Wow, Planet Fitness really is the "no judgment zone".

In the early winter of 2015, in Midland, MI, two Planet Fitness customers wandered into the women's locker room. One was a woman; the other, a transgender individual -in this case, a man who identified as a woman.

The woman caught on to the fact that a man, albeit one that identified as a woman, was in her presence in the locker room. Neither party was in a state of undress, and no specific sexual or lewd conduct occurred.

She reported the individual to the store manager, claiming violation of her privacy. When Planet Fitness advised the woman of their policy to accommodate transgender customers, she became vocal about the situation, warning other female customers on several occasions.

Her membership was terminated by the corporation.

Eventually, she contacted a lawyer and filed a civil rights lawsuit under Michigan's Elliott-Larsen Civil Rights Act. The complaint alleged that the woman was subjected to sexual harassment by operation of the corporate policy allowing customers access to the locker room of their self-identified gender. She also claimed an invasion of privacy and a retaliatory membership termination.

The Midland County Circuit Court granted the company's motion for summary disposition, dismissing the case. The customer appealed and last week, the Michigan Court of Appeals affirmed the lower court decision to dismiss the case.

Holding that mere "opportunity" to be subjected to conduct of a sexual nature does not trigger the civil rights act, the Michigan Court of Appeals required a showing that the plaintiff actually experienced any conduct of a sexual nature. The Court held that the civil rights act requires that the sexual conduct substantially interferes with utilization of a public accommodation, such as the female locker room at your local Planet Fitness.

For his part, the lawyer for Plaintiff commented to Michigan Lawyers Weekly that the Court of Appeals got it wrong. According to Plaintiff, the mere presence of a man in the women's locker room creates a hostile environment under the civil rights act. When that situation is expressly endorsed by the establishment -the public accommodation- through its policy, then counsel believed his case should have survived summary disposition.

Over here at the Law Blogger, this case has given us something to think about. Perhaps the offended female customer will take the matter to the next level: the Michigan Supreme Court.

Post#597
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Recently, more than a few law firms -along with other small businesses- have been hit with ransomware and other forms of cyberattacks. Over the past few months, the WannaCrypt, WannaCry and other encryption-based ransomware have plagued businesses across Oakland County.

Ransomware is a form of malware that worms its way into a set of networked computers, corrupts or encrypts a set of files with a virus, then notifies the user of the attack, often demanding a payment. Lately, payment is demanded in Bitcoin, the anonymous block-chain cryptocurrency.

Even big law firms touting cybersecurity compliance and cyberattack damage control have been hacked. The lawyers at DLA Piper, for example, arrived to the firm on Monday of this week to discover they had been hit with the Petya or Petwrap virus. They were treated to the following message:

Nice. Great way to start the work week. At least payment is "guaranteed".

An even more ominous aspect to recent attacks involves evidence that hackers known as the Shadow Brokers have infiltrated the NSA, co-opted some of their most effective cyberweapons, and have unleashed them world-wide. Any cybersecurity expert will tell you that the best hackers in the world are employed at the NSA.

In New York City, the Shadow Brokers are now believed to be behind a recent ransomeware attack that was merely a smokescreen. The ransomeware feint was designed to distract the IT cybersecurity crew of the targeted business, while the virus secretly obtained employee credentials.

Once the hackers obtain mission-critical data from the business, it can disrupt and control the enterprise. Until that time, the virus operates undetected, even by the most advanced cybersecurity products.

One of the best defenses to this form of corruption is to diligently back-up your data: both off-site in the cloud, and on-site with a disk drive.

Hopefully, good will prevail over evil in this cyberbattle.

Post #596
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Yesterday, the Michigan House passed, by a 59/49 vote, a new gun law that demotes the once-required concealed pistol license to an optional certificate; a training and safety measure only.

The new law allows citizens to carry a concealed pistol without a license. No more worries for the "open carry" crowd, when a coat or a sweatshirt inadvertently covers the weapon, thereby creating felony exposure.

Lee Chatfield [R-Levering], who sponsored the legislation, asserted the basis of the legislation was that criminals were never bothered with following the gun permit laws anyway. According to its mostly Republican sponsors, the legislation is designed to provide law abiding citizens with the same rights and opportunities to bear concealed weapons.

