Happy New Year!

Happy New Year!

Some of the more interesting laws that come into effect on January 1, 2013 are listed in this article.  The most curious one is the plastic bottle ban in Concord, Massachusetts.

Update to Earlier Michigan Emergency Manager Law Post

The discussion found in my blog post from November 2012 about the applicability of MCL 8.4 to the rejection by referendum of Michigan's Emergency Manager Law Public Act 4 at http://koehlerlegal.blogspot.com/2012/11/repeal-by-referendum-in-michigan.html will be moot when the newly signed emergency manager law takes affect in a few months. 

The new law was signed today by Governor Snyder.  http://www.detroitnews.com/article/20121227/POLITICS02/212270407/Gov-Snyder-signs-new-Michigan-emergency-manager-bill?odyssey=tab|topnews|text|FRONTPAGE.  If the vote had been an initiative repealing or amending Public Act 4 rather than a referendum on Public Act 4 then the initiative could have only been amended or repealed by another vote of people or a 3/4 majority of both chambers of the state legislature.

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan (MI) 48198 (Washtenaw County)

Santa Bank Notes

Source: Massachusetts Historical Society (see link below)

Source: Massachusetts Historical Society
Closeup of the Howard Banking Co. Santa Claus

Before the U.S. Government issued paper money, individual banks would issue bank notes that were redeemable for a stated quantity of gold at that particular bank.  There were as many as 8,000 different bank notes in circulation in the mid-1800s.  So many that a monthly digest was printed detailing how much each was worth in particular parts of the country.  Some of these bank notes had images of Santa Claus on them.  The first note above and the closeup below are from the Howard Banking Company of Boston.   The idea was apparently to inspire confidence in the bank by associating it with the figure of Santa Claus and to inspire collectors to hang onto the note and never actually redeem it for gold.  The second note below is from the Saint Nicholas Bank of New York.  An old case involving the St. Nicholas Bank can be found here: http://supreme.justia.com/cases/federal/us/146/240/


Source:
http://nutmegcollector.blogspot.com/2011/12/santa-claus-as-depicted-on-obsolete.html

Source:
http://nutmegcollector.blogspot.com/2011/12/santa-claus-as-depicted-on-obsolete.html

Santa Claus became a cultural icon in Nineteenth Century American after the publication of Twas the Night Before Christmas in about 1822-1823.  It was anonymously published around Christmas in 1823.  The actual author of the poem is in dispute.  Traditionally Clement Park Moore is credited with writing the poem, but others attribute it to MAJ. Henry Livingston, Jr. 


Information about the Howard Banking Company Note: http://www.masshist.org/objects/cabinet/december2001/december2001.html

Information about the Howard Banking Company of Boston: http://books.google.com/books?id=UBUWAAAAYAAJ&pg=PA960&dq=howard+banking+company+of+boston&hl=en&sa=X&ei=KXLYULqHA8euqgHF5IHYAQ&ved=0CEAQ6AEwAQ#v=onepage&q=howard%20banking%20company%20of%20boston&f=false

NPR Planet Money Podcast on the history of Paper Money: http://www.npr.org/blogs/money/2012/12/07/166747693/episode-421-the-birth-of-the-dollar-bill

Information about Santa Claus notes and the Saint Nicholas Bank Note: http://nutmegcollector.blogspot.com/2011/12/santa-claus-as-depicted-on-obsolete.html

The Twas the Night Before Christmas Poem: http://www.carols.org.uk/twas_the_night_before_christmas.htm

http://www.night.net/christmas/twas-night01.html

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan (Washtenaw County)

Vatican Pardon

Criminal trials in a small state that rarely has them are interesting to watch. The case of the pope's butler, Paolo Gabriele, who was accused of leaking confidential Vatican papers to the Italian press ended in a conviction for theft and an 18 month prison sentence in October. The case was a bench trial before a three judge panel. The Vatican state civil and penal courts are separate from the church's ecclesial courts as the Vatican state is a separate entity. The Vatican uses Italian criminal procedure and law for the most part. There are no jury trials, most prison sentences are served in Italy though these are rare, and there is no plea bargaining. Some cases are handled by the Italian courts. Today the pope issued a pardoned and commuted the prison sentence of Gabriele.

