In the wake of the decriminalization and outright state legalization(s) of marijuana, there are some inchoate legal conflicts brewing around office water coolers. While some "patients" here in Michigan can legally possess and use marijuana, it remains on Schedule 1 of the federal Controlled Substance Act.

Despite the continued federal illegality of marijuana, it is nevertheless an "employer beware" workplace environment here in Michigan. Some states [Illinois, Maine, Connecticut, and Rhode Island] have gone so far as to protect employees from workplace discrimination on the basis of their certified medical pot use; sounds like an employment lawyers dream [or nightmare] to us here at the Law Blogger.

Generally, however, state laws do not provide much guidance, especially to employers, regarding medical marijuana use. Some issues that are percolating:

• Can employers test for marijuana? 
• Can workers come to work high on medical marijuana?
• What if the job is highly skilled labor, or involves a safety component?
• If an employee is terminated due to marijuana-based "misconduct" is the employee entitled to unemployment benefits?

To date, the chief case to address the workplace marijuana issue is Coats v Dish Network from Colorado. The case involved a quadriplegic employee's use of medical marijuana. The state law prohibits an employer from firing an employee for participating in any "lawful activity".

The Coats court held that, because marijuana use is a violation of federal law, it does not afford the employee protection, even though Coats had a valid medical marijuana certification. The unfortunate aspect of the case is that Coats, as a quadriplegic in constant discomfort but nevertheless an excellent employee, was a poster-child for the legitimate use of medical marijuana.

Local employment lawyer Jason Shinn concludes that, because of its Schedule 1 status, Michigan employers do not need to accommodate pot-smoking employees. Shinn is aware, however, of a recent determination by the Michigan Unemployment Insurance Agency that a discharged medical marijuana employee was not disqualified from receiving unemployment benefits.

The question, however, is whether the medical marijuana eligibility determination was an Agency-wide policy determination, or a fluke. The UIA is not saying, at least not on its web site.

We here at this blog expect these workplace issues will arise with more frequency as marijuana become more acceptable in society as a whole. Despite is overall acceptance, the question remains: is there a place for marijuana in the workplace?

As an employer of lawyers and paralegals entrusted with peoples' lives, we say, "no".

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #514

On Saturday, the Michigan Supreme Court issued an order granting leave for an appellant that had been plea-convicted of sexually assaulting a 12-year old victim back in 1994. Twenty years later, in 2014, the Wayne County Circuit Court granted defendant's motion to be removed from Michigan's sex offender registry.

The Michigan Court of Appeals reversed the Wayne Circuit Court, reinstating the CSC-II convict's lifetime registration requirement. At the time of his conviction for groping and fondling the breasts of a then-12-year old girl, the defendant was 19-years old and thus, eligible for Holmes Youthful Trainee status.

This particular defendant successfully completed a 3-year probationary term and his conviction was dismissed back in 1997. His registration requirements under the sex offender registration act [SORA], however, lived on and follow him to this day.

No one is going to shed a tear for any convicted felon that took advantage of a young girl. Nevertheless, the Michigan Supreme Court, in its order granting leave to appeal, instructed the appellate lawyers to brief the following long list of issues:

• Whether placement on the SORA amounts to "punishment"; 
• Does it matter whether the plea-convicted felon attained trainee status; 
• Whether the SORA registration requirement violates a trainee's constitutional due process when a conviction is removed based on successful completion of probation; 
• Whether application of the civil regulatory scheme contained in the SORA violates the due process of a trainee, even if the SORA requirements are not considered "punishment";
• Whether the requirements of SORA that were instituted after defendant's conviction amount to ex-post-facto punishment and are therefore unconstitutional; and finally,
• Whether lifetime SORA registration constitutes "cruel and unusual" punishment in violation of the Eighth Amendment to the Unites States Constitution.

With that many questions directed to be briefed, the ultimate opinion in this case will be an outright referendum on the constitutionality of the SORA. Such a referendum has been a long time in the making; the Michigan Supreme Court was patient in order to select its case wisely.

We will watch and monitor this case. Oral argument will occur yet this term, after the briefs have been filed; an opinion likely will be issued sometime in June, just prior to the conclusion of the High Court's term.

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #513

Attorney Alan Dershowtz via NYT

The above-the-fold story in last week's NYT Sunday Business section was about Alan Dershowitz. The famed criminal defense lawyer, former Harvard Law Professor, and author is going through some very difficult times in a situation directly related to his representation of a personal friend, plea-convicted of [reduced] sexual assault charges against a minor.

