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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.
For more information email: tflynn@clarkstonlegal.com

Saturday, October 6, 2018

Justice Kavanaughaustion

Unless we miss our guess over here at the Law Blogger, D.C. Circuit Court of Appeals Judge Brett Kavanaugh will be confirmed by the United States Senate later today. Kavanaugh will fill the SCOTUS seat vacated by Justice Anthony Kennedy.


Advice and Consent of the Senate

Article II, section 2 of the United States Constitution, where the rubber meets the road on the concept of balancing the branches of government, states:
[The President] shall have Power, by and with the Advice and Consent of the Senate ... [to] appoint ... Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law...

America is Divided

It is impossible to avoid the crush of 24/7 news coverage of Judge Kavanaugh's nomination to the SCOTUS. America is now divided into two intractable camps: those that support Judge Kavanaugh and those that stand by his accuser, Dr. Christine Blasey Ford.

Judge Kavanaugh narrowly emerged from the Senate Judiciary Committee last week, irreparably damaged in the all-important court of public opinion. While the Judiciary Committee voted 11-10 to advance the nomination to the plenary Senate, a political compromise forced an expedited supplemental FBI investigation into Dr. Ford's allegations.

Ford claims that Kavanaugh, when they were at a high school party in the early 1980s, groped her; that he laid on top of her placing her in fear that he was going to rape her; and that he placed his hand over her mouth to prevent her from calling for help. [Criminal conduct on behalf of Kavanaugh, if true; criminal conduct on behalf of Dr. Ford, if untrue.] But for these 30-year old allegations, Kavanaugh, a conservative jurist, should have been a lock for Senate confirmation to the SCOTUS as the latest Trump appointee.

And of course, this being America, these allegations spawned other sets of allegations of more groping and excessive college drinking. All of the sudden, Judge Kavanaugh is no longer the conservative federal jurist from Yale Law School and the Georgetown Preparatory School [where SCOTUS Justice Neil Gorsuch also attended].

Although not a public document, the supplemental FBI investigation into Dr. Ford's allegations was supplied to Senators two days ago; the Senate vote is scheduled for later today. Apparently, in gleaning from statements by a few select Senators, the FBI report failed to corroborate any of Dr. Ford's specific allegations. We here at the Law Blogger would love to have been a fly on the wall when FBI agents interviewed Judge Kavanaugh's Jesuit prep-school wing-man, best-selling author, and general rabble-rouser Mark Judge. Alas, that's for another post.

With all this drama, you would think that the Federalist Society and the White House would have caught some wind of the strange brew wafting their way, and simply avoided all the burnt political capital by going to another conservative choice.

There is no question that Judge Kavanaugh, sitting on the D.C. Circuit through which momentous cases routinely flow, is a credentialed conservative jurist. The Washington Post, from an analysis of his published opinions over the past decade, concluded Kavanaugh was the most conservative jurist on the D.C. Circuit Court of Appeals in every policy area. [Note: consider the source; this is the same newspaper that initially reported Dr. Ford's letter to Senator Feinstein.] Nevertheless, his published decisions are along the lines of Justice Antonin Scalia; he is an originalist and a textualist, meaning that he does not find individual rights by reading "between the lines" of the Constitution. Like Scalia, he is far more conservative than moderate, and exhibits an expansive view of executive power.

This last bit is especially troubling during the Trump era. Listening to President Trump this week, grandstanding for Republicans on the eve of the mid-term elections, trying to minimize and dismiss Dr. Ford's allegations -comparing them to his own women troubles- was pathetic. If he could, Trump would do away with this "Advice and Consent" stuff altogether.  Trump was particularly un-Presidential when he mocked Dr. Blasey-Ford -her diction and her lack of memory on some details.

So here we are, with another Advise and Consent process that has torn the country apart. One thing is painfully clear: someone is lying.

There are no procedural rules for the Advise and Consent process. The Judiciary Committee is not a courtroom subject to rules of evidence and procedure. The nominee is not afforded the same constitutional rights as an individual accused of a crime. Likewise, an accuser does not need to prove allegations "beyond a reasonable doubt", the highest evidentiary standard.

Dr. Blasey Ford's Camp

Dr. Ford's allegations provide yet another high-profile example of the power, yet limitation, of the #metoo movement. Maddeningly for this camp, these allegations are so stale they are nearly impossible to corroborate. Thus, for this group, the allegations are destined to go down in history, like those of Anita Hill and Justice Clarence Thomas, as another unresolved allegation of "he said, she said" sexual assault.