http://www.detroitnews.com/article/20121222/LIFESTYLE04/212220357/Pope-pardons-ex-butler-who-stole-leaked-documents?odyssey=mod|newswell|text|FRONTPAGE|p

http://abcnews.go.com/International/paolo-gabriele-popes-butler-convicted-sentenced-18-months/t/story?id=17412012

http://www.usatoday.com/story/news/world/2012/09/29/vatican-pope-butler-trial/1602295/

http://www.slate.com/articles/news_and_politics/explainer/2012/05/paolo_gabriele_case_how_does_the_vatican_deal_with_criminals_.html

s/ Kurt Koehler
308 1/2 S. State St. Suite 36
Ann Arbor, MI 48198 (Washtenaw County)

The Senate Filibuster - Common Cause v. Biden

Recently, a group of democrats (John Lewis (GA), Michael Michaud (ME), Henry Johnson (GA), and Keith Ellison (MN)) serving in the House of Representatives along with a non-profit group called Common Cause and three undocumented immigrants sued the United States Senate over the Senate filibuster rule.  The Plaintiffs cited the DREAM Act on immigration reform and the DISCLOSE Act on campaign finance reform as examples of legislation that failed to come to a vote in the Senate due to a filibuster.  The case, Common Cause v. Biden (Docket Number: 12-775),  alleged that the filibuster's 60 vote requirement to end debate (cloture) was unconstitutional because it was not consistent with majority rule.  The Plaintiffs also challenged Senate Rule 5 which allows the Senate's rules to continue from one congress to the next unless changed.  The Plaintiffs argued that the Senate should be able to change its rules by a majority vote

The defendants moved to dismiss the case under FRCP 12(b)(1) for lack of subject matter jurisdiction.  The defendants asserted that the Plaintiffs lacked standing to bring the suit, that the suit is barred by the speech and debate clause of the constitution, and that the complaint is an non-justiciable political question. 

Judge Emmet Sullivan of the United States District Court for the District of Columbia held that the Plaintiffs lacked standing to sue.  The house plaintiffs alleged that they were injured as the filibuster effectively nullified their votes in the house.  They claimed that they had a procedural right to have a bill fairly considered by the Senate though they did not claim a right to have legislation passed by the Senate.  This was not convincing to the court which could not identify a right that they were denied by the filibuster.  The DREAM Act plaintiffs claimed that they were injured by not being able to benefit from the DREAM and DISCLOSE Acts.  The court ruled that this was a hypothetical injury as neither law has been passed by congress and there is no guarantee that they will be.  Judge Sullivan also stated that the court would offend the separation of powers if it were to strike down the filibuster rule.  The court ruled that the challenge to the filibuster rule presented a non-justiciable political question.

http://thehill.com/blogs/blog-briefing-room/news/274277-judge-dismisses-lawsuit-from-house-dems-challenging-filibuster

The opinion is here: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv0775-25

More information about the Filibuster can e found in NPR's Planet Money Podcast: http://www.npr.org/blogs/money/2012/12/11/166993494/episode-422-schoolhouse-rock-is-a-lie-or-how-the-filibuster-ate-washington

s/ Kurt Koehler
The Law Office of Kurt T. Koehler,
 308 1/2 S. State Street
Ann Arbor, Michigan (MI) 48198 (Washtenaw County)

In Memorium - Judge Bork

I enjoyed taking Judge Bork's class and talking to him while I was at Ave Maria School of Law. He had some great stories particularly about Watergate. It seems my fellow Ave alumni have some interesting stories about him based on the Facebook posts today. Sad to see him go.  
I agree with the assessment of one his former law clerks found here:
http://www.foxnews.com/opinion/2012/12/19/judge-bork-knew/
http://www.washingtonpost.com/local/obituaries/judge-robert-h-bork-conservative-icon/2012/12/19/49453de4-c5da-11df-94e1-c5afa35a9e59_story.html

http://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html?_r=0

http://www.nationalreview.com/corner/336152/judge-bork-rip-steven-g-calabresi

http://www.nationalreview.com/articles/336115/remembering-judge-bork-nro-symposium

http://www.slate.com/articles/news_and_politics/jurisprudence/2012/12/what_if_robert_bork_had_joined_the_supreme_court.html

http://online.wsj.com/article/SB124294934268945409.html

Books by Judge Bork

s/ Kurt Koehler
308 1/2 S. State Street
Ann Arbor, Michigan (MI) 48198 (Washtenaw County);

