Legal Scholar Lyle Denniston

Batman will probably show-up again; Spiderman has been crawling the marble steps seeking attention; and various flag-waving, placard-touting groups in support of and opposed to marriage equality have been a fixture along First Street in Washington D.C. over the past several weeks. As June evaporates, the Supreme Court's final day for this session, Monday, fast approaches.

There is a rare sense of growing anticipation surrounding the Supreme Court building as the Court gets ready to announce its last few decisions of the term.  Of all the cases argued before the SCOTUS this term, only 5 remain undecided, including the DeBoer same-sex marriage and adoption consolidated cases.

We here at the Law Blogger think the High Court will issue the decision this morning when their penultimate session begins at 10:00 am.

Lyle Denniston of SCOTUSBlog no doubt already has his analysis at the ready; he's probably just waiting for an opinion to read before posting to his well-read blog. The two issues the Court will likely resolve today in deciding the DeBoer case are: whether states have power to ban same-sex marriages; and whether states must recognize same-sex marriages from other states.

Currently, marriage equality is the law in 36 states. All of the state laws banning same-sex marriage in the remaining 14 states are under constitutional challenge.

When the SCOTUS began its term in October, it did not elect to review any of the then-pending same-sex marriage cases that had percolated through the federal courts of appeal. Then the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order striking down Michigan's state laws banning same-sex adoptions and marriages.

In upholding the state law bans, the Sixth Circuit bucked a national trend among the federal appellate circuits which had until then uniformly ruled in favor of recognizing marriage equality. So the SCOTUS granted certiorari and today is the moment of truth on this constitutional issue.

Once the Court issues its decision, we will review and distill the opinion and provide our readers with our take on this important civil rights issue.

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Victorious Samantha Elauf

The SCOTUS issued another opinion, this time from Justice Antonin Scalia, strengthening religious rights in the workplace. In EEOC v Abercrombie & Fitch, the High Court reversed a 10th Circuit Court of Appeals' ruling that favored an employer's right to uphold a corporate dress code; in this case, it was Abercrombie's "no head wear" policy.

The case involves the intersection of fashion, commerce and the freedom of religious expression under the First Amendment. Samantha Elauf, a Muslim teenager back in 2008, applied to an A&F store in Tulsa, Oklahoma.  Although she fared well in her interview, she was not hired because of the store's no head-wear dress code.

The offending garment was the applicant's hijab. A&F fosters the "Ivy League preppie look" thus, there is no room for a hijab, caps, scarfs, or head wear of any kind.  At the SCOTUS, Abercrombie argued that no religious discrimination occurred because it had no "actual knowledge" that Ms. Elauf wore her hijab for religious reasons; she was silent on the subject during her interview.

The EEOC, along with the Council on American-Islamic Relations, took up Elauf's case and won a jury verdict of $20,000 in damages for Ms. Elauf.  A&F successfully appealed to the 10th Circuit Court of Appeals, which reversed the jury verdict, persuaded as it was by A&F's argument that the applicant did not specifically request special religious accommodation for her hijab.

Justice Scalia's decision was aptly summarized in Amy Howe's "Plain English" post for SCOTUSBlog:

The Court reasoned that the federal law at issue in this case, Title VII of the Civil Rights Act of 1964, bars employers from refusing to hire someone “because of” her religion, which includes religious observances. And in the context of this law, the Court continued, the phrase “because of” requires only that “an individual’s actual religious practice . . . not be a motivating factor” behind the failure to hire her. There is no requirement that the employer actually know that there could be “a conflict between an applicant’s religious practice and a work rule.” Indeed, the Court emphasizes, although other antidiscrimination statutes do explicitly require knowledge, Title VII does not. Therefore, reading the statute to include a knowledge requirement would “ask us to add words to the law to produce what is thought to be a desirable result.” And that, the Court made clear, “is Congress’s province.” 

