Now that the dust has settled on the marital equality struggle in favor of same-sex marriage, the frontier of civil rights litigation has been usurped by transgender individuals. Last May, an unusual civil rights law suit was filed against the Michigan Secretary of State in federal court by a group of transgender individuals regarding the proper gender assignment of their drivers' licenses.

According to the Plaintiffs in Emani Love vs Ruth Johnson, the problem arises when, following gender re-assignment surgery, they seek to change their official gender on their drivers licenses. In most cases, the process is difficult if not impossible, leading to embarrassment, invasion of their privacy, and other damages according to the plaintiffs.

These civil rights plaintiffs claim they are forced to rely on state-issued identification that does not conform to their new reality, or to their physical appearance. This "outs" these individuals to strangers and, they say, places them at great risk of harm every time they produce their identification.

Like in the martial equality debate, the Michigan Attorney General has defended the state policy, recently filing a motion to dismiss the case. The AG argued that the allegations set forth in the complaint, even if true, failed to set forth claims of constitutional dimension.

In November, however, federal judge Nancy Edmunds denied the AG's motion, concluding that a valid privacy claim was lodged. Judge Edmonds' 15-page opinion and order cited to the American Psychological Association's definition of the term:

transgender is an umbrella term for persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth.

The state's policy regarding changing the gender on one's drivers' license or state identification card is for the individual to provide a birth certificate showing the gender; a passport is specifically excluded and the policy is clear that a birth certificate is the only document that controls the gender field.

Whether an individual can change their birth certificate to reflect their gender reassignment depends on where they were born. In Michigan, the state will amend a birth certificate reflecting a new and different gender if they undergo gender reassignment surgery.

In some states, however, this option is not available as amended birth certificates simply are not issued, even in cases of gender re-assignment surgery. Judge Edmonds noted that this policy creates different sub-classes of individuals depending on where they were born.

In their complaint, plaintiffs cited to statistics of the high-rate of hate crimes directed at transgender individuals in support of their claim that they suffer real harm based on the state policy. The Attorney General claimed that such harm was pure speculation.

Some of the claimed harm was not speculative. The complaint details how one of the plaintiffs, now living as a man, had the bar tender repeatedly address him as "ma'am" after inspecting his drivers license; another plaintiff had a grocery store clerk proclaim, "that's not you" when she was attempting to get through a crowded check out lane.

The federal government only requires a person to supply a physician certificate that the individual has undergone appropriate clinical counseling about gender re-assignment in order to change the gender of their passport. Also, 25 states and the District of Columbia do not require gender re-assignment surgery in order to change the gender filed of their drivers license or state identification card.

In keeping the case alive, Judge Edmonds rejected the AG's logic. So now the matter proceeds to a bench trial; no jury demand was filed.

We will keep you posted on this interesting case.

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Post #520

Like here in the West, the once-solid traditional concept of family and the institution of marriage has been placed under great stress in China; a country where, for centuries, marriage was universal and mostly permanent.

Social trends affecting the family have been directly engineered by the modern communist state in China [like the one-child policy] as well as indirectly [as in the massive urbanization push of the past five years]. Add Internet access for over a billion people and, watch the infidelity rate, along with the divorce rate, increase significantly.

Until 1994, the Chinese divorce petitioner was required to produce an employer's or community leader's endorsement before a decree would issue. Community leader translates as: the local apparatchik.

In modern China, the lid is now blown-off the divorce process. Today, if husband and wife agree, it is nothing more than a brief administrative detention.

Divorce is handled in China at the district government bureau level. Some cases only take a half hour at the dingy bureau offices and cost the equivalent of a buck and a half. Yes, that's one dollar and fifty cents.

No lawyers, of course. Property has always meant something different in communist China; property is always handled by the government in China. When it comes to divorce, China's separate property laws favor men who more often take advantage of property gifted to them by their parents, even during the marriage; such property remains the husband's separate estate under Chinese divorce laws.

America has the highest divorce rate among developed Western countries; China's divorce rate is fast-approaching ours, with 3.6 million million Chinese couples calling it quits in 2014.

The Chinese government's internal migration effort has been characterized as the largest and most profound in human history. This massive displacement has put a lethal amount of stress on millions upon millions of marriages in modern China.

Another factor related to China's increasing divorce rate is the effect of the Internet and social media on women's awareness of their rights in a divorce; not ever a topic for consideration in Mao's era and through the 1980s. Today, women initiate over half of all Chinese divorce filings.

Let's not forget, however, that China still has a component of its population adhering to Confucian-style family values and the multi-generational family structure. Divorce and separation are seen by the more mature generations as a moral failure, often caused, at least in part, by creeping Western influences.

For the young and recently urbanized, infidelity is a new-found freedom and [possibly arranged] marriages are left behind, along with their parents' village. Another factor to consider within the urbanization context is that men still cannot legally marry in China until age 22, the oldest such restriction on the planet.

