Two Bucks for the Medical Marijuana Industry

By:  Timothy P. Flynn

Earlier this week, medical marijuana advocates here in Michigan urged supporters to obtain and spend $2 dollar bills in support of the medical marijuana industry.  The idea behind the campaign is to demonstrate the strength of the marijuana economy.

Estimates place annual revenue from marijuana in Michigan, legal and illegal, at approximately one billion dollars.  The two dollar bill campaign is designed to raise awareness of the potential tax revenues and economic growth possibilities of the industry.

Not surprisingly, since the passage of the Michigan Medical Marijuana Act, Michigan now has over 130,000 registered marijuana "patients" with another 30,000 care-providers.  That's a lot of folks using and producing marijuana.

As we have reported here at The Law Blogger, recent appellate decisions have fostered a "grow-your-own" or barter system for the necessary evil of marijuana cultivation.  Dispensary schemes or for-profit business models have been ruled illegal.

A recent study from Harvard University estimated that 13% of all adult Michiganders used marijuana at least once over the past year.  That's a lot of joint consumption.

Should the State of Michigan regulate and tax this robust industry?  Should the business model shift from the hippy farmer to the for-profit business model?

Legislators and judges alike could not give two cents in support of this still-illicit industry, never mind a two dollar bill.  As things now stand, the law says: no profits from pot.

We would love to hear from our readers on this issue that is here to stay.  Please comment.

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Posted in: Law Blogger,medical marijuana,Michigan Medical Marijuana Act

SCOTUS' Judicial Review of Federal Health Care Legislation

This is a guest blog post on SCOTUS' historic and extensive judicial review of the health care legislation.  Now that the dust is settling after oral arguments in March, we here at the Law Blogger have enlisted Wayne State University Law Professor Robert Sedler, who teaches Constitutional Law, to provide his expert analysis on this topic.  Professor Sedler has commented widely on this issue currently pending before the U.S. Supreme Court.

The constitutional challenge made to the health care statutes has been to the so-called “individual mandate” in PPACA as being beyond the constitutional power of Congress under the commerce clause. The opponents contend that this provision is unconstitutional and that the rest of the act cannot be severed from this provision, so that the entire Act fails.

The High Court took the unusual step of reserving three days in March for oral arguments in review of the case; normally advocates get an hour to present their arguments and attempt to convince the bench.

Sometimes in oral argument, the position of judges on the issue in question is clear; sometimes it is not; and sometimes, there are surprises both ways.

In the arguments in this case, the questions of six Justices were so one-sided that their position was clear, and this coincided with their ideological disposition.  For example, Justices Scalia and Alito sharply questioned the government's lawyer [the Solicitor General; the petitioner in this case] and either didn't ask questions, or asked only soft questions of the respondents’ lawyers. Justice Thomas never asks questions, but he is certain to vote with Scalia and Alito.

Scalia and Alito made it clear that they consider the individual mandate unconstitutional and are disposed to invalidate the entire law.  Justices Ginsburg, Breyer, Sotomayor and Kagen did just the reverse, strongly questioning the respondents’ lawyers and using the questions to make their points, just as Scalia and Alito did in their questioning of the government's lawyer. The liberal bloc will doubtless vote to uphold the individual mandate.

Justice Roberts was tougher on the Solicitor General, although he asked some questions of the challengers’ lawyers.  For his part, Justice Kennedy asked hard questions of the lawyers on both sides. and, as is so often the case, may be the swing Justice.

The possible outcomes are as follows:

        The individual mandate is constitutional. Kennedy joins the four liberals. Roberts joins the three conservatives in dissent, or may concur with Kennedy to make it 6-3 rather than 5-4.

        Justices Kennedy and Roberts join the three conservatives to hold the individual mandate unconstitutional and that the rest of the act cannot be severed, so that the entire act falls.

        Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that all of the rest of the act is severable. This is what the Eleventh Circuit held.

        Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that the rest of the act can be severed except for the requirement that the insurance companies insure everyone despite a pre-existing condition, and that ratings for individual policies be community wide. This was the government's position.

Predictions as to what the High Court will do - and there have been many- are completely speculative and unnecessary. The Court will decide the case by the end of June, with several of the Justices reading their concurring or dissenting opinions from the bench in the Chamber of the Supreme Court.  At that time, on that date, we will know the fate of the federal health care statutes.