The Second Amendment - Outside the Home

The United States Court of Appeals for the Seventh Circuit ruled 2-1 on December 11 in Moore v. Madigan, 12-169 and 12-1788 that Illinois' ban on carrying a weapon ready to use in public was unconstitutional.  Ready to use means loaded, easy to reach, and uncased.  Carrying an unloaded weapon in public was also illegal if it was uncased and readily accessible.  The law had allowed carrying a weapon ready to use on the person's own property, home, the property of another with the owner's permission, or the person's fixed place of business.  The law did exempt certain groups including Police, security personnel, hunters, and target shooting club members.  Judge Posner wrote the opinion of the court. 

The United States Supreme Court has held that the Second Amendment allows a law abiding citizen to bear arms for self-defense in the home.  District of Columbia v. Heller, 554 U.S. 570 (2008) (applicable to the federal government); McDonald v. City of Chicago, 561 U.S. 3025 (2010) (applicable to the states).  Judge Posner noted that the Supreme Court has not addressed the applicability of the Second Amendment outside of the home.  The lower courts ruled that it did not apply outside of the home.

The Seventh Circuit held that the Second Amendment created a right to bear arms for self-defense and that Heller contemplated a right that was broader than just self-defense in the home.  Judge Posner declined to revisit the issue of the historical nature of of the right to bear arms and noted that the court could not ignore the Supreme Court's holdings in Heller and McDonald on that point.  The language of the Second Amendment in creating distinct rights to 1) keep and 2) bear arms  provided some guidance to the court.  Judge Posner ruled that the word bear would be awkward to use if the Amendment only applied within the home and decided that the wording implied the right to carry a loaded gun outside of the home.  As it may be necessary to defend one's self both in and outside of the home, the law was unconstitutional.  Posner noted that a person was more likely to be attacked outside of the home in Chicago than inside it.   To confine the right to the home would "divorce the Second Amendment from the right of self-defense described in Heller and McDonald."  He also wrote, "A gun is a potential danger to more people if carried in public than just kept in the home.  But the other side of this coin is that knowing that many law-abiding citizens are walking the streets armed may make criminals timid.  Given that in Chicago, at least, most murders occur outside the home, the net effect on crime rates in general and murder rates in particular of allowing the carriage of guns in public is uncertain both as a matter of theory and empirically."  (citations omitted).   The court found that restrictions on gun rights must not only be rational, but also include a strong showing that the restriction is vital to public safety over and above body counts.  The greater the restriction is then the greater the burden is on the government to justify it.

The court stayed its ruling for six months to give the Illinois legislature time to consider concealed weapon legislation that does not violate the Second Amendment.

Judge Williams dissented from the majority.  He also noted that Heller required a historical analysis of the status of the right dating from 1791.  Rather than apply the Supreme Court's historical conclusions from Heller, Williams would have held that Heller merely mandated the historical analysis.  However, Williams decided that it did not mandate that the court reach the same conclusions as the right to carry a weapon publicly is different right than the right asserted in Heller.  He felt that it was a close question and that the matter was unsettled.  Under these circumstances and given the state's interest in regulating the safety of its citizens, Judge Williams would have deferred to the judgment of the Illinois state legislature and allowed the law to stand.

http://www.ca7.uscourts.gov/tmp/NZ19NYN2.pdf

http://articles.chicagotribune.com/2012-12-11/news/chi-us-appeals-court-strikes-down-states-concealedcarry-ban-20121211_1_court-strikes-appeals-court-david-sigale

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

12-12-12

Since today could be called triple 12 day I'm going to put up a token post.   People seem to like dates with repeating numbers and we've had several of those lately such as 01-01-01, 02-02,02, 03-03-03, 04-04-04, 05-05-05, 06-06-06, 07-07-07, 08-08-08, 09-09-09, 01-10-10, 10-10-10, 1-11-11, 11-11-11, and 12-12-12. 

