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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Sunday, March 29, 2015

SCOTUS Considers Mental Disability and the Death Penalty

Tomorrow, the United States Supreme Court will hear one hour of oral argument on an issue it already has considered on a few occasions since the turn of the century: the proper procedure to determine whether a convicted murderer is mentally disabled and thus ineligible for the death penalty.

Over the decades, the SCOTUS has compiled a very short list of categories of convicted felons deemed ineligible for a state's death penalty: juveniles, the mentally insane, persons convicted of crimes other than murder, and of course, the mentally disabled.  The basis for each of these prohibitions is the 8th Amendment's ban of cruel and unusual punishment.

Mental disability made the list via the 2002 decision in Atkins v Virginia. In that case, the SCOTUS only went so far, leaving it up to the death penalty states how to determine whether a convicted murderer was mentally disabled. After Atkins, the High Court provided scant additional guidance, holding that states could not rely on any single factor, such as a low IQ, in making the mental disability determination.

In any death penalty case, there are two trials: one determines guilt or innocence; the other determines punishment at a sentencing trial. The issue to be considered by the SCOTUS tomorrow morning in Brumfield v Cain is whether the 8th Amendment requires yet another separate hearing to solely consider evidence of the asserted mental disability.

If such an evidentiary hearing is required, it would be a trial, within a trial, within a trial. Trey complicated.

Consider that Kevin Brumfield was convicted of killing a police officer moonlighting as a security guard in a 1993 botched grocery store robbery. Brumfield's lawyer eventually raised an Atkins claim regarding his mental disability shortly after that case was decided by the High Court.

At his original sentencing trial in state court back in 1995, Brumfield's mental disability was not raised because the sentencing trial was conducted in the pre-Atkins era. Accordingly, the state court sentenced Brumfield to death without consideration of his alleged mental disability.

Following the imposition of his pre-Atkins death sentence, the matter was brought into the federal courts via Brumfield's habeas petition. In the federal courts, Brumfield asserted that Atkins and the 8th Amendment require a separate hearing on the issue of mental disability.

The lower federal court ordered such an evidentiary hearing which featured testimony from a psychologist, a social worker and other experts that detailed his abused childhood and his alleged mental deficiencies. The federal court made a finding based on this evidence that Brumfield was mentally disabled but this ruling was reversed by the 5th Circuit Court of Appeals.

Now, the SCOTUS will address this issue tomorrow morning. So stay tuned to find out what our High Court has to say about this important constitutional issue.

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Saturday, March 28, 2015

Michigan's Official Position on Same-Sex Marriage

Michigan Attorney General Bill Schuette filed a brief with the United States Supreme Court yesterday laying out Michigan's official position on the constitutional question of whether states can ban same-sex marriage. The response brief was filed in the April DeBoer case, currently pending at the SCOTUS and scheduled for oral arguments on April 28th.

Readers of this blog know that we have consistently supported same-sex marriages and adoptions, posting favorable editorials since 2009 when the first federal case arose in California, and tracking the issue ever since.  That said, the AG really lands some compelling points in Michigan's brief.

The issue, as framed by the SCOTUS and now amplified by the Michigan Attorney General, is whether states are required to license same-sex marriages; and whether states must recognize same-sex nuptials performed in another state.

The Michigan AG asserts that in a democratic society, it is offensive to have un-elected federal jurists deciding such important intimate issues that have been resolved by a local electorate. Further, the AG asserts that the United States Constitution is silent on the question of marriage thus, to fashion such rules by federal judicial fiat demonstrates "a lack of faith in democracy" which comes at a high cost to all of our fundamental rights.

Of course, it is the fundamental right of Due Process and self determination that constitutes the flip side of that argument.  Like in the Loving v Virginia decision from the 1960s -endorsing interracial marriages- the DeBoer case once again focuses the SCOTUS on whether certain rights, such as the right to select whom to marry, regardless of race or gender, are so fundamental that no state or federal law can interfere.

The scheduled oral arguments at the end of April truly will be historic. We here at the Law Blogger see this as the civil rights issue of our time.

As often stated by Michigan Attorney General Bill Schuette, the sooner the High Court decides this issue, the better, for everyone.

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Saturday, March 21, 2015

French Adultery Website Sued by Catholic Group

In France, fidelity in marriage is written into the French civil code.  So when racy advertisements began sprouting-up in the Metro last year touting an adultery website, the Association of Catholic Families not only took offense, it filed a civil lawsuit.

