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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Saturday, January 31, 2015

Marijuana Conviction Reversed Based on What Constitutes a Plant

Last week, the Michigan Court of Appeals reversed the felony marijuana manufacturing conviction of a Tuscola County man based on how the 68 pot plants seized from his warehouse were weighed by the Sheriff. The defendant in the case had a valid medical marijuana card.

The Sheriff deputy testified probable cause was obtained based on the pot smell coming off the building and from the numerous pot plants that were visible by looking into the windows of the warehouse.  All the plants were seized and Johnny Randall was charged with manufacturing marijuana, a felony.

In his defense, Randall moved to dismiss the charges under the immunity section of the Medical Marijuana Act; he asserted that he was a care provider for 5 individuals [the maximum under the Act] and was a certified "patient" himself.  The trial judge wasn't having it at Randall's bench trial, denied the motion to dismiss, convicted the defendant, and sentenced him to 180-days jail, held in abeyance pending an appeal.

This is not just another pot case on appeal.  This case featured a detailed analysis of how pot plants are counted and weighed within the context of the criminal manufacture statute and the Medical Marijuana Act.

Randall's was a full-on hydroponic marijuana manufacturing operation which included dozens of plants in various stages of the process. This included drying plants and others in the mid-growth cycle.

At his bench trial, the deputy sheriff testified that some of the seized plants were dried; other plants were still maturing.  The sheriff pulled out the live plants and left them out to dry before sealing them up in an evidence bag to be used in Randall's trial.

The Court of Appeals held that only the dried marijuana leaves are to be considered the "usable" portion of the plant and thus, still growing plants and the "incidental" seeds, stalks, and unusable roots cannot be counted against the caregiver-patient.

Under this interpretation of the Medical Marijuana Act, Randall was well-below his 15-ounce weight limit as a caregiver for himself and 5 other individuals. His conviction was therefore dismissed and his sentence was vacated.

These and other aspects of the immunity provision contained in the Medical Marijuana Act were recently argued before the Michigan Supreme Court in three consolidated cases from Oakland County; a decision is expected later this spring.

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Friday, January 30, 2015

Legislation Seeks to Put Cameras in Federal Courts

Most serious-minded lawyers will tell you they prefer to practice law in federal court. It is a whole different professional arena.

Whenever I get to appear in Detroit for the occasional federal case, or in Cincinnati on appeal, I step-up my game a notch or two; you cannot help but do so. The moment you pass through security, into the sweeping marble halls, the history of the typical federal courthouse envelopes you. In addition to lots of marble, long usually uncrowded hallways, and spacious airy well-appointed courtrooms, you always find helpful but serious clerks.

One of the sacred traditions of federal practice is that no cameras are allowed into the courtroom. That's just the way it has been for the past 70-years.

Now, the unfortunately-named "Sunshine in the Courtroom Act" is again making its way through the U.S. House of Representatives; since 2005, the bill keeps getting reintroduced with various judges across the country expressing keen interest in getting cameras in their courts. If enacted, the bill calls for media coverage in federal courts at the discretion of the presiding judge.

Applying this concept to current affairs, it would mean we would all have the opportunity to follow the Boston Marathon bombing case; or the battle-of-the experts bench trial in the same-sex adoption case that unfolded here in Detroit just over a year ago.  Imagine the public interest in real-time coverage of the Supreme Court's proceedings in Bush v Gore, when the SCOTUS basically selected a President.

The prohibition of cameras is based on Federal Rule 53, which states:
Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.
This rule applies to all federal courtrooms, including -as amended- the U.S. Supreme Court. Despite occasional pressure from the legislature, and with three quarters of the American public indicating approval of placing cameras into federal courts, we predict that cameras will remain banned from federal courts.

One effect of the occasional pressure to open-up the federal courts has been to release digital recordings of the proceedings. This, of course, is a far-cry from real time streaming of the arguments and proceedings.

Some legal scholars question the public utility of having real-time media coverage of federal appellate argument, especially at the SCOTUS-level. The idea is that appellate courts do not issue on-the-spot decisions but rather, the appellate tribunals issue opinions and orders weeks after the submission of briefs and argument. Some say oral argument is but frosting on an already baked cake; so why the need for cameras?

