Michigan Supreme Court Embraces "Selfie" Lexicon

Wayne Circuit Judge Wade McCree

By:  Timothy P. Flynn

The Oxford University Press has designated the slang term "selfie" as the word of the year.  For our over-50 readers, a selfie is when a person takes a picture of themself, or a part of themself -usually on their cell phone-  and transmits it to another person.

We here in the 313 can agree that the word has picked-up some credibility thanks to Judge Wade McCree's legal troubles.  How can we forget Charlie LeDuff's piece in Judge McCree's chambers when the good judge was confronted by his embarrassing instantly viral "selfie".

Well, fast-forward 2-years to the oral arguments this week at the Michigan Supreme Court.  The docket included the Judicial Tenure Commission's case against Judge McCree.  The JTC wants McCree to be suspended for six more years  -he is currently suspended without pay for his selfie-  so that he cannot be re-elected when his term expires in 2014.

McCree is represented by State Bar of Michigan President Brian Einhorn.  During Einhorn's oral argument in defense of the judge, Justice Robert P. Young, Jr. made the reference to the judge's "selfie".  The reference was picked-up and amplified by Justice Bridget McCormack.

A judge taking a nude selfie most assuredly does not inspire confidence in the judiciary.  The big question is what will the Michigan Supreme Court do with Judge McCree's case?

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Posted in: Attorney Brian Einhorn,Charlie LeDuff,Judge Wade McCree,Justice Bridget McCormack,Justice Robert P. Young Jr,Michigan Supreme Court,selfie

Step-Parent Adoption Goes to the Michigan Supreme Court

By: Timothy P. Flynn

Sometimes, in the post-judgment phase of a divorcee's life, things can go haywire.  The divorce process can push good parents "off-the-grid".

There is a statute in Michigan that provides for the termination of a divorcee's parental rights if that parent neglects to pay child support and fails to communicate with the children for two years.  For this to occur, the other parent must re-marry and the new spouse must petition for the termination of parental rights as part of a step-parent adoption proceeding.

In a case just recently accepted for briefing and argument by the Michigan Supreme Court, the concept of legal custody within the context of the step-parent adoption statute will be decided.  It could come down to the High Court's interpretation of how the legislature used the words, "a" and "the".

The Kent County case, In Re: ARJ, takes a look at whether the re-married parent must have sole legal custody in order for the step-parent adoption petition to be granted.  The case is significant to the extent that it will interpret this important statute as well as possibly provide additional meaning to the phrase "legal custody"; a phrase over which many a battle have been fought in the family courts throughout Michigan over the decades.

The Kent County Family Court terminated the father's rights after a two day trial.  This termination was reversed by the Michigan Court of Appeals which basically held that the parental termination was done in error because both parents had joint legal custody.

So here we have a parent that has basically disappeared for the requisite two years  -no support, no contact-  but who clings to his parental rights through the label in the judgment of divorce awarding him joint legal custody.

In its order granting leave to appeal the Court of Appeals' decision, the Supreme Court specifically identified one of the issues to be briefed, argued and decided as:

Whether the phrase 'legal custody' in [the step-parent adoption statute] is synonymous with the concept of joint custody in the Child Custody Act, whereby 'the parents share decision-making authority as to the important decisions affecting the welfare of the child...

Our High Court also expressly invited the State Bar of Michigan's Family Law Section and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file amicus curiae briefs in the case.

Stay tuned to see how the Michigan Supreme Court interprets this crucial phrase; we will track the case for you.  The decision will likely have important implications for divorce proceedings that involve the custody of minor children.

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Posted in: child custody,family court,family law,Michigan Court of Appeals,Michigan Supreme Court,step-parent adoption

Local Ordinance Banning Medical Marijuana Argued at Michigan Supreme Court

By: Timothy P. Flynn

Earlier this year, I was arguing a medical marijuana case before the Michigan Court of Appeals.  My case was probably about the 100th time a panel of our intermediate court of appeals had to address some facet of the Michigan Medical Marijuana Act over the past 5-years.

I could tell from the panel, which included Judge Christopher Murray, that the novelty of the MMA was wearing thin on the judges.  "Oh boy, here we go again; not another medical marijuana case."

Now, these cases are percolating up to the Michigan Supreme Court, which will be hearing arguments tomorrow on yet another medical marijuana case; this one with an interesting twist.  The case, Ter Beek v City of Wyoming, involves the legal challenge brought by a card-carrying pot smoker against his hometown for an ordinance that was passed in response to the MMA.

The challenged Wyoming ordinance subjects people to a violation for possessing marijuana on the basis of the federal prohibition of marijuana as a Schedule I drug, as set forth in the federal Controlled Substance Act. John Ter Beek, a qualified medical marijuana patient, challenged this ordinance in his law suit which seeks a declaratory judgment that the ordinance is invalid because it directly conflicts with state law: i.e. the Michigan Medical Marijuana Act.

The Court of Appeals struck down the Wyoming ordinance on the grounds the ordinance is preempted -swallowed whole- by the medical marijuana act.  In addressing the potential federal preemption of the Controlled Substance Act, the appellate court noted that Congress has traditionally left matters of public health and drug regulation to the police powers of the states.

Tomorrow's oral arguments before the Michigan Supreme Court should prove to be very interesting.  We here at the Law Blogger, having predicted back in 2009 that the MMA would be a great ride, will monitor this case and will post the MSC opinion as soon as it is made available sometime next spring.

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Posted in: John Ter Beek,medical marijuana,Michigan Court of Appeals,Michigan Supreme Court

District Courts in Detroit and Pontiac Fiscally Challenged

The thing about district courts is the funding to make them operate; district courts do not have uniform funding across the state.  Funding for a district court depends on getting money from its political parent (the city or the county, or the state) and from the citizens within the community who get ticketed and brought into the court.

The district courts in Detroit and Pontiac are in financial trouble.  This is because they are self-funded courts, meaning they derive a significant portion of their operating budget from revenue generated from tickets and court costs assessed from the folks that appear in those courts.

In Detroit, the 36th District Court also relies on the City of Detroit's budget.  The current budget year has not been kind to the district court.  It requested a "bare bones" allocation of $36 million but only received $31 million.

More recently, the Michigan Supreme Court, concerned about the district court's fiscal health, appointed Court of Appeals Judge, and former Wayne County Circuit Judge Michael Talbot, as a special administrator of the 36th District Court.