Anyway, it is just a cool date to write on a piece of paper and it is last date of its kind of the 21st century.   Other than that it has no real significance.   Sure the three mile long near earth object/asteroid Toutatis (http://science.nasa.gov/science-news/science-at-nasa/2000/ast31oct_1/) made its quadrennial nearest approach to Earth at a mere 18 times the distance from the Earth to the Moon or 7 million kilometers away. http://www.universetoday.com/98955/asteroid-toutatis-tumbles-by-earth-images-and-videos/  

Today is, however, an excuse for human interest newspaper stories and irrelevant blog posts such as this one.  Here are some news articles on 12-12-12 or 12-12-2012:

http://www.slate.com/blogs/future_tense/2012/12/12/_12_12_12_where_does_it_rank_among_the_all_time_coolest_dates.html

http://www.theatlanticwire.com/entertainment/2012/12/121212-users-guide/59893/

http://mashable.com/2012/12/11/121212/

http://news.yahoo.com/blogs/lookout/americans-mark-12-12-12-weddings-blockbuster-concert-164751749--finance.html

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/9737231/Boy-turns-12-on-121212-at-12.12pm.html

http://espn.go.com/blog/playbook/fandom/post/_/id/15256/12-12-12-is-ultimate-day-for-am-12th-man

http://www.121212concert.org/

http://abcnews.go.com/Health/12-12-12-separates-believers-skeptics/story?id=17929997

http://rt.com/news/features/december-12-marriage-doomsday-844/

http://www.huffingtonpost.com/2012/12/11/121212-is-a-good-day_n_2280027.html

http://www.usatoday.com/story/news/nation/2012/12/11/121212-twelve-weddings-bruce-magic/1761127/

http://www.globalpost.com/dispatches/globalpost-blogs/weird-wide-web/12-12-12-12-december-auspicious-dates-doomsday-mayan-calendar-lucky-numbers-lotto

http://www.universetoday.com/98965/what-earth-looked-like-on-121212/

http://gizmodo.com/5967987/its-121212++the-last-major-numerical-date-in-this-century

http://www.dailymail.co.uk/femail/article-2246958/Lucky-12-12-12-Demand-weddings-C-sections-soar-brides-moms-attempt-advantage-triple-digit-date-100-years.html

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Michigan Bottle Returns and the Dormant Commerce Clause

Recently the U.S. Court of Appeals for the Sixth Circuit decided a dormant commerce clause case involving Michigan's bottle law in American Beverage Association v. Snyder.  Michigan requires a 10 cent deposit on glass, plastic, or aluminum bottles containing one gallon or less of a soda drink, soda water, carbonated natural or mineral water, other nonalcoholic carbonated drinks, beer, ale, or other malt drinks with alcoholic content, mixed wine drinks or mixed spirit drinks.  MCL 445.571.  The deposit is refunded when the empty bottle is returned for recycling.  Retailers are only required to refund up to $25 per retailer per person each day. MCL 445.572(10).  75% of unclaimed deposits go to the state for environmental programs and 25% go to retailers.  According to the Michigan Department of the Treasury between 1990 and 2008 97.27% of the deposits were refunded ($7,708,600,000 in deposits were collected and $7,492,700,000 were refunded).  http://www.michigan.gov/documents/deq/dnre-whmd-sw-mibottledepositlawFAQ_318782_7.pdf. 

Only ten states have bottle deposit laws.  The others are Oregon, California, Iowa, New York, Vermont, Maine, Hawaii, Connecticut, and Massachusetts.  Most of these laws require a 5 cent deposit.  Guam also requires bottle deposits. 

Sometimes bottles are returned for refund in Michigan that were purchased in states where either a lesser deposit or no deposit was paid on the bottle.  This is illegal in Michigan with penalties ranging from a $100 civil fine (between 25 and 100 bottles returned) to up to 93 days in jail and a $1,000 fine (between 100 and 10,000 bottles returned) to up to 5 years imprisonment and a $5,000 fine (over 10,000 bottles returned).  MCL 445.574a.  Schemes of this type have been uncovered in the past and were even featured in a Seinfield episode.  One article from 2007 estimated that this fraudulent conduct costs Michigan $13 million per year.    Ethan Trex, "Why are Michigan's Bottle Deposits so High?," CNN.com, http://www.cnn.com/2011/LIVING/04/14/michigan.bottle.deposit.mf/index.html (April 14, 2011).
"Michigan Officials Bust Bottle-Deposit Fraud Ring", Foxnews.com  http://www.foxnews.com/story/0,2933,298433,00.html (Sept. 28, 2007).