Similarly, Abercrombie's argument-in-the-alternative that its dress code applied to all employees was rejected by the SCOTUS.  The Court's ruling states that the civil rights act does not require employers to be neutral but rather, that they provide an applicant's or employee's religious practices "favored treatment."

In the workplace, this means that employment practices that are otherwise neutral must now "give way to a need for an accommodation."  Business groups have already taken issue with the ruling on the basis that it puts employers behind the eight ball with a confusing standard that forces the employer to guess at an applicant's religious practices.  Also, business groups fear the opinion opens the door to litigation, making employers vulnerable within the context of the "favored treatment" workplace.

We here at the Law Blogger wonder which religious practices are going to surface in the inevitable cases spawned by this decision. No doubt, there will be some interesting ones, you just wait and see...

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From a moral and legal perspective, adultery is never a good idea. This is especially the case when the "other woman" is your best friend's wife.

Back in 2006, a prehistoric era on the Internet timeline, ex-wrestler Hulk Hogan, aka Terry Bollea, exercised the poor judgment of cuckholding his best friend, the radio personality known as Bubba-the-Love-Sponge Clem. Apparently, the encounter was covertly recorded by Clem's wife, Heather.  Fast forward to 2012, and the sex tape wound-up in the hands of Gawker.

The snarky website posted a 40-second excerpt of the tryst, claiming an anonymous source and disavowing payment for the video. Hulk, of course, took issue and sued, enjoining Gawker to remove the post; he is seeking $100 million in damages from the site.

The lawsuit, Terry Bollea vs Gawker, has bounced between federal court and the Pinellas County Circuit Court, with appeals in both courts, over the past three years. Now, however, the case threatens to undo the otherwise financially healthy alternative media site as it heads to a jury trial next month in St. Petersburg, Florida.

Initially, the complaint alleged invasion of privacy, intentional infliction of emotional distress, publication of private facts, misappropriation of Hulk's publicity rights, and in an amended complaint, infringement of copyright.

Hulk's lawyers got started in federal court where his several requests for a preliminary injunction to take down the video were denied by the federal judge assigned to the case. In an obvious attempt to defeat diversity jurisdiction -the only way into federal court without raising a federal question- Hogan dismissed his federal suit with an appeal pending before the 11th Circuit, and re-filed in state court, belatedly naming Heather, his former lover and best friend's wife, as a defendant. As a Floridian, her presence in the lawsuit defeats the diversity jurisdiction of the federal court.

This procedural maneuver worked to the extent that a county circuit judge granted Hogan's request for a preliminary injunction [although reversed by a Florida appeals court], denied Gawker's motion for summary disposition, and where the case now heads to trial in the Hulkster's own back yard. In reversing the trial court's injunction, the Florida appeals court relied on the rationale set forth in the federal judge's opinion denying that same request.

The case is interesting not for its salaciousness -although this post will certainly get more clicks than average due to the content- but because it pits the post-modern concept of privacy against the ever-more intrusive lens of the digital media.

Although Gawker's founder, Nick Denton, has publicly decried that a significant damage award will rent his company asunder, we here at the Law Blogger like his chances; if not at trial, certainly on appeal. The trial will feature folks living in and around Hulk Hogan's neighborhood, making fact findings in a case pitting the local hero against a media outlet from New York City.

On the other hand, Gawker did not get the scoop on this sex tape; it's existence was much commented about in the celebrity media. Also, while Hulk cries "privacy", he's published a book with references to his affairs and sexploits, and has made numerous public statements about these topics while basking in the public spotlight.  Again, we like Gawker's chances.

Most of these media cases settle privately for an undisclosed settlement. In this case, the Hulkster is too pissed to settle; he's a wrestler scorned so, get some cover and get ready for the rumble.

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Moving quickly this week, the Michigan legislature passed, and Governor Rick Snyder signed into law, an act that allows private faith-based adoption and foster care agencies to decline services to applicants that are not aligned with the agency's world view. The act, House Bill 4188, thus allows such agencies to refuse services to same-sex or unmarried couples.