Yesterday afternoon, Senator Susan Collins [R-Maine] focused on a lack of corroboration to an ancient allegation, signaling that she would be voting for Kavanaugh's confirmation. Under the threat of a felony charge [lying to a federal agent], apparently none of the individuals specifically mentioned by Dr. Ford, corroborated any of the basic details of her account to the FBI investigators.

Victims of sexual assault, for many different reasons, decide to suffer in silence for decades. Professionals in the criminal justice industry know that many survivors take their plights to their graves.

Criticism of the Ford supporters includes calling the detonation-event itself into question: the so-called leaking of Dr. Ford's letter to Senator Diane Feinstein to a ravenous media-machine that simply cannot get enough sexual raw meat. When the media took this ball and ran with it, Dr. Ford was the one that made the down payment up front. Some say she was betrayed by the very people she turned to as a #metoo survivor. For her part, Senator Collins does not believe that her colleague from California disseminated the original letter to the press. These and other Senators are now all running for political cover.

Judge Kavanaugh's Camp

The Judge's supporters are glad that Senator Collins saw things their way and did not find Dr. Ford's allegations persuasive by even a preponderance of the evidence in the Senate record. Certainly not persuasive enough to block Kavanaugh's nomination. Also, the judge's camp is quick to point out that this has become a derailed media circus -which is true- focusing on sex, beer and UB40, rather than the judge's 12-year record from the federal bench.

These supporters emphasize that Judge Kavanaugh has already undergone half a dozen FBI investigations during his storied career as a federal judge. This conservative group is looking forward to possibly 4-decades of right-leaning opinions from this truly conservative jurist, especially when paired with Justice Gorsich, his Jesuit-trained prep school classmate. The Federalist Society recognized that Kavanaugh, unlike his Reagan-appointee predecessor, Justice Anthony Kennedy, who became the infamous "swing vote" on the SCOTUS, will remain true to his conservative faith.

If the right cases come along, you can expect this jurist to increase the powers of the executive branch, and limit individual rights in favor of the powers of the state. In a perfect storm, a case involving abortion may get teed-up for his deciding vote; he may even be assigned by Chief Justice John Roberts to write the historic opinion.

Like Dr. Ford, however, Judge Kavanaugh is not getting out of this process unscathed. His otherwise stellar career as a conservative federal jurist now bears this horrid permanent stain.

As with the Federalist Society, we do not think this episode will affect the tone or tenor of now-Justice Kavanaugh's prospective SCOTUS opinions, yet plenty of questions remain in our minds about this jurist; this person. Despite his apology in the Wall Street Journal, we saw his core-temperment in the heat of battle when he testified; it was not pretty; it was ugly. The picture above truly, is worth a thousand words. Where unproven allegations of sexual abuse are concerned, the smoke usually manifests some type of fire.

While the fire in Kavanaugh's case was extinguished long ago, you won't be seeing this SCOTUS justice giving speeches or lectures at Harvard Law School. He will be hunted and confronted in public until the day he dies.

We shall see if he, like Clarence Thomas, sits silent during oral argument, never asking questions of the lawyers arguing their cases before him; preferring to communicate through written opinions. In any event, a decades-long tenure will be Kavanaugh's best revenge. His place in history, however, already has been set in stone.

America Gets Screwed

Because one of these two people is lying, America gets screwed. If Dr. Ford told the truth, this guy's transgressions, albeit over 30-years ago, belie a violent and abusive core, inappropriate -even disqualifying- for any judge, let alone a Supreme Court Justice. If Judge Kavanaugh told the truth to the Judiciary Committee, then a special place in Hell awaits women that manufacture and weaponize false allegations of sexual abuse. Take your pick; it's all bad folks.

Our take-away from all this drama is that public respect and trust in our all-important judicial system is eroded by spectacles like this one. The lawyers at our firm are constantly advancing the legitimate causes of our clients before county and state judges. We depend on these judges to fairly resolve important legal conflicts.

In times like these, we thank our colleagues on the bench that have remained ever-vigilant for the right result in every case, and who have remained just and impartial despite the strong, often pungent, political currents of the day.

www.clarkstonlegal.com
Post #620



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Thursday, September 6, 2018

Surfers vs the Billionaire

land use
Martin's Beach courtesy of the LA Times
If you attempt to remove access to a good surf spot anywhere along the Southern California coastline, be prepared to spend some money. That's what billionaire Vinod Khosla, co-founder of Sun Microsystems, has vowed to do: spend his money -and he has a lot of it- to make a legal point in a significant piece of property litigation heading to the SCOTUS.

