Not a gang, just family.

The good news from Cincinnati is that Juggalos are not gang members. Whew; now I can get a good night sleep.

Juggalos are followers of the Farmington Hills-originated rap duo, Insane Clown Posse. Think: hard-core, off-color drug-addled rap version of Jimmy Buffet's "parrotheads".

The band and its followers are making headlines again from a lawsuit that is grinding along in the federal court system. A small group of Juggalos appealed the dismissal of their federal civil rights lawsuit and the United States Sixth Circuit Court of Appeals reversed the dismissal and remanded the case back to Detroit for further proceedings.

The beef arose in 2011 when a much-publicized FBI report characterized Juggalos as a loosely-organized hybrid gang; whatever that means. The Sixth Circuit's opinion states that, "Juggalos are easily spotted because they display, on person or property, insignia representative of the band."  [Yes, in fact, they do  r-e-p-r-e-s-e-n-t, and the "insignia" most commonly displayed is a crazy man running with a hatchet, pictured above.]

The rap group's devotees cried foul in the wake of the FBI report, claiming their civil liberties were impinged through such heavy-handed law enforcement tactics. Juggalos are not a gang, they proclaim, just one big happy sloppy family.

The Sixth Circuit's opinion details the specific transgressions claimed by each of the six plaintiffs, two of whom claim their ICP-themed tattoos caused them grief with the U.S. Army because of their perceived association with a gang on the "government gang list."  Accordingly, plaintiffs claim violations to their First and Fifth Amendment rights under the United States Constitution.

In reversing the federal court in Detroit, the Sixth Circuit held that Juggalos did have proper standing to sue in the federal court under the Administrative Procedure Act and the Declaratory Judgment Act. The appellate ruling, however, also directed the lower court to now consider the governments claim-based motion to dismiss the case.

So this litigation will be around for awhile. If you are a Juggalo, it certainly does not hurt to have Michigan's largest law firm, Miller Canfield, representing your interests along with the ACLU.

Nevertheless, Juggalos beware. This was merely a [small] procedural victory. For his part, the local cop on the beat will always view you a part of a crime gang.

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Justice Anthony Kennedy

Earlier this week, the Supreme Court heard oral argument on a landmark case that had consolidated a group of same-sex marriage cases from the Sixth Circuit Court of Appeals. The decision in the Sixth Circuit -encompassing the states of Michigan, Ohio, Kentucky and Tennessee- upheld state laws banning same-sex marriages.

In all the states in the Sixth Circuit, and in nearly all the other states in the Union, these state law bans have been challenged by well-organized and often well-funded same-sex litigants. The Sixth Circuit case upholding the state law bans was unusual to the extent that it was the first federal circuit court of appeals to rule this way; all the other federal circuits that considered the issue struck down the state law bans against same-sex marriage as unconstitutional.

This is exactly the type of case that is accepted by the United States Supreme Court. Now that the High Court has heard oral argument in the case on Tuesday, following the submission of nearly 100 briefs, that august body is actively considering how to decide the matter.

There has been and will be much legal analysis forthcoming on this case. Most of the speculation focuses on whether the Supreme Court will issue a sweeping constitutional ruling like it did in the 1967 Loving v Virginia case [invalidating state laws that prohibited interracial marriage].  Some legal scholars predict the Court will find a fundamental constitutional right to marriage.

If so, all state laws prohibiting same-sex marriage will be voided. The High Court, in granting certiorari in the 6th Circuit cases, gave itself a compromise exit. It certified a second issue: the question as to whether states are required to recognize valid same-sex marriages from other states.

Thus, even if the Court does not find a fundamental right to marry, it can still require states to recognize valid marriages from other states. For example, although Michigan's law against same-sex marriage would remain on the books as a valid state law, a same-sex couple that was married in Massachusetts could move to Michigan as a married couple and their marriage would be legally recognized here in Michigan.

Of course, there is also the possibility that the Court rules against marriage equality on both issues, leaving the matter to be determined by the states through their respective legislatures and referenda. Depending on how Justice Anthony Kennedy [the so-called swing vote] sees the case, this is a real possibility.