Initially to combat this problem the bottle law required that "MI 10¢" appear on the bottle.  MCL 445.571(d).  In 2008 to further identify bottles sold in Michigan subject to the deposit the legislature required that bottlers meeting certain sales thresholds place an additional symbol or mark on the bottle to make it unique to the state.  MCL 445.572a(10). 

In February 2011 the American Beverage Association sued in the United States District Court for the Western District of Michigan claiming that this provision created a Michigan exclusive beverage market which would negate the efficiency benefits of large scale production, eliminate flexibility in the supply chain, and discriminate against out of state bottles and commerce.  http://www.mlive.com/news/index.ssf/2011/03/beverage_industry_sues_michiga.html  The association requested an injunction against the enforcement of this part of the law and a declaratory judgment that it is unconstitutional.  Both sides moved for summary judgment.

The commerce clause in Article I, Section 8 of the U.S. Constitution grants Congress the power to regulate commerce with foreign nations and between the states.  The commerce clause has a negative implication in that if Congress has the power to regulate commerce then the power of states to regulate commerce is restricted.  States may not unjustifiably discriminate against or overly burden interstate commerce.  This is the dormant commerce clause.  The dormant commerce clause is analyzed first by determining if the state statute directly discriminates against state commerce, favors in-state interests over out of state interests  or applies extraterritorially.  Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986).  Extraterritoriality exists if a statute "directly controls commerce occurring wholly outside the boundaries of a State [and] exceeds the inherent limits of the enacting State's authority."  Healy v. Beer Inst. Inc., 491 U.S. 324, 336 (1989).  Extraterritoriality may be established by the consequences of the statute, how the statute would interact with regulation in other states, or what the effect would be if every state adopted a similar statute.  Id.   When a statute is extraterritorial it is unconstitutional without further inquiry.   If a statute is discriminatory then the burden of proof shifts to the defendant to show that the state statute "advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives."  Dept. of Revenue of Ky. v. Davis, 553 U.S. 328 (2008).  However, if a statute is not discriminatory or extraterritorial then the court applies the Pike balancing test where the statute is unconstitutional only if "the burden it imposes upon interstate commerce is 'clearly excessive in relation to the putative local benefits.'"  Pike v. Bruce Church Inc., 397 U.S. 137, 142 (1970).

U.S. District Judge Gordon Quist ruled that the law did not have an extraterritorial intent of harming businesses out of state and did not discriminate against interstate commerce by favoring in-state interests over out of state interests.  He granted summary judgment on those points for the defendants, but reserved for trial the question of whether the burden on interstate commerce was clearly excessive in relation to the state's benefits under Pike.  As this is not a final order the Plaintiffs sought and received certification and leave to appeal the discrimination and extraterritoriality issues on an interlocutory basis.

The United States Court of Appeals for the 6th Circuit ruled on November 30, 2012 that the bottle unique mark law had an impermissible extraterritorial effect as it did not consider less burdensome alternatives.   Judge Clay wrote the opinion which was unanimous with concurrences by Judge Sutton and Judge Rice.  The Sixth Circuit agreed that the law did not discriminate against interstate commerce facially, purposefully, or in its effect.  However the Court ruled that the law was extraterritorial because its practical effect was to control commerce beyond Michigan's boundaries.  The Court reasoned that the bottles could not be used outside of Michigan, that other states might follow suit with laws that conflict with each other, that the statute involved criminal penalties, that the state did not consider alternative approaches to dealing with the fraudulent redemption issue, and that other states had not imposed this kind of approach.  Mainly though, the Court found that the bottle law allows Michigan to force distributors to package a unique product for Michigan, but also allows Michigan to determine where the containers can be sold which would force other states to react or face legal issues.  The Court said, "Thus, Michigan is forcing states to comply with its legislation in order to conduct business within its state, which creates an impermissible extraterritorial effect and is in violation of the Supreme Court's precedent stated in Brown-Forman and Healy."  American Beverage Association v. Snyder, 11-2097 (6th Cir. 2012).  Michigan was essentially criminalizing the sale of bottles in Ohio that have the Michigan unique mark.  The law impliedly required manufacturers to use a different mark everywhere else.  As less burdensome alternatives existed and were not considered by Michigan, the Court found that the statute was unconstitutional under the dormant commerce clause. 

