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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Wednesday, July 29, 2015

Michigan Supreme Court Decides Medical Marijuana Cases

Unlike the United States Supreme Court, our Michigan Supreme Court stays focused and working through the summer. Accordingly, yesterday it released decisions in the remaining two cases from the trio of medical marijuana cases arising here in Oakland County.

The cases involved pot manufacturing, delivery and possession charges brought against Richard Lee Hartwick and Robert Tuttle.  Both defendants asserted the immunity and affirmative defenses that are set forth in the Michigan Medical Marijuana Act.

Right out of the box, Justice Brian Zahra, writing for a unanimous court, noted the distinction in how the MMA came into being compared to most other laws.  As a voter-based initiative, the MMA was not drafted by legislators with the assistance of the bipartisan legislative council and its staff.  No, the pot law was drafted by the national pot lobby, without a review for, "content, meaning, readability and consistency".

Perhaps because of the manner it was drafted, the MMA has been a highly litigated piece of legislation since its passage in 2008.  There are more than a dozen published Court of Appeals decisions attempting to make sense of the Act; the Michigan Supreme Court has addressed the Act in 9 separate cases.

The Supreme Court remanded both cases back to the Oakland County Circuit Court for new evidentiary hearings to determine whether the accused in each case is entitled to the immunity from prosecution set forth in section 4 of the Act. The High Court affirmed that neither defendant was entitled to assert the affirmative defenses contained at section 8 of the Act.

Upon remand, the Supreme Court crafted a 4-part test to be used by the trial court in assessing whether an accused has complied with the Act. An accused now has the burden to demonstrate through a preponderance of evidence:

  • he has a valid medical marijuana card;
  • he has kept the amount of marijuana within the limits mandated in the Act [i.e. 12-plants per patient and 2 ounces for personal use];
  • all plants were kept in a closed locked facility; and
  • he was participating in the medical use of marijuana.

What this tells us here at the Law Blogger is that, unless these guys followed the MMA grow, housing, and storage requirements to the tee, they are doomed for conviction. For our part, we've always been concerned that the sheriff and the courts do not understand how pot is grown and what constitutes "smokable marijuana".

A fresh-cut plant, for example, contains water weight and stem wood; none of it is smokable.  Fast forward several weeks, when the plant is dried and detached from its stem, and it is smokable and weighs less.

How will the sheriff weigh the collieweed, mon?  This is the question that will likely play out at the evidentiary hearings ordered by Justice Zahra and the High Court.

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Tuesday, July 14, 2015

Defense Lawyer Atticus Finch Turns Racist in Old Age

For the defense: Atticus Finch
Jeez, say it ain't so. The beloved protagonist of Harper Lee's 1960 Southern Gothic novel To Kill a Mockingbird exhibits racist tendencies in Lee's recently published sequel, Go Set a Watchman.

The plot of Mockingbird is one of the most well-known and revered in American literature. Criminal defense lawyer Atticus Finch, portrayed by Gregory Peck in the '62 screen adaptation, is appointed by a local judge in fictional Maycomb, Alabama to represent a black man accused of raping a white woman.

Yes, the assignment is unpopular in the small county-seat town and Finch's representation, while heroic, is ultimately unsuccessful, leading to a jury conviction. In the novel, Mr. Finch gives a voice to the court-appointed criminal defense lawyers creed:
Courage is not a man with a gun in his hand, it's knowing you're licked before you begin but you begin anyway and you see it through no matter what. You rarely win but sometimes you do.
Now, what are we to make of this iconic literary figure who, in the sequel, now age 72, exhibits the tendencies of a physically aging bigot, denouncing desegregation efforts and asking his now-adult daughter whether she really wants African Americans to "overrun" the local schools.

This surprise plot twist is just the latest example of America's inescapable racism. But a bigoted Atticus Finch? It just does not ring true, and tears at the soul of indigent criminal representation.

Now what will high school literature teachers assign their students to read? They will have to resort to Gideon's Trumpet to take up the mantel of court appointed counsel.