The SCOTUS is expected to issue their decision in late June, probably just before they close their session for the summer. Then we, as a society, will know whether we are free to select our marriage partners for ourselves, or whether the government will tell us who to select.

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Last June, I was preparing for oral argument in a wrongful death case before a panel of the United States Sixth Circuit Court of Appeals in Cincinnati, Ohio.  In that file preparation, we learned that one of the judges on our panel, Jeffrey S. Sutton, a George Bush appointee, was the former law clerk to SCOTUS Justice Antonin Scalia; it does not get more conservative than that.

Judge Sutton was the presiding judge in the DeBoer case and authored the 64-page, 2-1 appellate opinion; his analysis was consistent with his conservative judicial philosophy.  As is now widely known and reported, the Sixth Circuit reversed U.S. District Judge Bernard Friedman's opinion and order from last year invalidating Michigan's ban on same-sex marriage and adoption on constitutional grounds.

As is often the case in federal appeals, the DeBoer case was combined with several others, from other states in the 6th Circuit: Ohio, Kentucky and Tennessee.  The portion of the caption in this case, listing the myriad attorneys glomming onto the file, goes on for 3 and 1/2 pages; it's getting ridiculous.

We predicted that attorneys in the DeBoer case and its companion cases would act quickly and yesterday, petitions were filed for certiorari in the case with the United States Supreme Court.  We here at this blog were pleased to see one of our guest bloggers, Wayne State Law Professor Robert Sedler, to be listed among the corps of esteemed legal counsel of record in the case.

The sole and simple issue raised on appeal is whether state denial of the same-sex right to marry [and adopt children] comports with our federal constitution.  In the petition, DeBoer asserts that hers is the ideal case because:

• there was a 9-day trial with a fully-developed record [actually, it was more like a battle-of-the-experts, as so many high-profile case are these days]; 
• unlike other states where the state attorney general declined further challenge after losing in federal court, or at the intermediate appellate stage, the Michigan Attorney General has vowed to carry on the fight to the SCOTUS; and 
• the Sixth is the first federal circuit to uphold a state law ban on same-sex marriage giving rise to a conflict among the federal circuits for the first time; something that SCOTUS looks for when assessing the hundreds of petitions for certiorari.

Assuming the SCOTUS is of a mindset to address this civil rights issue with this round of cases, and assuming that the various state actors submit their filings by mid-January, the DeBoer case could well be argued this term.

Oral arguments at some point in April will leave the High Court in a position to issue a decision in the case by the end of the term in June.

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In what legal scholars are hailing as a surprising ruling, [we were surprised here at this blog] the United States Sixth Circuit Court of Appeals upheld the state constitutional ban in Michigan on same-sex marriages and adoptions.  In doing so, the Sixth Circuit broke away from the other federal circuits to decide the issue.  These state bans have been held unconstitutional in the 4th, 7th, and 10th Circuits.

The case we are talking about here in Michigan is, of course, the Deboer case.  The ruling from Cincinnati, also encompassed state ban cases pending in Ohio, Tennessee, and Kentucky; this ruling will make the same-sex civil rights issue more attractive to the SCOTUS, no doubt.  On that note, Lyle Denniston of SCOTUSBlog, lays out three distinct procedural options that lawyers for the Deboers and the other litigants in the cases pending in the other Sixth Circuit states are analyzing as this post is being composed.

The Sixth Circuit held that states are able to determine what rules govern the institution of marriage.  One consequence of the ruling is that 100s of couples remain in legal limbo that were legally married in Michigan during the brief period between when federal judge Bernard Friedman struck the state law ban, and when the ruling was stayed on appeal.

Michigan Attorney General Bill Schuette stated briefly that he believes and has repeatedly stated that the issue will be ultimately decided by the SCOTUS sooner rather than later; that is as it should be.  Those of us in the legal industry, especially appellate watchers like Mr. Denniston, anticipate swift filings on behalf of the lawyers involved in the cases.

Last month, presumably because there was unanimity among the circuits, SCOTUS took a pass on the issue. Because of this ruling, new filings could hit the High Court by the end of the month.