The plea called for the client, Jeffrey Epstein, to serve an 18-month prison sentence in Palm Beach, later commuted to just a year.  Due to his wealth and status, the deal, when it went down in 2006, was widely-seen as a wealthy Manhattan financier purchasing a miracle-result in the criminal justice system not available to the common man.

Ten-years ago, the allegations involved Epstein's exploits with paid underage escorts in his Palm Beach mansion. When the police came calling, Dershowitz says Epstein had to talk him into representing his one-time friend, not only due to the subject matter of the case, but also due to a lawyer's general reluctance to represent friends; by then, he had traveled the world with Epstein on a variety of business junkets.

For the defense, Dershowitz brought in Roy Black, Kenneth Starr and a few other heavy legal hitters; they went after the victim on the Internet and the prosecutor in the courtroom. Perhaps because of such aggressive lawyering, a plea deal was forged that some folks have never accepted.

Among those who have not accepted the Epstein plea deal is Virginia Roberts Giuffre, the 30-something blonde who, at age 17, was Epstein's former employee around the turn of the Century and, she says, his sex-slave. In a series of allegations in a federal civil law suit that challenges the Epstein plea agreement, Ms. Roberts claims Epstein passed her around to his friends for sex: friends like defense lawyer Alan Dershowitz and Prince Andrew, among others.

Roberts says she waited until last year to file the civil suit because she feared retribution from Epstein, with all his millions and all his powerful Manhattan connections.

Like Prince Andrew, Dershowitz is not a named defendant in the law suit and vehemently denies the veracity of Ms. Roberts' allegations. Dershowitz has filed a counter suit for defamation.

One complication for Dershowitz is that Ms. Roberts has now hired David Boies [of Bush v Gore fame] to prosecute her claims. First, Dershowitz claims that he spoke in detail about the case to a lawyer at Boies' firm for purposes of his own representation, so there is a conflict of interest for the firm. Next, Dershowitz testified in his deposition in October that Boies told him privately that he did not believe his own client's allegations and that his law firm would not have accepted the representation had they known she would name Dershowitz as a sexual perpetrator.

Boies claims he never said such a thing to Dershowitz or anyone else and that he remains committed to Roberts' civil cause of action; he filed responsive pleadings challenging Dershowitz's claims to the contrary. No word yet on how all that will end.

The point of all this is not to detail Alan Dershowitz's professional, and now personal, woes; many a lawyer has fallen from, or been knocked-off, their professional pedestal. Rather, the point of this tale is that taking on some clients have serious consequences.

When interviewed for the NYT Sunday Business section article, Dershowitz admits that he has had many second thoughts about the [purportedly large] fees he took to execute Epstein's defense in the paid escort assault case.

Every person accused of a crime, no matter how heinous, deserves a vigorous defense. Even setting aside whether the accused deserves a vigorous defense, the system depends on it.

When you are getting paid millions to defend someone accused of molesting underage girls, however, being a champion of the constitution will have some long-lasting consequences; just ask Dershowitz.

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #512

On Wednesday, I had an unusual professional experience: oral argument before the Michigan Supreme Court; a first in my 28-years of practice. The case, People v Robertson, was a simple one involving the "search and seizure" clause of the 4th Amendment to the United States Constitution.

Seven justices sit on our state's High Court. So when you appear before the Court, any one of those 7 justices can and do interrupt your argument to pose questions; questions to which you better have a good answer.

In nearly three decades of practicing law, both at a large Detroit law firm, and now a small firm in Clarkston, I have presented over 100 oral arguments to the Michigan Court of Appeals. When you appear at the Michigan Court of Appeals, you face a 3-judge panel.

Back at the turn of the Century the 280,000 square foot Michigan Hall of Justice was built using 14,000 limestone panels. The post-modern edifice, designed by Albert Khan Associates, houses both the Michigan Supreme Court, Court of Appeals, judicial offices and chambers, and some very impressive administrative offices.

It was a great experience to appear before our High Court. We now have to await the opinion [could be a month or two] to see whether our client prevailed, or whether the the Oakland County Prosecutor was successful in overturning Oakland County Circuit Judge Martha Anderson's decision to exclude damaging evidence in this drug possession and delivery case.