In Pontiac, the Michigan Supreme Court has called for the elimination of two judges at the 50th District Court; also a self-funded court.  While the budget for the Pontiac court has gone up, the court's revenues from tickets and courts costs has eroded.

Both courts have seen administrative staff reductions.  Both courts are being asked by the Supreme Court to do more with less.

Like Detroit, the folks getting fined and assessed court costs in Pontiac just don't have the dough; the folks getting ticketed simply cannot afford to pay the fines, or do not pay the fines.  The courts can assess fines all-day-long, but if the local citizens cannot afford or refuse to pay them, then it amounts to phantom revenue.

Our lawyers are going from the 36th District Court, across the street to the Frank Murphy Hall of Justice all the time.  Often, we swing by the 50th in Pontiac on our way Eastside, or up to 1200 N. Telegraph.

So far, we have not noticed a disruption of service with the hard-working employees of those courts.  Let's see what happens as the operating budgets of those courts are brought into line with reality.

In our opinion here at the Law Blogger, while courts must run as efficiently as possible, the cost of justice is not something we can skimp on; the courts must stay open for business no matter what.

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Posted in: 36th District Court,50th District Court,Judge Michael Talbot,Michigan Supreme Court

Driving Under the Influence of Medical Marijuana

The Medical Marijuana Act provides medical pot users with certain immunities relative to their use of marijuana.  Even a medical marijuana patient, however, cannot "medicate" while driving a vehicle, raising the question: just how much pot legally can be in the patient-driver's system?

Earlier this week, the Michigan Supreme Court released a much-anticipated decision resolving a conflict in the Motor Vehicle Code and the Medical Marijuana Act here in Michigan.  In a unanimous per curiam opinion, issued without oral arguments, the Supreme Court held in People v Koon that a medical marijuana patient is legal to drive a vehicle, even with some THC in his blood.

Rodney Koon was charged under the "zero tolerance" provision of the Motor Vehicle Code which proscribes driving with any amount of a Schedule 1 drug in the driver's system.  Koon, a properly registered medical marijuana patient, was initially stopped for speeding in Grand Traverse County.

Both the district court and the Grand Traverse County Circuit Court agreed with Mr. Koon's lawyers that the MMA provided Koon with immunity from prosecution under the motor vehicle code's "zero tolerance" provision -case dismissed.  The Michigan Court of Appeals reversed that dismissal, reasoning that even under the MMA, driving under the influence of marijuana remains illegal, and concluding that any amount of marijuana found in a driver's system constitutes "under the influence".

The Supreme Court disagreed, holding that some proof that a driver is operating a vehicle while under the influence of marijuana is necessary; evidence of a miniscule amount of THC in that driver's blood-stream, without more, is not enough to strip that driver of the immunity from prosecution available under the MMA.

This decision essentially amounts to a "sliding-scale" for pot-card carrying drivers.  You had better be sure sufficient time has elapsed between toking-down, and getting behind the wheel. 

We here at the Law Blogger suggest that 15 or 20 minutes clearly is not sufficient to keep the rest of us safe from a pot patient's stoned driving.  But what about an hour or two? 

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Posted in: criminal defense lawyer,medical marijuana,Michigan Medical Marijuana Act,Michigan Motor Vehicle Code,Michigan Supreme Court,People v Koon,Rodney Koon

Oakland County Circuit Court Open for Business

Oakland County Business Court

On June 3rd, the Oakland County Business Court commences here at the Oakland County Circuit Court.  The Michigan Supreme Court has appointed Oakland Circuit Judges Wendy Potts and James Alexander to preside over the docket.

To qualify for the Business Court, a dispute must seek at least $25,000 in damages and all litigants must be business entities; not individuals.  In addition, the Business Court will adopt e-filing and feature cost-saving tools such as audio/video conferencing and an emphasis on alternative dispute resolution.

Judges Alexander and Potts will be assigned cases in a blind-draw system; each judge will serve a 6-year term on the special court.  Bench trials -trials without juries- are expected to be the norm in the Business Court.  Both judges are expected to take a "hands-on" approach to the docket, with a scheduling-emphasis that features bringing the litigants into court early on with an emphasis on settlement; not trial.

If you ask us over here at the Law Blogger, this sounds like a very interesting gig for a jurist; here's why.  The Business Court will be the exclusive forum to hear and resolve the following type of disputes:

• Information technology, software, web-site design and hosting;
• Internal disputes within a business organization;
• Contract disputes, including intellectual property rights;
• Commercial banking transactions;
• Commercial real estate transactions;
• Business or Commercial insurance disputes.

For specific statutory language contained in the Revised Judicature Act controlling which cases are expressly included and which cases are expressly excluded in the Business Court, click here.

Litigants that desire to be included on the Oakland Circuit's Business Court docket should download and complete this Notice of Assignment to the Business Court Form.  For more information about the Business Court, click here.

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Posted in: Michigan Supreme Court,Oakland Circuit Judge James Alexander,Oakland Circuit Judge Wendy Potts,Oakland County business court,Oakland County Circuit Court

Michigan Supreme Court Considers Family Court Judge's Lack of Candor

Wayne Circuit Family Court Judge Deborah Ross Adams

Truly, divorce is Hell.  No one can attest to this more directly than embattled Wayne County Family Court Judge Deborah Ross Adams.

After 3-years of her own gruelling divorce proceeding [understandably transferred from Wayne County to the Oakland County Family Court] during which Judge Adams ducked media-scrutiny of the disintegration of her 30-plus year marriage, the good Judge really hit the jackpot when her attempts to "right a wrong" at the midnight hour of her divorce went totally awry.

The divorce case went awry due to Judge Adams' own self-defeating and over-reaching conduct.  Both the Judicial Tenure Commission and a Special Master appointed by the Michigan Supreme Court found earlier this year that Judge Adams lied to the judge presiding over her divorce proceedings and signed her former attorney's name to a  petition without his permission, recommending a 180-day suspension without pay.

The appellate lawyer for the Judicial Tenure Commission even went beyond the recommended 180-day suspension, asserting in oral arguments before the Michigan Supreme Court that because Judge Adams has such little respect for the truth, that because she willfully misled a tribunal and jurist [i.e. Oakland Circuit Judge Mary Ellen Brennan] in open court, she did not deserve her elected seat on the Wayne County Family Court.