We predicted wrong in one of our earlier posts; we predicted the Sixth Circuit would uphold the lower courts as the appellate courts have done in Virginia, Indiana, Wisconsin, Utah and Oklahoma throughout the federal circuits; and with more cases in the pipeline.

We here at the Law Blogger agree with Attorney General Schuette that resolution of these civil rights issues needs SCOTUS attention, and the sooner the better.

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The DeBoer same sex marriage and adoption case made big news in Michigan last spring when, following a bench trial, federal judge Bernard Friedman invalidated Michigan's ban against same-sex marriages.  The Michigan Attorney General filed an appeal to the United States Sixth Circuit Court of Appeals and had the ruling stayed, almost immediately.

A series of 6 cases from each of the states within the geography of the Sixth Circuit were argued on the same day before a 3-judge panel to determine whether banning same-sex marriage is constitutional.  Interestingly, and as a matter of legal convenience, Michigan, Ohio, Kentucky, and Tennessee each have a state constitutional provision banning same-sex marriage.

The cases have pitted states rights and conservative groups against those that believe the right to marry is a fundamental right under the United States Constitution.

According to news reports from those present at the nearly 4-hour session, the judges wore their politics on their robes.  Judge Martha Craig Daughtrey, a Clinton appointee, seemed to favor the gay marriage advocates, while Bush appointee Judge Deborah Cook sparred with her left-leaning colleague.  As is often the case with 3-judge panels, one jurist stays poker-faced; this time, it was Bush appointee, Judge Jeffery Sutton.

Since the SCOTUS decision in United States v Windsor, nearly every state's federal court system has cultivated a same-sex marriage case, usually challenging the constitutionality of a state law that bans or limits the rights of same-sex couples.  Many of these cases are now on appeal in the federal Circuits.

A common legal thread to the cases is whether the so-called "heightened scrutiny" should be brought to bear on a statutory classification based on sexual orientation or preference under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.  The Supreme Court left this question open in its seminal Windsor decision.

This blogger was down in Cincinnati in June arguing a civil rights appeal, I have yet to receive a decision on my case.  So it could be the end of the year before we hear how the Sixth Circuit is going to decide the matter.

It looks to us over here at the Law Blogger that the SCOTUS will have to grant certiorari on one or more of these cases percolating up through the appellate courts.

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Former Judge Wade McCree, Jr.

Generally, judges have broad immunity relative to their decisions from the bench.  Judges cannot be sued and held liable for how they decide a case.  Such sweeping immunity is necessary to maintain a fair and impartial judiciary.

This week, the concept of judicial immunity is being put to the test in various courts.  One case involves a disgraced Wayne County trial court judge; the other involves a sitting Michigan Supreme Court Justice.

There are two types of decisions to which judicial immunity applies: decisions in a case on the judge's docket, and administrative decisions made "off the bench", such as hiring or firing personnel.  The former is protected by judicial immunity while the latter is not.

An illustration of judicial immunity is playing out in the civil lawsuit against former Wayne Circuit Judge Wade McCree; he had an affair with a woman who had a custody case in his court and the father is now suing McCree.  The now-disgraced [and married] judge had the bad judgment to preside over the case, when he was secretly involved with the mother of the minor child; the entire family was subject to McCree's jurisdiction in the case.

The case against McCree was tossed out of federal court and appealed to the Sixth Circuit Court of Appeals which held that, although reprehensible, Judge McCree's conduct nevertheless fell within the scope of judicial immunity.  How far is too far then, if having sex with a litigant in your chambers is still protected?

Although Michigan has no case on record where a judge is held liable for his decision or conduct while on the bench, Tennessee has a rare example of a juvenile court judge held liable for violating the civil rights of three women by sexually assaulting them under the threat that he would take away their children if they did not comply with his demands.  So there you have it; having consensual sex is not sufficient to attach civil liability to the judge, but sexual assault may get a plaintiff some money damages.