Legal scholars believe that the suit may get some legs.  At issue is whether a website can promote adultery when marital fidelity is a matter of law.

As part of its promotion, membership in the website,, is fee to women and advertises on its home page that it is the only dating website made by women.  Thus, only men must pay a fee in order to access the site and view married women's profiles.

Online since 2009, the site boasts over a million members in France alone, with millions of other members spread across Europe.

In France, the legal system is made up of codes that are the rough equivalent to our federal statutes and regulations.  Unlike our common law system, however, a judge does not have broad interpretive powers. Nevertheless, a case like this demands a jurist to take into account, "the changing moral values of modern society," according to a French divorce lawyer quoted by the BBC.

The Catholic group's law suit against the site claims that while many other dating websites promote sexual relations, the very business model of Gleeden incites married couples to violate their civic duty to maintain fidelity to their spouse.

There are similar sites to Gleeden here in the United States. When a married couple files their marriage license with their state, for example, Ashley Madison spam often quickly follows.

Although rarely charged, adultery remains a felony written into the Michigan Penal Code.

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Tuesday, March 17, 2015

Lawsuit vs Zuckerberg Seeks to Rip Open Privacy

In Sunday's NYT business section, buried on page four, there was an interesting article about how Silicon Valley executives seek to keep all of the details of their life private, even while some of their tech industry billions are earned from culling once-private information from the rest of us.  The article featured domestic nondisclosure agreements, now popular among the Northern California technorati.

These nondisclosure agreements are executed by all of the contractors and agents that work on the private residences of these professionals.  Some of them are famous, others just newly wealthy employees of tech giants such as Twitter and Google.

Once such agreements are executed, sometimes they get breached.  This occurred most recently in a lawsuit filed against Facebook's Mark Zuckerberg, by his Palo Alto neighbor, a real estate investor, for an alleged fraud and breach of their written agreement.

According to papers filed in the lawsuit last week, representatives of the Facebook founder actively seek out such nondisclosure agreements.  The complaint outlines an agreement between Zuckerberg and his neighbor where the former agreed to purchase a parcel of the neighbor's investment property, adjacent to Zuckerberg's residence, below market value in exchange for the tech titan's liaison to power players in Silicon Valley.

As alleged in the lawsuit, the neighbor sold the parcel to Zuck, thus enhancing the privacy of his residence, but ignored his now-more-distant neighbor's pleas for entree to the powerful technorati per their agreement. So far, the suit has made it past the tech titan's dispositive motion for summary judgment.

So the jilted neighbor has not only filed suit and survived an early dismissal of the proceedings, but his lawyer now seeks punitive damages and is attempting to establish Zuckerberg's net worth through basic discovery requests.  It's one of those issues small-time lawyers can sink their teeth into.  Even if the Santa Clara County Circuit Court judge rebuffs the discovery request, appealing such a ruling can make a legal career.

A typical nondisclosure agreement will contain a clause setting out the purpose and scope of the confidentiality sought and the signatory's duty of nondisclosure. The scope of such duty will include the duty to immediately disclose a litigation discovery request propounded by a third party.

Such agreements also typically include agreed upon liquidated damages in the event of a breach. Some nondisclosure agreements even include an indemnification provision whereby the signatory agrees to pay for any and all damages to the protected entity for any losses or damages "arising out of" breach of the agreement.

As technology advances and Big Data becomes ever bigger and more valuable to companies such as Facebook, Google, and Twitter, privacy rights hang in the balance.  We here at this blog wonder if anyone logging onto a computer in the early 21st Century even has a right to privacy anymore.

This is something that legal scholars are currently debating.  Case in point: will you click the consent button embedded in the above hyperlink?

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Friday, March 13, 2015

Open Carry Gun Laws and Public Schools

Although we have not done so lately, this blog has posted on Supreme Court cases testing the scope and parameters of the Second Amendment.  The right to bear arms is one of those bedrock principles in our constitution that many citizens hold to be as sacred as our First Amendment right to free speech.

Two years ago, we tracked a piece of legislation addressing Michigan's "open carry" law in this post.  Then, the issue was Governor Snyder's veto of expansive gun legislation in the wake of the Newtown, CN school massacre.

There is a so-called "loophole" in Michigan's gun laws which allows someone with a valid concealed pistol license to "open carry" a weapon on school grounds.  Guns are otherwise banned on school property.

