatens to ruin your life.  Can you convince a court to enjoin this person from creating a web site monument to your activities?

The Maine Supreme Judicial Court said, "yes" in the case of Ellen Clark vs John McLane.  The following salacious facts are taken directly from the Maine High Court's opinion:
Clark and McLane were engaged in an intimate relationship for several months from 2011 to 2012.  On January 13, 2013, after their relationship had ended and after Clark had notified McLane’s wife of the affair, McLane sent an email to Clark containing a litany of insulting and derogatory remarks.  He informed her that he and created a website in her name on which he planned to post nude photographs of her, and that he was also setting up accounts with three major search engines so that any search of her name would first yield a result for the website that he had created.  In addition, he told her that he was creating an account on a video-sharing website in her name, that he would be sharing the websites with her friends, that he had already gathered eighteen or more email addresses from her work colleagues to share the websites with them, and that potential employers would see the websites as well.  McLane further stated that ‘[g]uys will have your cell number, as well as your work number to a hold of you [sic] and ask you out.’  McLane provided a link to a website in her name that he had already set up; it consisted of a single page stating, ‘The naked pictures of EJ Clark will be coming soon…along with her cell phone number and her work number for your to call and arrange a date.’
Wow, jeeze and yikes all in one gasp.  Yes, this has really happened folks; this guy is out there, in spades.

The trial court enjoined McLane from having any contact with Clark, so she will not need to worry about future heart-stopping emails from this jerk.  The court also enjoined him to, "immediately disable any sites/efforts designed to disseminate any information about [Clark] to others..."  Incredibly, McLane appealed.

The legal question posed in the appeal is whether a court sitting in equity can enjoin a person from abusive conduct under facts such as those set forth above which, by the way, are undisputed.  McLane conceded that he sent the email referenced above, arguing in a two-page appellate brief that, "the ONLY conduct appellant engaged in was to send an inappropriate email and create an empty website."  Really...?

In rejecting McLane's argument that the undisputed facts of this case are insufficient to support a finding that his conduct was abusive, the High Court affirmed the injunction against McLane on the basis of a plain reading of Maine's "protection from abuse" statute that procribes a "dating partner" like these two lovebirds from committing "any form of abuse" to the other partner.  The Clark decision deconstructs the term "abuse" in excruciating detail.

Calling a spade a spade, what Mr. McLane threatened to do to his former lover was abusive; even the threat of such conduct was abusive in our simple mind over here at the Law Blogger.

But here's the real lesson, and its for folks like Ms. Clark: when you are venturing out into the choppy waters of infidelity, take exceedingly great care in your selection of a fellow sinner, as the consequences flowing from your selection can easily swamp your ship.  The other corollary to this tale is that digital pics in the wrong hands can cause great pain thus, think twice before allowing someone to record your image.

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Monday, February 10, 2014

Medical Marijuana Gains and Losses in Lansing

Last week was an interesting one from a medical marijuana perspective here in Michigan.  First, the Michigan Supreme Court ruled that townships and municipalities could not ban medical marijuana with local ordinances.  Across town at the capitol, however, the bill proposing medical marijuana dispensaries is stuck in committee.

The Michigan Supreme Court held that the Michigan Medical Marijuana Act was not preempted by the federal Controlled Substances Act to the extent that a person could comply with the MMA and not violate the federal law.  The Court held, however, that the City of Wyoming's ordinance directly conflicted with the state law thus, it was invalid.

The ruling has immediate implications for Southeast Michigan where several local municipalities -Livonia, Bloomfield Hills, and Birmingham- have similar ordinances banning medical marijuana within their boarders; those ordinances are invalid.

In another development from early last week, a pair of bills pending in Lansing to allow communities to regulate medical marijuana dispensaries were assigned to the Government Operations Committee in the state senate under the chairmanship of Senator Randy Richardville [R Monroe] who is not a fan and who has vowed to put the brakes on the legislation.

This was a disappointing development for the medical pot lobby, encouraged last year by the bills swift passage in the state house.  On the other hand, Michigan Attorney General Bill Schuette has actively opposed the legislation and does not want to see a return of multiple dispensaries; Lansing had nearly 40 pot dispensaries at one time.