Interestingly, Atticus' fall from grace was predicted in the unconventional critique leveled nearly a quarter century ago by now-deceased Hofstra University Law Professor Monroe Freedman in the National Law Journal, a dry trade publication we read regularly here at the Law Blogger. Professor Freedman criticized Finch for not signing-up for the case, for groaning when assigned the case by the county judge, and for not championing the rights African Americans to sit anywhere they wish in the public courtroom where Tom Robinson's trial took place.

With last month's events in South Carolina in the foreground, and the ubiquitous friction inherent in the interactions between law enforcement and minorities as a backdrop, the long-anticipated release of Harper Lee's sequel could not come at a worse time. But really, when is there a good time for racism in America?

The author actually completed the so-called sequel to Mockingbird first, in 1957; three years prior to the publication of Mockingbird. Perhaps the aging bigoted Mr. Finch was too much to take, and Ms. Lee's publicist prevailed upon her to produce and publish what has become America's classic morality tale.

Well, over here at the Law Blogger, we will continue to take up the cause of those who cannot afford retained counsel and, in each case, we will do our best as did Mr. Finch in his prime. Unlike the arthritic Atticus Finch, however, we will keep our personal views to our selves.

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Friday, July 10, 2015

Marriage Equality a Fundamental Constitutional Right

SCOTUS Justices Roberts & Kennedy
Just prior to the Fourth of July holiday, on one of the last days of its term, the SCOTUS announced the split-decision in Obergefell v Hodges, a case from the 6th Circuit Court of Appeals, our appellate circuit, that also included the Michigan case of April DeBoer. In Justice Anthony Kennedy's opinion, the right of same-sex couples to marry is treated as a fundamental right under the 14th Amendment to the United States Constitution.

Readers of this blog are well familiar with the various marriage equality civil rights struggles that have played out in courts across the country over the past decade. But it was never a given that the High Court would pronounce such a sweeping endorsement of a now-fundamental right.

The right to marry the person of one's choice, whether that person be of another race or of the same gender, is perhaps one of the most important decisions we make in our lives. So it does follow that such a right, although not expressly stated in our constitution, is truly fundamental; our basic human experience makes it so.

The 5-4 marriage equality decision, authored by Justice Kennedy, was joined by all three female justices as well as Justice Steven Breyer. Each of the conservative justices authored scathing dissents with Justice John Roberts being the most analytic among the quartet.

The basic holding of the majority opinion is that the 14th Amendment to the U.S. Constitution requires all states to license a marriage between two persons of the same gender and to recognize same-sex marriages performed in other states.

In reaching this conclusion, Justice Kennedy discussed how the institution of marriage has evolved since the Colonial era, marked by arranged marriages. He then cited to some of the landmark cases involving homosexuality such as Bowers v Hardwick [the 1986 case that upheld Georgia's criminalization of certain homosexual acts]; Lawrence v Texas [the 2003 decision overruling Bowers]; and of course, United States v Windsor [striking down as unconstitutional the federal Defense of Marriage Act which defined a marriage as solely between one man and one woman in the federal benefits context].

Justice Roberts' principal dissent makes the following points, as summarized by Cornell University Law Professor Michael C. Dorf:
(1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. 
Voicing the true conservative disdain for an activist Court, Justice Roberts says that SCOTUS should not "seize for itself" a question that our Constitution leaves for the people to decide using the political machinery.  "Who do we [justices] think we are?", he asks.

While the SCOTUS does generally eschew significant constitutional pronouncements, it has a long-tradition of righting the wrongs of rogue state legislatures and an occasionally errant Congress. This is the essence of our check-and-balance system of federalist government.

Before news of the decision in Washington D.C. even hit the left coast, new issues involving same-sex partnerships were being conjured-up by legal scholars. Now that such couples have a constitutional right to marry, when they do so, can disputes involving employment and housing discrimination be far behind?  Also, where does this leave the so-called "religious preference" laws?