Today, the open carry "loophole" is back in the news as gun activists have staged incidents this week involving the display of their weapons in and around public schools; one incident was in Ann Arbor and the other was in Madison Heights.  Both events caused grave concern among school administrators and local law enforcement and drew plenty of media attention.

Twice this week at Lamphere High School, a gun-toting activist -an unemployed former Marine- attempted to enter school grounds but was rebuffed by the Madison Heights PD.  He sported a rifle slung on one shoulder, holstered a semi-automatic pistol, and had a video camera to record the ruckus strapped to his chest.  For their part, school administrators, taking no chances, locked down the high school during the two incidents.

Meanwhile, at Ann Arbor's Pioneer High School, a gun activist attended a school concert with a pistol strapped to his side. This led to a packed meeting of the Ann Arbor school board and the passage of a strongly-worded resolution calling for legislators to close this loophole.

In our free society, there are always going to be individuals that test the limits of our rights. With all of the school shootings that have occurred over the past few decades, these recent events highlight the intersection between basic school safety and our constitutional right to bear arms.

We here at the Law Blogger believe that, considering the hundreds of children that have been shot at, wounded and killed at their schools, perhaps our state legislature should act to close this loophole. We believe that public safety concerns outweigh the right to bear arms on school grounds and that these valid concerns justify a properly tailored restriction to the open carry laws.

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Tuesday, March 10, 2015

Difficulties of Marketing a Law Practice

Levitt: self-described "bad ass" attorney.
In charge of our law firm's marketing efforts over the past decade, it was with professional interest and some amusement that I monitored the seemingly coordinated if irreverent campaigns of fellow attorney Todd Levitt.

Originally from Oakland County, Todd moved to his beloved Mt. Pleasant and developed a great gig over the past few years by becoming the "go to" lawyer for Central Michigan University students charged with drug and alcohol crimes.

Promoting himself as a middle-aged snowboard-riding nutty adjunct professor, and Saul Goldberg-style lawyer, Todd sure looked like he was having fun in and around the haunts of his alma mater. About a year ago, just as he was taking his game to the next level with a self-crafted lawyer reality tv show, "In Todd We Trust", he suffered a backlash from within the heart of the campus he calls home.

Apparently, homie's antics caught the attention [and ire] of a fellow CMU professor whose son, a student at the university, had the technological chops to develop a mock twitter account called Todd Levitt 2.0.  Todd did not like being the subject of satire and a brawl broke out in the twittersphere.

Then Levitt sued in the Isabella County Circuit Court on theories of  defamation, false light, intentional infliction of emotional distress, and interference with a business relationship; all standard tort theories designed to cover such a mess.  A few weeks ago, the circuit court ruled against Levitt, finding that the CMU student's parody Twitter account of the lawyer was speech protected by the First Amendment.

We here at the Law Blogger agree wholeheartedly with this result.  As a self-promoter of the first order, Todd became a public figure around CMU over these past several years.  The court correctly held that statements made about such a figure, even if untrue, are nevertheless protected by the cloak of "parody" and satire.

Seeing opportunity within his defamation case, Levitt has apparently vowed to appeal what he sees as, "a case of first impression that needs to go to a higher court."  Well, as every litigant has a right to appeal the final order of a trial court, we wish him the best of luck with all that.

As a barometer of local public opinion regarding our colleague, take a look at these 17 comments posted to CMU's announcement about his reality tv show.

Like any self-respecting self-promoting lawyer, this guy is not giving up; this guy is not going away [see the post script, below]. That is what still remains great about our free society.

We predict, however, that the Isabella County Circuit Court's order granting the defendant-student's motion for summary disposition will be affirmed on appeal.  So Todd, we have to ask you about the old Hollywood adage: is there no such thing as bad publicity?

04/03/2015 Post Script:

We have received some additional information from Mr. Levitt regarding his law suit and have adjusted our view of his chances and his characterization of the defamation case as one of first impression.  According to Mr. Levitt, the n'er-do-wells that parodied his twitter site did so for two months without any indication whatsoever that the site was a parody.

Todd says it was a 100% identify theft situation  -not to rip him off financially- but to embarrass and harass him and his family.  Identity theft in the social media context.

If he offered some proof of that dynamic in the circuit court, that changes the playing field and we agree with him that the Court of Appeals will take, or should take, a close hard look.

Here's another thing we've come to recognize about Todd's case: we sure would not want this to happen to us and if it did, we'd sue too.

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