Judge Sutton wrote a concurrence noting that extraterritoriality is an obsolete concept in that states frequently regulate activities occurring within them, but which affect many states such as California's higher state emissions standards for automobiles.  He also cited Ohio's state specific milk labels, Vermont's light bulb warnings about mercury, and state taxes on businesses operating across state lines.  He argued that the extraterritoriality test should be removed from the dormant commerce clause doctrine.

Judge Rice wrote a brief concurrence clarifying and distinguishing a case cited by the district court and noting that there is no additional inquiry into alternatives after extraterritoriality is found as that is enough to invalidate the law.  The additional inquiry only occurs if the law is either 1) discriminatory or 2) not discriminatory nor extraterritorial.



http://www.ca6.uscourts.gov/opinions.pdf/12a0394p-06.pdf

http://www.michigan.gov/documents/deq/dnre-whmd-sw-mibottledepositlawFAQ_318782_7.pdf

http://www.legislature.mi.gov/(S(sbvr5w45d5i5azjhufli5o45))/mileg.aspx?page=getObject&objectName=mcl-Initiated-Law-1-of-1976

http://www.mlive.com/news/grand-rapids/index.ssf/2012/11/appeals_court_rejects_michigan.html

http://www.detroitnews.com/article/20121130/POLITICS02/211300384

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Thanksgiving

Happy Thanksgiving to everyone!  Here is a link to the National archives describing the history of Thanksgiving.

http://www.archives.gov/legislative/features/thanksgiving/

This page has the official proclamations for the Thanksgiving holiday by George Washington dated October 3, 1789 for the fourth Thursday in November,  Abraham Lincoln dated October 3, 1863, and a 1941 joint resolution of congress.

http://www.archives.gov/press/press-releases/2006/nr06-14-images.html

http://blogs.tallahassee.com/community/2012/11/21/thanksgiving-and-the-rule-of-law/

http://www.cfnews13.com/content/news/cfnews13/news/article.html/content/news/articles/cfn/2012/11/20/hundreds_line_up_for.html

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Repeal by Referendum in Michigan

On November 6, 2012 the Michigan electorate voted by referendum not to approve Michigan's Emergency Manager law (Public Act 4 of 2011).  Shortly after the election the status of the emergency manager for the Detroit Public Schools was challenged by an activist by means of seeking leave to file a quo warranto complaint in the Michigan Court of Appeals (Davis v. Roberts, COA Case No. 313297).   A quo warranto is a special writ whereby the court removes a public official from office by granting the writ.   MCR 3.306.  Prior to Public Act 4 there was a different emergency manager statute in effect (Public Act 72 of 1990) which provided more limited powers to emergency managers than Public Act 4 did.  Public Act 4 repealed Public Act 72.  The Detroit Public Schools emergency manager was initially appointed by the governor under Public Act 4, but was later reappointed under Public Act 72 after Public Act 4 was suspended pending the referendum.  The activist asserts that both appointments are now void.

The issue then is whether the referendum result effectively revives Public Act 72.   Shortly before the referendum on Public Act 4 was certified and placed on the November 2012 ballot by the Board of Canvassers, the Michigan Attorney General's Office issued an opinion (Michigan Attorney General Opinion No. 7267) that Public Act 72 was revived by the suspension and later disapproval of Public Act 4.  http://www.ag.state.mi.us/opinion/datafiles/2010s/op10346.htm.   It is unclear which viewpoint will prevail or whether the Michigan Supreme Court will even grant leave to appeal the Court of Appeals ruling.  My guess is that the Michigan Supreme Court will rule that Public Act 72 was revived, but there is an argument to be made that was not.

The Court of Appeals denied the complaint in an order on November 16, 2012.  http://publicdocs.courts.mi.gov:81/coa/public/orders/2012/313297(9)_order.pdf  .  The Court ruled that due to the rejection of Public Act 4 of 2011 by the referendum on November 6, 2012 no part of Public Act 4 remained in effect including the part repealing Public Act 72.  The Court ruled that Public Act 72 was revived by the result of the referendum.  The Plaintiff had argued that MCL 8.4 prevented the revivial of Public Act 72.  http://www.legislature.mi.gov/(S(5r2ll245b0lnjt45qthqzu45))/mileg.aspx?page=getObject&objectName=mcl-8-4.  MCL 8.4 states that a statute that has repealed by a subsequent statute "shall not be revived by the repeal of such subsequent repealing statute."  The court ruled that MCL 8.4 applied by its plain language only to repeals by statute and not to statutes that were rejected by referendum.  The court also made the point that even if MCL 8.4 applied the voters rejected the entirety of Public Act 4 by referendum inferring that the repeal of Public Act 72 was itself repealed. 