Law Blogger Note:  although the preliminary voting among the Justices in conference took place at the end of March, the Justices sometimes change their minds, and thus their vote.  No one but the Justices themselves attend these case conferences.  Also, leaks among the law clerks and court staffers are  exceedingly rare.  We will all have to stay tuned.

 

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Posted in: health care,individual mandate,judicial review,Law Blogger,Law Professor Robert Sedler,lawyer,SCOTUS,Solicitor General,Wayne State University Law School

New Court Rules Expand Jury's Role in Michigan Trials

This week, the Michigan Supreme Court integrated one of its pilot projects, involving the specific tasks of trial jurors, into the Michigan Rules of Court.  The significant changes take effect September 1st.

The MSC order, with only Justice Diane Hathaway dissenting, essentially revolutionizes the role of the jury.  Trial lawyers will note a sea change under the new rules. 

Some of us have already utilized these rules by conducting trials in Oakland Circuit Judge Potts' courtroom.

The new rules are significant in that, for the first time, standard jury instructions will be supplemented with legal theories of the issues, submitted to the court by the opposing lawyers, distilled by the judge, then supplied to the jury.  A trial judge thus retains all "editorial" powers relative to the theories and issues submitted by the lawyers, and consequently has great control over the content of each case as it goes in.  Under the old rules, in addition to a reading of a series of standard instructions, the parties requested various "special instructions" applicable to their specific case.

Here are the other significant changes:

• In addition to the standard opening statement, parties may now request making an "interim commentary" as the evidence is going in.  This creates the possibility of editorializing the content of the evidence as it is entered into the record; the old rules limited all pre-evidence commentary to the opening statement. 
• Also, a distinct possibility of in-trial interactive dialogue with a jury is possible given the new provisions allowing jurors to submit their own questions to witnesses.
• Where appropriate, litigants will submit trial notebooks to jurors containing witness lists and relevant documents.
• In civil cases, where depositions will be read into the record at trial, the parties must submit joint deposition summaries to the jury.
• In cases utilizing expert testimony, one party's expert will be allowed to hear the testimony of the other party's expert, rather than sitting in the hallway of the courtroom under the usual sequestration order.
• Perhaps most significant, jurors will be permitted to discuss the case amongst themselves during regularly scheduled breaks in the trial rather than waiting until formal deliberation when the proofs are completed.

In her dissent, Justice Hathaway commented that the rules allowing for interim jury questions, interim deliberations, and the submission of deposition summaries, will poison the trial process with unnecessary complications.

We here at the Law Blogger must admit that, with lawyers being, er, lawyers, the new rules do have fantastic potential to complicate the trial process.  On the other hand, the Wall Street Journal's Law Blog applauds these developments to the extent that they treat jurors as thinking adults; not a bunch of kindergartners.

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Posted in: criminal law,jury trial,Law Blogger,Michigan Rules of Court,Michigan Supreme Court,Wall Street Journal

Thanksgiving Dinner Conversation: SCOTUS Style

LawBlogger Editor's Note: This post is from Andrew Cohen, the Legal Analyst of the excellent blog Politics Daily. This is a fantasy recounting of a potential conversation between the Justices of the United States Supreme Court on the occasion of Thanksgiving Day, 2010. Cohen's humorous and tastefully irreverent insight is spot on; he also mentions several of the cases and issues covered by this Blog over the past year. Having stood before this august body of jurists last June, this blogger could actually see this conversation taking place. Enjoy:

The nine learned Americans, six men and three women, six Catholics and three Jews, all of them over 50 and one of them black, sat down for a traditional Thanksgiving meal. They said their prayers, they shook hands, they passed around the food, and then, as is their custom, they took turns speaking. There was no one else in the room.

“We have a lot to be thankful for,” John said solemnly. “We’ve survived another year, we’ve done our work as best we can, we still generally like each other on most days, and the Republic has not fallen apart. It’s a shame our brother John, Mr. Stevens, isn’t with us this year – I’m sure he’s watching football somewhere and glad to be rid of us – but we welcome Elena to the table and hope to share many more meals with her. Incidentally, I’d like to take a second to note that this meal is sponsored by the good folks at Citizens United. Citizens United, the corporation that’s been treated like a person for nearly one one-hundredth of a century.”