So, for the immediate future, dispensaries are disallowed in Michigan in favor of continuing the "grown-your-own" model expressly contemplated by the MMA.  We will monitor further developments.

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Sunday, February 9, 2014

Divorce Lawyer Gets 2-Years for Eavesdropping on Behalf of Client

Mary Nolan: the lawyer with her lawyer
This episode comes to us from Northern California.  Full disclosure: this divorce lawyer was not only convicted of eavesdropping; multiple counts of tax evasion as well.  The latter is really what landed the attorney in federal prison; the former simply sensationalized her case.

Until recent months, Mary Nolan was a veteran family lawyer in the Bay Area.  Her career and her reputation lay in ruins on Monday as she stood before a federal judge at a sentencing hearing on eavesdropping and tax evasion [guilty plea] convictions.

Ms. Nolan admitted to exercising the incredibly poor judgment of hiring a private detective to plant a recording device in the vehicle of her client's ex-husband.  While she was practicing law within that illegal context, she was cheating the IRS out of nearly half a million dollars in unpaid taxes over the span of the last several years.

A true spectacle for disaster; lawyer-style.  While the eavesdropping component of her case garnered some left-coast headlines, the sentencing judge focused more on the tax evasion component of Nolan's sentence stating that, as a lawyer, she was held to the higher standard of knowing the tax code, however complex, and charged with following those laws.

The sensationalising of Nolan's case, on the other hand, was heightened by the plight of the investigator she hired to perform her dirty work on this and other cases.  The investigator, doing an 8-year bit himself, was convicted in a series of unrelated cases along with several Bay Area law enforcement officers.

We are not making this up.  Here's how the investigator's sting worked: he would hire attractive women to flirt and drink with men at bars that were followed because they were going through a divorce.  Once the poor schlub consumed a few cold screamers with the hottie's encouragement, local law enforcement would be tipped-off and wait for the unsuspecting divorce litigant to drive-off.  Then, kerblam; a niftily arranged drunk driving conviction to toss into the family court like a grenade.

The private dick followed his targets apparently at the behest of some of the less ethical members of California's family law bar; two of the investigator's marks had spouses that were client's of Nolan's.  Just sayin; we here at the Law Blogger invite you to draw your own conclusions.

Here in Michigan, it is generally illegal to record conversations in which you are not a participant.  We sometimes have to turn away evidence of serious fault supplied by a divorce client.

Lawyers must always follow the law or the whole system breaks down and becomes a sham.  When lawyers don't follow the law, this case illustrates that punishment in the form of incarceration and disgrace await.

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Thursday, February 6, 2014

Michigan Supreme Court to Decide Grandparents Rights Case

By:  Timothy P. Flynn

In mid-January, the Michigan Supreme Court heard oral arguments in Porter v Hill, a case we've been following in this blog, involving the rights of grandparents to see their grandchildren.  The grandparents in this case have not been allowed to conduct visitation of their two grandchildren because, prior to his death, their son   -the biological father of the children-  had his parental rights terminated; now the mother does not allow them contact with the kids.

This sad case hinges on the statutory definition of the term "grandparents".  The Michigan Court of Appeals ruled in Mother's favor that because the deceased biological father's rights were terminated, he was not a "legal parent" of the children thus, the paternal grandparents did not have standing under the grandparenting statute.

The lawyer for the grandparents, Phillip L. Ellison, asserted that the word "grandparents" is not a term of art but rather, a word with a very specific statutory definition.  Ellison argued to the justices that the family court and Court of Appeals improperly carved-out an exception to the statute by disallowing these grandparents to bring their case to the family court for a determination of the merits of their claim.

When asked by Justice Mary Beth Kelly whether he was asking the High Court to simply ignore the fact that the father's rights to the children had been terminated, Ellison stated:
No, I would have you look at what the Legislature has specifically directed.  That is, a grandparent is a natural parent of the natural parent.  The legal status of that parent is irrelevant when it comes to who has standing to ask for a grandparenting-time order.
We here at the Law Blogger agree.  It just doesn't feel right to us to have a grandparent's rights to visit with their biological grandchildren foreclosed due to the abuse or neglect of their son or daughter.

A decision from the Michigan Supreme Court will come before the end of their term in June; stay tuned all you grandparents out there.

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