MCL 8.4 was first adopted in 1846.  At common law the repeal of a statute that repealed a previous statute operated to revive the previous statute, but MCL 8.4 changed that as have similar statutes in other jurisdictions.  Jackson v. Michigan Corrections Commission, 313 Mich. 352 (1946).  The court's argument that the plain language of MCL 8.4 only applies to repeals by statute is not unassailable.  The Michigan Supreme Court held in Jackson v. Michigan Corrections Commission that MCL 8.4 applied to both express and implied repeals rejecting an argument that it only applied to express repeals.  Id.  One could argue that rejection by referendum is an implicit repeal even if it did not expressly use the word "repeal."  It is also notable that in other legal contexts such as wills the revocation of a will that revoked a prior will will not act to revive the prior will.  Scott v. Fink, 45 Mich. 241 (1881).

The state would probably challenge the contention that a rejection by referendum is a repeal as it is an act of the people rather than an act of the legislature.  The idea would be that the plain meaning of repeal in many dictionaries is that it is a legislative act.  Also, the legislature would have the opportunity to replace the repealed statute with something new, while the people do not have that option in a referendum.  This argument can be countered by arguing that the effect is the same whether the legislature repeals a statute or the people disapprove it by referendum.   It is also instructive that the original statute now codified as MCL 8.4 was adopted at a time before Michigan had a referendum in the state constitution.  At that time the entire legislative power was entrusted to the legislature.  So the word repeal at the time would apply to the rejection/removal of any law.  In the 1908 Michigan Constitution the people began to reserve the rights of initiative and referendum.  Each Michigan constitution since has reserved these powers to the people in the article describing legislative power.  Hence the referendum could be a legislative act and the rejection by referendum could be a repeal of that law.  The state could counter this by citing In re MCI Telecommunications Complaint, 460 Mich. 396 (1999) where the Michigan Supreme Court was not convinced that MCL 8.4 applied to prevent the revival of Public Service Commission orders after a law repealing them was repealed even though the orders were legislative acts as they were an exercise of powers delegated by the legislature.  However, this ruling may have been dicta and might not have value as precedent.  Also the referendum power was not delegated to the people by the legislature.  Rather it was reserved to the people from the legislative power given to the legislature.

The state would probably also argue that a referendum is a nullification of a law while a repeal is the removal of a law.  However, one could argue that because Public Act 4 was given immediate effect on the day it was signed by the governor, it could not be nullified.  Usually acts of the legislature only take effect 90 days after the end of the legislative session in which they were passed.  The power of referendum requires that petitions be filed within that 90 day window so the idea is generally that the referendum, if certified and put on the ballot, would prevent the law from ever coming into effect as the referendum must be filed within the same period of time.  As this particular act took effect on the day it was signed by the governor it is not accurate to say it was nullified.  It might be more accurate to say it was repealed.

Of course, that would leave open an argument that MCL 8.4 only applies to repeals by statute.  In this instance this is not a problem as the previous act (Public Act 72) and the repealing act (Public Act 4) are both statutes. The only thing that is not a statute is the referendum repealing the repealing statute. MCL 8.4 does not require that the act repealing the repealing statute be a statute as it states, "Whenever a statute [the previous statute], or any part thereof shall be repealed by a subsequent statute [the repealing statute], such statute [the previous statute], or any part thereof, so repealed, shall not be revived by the repeal [the action repealing the repealing statute] of such subsequent repealing statute [the repealing statute]."  For MCL 8.4 it is the fact that the repealing statute was repealed and not the method of repeal that is key.  If the repeal of the repealing statute could only be accomplished by another statute for MCL 8.4 to apply then MCL 8.4 would have stated that expressly.

