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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Tuesday, February 28, 2017

International Divorce

As the mobility of our population increases while the divorce rate creeps ever-higher, cases involving more than one country or more than one set of laws are becoming common.

Over the years our law firm has represented clients with connections to other countries. International divorces can become complicated, especially when there are minor children.

One such complication is the Hague Abduction Convention, a multi-lateral treaty in which the signatories agree not to allow parents to migrate with their minor children to non-signatory countries. Many countries, however, have not signed the treaty such as Pakistan, India, Egypt and Nigeria to name a few.

Other countries, such as Brazil, although signatory countries, have been determined by the U.S. State Department to be non-compliant, making the return of children very difficult in some cases.

When an international couple divorces, heartbreak can result. One parent typically returns to the country of his nationality or citizenship, sometimes with the children. When the couple divorces, the other parent, depending on the laws of the country, may not be allowed to stay in the country. The expatriated spouse may then be forced to leave the country without her children and with no viable manner of returning for the children.

In one case handled by our law firm, the Mother took a minor child with her on a "vacation" to her homeland, Egypt, a non-signatory country. When the vacation turned into 9-months, Father sent one of his adult sons to collect the boy.

The Mother moved to Egypt and the couple ultimately divorced. The family court judge ruled that Mother could not have custody of the couple's remaining minor child due to her residence in a non-signatory country. She has appealed the judge and we are awaiting the results from the Michigan Court of Appeals.

Another complication is that some wealthy families conduct forum shopping when an international couple calls it quits in a divorce. In such cases, the applicable law acquires critical importance in the determination of the property division.

Some countries have laws that recognize pre-marital assets and pre-nuptial agreements while others do not. The situation is similar to the laws of each of our 50-states. Texas, for example, has very restrictive alimony laws.

If you or a family member are involved in an international divorce, schedule a free consultation with our law firm to thoroughly discuss your options.

Post #581

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Wednesday, February 22, 2017

Oakland County Marijuana Dispensaries Beware

Ever since Michigan passed the medical marijuana act back in 2008, any lawyer truly in the loop of the new law would advice clients that pot dispensaries are illegal. Different county prosecutors handled the new and innovative law in different ways.

The medical marijuana law in Michigan was based on the model adopted in other states and features a small grow operation through limits on the number of plants that can legally be produced. This law, as enacted, however, does not provide for the sale of marijuana or for any large scale operation whatsoever.

This did not stop pot farmers from progressing into massive grow operations. Likewise, dispensary owners openly displayed their wares in stripmall storefronts, mistakenly believing they had cover under the new law.

In some counties, there appeared to be an "out-of-sight-out-of-mind" approach, while other county sheriffs raided and broke-up dispensaries and grow operations. Oakland County has taken a more hands-on approach, raiding dispensaries and recommending prosecution for the operators.

Last September, the Michigan legislature blew the lid off with a new series of laws that creates a complex licensing scheme to grow, test, transport and distribute medical marijuana. The state begins taking applications for those licenses in December.

Until then, the Oakland County Sheriff has warned many of the operating dispensaries to close down or risk raids, seizure and prosecution. Notices have been posted on the doors of many of the most infamous and the largest of the dispensaries and grow operations.

When the licensing takes effect, those that successfully apply for and are granted a license or licenses, will be in the good graces of the law; those that do not have licenses will be illegal and an easy mark for prosecution.

Currently, those that have the expertise to grow a quality product are gearing up to obtain a grow license, while other entrepreneurs will apply for the dispensary license. Get ready for the state regulations to follow; this is going to be a heavily regulated industry to be sure.

At present, there is a small window of opportunity to get in on the ground floor of a booming industry. This opportunity is unique as marijuana is decriminalized throughout the country.

If you have an interest in obtaining a Michigan grow license or a dispensary license, contact our law firm to discuss your options. We offer a free initial consultation.

Post #580

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Friday, February 10, 2017

Ninth Circuit Limits Chief Executive's Powers on Immigration

In the State of Washington vs President Donald J. Trump, the Chief Executive's power to legislate via executive order has been successfully challenged through two levels of federal court proceedings. The Ninth Circuit Court of Appeals upheld a federal district court judge's temporary stay of the executive order.

The President, vowing to take the dispute to the SCOTUS, tweeted: "SEE YOU IN COURT. THE SECURITY OF OUR NATION IS AT STAKE." Two Democratic appointees and one Republican appointee made-up the Ninth Circuit panel that decided the case.

The at-issue executive order, titled Protecting the Nation for Foreign Terrorist Entry in the United States, imposed a 90-day ban on individuals entering the country from 7 Muslim-majority countries. The appeals court based its decision on the federal government's failure to show a likelihood of success on the merits of the case, as well as a failure to demonstrate how the country would be irreparably harmed by a stay of the new executive immigration policy.

Citing the 9/11 terrorist attacks, the government's argument focused on deteriorating conditions in the target countries due to war, strife and civil unrest, claiming that foreign-born malfeasors have been implicated in subsequent terrorist plans. Due to the speed with which these claims have been put through the courts, the Ninth Circuit admitted it had very little facts on which to make their ruling.

Ultimately, the Ninth Circuit's 29-page decision concluded that the executive order did not provide what the 5th Amendment's Due Process clause requires. The due process elements found lacking are a hearing and notice that the affected individual's right to travel was suspended. The legal analysis of the Ninth Circuit, however, fails to distinguish green-card holders [a group that does have a set of Due Process rights] from visa holders, visa applicants, and refugees [groups that have lessened rights to Due Process].

One of the chief political issues addressed by the appellate court is the executive order's effect on the refugee program, particularly from Syria. Washington State alleged, from a legal perspective, that it was suffering ongoing economic harm due to the detention of university professors and students, key tech industry executives, and other important business people; all foreigners.

Curiously, the decision does not even mention the applicable federal law that grants POTUS broad powers, on national security grounds, to regulate who gets to come into the United States:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
If the panel's decision is the subject of an en banc review [i.e. further review by the entire bench of the Ninth Circuit] or by the SCOTUS, this failure to properly analyze the law could result in a reversal.

Also, rather than bringing the case at the state level, the constitutional "standing" requirement calls for a particularized injury. Thus, bringing the cases of individuals actually affected by the executive order travel restrictions may have been the better approach. This approach was scrapped in order to get the suits filed instantaneously.

Today, U.S. Department of Justice lawyers are preparing a petition for writ of certiorari to the United States Supreme Court. What normally takes years, will unfold in a matter of weeks, if the SCOTUS agrees to take the case.

If the petition for cert is granted, the Court may hear the case without its 9th justice; presumably Judge Gorsuch, if he is confirmed by the Senate. If the petition is denied, then the Ninth Circuit's decision becomes the law of the land.

This case is an important illustration of the checks and balances set out in the United States Constitution. Executive power, which ebbs and flows from decade to decade, has its limits.

Here at this blog, while we recognize the state's strong interest in the robust screening of foreign applicants for entry into the United States, there certainly is a downside to unchecked executive power. When the Chief Executive deigns to rule via executive order, and the orders that overreach are not immediately challenged, either by Congress or in the federal courts, then one executive order becomes a dozen, then a hundred. Before we know it, our civil liberties are eroded, not just those of foreigners.

Federal lawsuits, on the other hand, especially those that challenge the scope of the executive's powers, must properly articulate an injury-in-fact; not just attenuated claims of injury absorbed by a few states.

Post #579

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