Martin's Beach is a secluded surfing spot south of Half Moon Bay in California. For more than a century, the owners of this 90-acre sand crescent provided liberal public access to the beach via a service road. In addition to the road, the owners improved the property with a parking lot, restrooms and a small store.

A decade ago, Khosla purchased all 47-cottages that sit along this prime bundle of coastal parcels for a cool $32 million. Then he promptly closed the gate to the access road, hired security, removed the restrooms, shut down the parking lot and shuttered the store. He's been in litigation ever since and the case is now heading to the SCOTUS this fall.

The Surfrider Foundation brought the law suit that has made its way to the SCOTUS. Public access to "the beach" is enshrined in California's state constitution and in the California Coastal Act

Khosla, through his Martin's Beach LLC, is equating the the operation of the state constitution and the Coastal Act to an uncompensated "taking" of his property in violation of the 5th Amendment to the U.S. Constitution which provides that no private property shall be taken by the government without just compensation.

For their part, both the California Coastal Commission and San Mateo County assert that Khosla must maintain the same level of access to the beach, or obtain a permit from the county allowing him to reduce the access. California has developed a long-standing governing principle: the beach cannot be privatized.

Khosla, described in a recent NYT Sunday Business article as a typical venture capitalist -"aggressive, shamless, obsessive and optimistic", has vowed to litigate Martin's Beach for the rest of his life. At age 63, he is the latest billionaire to use his millions to seek privatization of a choice parcel of oceanfront property. Billionaire David Geffen's failed attempt at the turn-of-the-Century to close-off a chunk of Malibu comes to mind.

Along the way in this litigation, the California Coastal Commission offered Khosla $3 million to open the gate to the access road and have his security guards stand down. In rejecting the offer, Khosla, through a phalanx of lawyers, put a much higher price tag for what he sees as a compromise in principle to his privacy and his right to private ownership of property. Ironically, Khosla openly regrets ever purchasing the property and claims to have never set foot on Martin's Beach.

The case wound its way through California's state court system, culminating in a decision by the California Court of Appeal that upheld injunctive relief to beach access granted by the county trial court. Although the California Supreme Court declined further review, Khosla's highly-paid super-lawyers convinced the U.S. Supreme Court to grant certiorari.

SCOTUS, in granting certiorari to the Martin's Beach petition, now considers the following issues:
1. Whether a compulsory public-access easement of indefinite duration is a per se physical taking. 
2. Whether applying the California Coastal Act to require the owner of private beachfront property to apply for a permit before excluding the public from its private property; closing or changing the hours, prices, or days of operation of a private business on its private property; or even declining to advertise public access to its private property, violates the Takings Clause, the Due Process Clause, and/or the First Amendment. 
The case will now be briefed by the parties with several interest groups expected to weigh-in via amicus status. Stay tuned as we update you on the briefing schedule and oral argument, expected to be scheduled some time next spring.

Post #619
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Wednesday, August 1, 2018

FBI Needs Warrant to Download Cell Phone Data

At the end of its term in late June, the SCOTUS decided a Michigan case, holding that police must obtain a warrant prior to obtaining location and other data inside a suspect's cell phone. In so ruling, Chief Justice John Roberts said that modern digital technology allows wireless carriers to collect "deeply revealing" information about its customers.

This poses a problem under the 4th Amendment of the United States Constitution. The ruling was narrow to the extent that the High Court held open the prospect that police still may not need a warrant to obtain information about the location of a suspect on the day a crime was committed.

Tim Carpenter was convicted in the United States District Court for the Eastern District of Michigan for a series of armed robberies in Detroit and across Northern Ohio. The FBI used Carpenter's archived cell phone call location records to track his nearly every move over a long period of time.

Conservative critics of the decision feared that long-trusted law enforcement techniques may be compromised by a search warrant requirement. On the other hand, privacy advocates hailed the 5-4 ruling as a victory for our diminishing rights to digital privacy.

The issue presented in the case is whether law enforcement was required to first obtain a warrant from a neutral magistrate or judge prior to securing cell phone location data. In Carpenter, the data was so extensive, it was used to create a detailed map of the defendant's movements. This map was a powerful evidentiary component which led to the Defendant's conviction.

Although prior SCOTUS rulings have held that motorists do not have a reasonable expectation of privacy as to their driving movements, Justice Roberts held that people do not expect that the police are tracking their every move over a long period of time. The decision focused on the qualitative sea-change in digital data and its availability at the expense of basic privacy.

Historic cell phone location data and "real-time" cell phone location data are distinguished in Roberts' narrow ruling. Only the former would require a warrant, not the latter.

The bloc of conservative Justices asserted that the 4th Amendment, in its original context, did not apply to the method law enforcement used to collect ordinary business records.