Not all of a judge's decisions involve litigants on their docket.  In the case of Michigan Supreme Court Chief Justice Robert P. Young, Jr., the former administrator of the Michigan Attorney Grievance Commission is suing him in the Wayne County Circuit Court for an allegedly wrongful and retaliatory firing.  The former AGC administrator, Robert Agacinski, reported a series of bizarre staffer emails he discovered to the Attorney Grievance Commission and, he claims, instead of looking into it, the members of the Commission went to the Chief Justice of the Michigan Supreme Court [the High Court is charged with oversight of the Commission] to have Mr. Agacinski, a 14-year veteran of the AGC, very unceremoniously dumped.

Agacinski alleges that Justice Young's decision to terminate his employment violates Michigan law.  For its part, the Michigan Supreme Court merely noted that Agacinski was fired through a court order signed by all seven Supreme Court Justices.

Both the litigant suing former Judge McCree and Mr. Agacinski have hired Detroit lawyer Joel Sklar, who claims in both cases that his clients are merely seeking to hold those in positions of power accountable for their actions.

We shall see how it all turns out for Mr. Sklar's clients.

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Readers of this blog know that we have tracked the medical marijuana issue through the court system over the past 3-years.  Now there is an interesting twist in the on-going debate: can an employer condition your job on being pot-free, even if you have a medical marijuana card?

The answer is "yes", courtesy of the United States Sixth Circuit Court of Appeals in the seminal case of Casias v Wal-Mart Stores, Inc.

In theory, the 2008 enactment of the Michigan Medical Marijuana Act (MMMA) provides a statutory right for patients and their caregivers to cultivate and use medical marijuana.  Unfortunately, the Act is wrought with ambiguous language, resulting in befuddlement on the bench and a potentially misinformed public, many of whom believe, sincerely, that the MMMA provides more protections than it actually does.  

Joseph Casias of Battle Creek, Michigan, lost his job over his medical use of pot.  Casias worked at the local Wal-Mart, earning “Employee-of-the-Year” honors the same year the pot act received electorate endorsement.   

When hired in 2004, Casias passed a mandatory drug test as a prerequisite for employment.   In 2009, however, after injuring himself on-the-job, Mr. Casias took another drug test required by Wal-Mart corporate policy.  This time he failed the test and was fired from his job.

 

Casias, having been diagnosed with sinus cancer and an inoperable brain tumor since the age of 17, routinely used pain medications for a number of years, as prescribed by his treating oncologist.  When the MMMA was enacted, Casias obtained a valid registry card allowing him to use medical marijuana for treatment of his chronic pain. 

After his failed drug test in December 2009, Joseph showed his registry card to Wal-Mart management, explaining to his supervisor that he never used marijuana before or during work.  Wal-Mart nevertheless fired their “Employee-of-the-Year” for failing the drug test per corporate policy.   

For his part, Casias went straight to a lawyer and sued his former employer in federal court.  The case was dismissed for, “failure to state a claim”; Casias appealed the dismissal to the Sixth Circuit Court of Appeals.

The Sixth Circuit affirmed the dismissal in its September 19, 2012, decision holding that Casias was both out of luck, and out of job.

Many employees recognize that “at will” employment means that a person can be fired for good cause, bad cause, or no cause at all.  Mr. Cassias, however, assumed that the medical pot law afforded him some manner of employment protection, or exception to the company policy, for his pot use.  He badly miscalculated.

The MMMA prohibits “disciplinary action by a business or occupational or professional licensing board or bureau” against a valid, registered cardholder.  The is silent, however, as to whether such protection applies to employment.

Casias, in filing his complaint against Wal-Mart for wrongful discharge in violation of public policy and the MMMA, argued that the term “business” should be interpreted as applying to private businesses, and should include employment. 

The Sixth Circuit disagreed, holding that the word “business” is a descriptive term as applied to the type of “licensing board or bureau.”  The short answer is that the Sixth Circuit does not believe that the Act provides any employment protections for registered patients; at least not as the Act is currently written. 

Of primary concern of the appeals court was that if they agreed with Casias’ interpretation of the Act, then private business would be unable to discipline employees who held valid registry cards; employee could use pot to insulate them from a variety of performance-related deficits.