For his part, our friend Cyril Hall had his hands full on behalf of Judge Adams during the High Court oral arguments.  Mr. Hall emphasized his client's exemplary judicial record while downplaying the materiality of her one-time lies under Oath during a pro-confesso divorce proceeding.

Justices Robert Young and Stephen Markman pressed Mr. Hall on the importance of truth within a judicial proceeding, no matter how perfunctory, and queried whether his client was perhaps held to a higher standard, being herself a family court jurist facing a similar docket as Judge Brennan here in Oakland County.

Justice Markman, in particular, asked Cyril to "fill-in-the-blank" for the following statement:

This Court [Supreme Court] preserves the integrity of the judiciary, and maintains public trust in that judiciary, by allowing a judge to remain on the bench despite having testified falsely under oath, because...[why?].

Mr. Hall simply did not have a good answer for Justice Markman.

Having listened to the oral arguments, we here at the Law Blogger predict that the Supreme Court will uphold the Judicial Tenure Commission's recommended suspension, but will decline the request of the JTC's attorney to remove Judge Adams from the Wayne County bench.  Even Justice Young noted that this requested sanction exceeded the appellate attorney's own client's recommendation.

Hopefully for the family law litigants that will appear before Judge Adams in the upcoming years, assuming she survives this personal and professional setback and retakes her position on the Wayne Circuit's Family Court, she will have learned a valuable bedrock lesson upon which our entire legal structure is based: the truth matters in any and all judicial proceedings.

Post Script:  Judge Adams was removed as a judge by the Michigan Supreme Court's decision.  In August 2013, Governor Snyder appointed Bodman attorney Charles Hegarty to fill this judicial vacancy.

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Posted in: Cyril Hall,divorce,Judge Deborah Ross Adams,Michigan Supreme Court,Oakland County divorce,Oakland County Family Court,Oakland County Judge Mary Ellen Brennan,Wayne County Circuit Court

Date Rape and Statutory Rape Plea Bargains

Around the turn of the century, Michigan's so-called "rape" laws underwent a sea-change.  The Legislature re-wrote the law of sexual assaults into what is now classified as "criminal sexual conduct" [CSC].

There are numerous facets to this law, including the ages of the accused and the victim; their relationship; the use of force; and many other factors.  Once convicted under the CSC statutes, a defendant then faces the onerous registration requirements under the Sex Offender Registration Act.

Recently, our law firm was involved in two CSC cases that were headed for jury trials; one in Genesee County and one in Oakland County.  Each case resolved with plea agreements that preserved our clients' freedoms, but also included punishments that were justified under the circumstances.

The case in Genesee County involved date rape and resolved with hard-bargained plea and sentencing agreements that reduced the degree of the charges from CSC 3rd to CSC 4th.  The sentencing agreement featured a no-jail guarantee.  The only way these agreements were reached was because our lawyers were prepared to try the case; and the accused had a good defense.

Our Oakland County case was not as strong.  The accused wanted to utilize a defense that his young victim looked years older than she actually was.  When a victim is between the ages of 13 and 16, however, the Michigan Supreme Court long-ago held that an accused's reasonable mistake in the age of the victim is not a defense.

In fact, this defendant had no defense, even though no force was used and the evidence showed that the young victim pursued the relationship with the accused and "consented" to sexual contact.  If convicted, he also missed the 4-year "Romeo and Juliet" age-gap that would have afforded him the opportunity to convince the judge that he should not be placed on the sex-offender registry.

Between our client's willingness to push the matter to trial, the reasonable approach of the judge, the open-mindedness of the prosecutor to resolve the matter short of trial and, perhaps most importantly, the victim and her family's unwillingness to take the matter to trial, our client was offered a no-prison guarantee on his sentence, with any jail term suspended on condition he successfully completed probation.  A very good result under such tough circumstances.

Sexual assaults are horrible crimes that, when reported, often make the victim pay.  They frequently go to trial.  Most often, such cases become an exercise in damage control.

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Posted in: criminal defense lawyer,criminal sexual conduct,CSC,Genesee County,Michigan Supreme Court,Oakland County,rape,Sex Offender Registration Act,SORA

Governor Snyder Goes Eastside for Michigan Supreme Court

Judge David Viviano

For the first time since Justice Neil Reid retired from our High Court in the mid-1950s, a jurist from Macomb County will be seated on the Michigan Supreme Court.  Yesterday, Governor Rick Snyder announced his decision to replace disgraced former Justice Diane Hathaway with Macomb County Circuit's Chief Judge, David Viviano.

Although he comes from a family of jurists, [his father, Antonio Viviano, was a long-serving probate, then circuit court judge, and his sister, Kathryn Viviano, is a sitting judge in the Macomb Circuit Court's family division] David has practiced in several challenging areas of the law and has been outstanding.  In addition to working at the Dickinson Wright law firm in Detroit, he also worked at Jenner and Block in Chicago.  Those are some serious legal chops folks.

We here at the Law Blogger have observed Judge Viviano to be fair, honest, and a judge's judge.  He went to the University of Michigan Law School which, for us, is a big plus.  The attorneys in our law firm have appeared in front of all the Viviano judges.

Of course, an appointment like this one is going to ruffle political feathers.  The Freep, for example, noted that Governor Snyder's appointment was his second consecutive male appointment to the High Court, following Brian Zahra back in 2010.  Along these lines, Oakland County Circuit Court Judge Colleen O'Brien was rumored to be on Snyder's short list.

One thing consistent between the incoming and outgoing justices [Hathaway and Viviano]; they both come from families well-clothed in black robes.  In Judge, soon Justice, Viviano's case, however, that is of less import than the judicial temperament and intellect he will bring to this important job.

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Posted in: Governor Rick Snyder,Judge David Viviano,Justice Brian Zahra,Justice Neil Reid,Macomb County Circuit Court,Michigan Supreme Court,Oakland County Circuit Court

Michigan Supreme Court Shuts Down Medical Marijuana Dispensaries

The case discussed in this note involves marijuana dispensaries.  They're out there folks; maybe not like Santa Monica Blvd, but they're out there.  Take a look at this Directory of Dispensaries.