Obviously, the countervailing argument is our need for the openness of government. As a member of the public, any one of us can go to Washington D.C. and stand in line at the SCOTUS to hopefully obtain one of the few hundred seats in the gallery of the High Court to observe the legal arguments first hand. But seriously, what's the likelihood of that?

For now, a federal court is one of the few areas of our government where the sun does not shine. We'll see whether the Sunshine in the Courtroom Act will get any traction to change all that...

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Wednesday, January 21, 2015

SCOTUS to Consider Michigan's Same-Sex Adoption and Companion Marriage Cases

They finally did it on their own terms, but the SCOTUS has granted certiorari in the DeBoer Same-Sex adoption case, and the consolidated marriage cases coming from the other states in the 6th Circuit Court of Appeals [Ohio, Kentucky and Tennessee].  Unlike most granted petitions -where the issue(s) to be presented to the High Court are framed by the petitioner- the order granting certiorari in DeBoer included the Court's own version of the two questions it will now consider:
  • Does the 14th Amendment require a state to license a marriage between two people of the same sex?
  • Does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The briefing is already underway and will likely include a host of amicus curiae contributions; oral arguments, a whole two and a half hour's worth, will take place in April, the last month for argument, with a decision to follow toward the end of the Court's term in June.

It is now well-known, but worth repeating, that each of the 14 states that persist in banning gay marriage have their state laws under some form of appellate review. When finally decided, the SCOTUS same-sex adoption and marriage cases will affect the status of this handful of holdouts, as well as provide some certainty, one way or the other, to the other 36-states that do not proscribe same-sex marriage or adoptions.

Some legal scholars opine that the SCOTUS, in fashioning the issues as they have, is appropriately focused on the two core constitutional issues that need deciding in these post-modern-day civil rights cases. Other legal scholars posit, on the other hand, that the High Court has again left open a path, as in the Windsor case, that stops short of outright requiring states to issue same-sex marriage licenses.

As Michigan Attorney General Bill Schuette says repeatedly, the sooner SCOTUS decides these issues the better.

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Tuesday, January 20, 2015

Pot Houses Exploding in Colorado

Just over a year ago, Colorado began a grand experiment with the legalization of marijuana. Unlike Washington state, which has taken the state-backed dispensary route to production, the Colorado model favors the individual pot farmer; think craft beers and spirits, and apply the concept to marijuana.

The past year has showed Coloradoans, however, that the process has become more complicated -and dangerous- in order to produce a much more potent strain of the crop. One consequence of the production process: explosions.

Marijuana at its Best.  These days, the cutting-edge in marijuana production is a concentrated, golden honey-like substance known as: wax, hash oil, or shatter.  To produce this substance, mature marijuana leaves are infused with butane under pressure. When the butane is removed, the spent plant matter yields a potent residue containing a high concentration of THC, the psychoactive ingredient found in the marijuana leaf.

Collateral Damage.  Here's a problem: when folks rush through the production of their pot wax, and do not take proper care or precaution -because they are anxious to get their product onto the street and make some money- bad things can happen. For example, the butane used in the production causes combustible fumes to build-up in any enclosed, poorly ventilated structure. If the venue used in the production process is, say, an ordinary residence, then errant sparks can happen when a furnace kicks on, or a gas stove burner is lit. Under such circumstances, a spark can lead to an explosion when the butane fumes ignite.

The Stats.  According to a recent article in the NYT, thousands of people are producing marijuana wax with butane all across Colorado. In 2013, a dozen pot-production-related house explosions occurred; last year the number rose to 32 according to the pro-law enforcement group Rocky Mountain High-Intensity Drug Trafficking Area.

Legal Consequences.  What is a county prosecutor or judge to do with an individual that blows-up a house in the production of marijuana wax? Well, so far such individuals do not just get a pass. County prosecutors are charging individuals with arson. This gives rise to some interesting criminal defense lawyering, and has led to disparate results.

In one case currently pending against a 22-year old, the county judge would not dismiss the arson charges against him on the grounds of Colorado's new pot law; the defendant is facing prison time if convicted.  In another case, a 77-year old man pled guilty to arson and was sentenced to probation.