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #511

Since 2009, this law blog has tracked marriage equality and its attendant same-sex civil rights movement. This movement swept the nation, culminating in a pair of SCOTUS opinions -Obergefell [2015] and Windsor [2013].

As he has done in several past dissents, Justice Scalia puts forth a vehement opposition to same-sex marriage in Obergefell, and since writing his dissent in that case, has spoken formally, openly, and often. His message: there is no textual or historical basis for the majority's ruling that laws and government policies must be gender neutral.

Justice Scalia believes that the thread of same-sex marriage decisions is the most glaring example to date of the SCOTUS doing "whatever it wants". He seems most troubled by the fact that the marital equality decisions are contrary to the religious beliefs of a significant portion of the citizenry. Such decisions are for the elected legislators -not for an un-elected committee of lawyers wearing robes- according to Scalia.

In his recent public comments on the landmark SCOTUS decision, Scalia has radicalized himself, even among conservative legal scholars. Speaking before law students at Georgetown, he equated, perhaps sarcastically, child molesters to homosexuals. To be precise, Scalia said there is no principled basis on which to distinguish the two "minority" groups. The implication is that, like "homosexuals", child molesters will be the next group to seek protected status under the constitution.

Judge Richard Posner of the Seventh Circuit Court of Appeals in Chicago, one of the most cited jurists of the 20th Century, -and like Justice Scalia, a legal conservative- takes Scalia to task for his comments in a well-read NYT editorial. In the piece, Posner seems most concerned about Scalia's declaration that post-Obergefell, American democracy is dead.

Judge Posner is also troubled by Scalia's assertion that 9 un-elected lawyers, cloaked in robes, should not be the brain-trust behind such important matters as marital equality or any civil rights struggle for that matter. Judge Posner also uses Scalia's own logic against him, pointing out that Scalia does not hesitate to vote for invalidating state laws or legislation that contravene the First Amendment, or some of his pet federalism-related clauses of the U.S. Constitution.

Finally, Judge Posner takes Scalia's public commentary to its logical conclusion: the abandonment of proper judical review. Posner has a good point here; one of the primary roles of the SCOTUS, at least since the 1803 Marbury v Madison decision, is to conduct rigorous judicial review of the myriad pieces of legislation that the many many legislatures and legislators dream-up.

Over time, legislators of every stripe imaginable are elected into the legislatures of our country; some of whom have been bit with a special kind of fever. We here at the Law Blogger sleep better at night knowing that their work-product must withstand judicial review relative to the U.S. Constitution.

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #510

Common law is judge-made law; it is the jurisprudence of our various state and federal court systems. Over the past several years, the published decisions of the appellate courts have increasingly included hyperlinks to text related to the matter being decided in a case.

The SCOTUS has a staff of full-time scholars that pour over the text of our High Court's published decisions, looking for errors; either type errors or, increasingly, broken or dead hyperlinks to content that is no longer present on the Internet.

Obviously, not all court systems can afford to employ a staff of perpetual post-hoc fact-checkers. Thus, over time, an increasing number of links cited in case law become outdated, sending the reader to the wrong site, or to a dead web page; this is known in research parlance as "link rot" and in legal circles as, "reference rot".

A recent study conducted by the Harvard Law School found that over 70% of the hyperlinks contained in law reviews no longer link to the originally cited content; over 50% for links contained in SCOTUS decisions. That is some pretty serious "reference rot".

Another example is right here at this law blog. Since 2009, we frequently link our posts to the original slip opinions of the appellate courts. Here in Michigan, however, the Supreme Court revamped their web site in 2012, rendering all of our previous links dead; the cases were all assigned new hyperlinks in the revamped web site. Occasionally, we receive emails from someone trying to locate one of our cited cases on a dead link.

This is where archive.org and its Way Back Machine come into play. This web site is the archive for pages on the Internet. Since around 1996, the site takes snap shots of all the web pages on the internet.

Plugging our law firm's web site into the search bar reveals that since March 2009, archive.org has crawled our law firm's site over 50 times. Looking back at those early versions of the site makes us sick over here at the Law Blogger; what were we thinking!?

Big Data is coming into its own, and sites like archive.org with its Way Back Machine server will help to keep our published common law sound and intact. Over time, it will take on a sort-of "high-tech" version of our intellectual history.

As for the hyperlinks in published decisions of the common law, those need to be maintained.

www.clarkstonlegal.com
info@clarkstonlegal.com

Post #509