The Michigan Supreme Court outlawed medical marijuana distribution schemes pot farmers have been using since 2008 to achieve some basic economy of scale and, imagine this, make money from the effort. The Act provides immunities and defenses for legitimate “patients” and “caregivers”, but pecuniary schemes like the one at issue in this casenote are clearly not protected by the MMMA.

Compassionate Apothecary, a medical marijuana dispensary, or “provisioning center”, was the business model that underwent recent scrutiny by the Michigan Supreme Court in People v McQueen. The Court’s decision spells the end of these easy distribution schemes.

The Compassionate Apothecary (CA) was a “pot club”, if you will. Except for their revenue generation, this club was run about as close to the requirements of the Michigan Medical Marijuana Act as possible. Our High Court, however, determined that the scheme did not comply with the Act, largely on pecuniary grounds.

Brandon McQueen was both a registered patient and the primary care giver to three patients. His business partner, Matthew Taylor, cared for two registered qualifying patients. Together, they ran CA, a membership organization with a physical location consisting of lockers for pot storage and transfer. To be a member, you have to verify your status as a “card-carrying” patient or provider.

The High Court’s syllabus best describes how the collective operated:

To be a member of CA, an individual had to be either a registered qualifying patient or a registered primary caregiver. Caregivers could only be members of CA if a qualifying patient with whom he or she was connected through the state’s registration process was also a member. Patients and caregivers who were members of CA could rent lockers from CA. Patients would rent lockers from CA when they had grown more marijuana than they needed to treat their own debilitating medical conditions and wanted to make the excess available to other patients. Caregivers would rent lockers when their patients did not need all the marijuana that they had grown. Patients and caregivers desiring to purchase marijuana from another member’s locker could view the available marijuana strains in CA’s display room. After the patient or caregiver had made a selection, a CA employee would retrieve the marijuana from the appropriate locker, weigh and package the marijuana, and record the purchase. The price of the marijuana would be set by the member who rented the locker, but CA kept a service fee for each transaction.

CA’s recorded pricing and service fees placed them out of compliance with the Act. Thus, it was a no-brainer for the High Court to affirm the intermediate appellate court and outlaw dispensaries.

In Ypsilanti, Third Coast Compassion Club takes issue with the decision. Without disclosing whether Third Coast charges different prices for various pot strains, or fees to facilitate transactions, their spokesperson said, “ultimately, we’re a private club, not a public store…” Well, good luck with that…

While the decision no doubt spells hardship for those in the, er, budding industry, Jim Lynch of the Detroit News observes “Panicked Uncertainty”. Hardly; but dedicated legitimate patients must now go underground or grow their own.

Free Press coverage touched on the legislative history of the Act; the Freep spoke with pot lobbyist Tim Beck of Detroit, a retired health insurance executive who was one of the scriveners of the original proposal put on the 2008 ballot. Beck indicated the words “sale” or “dispensary” were far too dangerous to use in the ballot initiative, so they were deliberately kept out of the text of the initiative.

The distribution concept integrated into the MMMA is one of: “grow your own”.  Professional horticulturists were not contemplated by the initiative and are not found within the scope of the Act.

Michigan Attorney General William Schuette, who joined the Isabella County Prosecutor in filing the complaint for a permanent injunction against Compassionate Apothecary as a public nuisance, said the Supreme Court’s decision clarifies the MMMA as follows:

 The law does not allow retail sales of medical marijuana.
 Sales or transfers are limited to those between caregivers and their five registered patients.
 Sales or transfers between registered patients are barred.
 Caregivers are not protected when selling or transferring marijuana to unregistered patients.

Among the patients and caregivers that commented to the state’s media yesterday, the theme seemed to be, “where am I gonna get my pot now?” Some medical marijuana patients that spoke with the Oakland Press, the Detroit News and Free Press said they were disappointed in the ruling because it will make marijuana more difficult to obtain.

87th District State Rep Mike Callton (R Nashville) introduced a bill last May which he characterizes as follows:

This isn't about restricting anyone's freedom or access to a substance that is now legal for those with a prescription. This is about making sure patients are safe and the product is safe. Since medical marijuana became legal in Michigan, dispensaries are popping up left and right and we need to make sure these places pass the grandma test.

Well, technically, the Act refers to a physician “certification”, not prescription; like the word “sale”, the word “prescription” does not appear in the MMMA.  So, to fill-in this gap, Rep Callton articulates the “grandma test” on his official website:

If you wouldn't feel safe having your grandma go to one of these places to pick up her medical marijuana, as if she went to a pharmacy, then it needs to be cleaned up or closed down.

Bottom line: the Supreme Court’s decision is a rationale application of the MMMA. Legitimate patients can legally obtain and use marijuana. But, growers beware; and take care not to make a profit, least you find yourself on the wrong side of felony charges.

For now anyway, pot farming is a labor of love…

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Posted in: Brandon McQueen,Compassionate Apothecary,criminal defense lawyer,dispensary,Matthew Taylor,medical marijuana,Michigan Court of Appeals,Michigan Medical Marijuana Act,Michigan Supreme Court

Vacancy Tarnishes Michigan Supreme Court

Diane Hathaway with President Obama

Last Friday, the US Attorney filed federal criminal charges [bank fraud] against the now-former Michigan Supreme Court Justice Diane Hathaway; her last official day was Monday, although she has been absent from the bench for weeks.  This is yet another case that gives the public pause, and erodes the confidence we place in our publicly elected officials; especially jurists; especially those elected to the Michigan Supreme Court.


By now, this story is well-known.  Ms. Hathaway and her husband are alleged to have concealed an intra-family transfer of a parcel of Florida real estate in order to get a short-sale approved which resulted in a mortgage loan forgiveness of more than $600,000.

The feds assert that the intra-family transfer was not disclosed to the mortgage lender to intentionally trick the lender into believing the Hathaways were suffering an economic hardship.  Once the short sale was approved, the Florida property was transferred back to the Hathaways.

Seems like a slam dunk prosecution.  Because the federal charging instrument filed in the case was an "information", a guilty plea is expected to be tendered by Hathaway next Tuesday in U.S. District Court.

We here at the Law Blogger have seen many of our divorce clients, while suffering genuine intense economic hardship, have their short sale offers or their loan modification applications rejected.  But even the notion of a sitting Supreme Court Justice applying for a short sale strikes us as untenable.  This whole story falls squarely within the category of: "What were they thinking?"