Antonin was the next to speak. "I am thankful, too, for the many freedoms I enjoy. The freedom to hunt. The freedom to speak. The freedom to yearn for a simpler time when there weren't so many constitutional amendments. The freedom to make all those liberal pantywaists apoplectic every time I open my mouth or draft an opinion. What a great country this is. Pass the yams, would you, Sam? Shoot, I've got gravy all over my shirt."

Then it was Anthony's turn. As usual, he was seated near the center of the rectangular table. "I am thankful," he said, "for my fellow Republican-appointed federal judges, the ones who spoke out last week against the Senate's refusal to confirm the president's judicial nominations. Even with life-tenure, it takes courage to do that. Incidentally, does anyone here want to borrow my Sharia Law Handbook? I'm boning up on it in the event the Oklahoma case reaches us, but I can always spare it for a night and start in again on Albanian law."

Next it was Clarence who, as usual, was seated to Antonin's right. "You starting again with that international law junk, Tony? Good lord," Clarence said. The other dinner guests were stunned. Clarence hadn't spoken like this in years. "I am thankful for being here. Whoever thought a fellow like me would end up sitting at this table for 20 years? But most of all I am thankful to my lovely wife, Virginia, for always having my back, even after all these years and all these allegations. She's the best and I plan to tell her that in court when her tea party group gets here as a litigant challenging the new health care laws."

"You are lucky, Clarence, to have your spouse," said Ruth. It was her first such meal without her beloved husband, Martin, who passed away this past June. "I think about my Marty all the time. I am thankful for all the wonderful years we spent together and for all the good graces we were given. I am thankful also for having Sonia and Elena here to watch the Lifetime Channel with me. It was lonely there for a while, especially after David and Bill stopped watching with me."

It was at this point in the dinner that Samuel, one of the younger members of the clan, shook his head and mouthed the words "not true." But it was not yet the time for him to speak.

It was instead Stephen's turn. "I am thankful for Amazon.com," he said, referring to his new book about the law. "Kidding. I'm getting just as much play on it from bookstores." Stephen had a habit of turning to look directly at his chums when he'd talk and he did so again on this night. "I am thankful for the rule of law, even when we don't explain it as clearly as we should to the American people. And I am thankful for our old friend Sandra, who has been so courageous in speaking out against judicial elections. Remember those fruit cobblers and lemon tarts she used to make for us?"

Sam spoke next. He was seated between Antonin and Clarence. "I am thankful for all the ordinary people out there who understand the Constitution," he said. "I am thankful for the American Spectator, for all the good food and talk a few weeks ago. And I am thankful for Roy Halladay, pitching that gem for my Phillies last month. If Roy Halladay ever has a case before the court, I am voting for him. Hey, John, can you please pass me the stuffing? Incidentally, as a reminder, today's turkey and all the trimmings are brought to me in part by the good folks at Citizens United -- Citizens United, the corporation that's been treated like a person for nearly one one-hundredth of a century."

Then it was Sonia's turn. It was her second such meal and she finally had decided to say something. "How can you people eat all this bland food all the time? Where are the arroz con gandules and pasteles y pernil?" More seriously, she went on: "I am thankful I don't have to hear about Frank Ricci anymore. I am thankful I don't have to be the last person to speak at every conference anymore. But mostly I am thankful I was finally able to rent out my apartment in New York City. In this economy, boy, you just never know."

Finally, Elena, the youngest, took her cue. "I am thankful this year for my new job and for the nice things that Miguel Estrada said about me this summer. I am mostly thankful, though, that I'll never have to sit through another lecture from [Oklahoma Sen.] Tom Coburn. Hey, speaking of food -- Tony, would you please pass the chicken lo mein?"

LawBlogger's final thoughts:  It sure would be nice if our Michigan Supreme Court Justices could be as civil as this fictional depiction of the SCOTUS justices.  Unfortunately, the yawning chasm within our state's high court has been all too public with secret tape recordings, press conferences and censure votes.

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Posted in: Andrew Cohen,Chief Justice John Roberts,Elena Kagan,Law Blogger,Michigan Supreme Court,SCOTUS