Perhaps because the authors knew their bill would be subjected to strict scrutiny, enacted on the very eve of the SCOTUS' same-sex adoption and marriage cases, the preamble clearly lays out critical constitutional distinctions between private and state action. The act declares private agency placement decisions to be outside the scope of state action; the act declares private faith-based agencies free to make decisions pursuant to their stated mission.

Critics point out that Governor Snyder signed the bill into law after it sailed through both House and Senate, and after it was swiftly placed on the legislative agenda at the "last minute", apparently without notice. The ACLU has already conducted press conferences to announce they are seeking well-positioned litigants to challenge the new law.

If any of the private faith-based agencies receive public funding or assistance, a constitutional challenge could be mounted, especially if the SCOTUS declares a constitutional right to marry regardless of gender. Without the public funding component, however, it would appear that private agencies would be free to make adoption referrals consistent with their faith-based missions.

Examination of the State of Michigan's fiscal budget for the current year reveals that nearly $20 million was spent on adoption and foster care agencies; about half of the funding allocation supported private agencies. Proponents of the bill assert that its passage was necessary in order to prevent the faith-based agencies from closing their doors rather than provide services to folks they deem to be unworthy.

Considering that current state practice allows an agency to decline services for any reason, this legislation seems preemptive in nature; perhaps to ward-off attempts to adopt by same-sex couples following a prospective [and somewhat anticipated] win in the DeBoer case.  When introducing the new law, the Governor even acknowledged he expected litigation to flow from its implementation.

We shall see how all of this plays out in light of the much-anticipated DeBoer decision expected as soon as next week.

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Justice Richard Bernstein

Yesterday, the Michigan Supreme Court, in one of Justice Richard Bernstein's first opinions, held that when a husband-wife medical marijuana operation is not conducted in strict accord with the Medical Marijuana Act, the wife, whose role was limited to assisting with the harvest schedule, is not afforded immunity under the MMA. So let's break that down.

In the case, People v Cynthia Mazur, Oakland County Circuit Judge Colleen O'Brien denied defendant's request for immunity under the act because the grow operation conducted within the marital home was not in accord with the provisions of the MMA. Ms Mazur's role in the operation was limited to writing-out the harvest schedule of the pot plants on sticky notes.

Defendant's husband was both a registered marijuana patient as well as a care-provider. Ms. Mazur, however, was neither.

She appealed the trial court's denial of her request for immunity, but the Michigan Court of Appeals affirmed Judge O'Brien's ruling. The Supreme Court agreed to take a look.

In its opinion, the High Court left the door open for the defendant, however, by ruling that her sticky notes detailing harvest dates constituted supplying hubby with "marijuana paraphernalia" as that phrase is defined in the act. Accordingly, Justice Bernstein's opinion concluded that if these sticky notes were the prosecutor's only evidence, then the charges against Mazur had to be dismissed; the prosecutor could, however, rely on other evidence to secure a conviction, the Court held.

This case is the first of a triad of pot cases from the Oakland County Circuit Court to result in an opinion from the Michigan Supreme Court. Decisions in the two remaining cases are expected within the next few weeks as the High Court prepares to end its 2014-2015 term.

One of the take-aways from this case is that spouses of registered patients may avail themselves of the immunity of the MMA, even if they are not registered care providers or patients, if the operation is conducted in strict accord with the act.  If the operation is rogue or being conducted outside compliance with the MMA, then criminal liability can attach to the non-registered spouse.  

Here at the Law Blogger, we will continue to monitor the evolution of this pot jurisprudence. Stay tuned.

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Sometimes you just have to achieve personal service of an individual in order to commence a lawsuit. Under the applicable court rules in Michigan, you need to obtain personal service or get a court order allowing an alternative method after demonstrating your failed but reasonable efforts to locate and serve a named defendant.