Thinking back to the November elections of 2008, when Hathaway was elevated from the Wayne County Circuit Court to the High Court, this blog recalls all those attack ads about former Justice Cliff Taylor depicted [via cleaver video editing we might ad] falling asleep during oral arguments.  In the long-run, however, any faith Michiganders placed in Hathaway to replace the pro-insurance Taylor was squandered.

At Hathaway's inevitable sentencing, she will be ordered to pay back the mortgage deficiency.  But we have to wonder: will she also be sentenced to federal prison?  Perhaps she will be able to avoid a prison sentence by tendering a guilty plea.  Wow, a former Michigan Supreme Court Justice pleading guilty in a federal courthouse.

One of the consequences of Hathaway's resignation from the High Court is the imminent appointment of a replacement.  One name that has been floated is Oakland County Circuit Judge Colleen O'Brien.  And if she gets the appointment, Governor Snyder will also have the opportunity to appoint O'Brien's replacement to the Oakland Circuit.

We can hardly wait.  Stay tuned.

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Posted in: bank fraud,Justice Clifford Taylor,Justice Diane Hathaway,Michigan Supreme Court,Oakland Circuit Judge Colleen O'Brien,Oakland County Circuit Court,United States Attorney

Michigan Medical Marijuana Act Does Not Provide Immunity for Collectives

Just prior to the holidays, the Michigan Supreme Court deepened its medical marijuana jurisprudence by deciding another key case applying the Michigan Medical Marijuana Act.  The case, People v Bylsma, arose out of Kent County and is distinctive because it is the first case under the Act that involves a collective grow operation.

Ryan Bylsma was a certified care provider under the MMMA.  He operated a medical marijuana collective with other pot growers.  He claimed that he assisted other farmers with their grow operations and that he only maintained 24 plants in the facility.

Bylsma was busted when a Grand Rapids city inspector observed suspicious wires coming from the structure of the collective.  The inspector forced his way into the structure [without a warrant], observed the extensive marijuana operation, and alerted the Kent County Sheriff.  Nearly 90 plants were seized from the structure.

The collective farmers had a locked facility, but they did not segregate their plants.  All three pot farmers were certified under the act.  Apparently, the structure was traced back to Bylsma from an owership perspective thus, he took the rap for possession of all the plants.

The Kent County Circuit Court trial judge did not buy into Bylsma's assertion that his pot possession within the collective was strictly limited to the 24 plants designated for his two patients.  Bylsma's motion to quash the information was denied and appealed to the Michigan Court of Appeals.

The intermediate appellate court affirmed the trial court, holding that since the strict plant limits and other provisions of the MMMA were not observed by Bylsma, then he could not avail himself of the immunity under section 4 of the Act, nor could he avail himself of the affirmative defenses under section 8 of the Act.

Maintaining consistency with their Kolanek opinion, the Michigan Supreme Court affirmed the intermediate appellate court in holding that, unless an accused complies with all the provisions of the MMMA, the section 4 immunity is not available.  The High Court reversed the Court of Appeals, however, by holding that the Act's section 8 affirmative defenses are available regardless of compliance with the Act.

The decision is significant to the extent that it resolves the issue of whether pot combine owners, partners or participants can combine space and share the protections of the MMMA; they cannot.  Further, this case again emphasizes the shortcomings of the Act with regard to any distribution-for-profit scheme; there are not enumerated in the Act, and the High Court laid the groundwork for striking down any such schemes.

We here at the Law Blogger see the medical marijuana jurisprudence establishing very limited defenses for true medical marijuana pot growers and users.  Those who insist on utilizing the MMMA to turn a profit will continue to be disappointed, while legitimate medical users will be afforded the protections envisioned by the Legislature.

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Posted in: criminal defense lawyer,immunity,Kolanek,Michigan Medical Marijuana Act,Michigan Supreme Court,MMMA,Ryan Bylsma

Frozen Sperm and the Social Security Administration

The Michigan Supreme Court heard oral arguments mid-Month in a very interesting case of first impression involving frozen sperm and Michigan's laws of intestacy.  The certified question before our High Court  is whether frozen sperm equates to "children" under the intestacy statute.

In this case, the procedure is as unusual as the fact pattern.  The case comes to the Supreme Court on a certified question from the United States District Court for the Western District of Michigan.  The case took more than five-years to get to the state court.

The case arose when the Mattisons, a married couple, arranged for Mr. Mattison to bank his frozen sperm in order to preserve it for later impregnation and prior to receiving chemotherapy to treat his cancer.  The couple desired to preserve their ability to have children but were worried that Mr. Mattison's chemotherapy would damage his sperm, complicating their efforts to conceive a child.

After actively preparing his wife to receive his frozen sperm, Mr. Mattison died back in 2001.  Ms. Mattison subsequently was implanted with her deceased husband's frozen sperm, conceived and gave birth to twins.

Ms. Mattison's application on behalf of the twins for survivor benefits was denied by the Social Security Administration.  The SSA took the position that the children did not survive their wage-earner father under the definition of the terms "child" and "survive" in Michigan's probate code; the Estates and Protected Individuals Code.

In listening to oral arguments in the case, it did not appear that the High Court Justices, particularly Justices Robert Young and Stephen Markman, were very receptive to Ms. Mattison's position.  Justice Young exhibited palpable irritation that the certified question, which appears to have no statutory support in EPIC, took so long to make it's way to the Michigan Supreme Court.

Although many other states are considering similar questions, we here at the Law Blogger predict that our Supreme Court will decide in this case that the Mattison twins are not entitled to receive the survivor benefits from their deceased wage-earning father on the basis that they simply did not exist at the time of their father's death.

Toward the end of the very brief oral arguments, one of the Justices asked Ms. Mattison's attorney whether he had considered raising the frozen sperm survivorship issue with the Michigan Legislature.  We agree with Justice Young when, during oral argument, he wondered aloud whether the certification of this particular question was essentially a violation of the constitutional separation of  powers.

Unfortunately for the Mattisons, Courts cannot legislate from the bench.

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Posted in: frozen sperm,intestacy,intestate,Justice Robert P. Young,Justice Stephen Markman,Michigan Supreme Court,Pamela Mattison,Social Security,Social Security Administration

State High Court Justices Survive Election

Supreme Court Justice Brian Zahra

If you are a Justice on your state Supreme Court, and were up for re-election, then last Tuesday was a good day for you, except if you work in Ohio.  Here in Michigan, the two incumbent Justices, our friend Brian Zahra, and his colleague, Stephen Markman, were re-elected in a hard-fought race.