 

We do see loads of litigation arising from such an interpretation.  Not to be, however, as the Sixth Circuit’s narrow application of the Act to private business preserves the decision-making actions of private employers, and leaves patients and caregivers to continue twisting in the ambiguous winds of the MMMA.

 The Sixth Circuit did insert a sliver of hope to those who would disagree with this decision, saying that their Casias decision is solely based upon how the MMMA is currently written.  The Act just does not ly address the issue presented in this case.

Perhaps this decision works well to illuminate yet another area where the MMMA requires clarification.  Perhaps the legislature should consider amending the Act to expressly include employment sanctions within its protective scope, as apparently intended by the electorate when approving the pot resolution 4-years ago.  

As with many of the cases that have arisen since the enactment of the medical pot law, the hard truth is that the scope of the protections under the Act are limited; those who find themselves embroiled in these initial “test” cases risk losing their property, employment, and liberty. 

Remember, the MMMA, as it currently stands, provides limited protections against state action, i.e. criminal prosecution.  While it may keep you out of jail, it simply cannot protect your job. 

Therefore, we here at the Law Blogger advise employees to proceed with caution. 

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On numerous occasions over the years, I've represented criminally charged shooters from Detroit over in the Frank Murphy Hall of Justice. Rough ride folks.

Last week, the SCOTUS issued a very significant 5-4 decision in a shooting case straight outta Detroit. In Lafler v Cooper, and it's companion case, Missouri v Frye, the High Court held that the 6th Amendment guarantee of the effective assistance of counsel in a criminal proceeding, applies to the plea bargain process.

In the Lafler case, the defendant tossed a shot toward the head of his victim, but missed.  She fled, he pursued, spewing lead.  In the end, he caught her in the buttock and abdomen; she survived the assault.

Charged with attempted murder, Lafler faced the music over in the FMHJ; the "Murph" as we defense attorneys refer to that meat-grinder of a court house.  [Some may recall the building as the old Detroit "Recorders Court".]  As is very common in Wayne County murder and attempted murder cases, he was offered a deal: plead guilty and do less time.

His criminal defense lawyer believed he could beat the case on the theory Lafler did not attempt to murder his victim, because he shot her in the butt.  Yeah, good luck with that buddy.  Based on this legal advice, Lafler rejected the plea offer and went to trial.

The jury wasn't having it, convicting Lafler on all counts.  He was sentenceed to a term of imprisionment that far exceeded what the prosecutor offered.

The Michigan Court of Appeals rejected Lafler's "ineffective assistance of counsel" argument, and the Michigan Supreme Court declined further appeal.  Next, Lafler filed a habeas corpus petition in federal court. 

The Sixth Circuit Court of Appeals held that the 6th Amendment guarantee of effective assistance of legal counsel in all critical phases of the criminal process applies to the plea bargain process.  This decision was affirmed by a sharply divided Supreme Court, with Justice Anthony Kennedy writing for the majority, and with the conservative Justice Antonin Scalia reading his dissent from the SCOTUS chamber when the opinion was announced.

SCOTUS held that the right to effective assistance of counsel does indeed attach during the plea process; almost always THE critical point in the criminal prosecution according to Justice Kennedy.  He's right on that count.

The High Court ultimately held that when an accused "misses out" on the plea bargain process, or rejects a plea due to bad legal advice, as in Lafler, then the 6th Amendment is violated.  Justice Kennedy remanded the case to the lower federal court with instruction for that court to mandate the state court to re-offer the plea bargain, or to leave the defendant's conviction and sentence undisturbed.  The sentencing judge over at the FMHJ must perform a "balancing test" to decide which way to go.  See why we need lawyers...

Justice Scalia did not agree that the plea negotiation process was within the scope of the 6th Amendment's right to counsel.  Along with the other Justices in dissent, Scalia also crituqued the majority's failure to properly define the government parameters in this newly created constitutional right of plea bargaining.  The dissent sees years of additional litigation over plea bargains gone bad.

So pay attention to those plea offers all you criminal defense lawyers out there, or your representation may be deemed, er, ineffective.

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