Thus, for now, cell phone records have significant 4th Amendment protection under this narrow ruling. What is less clear is whether other forms of personal digital data will receive the same level of protection.

We here at Clarkston Legal have seen many criminal cases turn on the admission of maps based on cell phone data. The exclusionary rule implicit in the 4th Amendment is directly at issue in such cases.

The SCOTUS has decided a half-dozen significant cell phone related privacy cases. We will continue to monitor the High Court's docket to report on these interesting decisions.

Post #618
www.clarkstonlegal.com


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Tuesday, June 19, 2018

Oakland County Embryo Case Heading for Evidentiary Hearing

An interesting case from the Oakland County Family Court poses the question: is a fertilized yet frozen human embryo property or a person?

Oakland County Family Court Judge Lisa Langton has been assigned the task of deciding this question. One couple on her custody docket cannot agree on the disposition of a group of frozen embryos.

The couple, Gloria Karungi and Ron Ejalu, contracted with an in vitro fertilization clinic whereby 10 of the couple's embryos were frozen from their genetic materials. According to the contract, the frozen embryos are characterized as the joint property of the parties; any disputes between the tissue donors and the clinic are to be settled through arbitration; the contract is silent as to disputes between the donors.

Unfortunately, the parties to the embryo contract have a daughter with sickle cell disease and Mom and Dad are no longer a couple. Mother believes that if she has another child with Father's DNA, using a frozen embryo, genetic material from that child may be able to help or cure her daughter.

Father will not agree with Mother's request to implant one of the embryos to beget a second child. So the matter was brought to the family court where Mother sought a legal ruling on the "custody" of the embryos. 

Judge Langton ruled that she only had jurisdiction over the couple's daughter and limited her decisions in the case to custody, parenting time and child support relative to the daughter. In dismissing the embryo dispute, she based her ruling on a case-code selected by the parties when Mother initially filed the entire matter as a child support case.

Mother appealed Judge Langton's ruling to the Michigan Court of Appeals. In her appellate filings, Mother raised all manner of custody arguments relative to the embryos, claiming that the family court had jurisdiction on the basis that a frozen embryo was a "person".

One indication of the unusual nature of the case is that each of the three appellate judges assigned to the panel wrote a separate opinion. The case was remanded back to Judge Langton in a 2-1 vote.

In the lead opinion, Judge Colleen O'Brien -a former Oakland Circuit Court Judge herself- wrote that the lower court should have treated this case as a contract dispute, not a custody matter. In remanding the case back to the family court, however, the Court of Appeals noted that the record was insufficiently developed to determine whether the family court had jurisdiction.

The appellate court mused whether the subsequent conduct of the parties served to amend the contract; it also wondered whether one or both parties waived the arbitration clause of the contract by their filings in the family court; the court further speculated that the family court, and not the civil division, was the proper court to decide this dispute.

Taking issue with the dissenting opinion, Judge Christopher Murray felt compelled to write a concurrence, emphasizing that the majority opinion properly identified and corrected the family court's error: the lower court improperly dismissed the embryo dispute based on the case caption.

Judge Murray points out that in remanding the matter to further develop the record, the majority opinion merely points out that an issue may exist regarding the family court's primary jurisdiction due to the arbitration clause contained within the embryo contract.

In her dissent, Judge Kathleen Jansen adopts a different approach than the majority, noting that the embryo contract technically was between the biological donors and the clinic, not between each other. Nor is Judge Jansen convinced that the arbitration language binds the former couple regarding the embryo dispute as between themselves. This view, of course, provides a green light to the lower court to conduct further proceedings in order to develop a record from which various custody rulings can emanate.

What Judge Jansen found most disturbing was the majority's characterization of the matter as a contract dispute when neither party raised that issue below but rather, couched all of their filings in terms of a custody dispute. Judge Jansen concluded that, "[t]he trial court ... lacked legal authority to consider the disposition of the embryos in the context of a custody case."

Although the Michigan Supreme Court took a pass on this interesting case, Justice Bridget Mary McCormack wrote separately to opine:
....that the trial court should not avoid the question argued by the parties: whether frozen embryos are persons subject to a custody determination. The answer to that question could prove dispositive regarding whether the contracts resolve this dispute. See Harvey v Harvey, 470 Mich 186, 194 (2004) (stating that “parties cannot stipulate to circumvent the authority of the circuit court in determining the custody of children”). And if the trial court concludes that embryos are not subject to a custody determination, it is still bound to make a determination about the proper legal disposition of those embryos, if not under contract law or child custody law. Under Const 1963, art 6, § 1, it has an obligation to exercise the judicial power to decide the dispute before it. See also MCL 600.605 (circuit courts “have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state”). 
With the case now remanded to her trial court, Judge Langton will re-consider Mother's motion for summary disposition tomorrow morning. She will decide whether a frozen embryo is a spec of property or a human life.