So the immediate outlook is that China, along with the United States, will lead the world in the rate of divorce. This is probably not a good thing; it is a seemingly inescapable fact of life in the developed world.

Post Scripts: Apparently, we are not the only ones thinking about this topic; take a look at Helen Gao's article in the Sunday NYT from October 16, 2016. And another on the topic courtesy of The Economist from November 30, 2016.

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Post #519

Clarkston Judge Joe Fabrizio

Earlier this month, everyone took note of the Powerball lottery, especially when the prize eclipsed a billion dollars. Easy money if you are the lucky winner.

With all that going on, the latest case to catch our eye here at the Law Blogger is the local story of Michael LaJoice, a former CFO for the Clarkston-Brandon Credit Union and owner of the Chasse Ballroom. Rather than wait for a winning lottery ticket that may never come, Lajoice allegedly devised a plan to siphon huge amounts of cash from the credit union just up the road from our law firm.

In early January, Mr. LaJoice turned himself in to the Oakland County Sheriff's Department after an audit revealed inconsistencies in his accounting. Current criminal charges pending in Oakland County allege 14 felony counts that LaJoice embezzled over $100,000, which is a statutory threshold; the actual number could be well-over $30 million.

The case began right next door to our law office in Clarkston's 52-2nd District Court; Judge Joseph Fabrizio is presiding over the preliminary proceedings.

LaJoice is well-known in our neighborhood for his ownership and operation of the Chasse Ballroom and Latin Dance in Fenton, as well as LaJoice Properties, LLC. LaJoice purchased a lot for $1.2 million in downtown Fenton last June. Development of a new state-of-the-art dance studio on this lot was slated to begin in February, but we aren't holding our breath.

The popular Chasse Ballroom is now closed for business, with a sign on the door apologizing for the inconvenience. There is no word yet as to when LaJoice's business will reopen and the ubiquitous Chasse Ballroom billboards, TV commercials, and radio spots have all but disappeared.

Defending embezzlement cases requires a skilled attorney experienced in handling the volume of evidence generated by electronically transferring funds from multiple accounts. LaJoice is represented by our friend, Michael Manley, a prominent Genesee County defense attorney.

Manley has requested a competency exam for his client on the basis of LaJoice's emotional state combined with the magnitude of the alleged amount embezzled. If Manley convinces Clarkston Judge Joe Fabrizio that his client may be incompetent to stand trial, the court will order a forensic examination to aid in making a determination of LaJoice's mental competency.

Competency and sanity are two different things in the Michigan criminal justice system. The competency examination would determine whether LaJoice has a rational and factual understanding of the proceedings against him and whether he is able to rationally consult with his lawyer to assist in his defense. He will also likely be evaluated for criminal responsibility.

If the exam leads Judge Fabrizio to conclude that LaJoice is incompetent to stand trial [not likely in our opinion], the court then must determine whether there is a substantial possibility that he will become competent within the next 15-months. If that possibility exists, the court will order that LaJoice get the treatment necessary to become competent to stand trial.

If Manley's motion is granted, expect a lengthy delay in the case while LaJoice undergoes a detailed psychological examination. The Center for Forensic Psychiatry is not known for moving quickly, nor should it, given the important role its evaluations play in our legal system.

The amount of money allegedly embezzled in this case is staggering. Usually, such illegal gains come to light eventually, as in this case. With hindsight, LaJoice would have been better-off purchasing Powerball tickets, but then, of course, he would not have been the toast of the town over the past decade.

We here at the Law Blogger can’t help but wonder whether he now thinks it was worth it. What a colossal mess!

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Post #518

In many of the divorce cases our law firm handles, medical records and their attendant privilege factor into the proceedings. These records are protected by federal law: the Health Insurance Portability and Accountability Act, colloquially known as HIPAA.

Many patients, however, face barriers when seeking their medical records. Some doctors, for example, have an outlook that medical records are solely for physician-to-physician communication and that patients will not understand their records anyway.

The legislative rationale behind HIPAA is to inform patients about their own health care in order to aid them in being proactive about their health-related decisions, to correct errors, and to enable them to take action. In theory, this provides patients with more control over their own healthcare.

Patients complain that they are forced to make repeated requests for their records; they are assessed a significant fee for duplication; that the records must be picked-up in person from the doctor's office; and the request is denied until fees and insurance coverage issues are sorted out.

New federal regulations promulgated by the U.S. Department of Health and Human Services remove these barriers to accessing one's own health records. Under the guidelines, records cannot be denied because a medical bill is outstanding and the records must be emailed or mailed upon request. While the cost duplication can still be assessed, the physician cannot charge for searching and data retrieval; a common fees assessed by doctors.

Under HIPAA, a patient's request for medical records must be fulfilled within 30-days, with a 30-day extension option. This timing is important, especially when a patient is facing an acute medical condition or disease and needs their medical data to obtain a second opinion or to fully assess a treatment plan with a new specialist.

In the case of medical records, knowledge truly is power.