The High Court election results mean that the conservative 4-Justice majority in Michigan stays intact for now.  The newcomer to the Michigan Supreme Court is UM Law Professor Bridget Mary McCormack, a Democratic nominee.  Professor McCormack replaces retiring Justice Marilyn Kelly; a long-serving Justice and a Judge's jurist if there ever was one.

The November 2012 election featured tight High Court races in other states around the country.  In Iowa, Justice David Wiggins was the only survivor of a 4-Justice block that decided a case recognizing same-sex marriage back in 2009.  His three High Court colleagues were defeated in the 2010 election.

Meanwhile, in Florida, the local Republican party targeted three justices as "too liberal" and "too extreme" to be worthy of their High Court.  The effort failed, however, as all three liberal Justices retained their seats.

In Michigan, as in most states, our jurists are "elected".  Many, if not most, of our jurists, however, take their seats on the bench through a gubernatorial appointment, then get elected after finishing out the term to which they were appointed.  The advantage is being able to run as a sitting judge or justice.

Justice Zahra is a good example.  He was initially appointed to the Wayne Circuit bench by former Governor  Engler, then elevated to the Court of Appeals by Engler.  After Governor Snyder was elected, one of the first things he did was to elevate Zahra to our High Court.

While the judicial ballot is "non-partisan", this past election confirms an age-old trend in judicial elections; you cannot remove politics from the courtroom.

Postscript:  Here is an editorial from the NYT referencing the huge sums spent on Michigan's High Court election.

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Posted in: Bridget McCormack,Justice Brian Zahra,Justice David Wiggins,Justice Marilyn Kelly,Justice Stephen Markman,Michigan Supreme Court,same-sex marriage

Business Courts Begin Statewide in January

Governor Rick Snyder

Here in Oakland County, we've had an operational business court pilot since April 1, 2012.  This week, Governor Rick Snyder signed HB 5128 into law, amending portions of the Revised Judicature Act to rescind the so-called "cyber courts" [an idea that was never clear and never got off the ground], and replacing those specialized tribunals with "business courts" for all county circuit courts with more than 3 judges.


The central idea behind the specialized tribunals is to require electronic case and document filings.  According to the recent Senate Fiscal Agency analysis, the business courts would:

• Have exclusive jurisdiction over all business or commercial disputes with an amount in controversy in excess of $25,000;
• Any cause of action arising, in whole or in part, from a business or commercial dispute would be assigned to the business court;
• Require all circuit courts with more than 3 sitting judges to submit a plan for the implementation of a business tribunal to the State Court Administrative Office; 
• Counties with fewer than 3 judges have the option of submitting an administrative order for SCAO review for a specialized business court with concurrent jurisdiction with the county trial court;
• Cases will be assigned to business court judges via a blind draw;
• Business court cases are required to be filed electronically;
• Require that the judges assigned to the business courts be trained by the Michigan Judicial Institute; and
• Any cases that are pending on the various county pilot programs remain on that docket until they are completed. 

Presently, there are several "specialized" courts operational here in Michigan.  Each county has a family court, a probate court, and a court of general jurisdiction.  All district courts have a "small claims" division where people can bring disputes without lawyers.  Some county and district courts have "sobriety courts" focusing on treatment over incarceration.  And some counties have Veterans' court and adult treatment courts.

We will see if this new specialized court prunes the docket of the county courts of general jurisdiction.  Here at the Law Blogger, this seems like a good idea.

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Posted in: Governor Rick Snyder,Michigan Supreme Court,Oakland County business court,SCAO,State Court Administrative Office

Michigan Supreme Court Selects [Another] Medical Marijuana Case

The criminal defense bar saw all this litigation coming from a distance.  At this blog, we knew that the Michigan Medical Marijuana Act would be challenged, diced, and spliced for years after its passage in 2008. 

Well, no disappointment on that front, as the Michigan Supreme Court has selected yet another medical marijuana case for briefing and argument during their term which will commence next week.  This case will follow the Supreme Court's seminal Kolanek decision and nearly a dozen opinions from the intermediate appellate court issued over the past four years.

This time, the action arises from Kent County and the issue involves the collective farming and distribution scheme of a certified "care provider".  The case, People v Bylsma, was decided by the Michigan Court of Appeals in a published decision one year ago.

The care provider was the subject of a raid conducted by the Grand Rapids PD which yeilded more than 88 plants from a grow operation housed in a commercial rental facility.  Problem: this care provider only had two certified "patients"; a person is allowed up to five under the Act.  You may possess up to 12 plants for each patient.

In the trial court, Mr. Bylsma asserted the immunity afforded by the medical marijuana act, and moved to dismiss the case.  He also argued that the Act does not prevent multiple care providers from collaborating their grow operations.  The lower court denied the motion to dismiss, and Bylsma's appeal to the Michigan Court of Appeals resulted in that decision being affirmed.

Now, the Michigan Supreme Court will take a look.  Its decision will further develop our growing medical marijuana jurisprudence.

This case presents an opportunity to further address one of the primary tensions that have developed between care providers attempting to distribute medical marijuana, and perhaps turn a profit in doing so, and the law enforcement agencies that have been uncertain about what is legal and what remains illegal.

The Kolanek decision smoothed out the mechanics of the immunity and affirmative defense provisions of the Act.  Prosecutors took a very restrictive view of the latter, while the criminal defense bar argued for a broader application of the defense.

We here at the Law Blogger recently had the opportunity to brief this issue in a case pending before the Court of Appeals.  Both Kolanek and now Bylsma will affect the outcome in our case.

As for Bylsma, let's just sit back and see whether the Supreme Court will interpret the Act in a manner which will allow these pot farmers to make some money.

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Posted in: criminal defense lawyer,Kolanek,lawyer,medical marijuana,Medical Marijuana Act,Michigan Court of Appeals,Michigan Supreme Court,Ryan Bylsma

Michigan Supreme Court Acknowledges an "Impossibility" Defense to Felony Child Support

This blog has covered the child support saga of Ms. Selesa Likine.  Her felony child support conviction was just reversed by the Michigan Supreme Court, and her case has been sent back down to the Oakland County Circuit Court.