Post #617
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Tuesday, March 20, 2018

Assault Rifles and the Right to Bear Arms

Given the regularity of mass shootings in the U.S., with their attendant state law reactions banning certain assault-style weapons, someday soon there will be a petition for certiorari granted by the SCOTUS to take yet another look at one of our bedrock individual liberties. The last time the high-court considered the merits of a Second Amendment right to bear arms case was back in 2010.

SCOTUS set the legal agenda relative to the right to bear arms in its 2008 District of Columbia v Heller decision. In that case and in McDonald v City of Chicago, Justice Antonin Scalia struck local ordinances banning handguns.

These cases, however, left open the question of what standard should be imposed in reviewing the constitutionality of state hand gun laws. The so-called intermediate standard requires that a state hand gun law be "substantially related to an important government interest". A lesser standard merely requires that gun laws be reasonable and bear a rationale basis to the state's interest in their regulation.

Second Amendment advocates prefer the "strict scrutiny" standard of review. This standard presumes the state law is invalid unless the state satisfied a burden to demonstrate a "compelling state interest" to justify the policy on which the gun law is based.

Over the decades, three principles of jurisprudence have emerged relative to the Second Amendment. First, there is no such right to unlimited gun ownership. In his Heller opinion, Justice Scalia stated that not all weapons are protected under the Second Amendment such as "weapons that are most useful in military service—M–16 rifles and the like."

Second, courts addressing gun law cases in the modern era of monthly, if not weekly, mass shootings, will draw from the principled regulations laid out in the Heller case. These principles include: a general ban on assault or military grade weapons; required child protection devices such as trigger locks; banning classes of individuals such as convicted felons and the mentally ill from gun ownership; and universal registration requirements.

As has been demonstrated by past decades of mass shootings, however, nearly every one of these laws, both federal and state, are broken by a  murderous shooter. With shocking ease, the mentally ill person, the terrorist, or the felon, wind-up at a gathering of many many innocent people, gun in hand, ready to deal-out death to everyone in range.

Third, with the absence of a clear ruling by the SCOTUS adopting a specific standard to review state gun laws lower appellate courts will have continued influence in shaping this area of law.

In this regard, we take note of a recent en banc decision coming from the 4th Circuit Court of Appeals. In the wake of the Sandy Hook tragedy, where first graders were shot to death, Maryland passed a comprehensive package of laws totally banning assault rifles. In the decision upholding this package of tough gun laws, the 4th Circuit took a significant step in establishing precedent and providing a gun control guidepost for the other circuit courts of appeal across the nation.

Kolbe v Hogan was decided by the entire 4th Circuit bench and holds that state gun laws are reviewed under the [more lenient] "intermediate scrutiny" standard. This means that the state gun law is more likely to withstand the so-called "intermediate" scrutiny. The first three-judge panel of the 4th Circuit -the panel originally assigned to decide the case- struck the Maryland law by utilizing the "strict scrutiny" standard.

Gun advocates will curse the decision. Consider, for example, this well-thought-out Op Ed piece from the Washington Post's Voloch Conspiracy. Of interest to Second Amendment proponents, this piece draws a technical distinction between military weapons and assault-style automatic weapons like the long-infamous AR-15.

America must await another Second Amendment case for SCOTUS to finally weigh-in on the proper standard under which state gun laws should be reviewed. Interestingly, last month the SCOTUS declined to hear the Kolby case.

Will tougher gun laws prevent mass shootings? Unfortunately, we here at the Law Blogger say, probably not. But it's a start.

We base our pessimistic view on the ease with which anyone can acquire an automatic weapon, both seller and purchaser violating laws without a thought. Youtube has featured several recent individuals demonstrating how easy it is to purchase an assault weapon and plenty of ammunition to go along with it.

A decade ago, Australia passed laws that struck at the root of their gun violence epidemic; the government confiscated assault rifles and banned their manufacture and importation. Going after the source of the gun problem -the manufacturers- in this country will ignite a massive legal battle on the level of slavery, abortion, civil rights, and marital equality. We're a long way off from that here in America.

Over here at the Law Blogger, we'll be searching for that case. And while we search, and monitor and wait for the right case to come along, we'll be hoping that none of us come across a deranged killer with a locked and loaded assault rifle like so many of our children do.

Post #616
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