Going Forward.  As Colorado boldly sets the pace for marijuana legalization, we see the classic disconnect between the law and the realities of human activity. Nowadays, the classic grow-your-own style of marijuana production, where plants are lovingly nurtured, cultivated and smoked in cigarettes or pipes, is rapidly giving way to a more dangerous intensive process aided by explosive materials.

If the explosion trend continues, we here at the Law Blogger look for two things to occur: first, production will shift to a more state-run or subsidized dispensary model; and second, some pot growing conduct will be regulated or criminalized either by the federal government, or via state laws and regulations.

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Friday, January 16, 2015

Federal Judge in Detroit Validates 300 Same Sex Marriages

Last fall, when U.S. District Court Judge Bernard Friedman struck Michigan's state law ban on same-sex marriage and adoption as unconstitutional, dozens of county clerks' offices had their counters ready to issue marriages licenses to same-sex couples.  Some 300 couples were issued marriage licenses the very next day before the Sixth Circuit Court of Appeals stayed the decision pending appeal, swiftly closing the door on the issuance of additional marriage licenses to same-sex couples.

This appellate stay placed these presumably valid same-sex marriages in a legal limbo.  Enter the ACLU, who sued to enjoin the State of Michigan to recognize the marriages.  The case was assigned to federal judge Mark Goldsmith who ruled yesterday that any same-sex couple that was issued a marriage license has a valid marriage that now must be recognized by the state.

Judge Goldsmith's ruling comes a day before legal scholars predict that the SCOTUS, in their case conference this morning, may decide to grant certiorari in the April DeBoer case and the other consolidated cases from the Sixth Circuit; the only appellate circuit to uphold the constitutionality of state law bans on same-sex marriage.

Interestingly, Judge Goldsmith's decision plays on a Bible verse in upholding the validity of the marriage licenses issued by the county clerks. His decision states that, "under these circumstances, what the state has joined together, it may not put asunder."

Constitutional considerations aside, the judicial math was simple in this case: once a marriage license is issued by an arm of the state, Judge Goldsmith ruled that the state cannot withdraw the status it has granted.  To rule otherwise, said Goldsmith, would "catastrophically undermine the stability that marriages seeks to create", to say nothing of the damage done to the principle of certainty in the law.

No word from the Michigan Attorney General or the Governor whether it will appeal Goldsmith's decision. Meanwhile, the SCOTUS could advance the agenda today with an order granting the petition for certiorari in the consolidated DeBoer cases.

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Monday, January 12, 2015

SCOTUS Could Announce Decision on Same-Sex Petitions Soon

SCOTUS Chief Justice John Roberts
Last Friday, the SCOTUS conducted an important chambers conference to decide whether to grant certiorari this term to the consolidated appeals in the DeBoer case.  April DeBoer's case was consolidated with other cases from Ohio, Kentucky and Tennessee, and Sixth Circuit Judge Jeffrey Sutton reversed federal district court judges that invalidated state law same-sex marriage and adoption bans.

A ruling from the High Court on this petition could come by the end of the week. Then, the cases could be argued this term, which goes through most of June.

Here is a good analysis of Judge Sutton's decision from a Huffington Post law blogger; and here is Lyle Denniston's [SCOTUSBlog] take on the judicial conference:
The release of orders on Friday had been eagerly awaited across the country, because the Court, at its private Conference, was scheduled to take its first look at the new round of cases on state power to ban same-sex marriage.  The Court’s next chance to issue any order on those cases will be at 9:30 a.m. Monday, with the release of a lengthy list of actions on new cases.  If no action on the five marriage cases comes then, the cases are likely to be rescheduled for a Conference next Friday.
Meanwhile, the costs to the various states in their largely unsuccessful challenges to the same-sex marriage civil rights movement, and their equally unsuccessful attempts to enforce state law same-sex marriage bans, are mounting.  Attorney fee petitions are slowly collection across the country seeking reimbursement for the legal costs of striking the state law bans.

The price tag is the the millions and will surely increase over the next few years.  Who do you think should pay this price: the taxpayers or the litigants?

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