The family court was created by statute pursuant to the Michigan Constitution back in 2000; now, there is a family court division for every county in Michigan.  Family courts issue support orders that obligate a parent to pay a specified sum each month for the support of their minor children.

Ever since parents have been ordered to pay child support, there have been those who cannot or will not make their required  payments.  There are different reasons for not paying: some withhold payment from their ex-spouse for revenge; others simply cannot afford to pay, or do not put a high priority on their child support obligation.  [e.g. the "Worm" aka Dennis Rodman.]  Still others find it impossible to satisfy their court-ordered obligation based on hard economic circumstances.

Regardless of the reason, when a child support payor fails to pay pursuant to a court order, an arrearage builds-up and the courts take notice.  Quite apart from the family court, the county circuit courts of general jurisdiction are the courts where felony criminal matters are prosecuted.

The Michigan Penal Code has a law on the books known as "failure to pay child support"; a four-year felony.  This felony has always been considered a "strict liability" crime, meaning that there is no defense to the charge once the prosecutor proves that the family court issued a support order and the payor, for whatever reasons, did not pay.

On Tuesday, the Michigan Supreme Court addressed the felony child support statute in People v Likine.  This case is significant to the extent that it expressly reverses a Court of Appeals decision that precludes a defendant from asserting any "ability to pay" defense whatsoever.  The Likine Court held that "impossibility to pay" is an affirmative defense on which a jury can be instructed at a trial provided certain offers of proof are tendered.  Also, the Court reaffirmed that, despite the availability of this affirmative defense, felony child support remains a "strict liability" crime.

In the initial divorce case, Selesa Likine was diagnosed with depressive schizoaffective disorder.  Family Court Judge Linda Hallmark initially ordered her to pay only $54 per month in support; a relatively low amount.

Likine's support was increased, first to $184 per month then to $1131 per month, on the basis of "imputed income".  At a support hearing conducted before the FOC Referee, evidence revealed that Ms. Likine made [false] representations of high income on two mortgage applications in order to purchase an expensive home.

Based on these representations, and based on the  projected earnings of someone paying on that large a mortgage, the FOC Referee imputed income of $5000 per month to Likine.  Of course, this was a fiction; not only did Likine never earn that much income, she basically had no chance whatsoever to satisfy her new increased child support obligation.

Enter the criminal charge against Ms. Likine.  When her lawyer tried to "tell it to the judge", and then to the jury, about her lack of income, it was too late.  The trial judge relied on the holding of a Michigan Court of Appeals case [People v Adams] precluding Likine from presenting any evidence on her so-called "inability to pay."

Bottom line: now, a felony defendant is able to offer proof of an "impossibility" to pay, but not an inability to pay.  The latter concerns must still be addressed to the family court.  The reason is that our criminal jurisprudence requires a "mens rea" or "guilty mind" as a required component to every crime listed in the Michigan Penal Code.

Note to attorneys: The Likine case was a companion case with two other consolidated cases.  In those other cases, the felony child support convictions of the child support payors were NOT reversed on the basis that neither defendant had preserved the "impossibility to pay" issue in the trial court.  

Just sayin; had they done so, those convictions also may have been reversed.

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Posted in: child support,divorce lawyer,felony child support,Judge Linda Hallmark,Michigan Penal Code,Michigan Supreme Court,Oakland Circuit Court,Selesa Likine

Oakland Circuit's Spousal Computer Privacy Case Rejected by Supreme Court

Leon Walker with his former
spouse in happier times

There is an interesting privacy law criminal case percolating through the appeals courts that originated here in Oakland County.  The case involves the alleged hacking access by a husband of his former wife's computer.

Last Friday, the Michigan Supreme Court denied Leon Walker's application for leave to further appeal from a Michigan Court of Appeals order that similarly rejected his effort to quash the criminal information filed in his case.


On appeal, Walker's lawyers have asserted that the legislature did not intend to criminalize the domestic relations nature of his conduct.  Also, although Walker did not challenge the constitutionality of the statute, he simply asserted that the evidence adduced by the prosecutor at the preliminary examination did not comport with the proscribed conduct set forth in the statute.

The case now goes back down to Oakland Circuit Judge Martha Anderson for further proceedings and trial.

Back in 2009, Walker suspected his wife was having an affair.  Employed as a computer technician for Oakland County, he had expertise on how to access computers.  Allegedly, he hacked into a computer that the prosecutor alleges had been gifted to his wife, discovering evidence of the affair.

This blog covered the case in an earlier post when the matter seemed to be heading for trial.

In speaking with Mr. Walker yesterday [he contacted our law firm], he said he is looking forward to his trial when all the facts will come out before a jury.  Among those facts, he says the laptop computer at issue in the case was premarital and that he never gifted it to his former wife.

Walker also claims that the Oakland County Sheriff, or their computer expert, may be responsible for evidence spoilation; they claim to have lost or misplaced his laptop.

Although the Supreme Court declined to decide the case at this time, some of the Justices hinted at their concern that the language in the statute is very broad and could be used to criminalize otherwise legal conduct.

Justice Marilyn Kelly, who voted to hear the appeal, stated her concern in the High Court's order:

The factual basis for one of the charges against defendant is that he allegedly accessed his wife’s e-mail account without her permission.   This may be the first time in the 33 years since MCL 752.795 became law and the 16 years since it was amended to its present form that the statute has been used as the basis for criminal charges for the behavior in question. 

Justice Kelly goes on to note that the Michigan legislature submitted a bill to the House Judiciary Committee last year seeking to amend the unauthorized computer access statute.  This bill would carve-out an express exception in the statute for spouses, provided that certain conditions were satisfied.

We will be keeping an eye on this hot case.

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Posted in: computer hacking,Justice Marilyn Kelly,Leon Walker,Michigan Court of Appeals,Michigan Supreme Court,Oakland Circuit Judge Martha Anderson,Oakland County Prosecutor,privacy law

Michigan Supreme Court Rules on Medical Marijuana

This is a tale of one statute and two defendants.  One defendant will be sporting a conviction for marijuana possession, while the other defendant's charges are now dismissed.

This week, the Michigan Supreme Court decided an important case involving Michigan's Medical Marijuana Act.  The case, People v Kolanek, consolidated the separate convictions of Alexander Kolanek, and Larry King; the former an Oakland County case, the latter from Shiawassee County.