Landlords are often frustrated in this process. So much so that the Michigan legislature just passed legislation signed into law by the Governor late last month allowing for service of process in landlord tenant cases via electronic means such as email.

The new law, Public Act 36, provides for the electronic transmission of eviction papers via email, provided the tenant consents and supplies the landlord with an email address.  The law utilizes the phrase, "electronic service address" and also requires an electronic acknowledgment of the tenant's consent evidenced by one completed communication in which both landlord and tenant participate.

As much as we love to report on the ever-expanding intersection between technology and the law [check out this post from 2012], this public act raises some concerns for us over here at the Law Blogger. The State Bar of Michigan also voiced its concern in opposing this law when it was in bill form, stating some very good reasons for not adopting electronic service.

Our concerns are based on a litigant's access to justice, particularly in the landlord/tenant context where a person's residence is at stake. In our opinion, the law does not properly account for the following commonplace glitches that will end-up frustrating the eviction process and consuming even more judicial resources:

• Email is not sufficiently reliable to transmit such important documentation that affects the tenant's life;
• Without reliable means to transmit commencement of eviction proceedings, tenants could be deprived of valid defenses;
• Spam filters routinely block once-valid email transmissions;
• Tenants frequently change email addresses; and
• Internet access is unreliable for many tenants, especially lower income tenants.

Good old-fashioned personal service -where the process server strides up to the person, identifies them by their name, and hands them a stack of legal papers- is optimal when a person stands to lose their residence in the proceedings. In our opinion, personal service remains the absolute best way to get this done.

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SCOTUS issued a decision we've been tracking since it was argued before the High Court in December. Elonis v United States involved threats made by a former carnival worker via Facebook against his ex-wife, local law enforcement and others.

Anthony Elonis adopted the rap handle Tone Dougie, spreading his violent rap lyrics across his social network and drawing the attention of federal authorities. His eventual prosecution and jury conviction have raised the issue of free speech under the First Amendment within the context of the Internet and its ubiquitous social networks.

A 1939 federal law prohibits communicating threats that go across state lines. Elonis issued communications through his FB account, in the form of Emminem-style rap lyrics, that referenced his desire to kill his former spouse, injure his co-workers, blow-up kindergartners, and slit the throat of the FBI agent dispatched to investigate the offending posts.

Elonis' legal team says the statements were therapeutic, made in response to his ex-wife leaving him and taking his children. As such, his lawyers asserted Elonis was cloaked with the protection afforded by the First Amendment's free speech clause.

The United States Attorney, on the other hand, asserted that the FB posts were clear threats and that alone is sufficient to support a conviction under the threat law, regardless of Elonis' state of mind; his mens rea. The jury conviction was therefore properly established by the simple showing that threats had been made, according to federal prosecutors.

Without even addressing the First Amendment claim raised in the briefs and at oral argument, Chief Justice John Roberts vacated the jury conviction, remanding the case to the Third Circuit for further proceedings and leaving Mr. Elonis' fate less than clear. The 7-2 decision focused on the standard of proof relative to the threats that were made, holding that mere negligence -the failure to appreciate a legal risk- was insufficient to support a criminal conviction.

If the Third Circuit orders a new trial, which is now possible due to the remand, Elonis could avail himself of a convincing double jeopardy argument. Alternatively, the Third Circuit could apply a new theory of mens rea posited by Justice Samuel Alito; that a reckless mens rea, rather than ordinary negligence, is required for a conviction under the interstate threat law.

As SCOTUS watchers, we here at the Law Blogger often see the High Court doing everything possible to avoid constitutional pronouncements. Here, the Roberts Court obviously avoided addressing what many legal scholars see as the root legal issue in cases like these: is a federal law that prohibits speech in the form of a threat, transmitted electronically and thus through interstate commerce, unconstitutional on its face.

Or does the intent of the threat maker matter and if so, what is the standard of proof of such evil intent. The question remains unanswered.

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