The nice thing about our ever-evolving common law system, from the lawyers' perspective, is that there is always another legal dispute just around the corner; the dust never really settles.

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Wednesday, July 8, 2015

The Power of a Family Court Judge

Maya Tsimhoni
Children's Village is not the place you want to be as a child, especially if you come from a background of relative privilege. You'll see things there that your mom and dad never explained; for the first time in your life, you'll need to check your six.

Yet that is where three young Oakland County siblings wound-up over the past two weeks when they refused to comply with Judge Lisa Gorcyca's ruling that they spend parenting time -a lunch- with their father. The three minors were housed among the unruly teens that have seriously run afoul with the law at a very young age.

The case is a headline-grabber and we here at the Law Blogger expect that it will acquire some national media legs by the weekend now that Fox2 News broke the story on their evening newscast last night.

The facts are simple enough: after a series of protracted court hearings to litigate parenting issues, the children were ordered to spend time with their father; when they refused, they were confined to the Village for civil contempt of court. Family law judges do have powers over all those folks under their jurisdiction, including both parents and all the children in a divorce proceeding.

This case is different because it features putting the children, rather than the recalcitrant parent, into confinement. Judge Gorcyca, no doubt frustrated when the siblings became obstructionist -perhaps with their mother's encouragement- elected to exercise some of that power as a sanction for the contempt shown for her parenting order. Were other options available on the family judge's menu? Yes, of course there were; but this is the one she chose.

Over the years, we have seen the dynamic of older children faced with court-ordered parenting schedules they deem onerous. The well known rule-of-thumb in the industry is that the older the child, the more difficult it is to get him or her to comply with a distasteful court order.

But the Tsimhoni children are relatively young [ages 14, 10 and 9]; apparently, they banded together in defiance of the judge. This defiance has been honed from protracted disputes between the parents for the past five years.

The Tsimhoni case, grinding on since December 2009, features a long-list of family court professionals well-known in the industry, brought into the divorce proceeding to assist with the deep-seated and seemingly irresolvable parenting disputes. The case has featured pitched allegations of parental alienation and kidnapping.

Here is a copy of the GAL William Lansat's report to the family court judge, posted online as the story was breaking. The GAL report sets out the context within which the judge made her decision.

When an emergency motion to readdress the children's incarceration was denied by Judge Gorcyca, an appeal was lodged and a petition for a writ of habeas corpus was filed Monday by the mother's new law firm. A petition for habeas corpus alleges that a person is being incarcerated by the state in violation of a constitutional right.

Even though Judge Gorcyca, obviously frustrated by the children's defiance of her parenting order, placed the children into the Village until they emancipate at age 18, we predict they will be released shortly. The question here is whether their inevitable release comes at the hands of Judge Gorcyca or through some other jurist.

Family court judges have vast powers at their disposal. This case will stand as an example of the measured limits of those powers.

July 9th Post Script: As we predicted, a two-hour hearing was conducted by Judge Gorcyca yesterday, which concluded with her ruling that all three children should be released from the confinement of Children's Village.

For those among our readers that are students of the family court and for the family law professionals, here are two comprehensive articles in the Detroit News that provide a more detailed context for the judge's decisions in the Tsimhoni case. Take a look here, and here. Of course, the two top writers for the Freep joined in: Brian Dickerson and Mitch Albom. The Observer published an interview with the father.

The case, now making huge traction on the State Bar of Michigan's family law listserv, features articles that have posted large chunks of the critical hearing that led to the children's commitment to the Village. Here is an example from the Daily Tribune.

September 9th Post Script: Continuing to deliver headlines, this case featured a hearing today that resulted in the Court being advised that the Tsimhoni children successfully completed their court-ordered stint in a summer camp, have completed intensive therapy for parental alienation, and have been reunited with their father. The court has scheduled a hearing for October to determine whether Mother's physical custody of the children should be switched to Father. The court file remains sealed.

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