Similarly, Jim Runestad [R-White Lake] said the new law repeals unnecessary criminal sanctions for when an overcoat covers the weapon of an arms-bearing individual. This was known as the "coat tax" among gun rights advocates.

Gun laws come and go. Even considering the Second Amendment, the manner in which one bears arms will always be regulated to a certain extent, with high criminal penalties for transgressions.

Just as the new law was passed in the state legislature, the Michigan Court of Appeals upheld a law that allows the University of Michigan to ban guns on all of its campuses. Ann Arbor has always been a league leader in blazing its own legal trail. Decriminalization of pot in the 1980s -at the height of the drug war- and the UM admission policies reviewed by the SCOTUS both come to mind.

The training involved in handling and storing a weapon safely is crucial to the process, especially when the overwhelming majority of gun owners are law-abiding citizens.

Post #595

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For some time now, members of Michigan's House of Representatives have proposed a sea change to the Child Custody Act. Last week, Representative Jim Runestad [R-White Lake] re-introduced a modified version of his seemingly perennial child custody and parenting bill.

The attempt, this time around, is known as HB 4691 and seeks to change the spirit as well as the label of Michigan's child custody law. Runestad's bill proposes a new title to the act: the shared parenting act.

In the spirit of this truly sea changing proposed legislation, Runestad seeks to introduce a presumption into the custody act: spending equal time with each parent is in the best interests of the child. A parent seeking to overcome this presumption would need to introduce "clear and convincing" evidence that such a parenting arrangement is not in the child's best interest.

Sounds simple and reasonable enough. Yet, whenever this bill gets re-introduced each session, it is usually met with firm resistance from the organized family bar.

The Oakland County Bar Association, for example, has published the following statement in opposition to the predecessor bill to this term's attempt:

Mandatory equal physical custody would make the best interest of the child factors irrelevant and treat all families exactly the same.  It would require that both parents live in the same school district or travel distances for schooling, require the children to move frequently from house to house regardless of the child’s preference and allow any parent, including convicted felons, to demand equal parenting time. Requiring a standard of ‘unfitness’ to be found by ‘clear and convincing evidence’ directly contradicts nearly all other provisions of the Child Custody Act.  This bill again attempts to remedy a perceived problem which, in fact, does not exist.  The current custody statute(s) and subsequent case law clearly permits a court to determine when it is in the best interest of a child that joint custody, or equal parenting time, be ordered.

This bill focuses on the needs of the parent instead of the needs of the children. 

The opponents and proponents of the bill will likely be heard over the next few months while the bill is debated in the state house's judiciary committee. In recent hearings conducted in May, Wayne County Judge Richard Halloran, the current chair of the state bar's family law section, testified in opposition to the bill. Judge Halloran, like many other family court professionals, is concerned about the effect the new law will have on the ability to address the intersection of child custody and domestic violence.

Representative Runestad, however, is now the chair of the Judiciary Committee. Perhaps because of this, many family law professionals have the sense that the proposed legislation has traction this time around and could become the new custody and parenting law of the state at some point during this legislative session.

Details are always devilish. The bill also constructs a wholesale replacement of the 11 statutory custody factors -long-used by judges- with a new set of factors for the family court to consider. These new factors, according to the bill's sponsors, are designed to ensure a child's meaningful relationship with both parents.

Our good friend and appellate lawyer, Scott Bassett, a lawyer's lawyer if there ever was one, openly wonders on the state bar's family law listserve why the legislature would jettison nearly 75-years of appellate court custody jurisprudence that has developed and honed the child custody act. Darn good question if you were to ask us over here at the Law Blogger.

Some of our more jaded colleagues have stated to this blogger that the bill does nothing to eliminate custody battles; it simply changes the look of the battlefield. Also, opponents say, it puts the parent's litigation agenda over the child's genuine needs and interests.

We will monitor the bill's progress and let our readers know what happens next. Meanwhile, we invite you to post your comments on this hot family law topic. 

Post script: meetings scheduled for Thursday, June 15, were postponed yesterday.

Update: 06/21/2017 - Runestad's bill passed the judiciary committee -no surprise there- and proceeds to the plenary house for further discussion after the recess. 

Post #594

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