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Post #517

In 2015, public outcry erupted on the issue of district judges jailing convicted defendants who could not pay their fines; the outcry was first manifest in Eastpointe, then throughout the district courts across the state. We emphasize that could not pay is distinct from did not pay.

38th District Judge Carl Gerds III of Eastpointe attracted headlines last summer, building a reputation for jailing folks convicted of minor offenses when they failed to pay their court-imposed fines. In doing so, he also attracted the attention of the ACLU who filed a complaint for superintending control against Gerds in the Macomb Circuit Court to put a stop to the practice.

The ACLU cited an example where a single mother who violated an ordinance by failing to obtain a dog license allegedly was warned by Judge Gerds that she would face a jail term if she did not pay the $435 fine by her sentencing hearing. The applicable court rule requires convicted misdemeanants and ordinance violators to pay the fines imposed at the time of sentencing, unless good cause is demonstrated.

In Judge Gerds' courtroom, however, a sign reads: "FINES AND COSTS ARE DUE AT SENTENCING: NO PAYMENT PLANS."  It was the "no payment plans" part of the sign that is troublesome. The law suit, assigned to Macomb Circuit Judge Maceroni, is scheduled for a review next week.

Meanwhile, the Michigan Supreme Court has proposed a rule change that would prohibit the incarceration of a person for failure to pay fines and costs unless the person, upon examination, is found to have the means to pay without manifest hardship but has not made a good-faith effort to comply with the court's order.  The proposed rule change directs a court to consider the following factors to determine a manifest hardship:

• the defendant's employment status and history; 
• the defendant's ability to be employed and to earn a wage;
• the willfulness of a defendant's failure to pay; 
• the defendant's financial resources; and
• the defendant's living expenses, including food, clothing, shelter, and child support obligations.

In addition to these factors, Hazel Park District Judge Charles Goedert has suggested that the willfulness determination take into account a defendant's prior track record of failures to appear and failures to pay fines. He also suggests the liberal judicial use of community service to defray the fines when a defendant does not have an ability to pay.

In the background of all this is the sometimes not-so-subtle pressure district judges are under to collect the imposed fines. The operating budget of the court depends on revenues generated from those fines and costs.

We have seen that in communities like Pontiac and Detroit, where a high percentage of violators never pay their fines and costs, the local district courts go broke. Vigilance from the bench relative to the collection of fines is one thing; but incarceration of a defendant that lacks any ability to pay constitutes a debtor's prison.

Incarceration for the inability to pay fines and costs was proscribed by the United States Supreme Court in the 1983 case of Bearden v Georgia. The SCOTUS analysis from that case gives us the "ability to pay" and "willful" refusal to pay concepts that are embedded in the Michigan Court Rules.

We here at the Law Blogger will monitor the plight of Judge Gerds and track the proposed change to the fines and cost court rule. After all, if you are broke, it would be good to know what your options are going into court.

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Post #516

Lawyer Todd Levitt

Last year, we followed the exploits of former Oakland County lawyer Todd Levitt as he battled some really bad press generated by a CMU student who parodied Levitt's Twitter account. Levitt sued the student for defamation; that law suit was dismissed generating some press coverage in the local Morning Sun newspaper.

With his first suit dismissed, Levitt sued again, this time naming the Morning Sun, the reporter covering the story, and other individuals as defendants claiming defamation, false light, civil conspiracy, invasion of his privacy, and other torts; he is seeking a million dollars for each count of his lawsuit. When the newspaper tried to get the case dismissed, the Isabella County Circuit Court said, "no" last month and scheduled the matter for trial.

The Morning Sun has appealed the ruling, but the case is not stayed during the interlocutory appeal and could go to trial this spring.

The issue decided against the newspaper hinges on whether their reporting on Levitt, and an award that he allegedly created -Top College Lawyer- and bestowed on himself, was materially false, or whether the "gist" or "sting" of their report was true. When it reported on this mess, the Morning Sun headline read: "Mt. Pleasant Lawyer suing student admits to fake award, marijuana tweets".

The trial judge concluded that the headline had a significant sting for the lawyer and that he made no such admission; it was the CMU student that Levitt was suing who alleged, apparently in a court proceeding, that Levitt's award was "fake". Also, the trial judge rejected the newspaper's attempt to characterize Levitt as a "public figure", which would significantly increase the defamation plaintiff's burden of proof in presenting his case to a jury.

To establish a claim for defamation, Mr. Levitt must prove by a preponderance of the evidence that:

• defendants made a false or defamatory statement about him;
• defendants published the statement to a third party but did not have a privilege to do so;
• defendants are at fault to at least the degree of negligence in making the statement;
• the statement has a "sting" or a tendency to harm Levitt's reputation.

These court rulings made so far in the case bode well for Mr. Levitt, which we find refreshing over here at the Law Blogger. Defamation is a difficult tort to prove.

Now, unless the newspaper and the other defendants want to have the merits of their conduct tested through a jury trial, a settlement is the only other way out.  We will continue to monitor the case and post the result.

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Post #515