As detailed by this blog over the past three years, the Michigan Medical Marijuana Act has had a brief and tortured existence.  Prosecutors, law enforcement and even judges have taken a restrictive view of the use and immunities provided by the Act.  With much success, until now, they have managed to limit the use, or even the assertion of the affirmative defense set forth in section 8 of the Act.

Not surprisingly, several cases have percolated up through Michigan Court of Appeals.  Two of these cases culminated in the High Court's Kolanek decision.

In the King portion of the decision, Larry King grew six marijuana plants in an enclosed locked dog kennel.  King had a valid medical marijuana registration card.

He moved to dismiss the case against him at both the district and circuit courts; the latter agreed that he was entitled to assert the affirmative defense under the Act and dismissed the case.  The Court of Appeals reversed the dismissal and remanded the matter back to the trial court.

In Kolanek, the defendant was arrested with a half dozen joints on his person.  A week after his arrest, he obtained a statement from his physician that he would receive a palliative benefit from the use of marijuana; Mr. Kolanek apparently suffered from Lyme disease.

Interestingly, the circuit court in this case held that, even though Mr. Kolanek did not obtain his physician's statement until after his arrest, the affirmative defense in the Act was nevertheless still available to him on the basis that he did at least secure a statement from the treating physician.

Kolanek's case also moved through the Court of Appeals, which reversed the circuit court, holding that to avail oneself of the affirmative defense of the MMA, a person must secure a physician's statement prior to one's arrest for marijuana possession.  Makes sense, don't you think...

The High Court reversed the Court of Appeals in King, holding that the MMA sets forth two separate defenses: one is the affirmative defense while the other is a broader immunity to prosecution.  A defendant charged with possession may assert the affirmative defense, even if that defendant has not yet obtained a medical marijuana registration card.  In order to secure a complete immunity from prosecution, however, an accused must have been issued said registration card and otherwise be in compliance with all the requirements of section 4 of the MMA.

The decision is also notable in that it affirmed the intermediate appellate court's decision in Kolanek to the extent that a defendant must have secured a physician's statement prior to asserting the affirmative defense provided for in the MMA.

The local blogosphere has hailed the Kolanek Court as a victory for medical marijuana users.  The decision will be cited in support of the following tenets within the medical marijuana jurisprudence:

• The MMA provides for two separate and distinct protections from marijuana prosecution: an affirmative defense available to assert to a jury for accused persons that have received a physician's statement that marijuana is therapeutic treatment of a chronic condition and a broader immunity from prosecution for those issued a registration card; 
• The decision affirms the MMA's definition of the legal, albeit limited use of marijuana; 
• The immunity set forth in section 4 of the MMA is broadly construed; 
• Interpretations of the MMA must give effect to the intent of the electorate through the passage of the medical marijuana initiative.

This may not be the end of the medical marijuana cases.  The issues of cash pot transactions and inter-patient transfers are winding through the court system.

For now, however, at least defense attorneys can get down to the business of asserting the affirmative defense on behalf of their clients, as provided by the express language of the MMA, and not have this tool removed from the shed by over-zealous prosecutors and wrong-headed jurists.

Folks, as always, the best way to get a marijuana possession charge dismissed is to carefully comply with the requirements of the MMA, and obtain your registration card before you purchase, grow, or possess marijuana.  After your registration card has been issued by the State of Michigan, be sure to stay within the strict limits of the Act.

Good luck out there.

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Posted in: affirmative defense,medical marijuana,Michigan Court of Appeals,Michigan Medical Marihuana Act,Michigan Medical Marijuana Act,Michigan Supreme Court,Oakland Circuit Court

Convicting the Child Support Payor for Non-Payment

In June, the Oakland County Bar Association has asked me to present to fellow lawyers on the topic of felony child support cases.   Like any area of the law, what at first appears simple, really a matter of strict liability, takes on complexity once you start looking at the details.

Over the past ten years, prosecutors began addressing the problem of unpaid child support in Michigan, taking cases from the family courts, and charging the errant payors with felonies in the circuit trial courts.  As a result, millions of dollars have been collected that otherwise would not have been paid.  Also, dozens of payors, both Fathers and Mothers, have gone to jail; some to prison.

During this wave of prosecutions, many delinquent payors have challenged the constitutionality of Michigan's felony non support statute on the basis that it essentially creates a "debtor's prison".  The "inability-to-pay" defense, viable at one time, was removed by the legislature with the passage of the most recent version of the statute in November 1999.

The constitutionality of this version of the statute, particularly the removal of the "inability-to-pay" clause, was tested a few years back in the People v Meldman case; a case from Oakland County.  Defendant challenged the family court's findings on the imputation of his income, and challenged the felony child support statute on its face.  Conviction affirmed.

The Law Blogger covered the basic ground on this subject some years ago, in these earlier posts: 02/15/2010 and 12/14/2010.  These posts covered the UM Law's innocence project and their challenge to the felony child support act's constitutionality.

The case we've been waiting for, People v Likine, also from Oakland County, was fully briefed for the Michigan Supreme Court last April [including amicus briefs from both the Prosecuting Attorneys Association of Michigan, and a powerful group of Michigan Criminal Law Professors], argued in October, and the High Court's opinion deciding the case is expected any day now.

Likine deals, in astounding depth, with the bed-rock constitutional issue of whether you can be jury tried for a crime involving non-payment, without being able to put on a defense of an inability, or even an impossibility, to pay the court-ordered obligation.  Related to this issue is whether a defendant can collaterally attack a statute, introducing evidence from the family court [on issues of payment history, income levels and availability of funds] into a court of general jurisdiction: i.e. the Oakland County Circuit Court.

One more recent development since that post is last June's SCOTUS decision in Turner v Rogers, holding that a child support payor facing incarceration for non-payment is afforded legal counsel under the Sixth Amendment of the United States Constitution.  A rare example of SCOTUS reviewing a state court decision with roots in family law jurisprudence.

Great stuff.  Stay tuned and we will be sure to convey how the Michigan Supreme Court views all this.  Hopefully they will issue their Likine decision prior to the OCBA presentation to my colleagues...

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Posted in: child support,debtor's prison,Louis Meldman,Michigan Supreme Court,Oakland Circuit Court,Oakland County Bar Association,OCBA,SCOTUS,Selesa Likine