That said, there is also some case law that tends to support the state on this point.  MCL 8.4 does not apply to the repeal of a legislative abrogation of common law as common law is not a statute. Sayers v. Sch. Dist. No. 1, 366 Mich. 217, 223 (1962) (Souris, J. dissenting). The common law abrogated by a statute would be revived by the repeal of that statute. People v. Reeves, 448 Mich 1, 8 (1995).  However, this rule on the common law rests more on the fact that common law is not a statute than the nature of the act repealing the repealing statute.  The Michigan Court of Appeals observed that a referendum rejecting a law eliminating straight ticket voting reinstated the statute that had been repealed by the rejected law.  McDonald v. Grand Traverse County Election Commission, 255 Mich. App. 674, 680-81 (2003).  However, that case was actually a constitutional challenge to the straight ticket voting law on free association, equal protection, and purity of elections grounds by a candidate running as an independent for public office.  The reference to the referendum was just an observation and not part of the court's holding.  It also conflicts with a Michigan Supreme Court case discussed later in this post.

The state also cited a case from North Dakota in the Attorney General's opinion.  In Dawson v. Tobin, 24 NW2d 737 (ND 1946) the North Dakota Supreme Court ruled that a referendum rejecting a statute that repealed a previous statute operated to revive the previous statute even in the presence of a statute similar to MCL 8.4.  N.D. Cent. Code Section 1-02-16 ("Whenever any act of the legislative assembly which repealed a former act is repealed, such former act is not revived by such repeal.")  http://www.legis.nd.gov/cencode/t01c02.pdf.  That court felt that the referendum would be undermined by allowing the rejected law to have any lingering effect and that the word repeal was restricted to the nullification or replacement of one statute by another statute and that disapproval by referendum was not a nullification or replacement by a statute.  The North Dakota statute could be distinguished from the Michigan Statute in that it provides the context of "an act of the legislative assembly" which informs how the whole statute is read and provides context to the word repeal.  In contrast Michigan's MCL 8.4 merely uses the words statute and repeal without providing the specific context of the legislative assembly that the North Dakota statute does.  Furthermore, North Dakota's referendum process reserves to the people the legislative power to "approve or reject legislative acts, or parts thereof, by the referendum." N.D. Const. Art. III, Section 1.  http://www.legis.nd.gov/constitution/const.pdf.  Michigan's language is stated similarly as, "the power to approve or reject laws enacted by the legislature called referendum."  Mich Const. Art. II, Section 9.  http://www.legislature.mi.gov/(S(1b4kbhi2zutz4yu5vghecg45))/documents/mcl/pdf/mcl-chap1.pdf.  Although initiative and referendum powers are separate powers they can provide context to each other.  In the instance of initiative, "no law adopted by the people at the polls under the initiative provisions of this section shall be amended or repealed, except by a vote of the electors unless otherwise provided in the initiative measure or by three-fourths of the members elected to and serving in each house of the legislature."  Id.  In the context of a referendum "laws approved by the people under the referendum provision of this section may be amended by the legislature at any subsequent session thereof.  If two or more measures approved by electors at the same election conflict, that receiving the highest affirmative vote shall prevail."  Id.  From this wording it is clear that the Michigan Constitution envisioned the people having the power of repeal in the context of both initiatives and referendums.  In initiatives they can repeal a law adopted by initiative far more easily than the legislature can.  In terms of referendums laws approved by the people can still be amended by the legislature, but the Constitution does not say that the legislature may repeal them.  It is implied then that the repeal power for laws approved by the people at referendum rests with the people and not legislature.  Given that repeal of laws initiated by the people is reserved to the people unless the legislature can muster a 3/4 majority to repeal or amend them is set out in the same paragraph it must be the intent of the Constitution to reserve the right of repeal to the people in terms of laws approved by referendum.  Hence, a rejection by referendum could indeed be considered as repealing a law.

There is also some case law that could be used to challenge the state's argument.  In the context of referendums on constitutional amendment initiatives there is a case that would apply MCL 8.4 to referendums.  In 1918 the Michigan Supreme Court decided in Scott v. Secretary of State that a proposed constitutional amendment to the Michigan Constitution could not be placed on the ballot as a referendum.  Scott v. Secretary of State, 202 Mich. 629 (1918).  The proposed amendment would have reversed other constitutional provisions and allowed the manufacture and sale of alcoholic products that were prohibited at the time and revived a repealed statute.  Id. at 645.  The court ruled that the proposed amendment's petition forms did not include the full text of the amendment as was required at the time.  Id. at 645-46. The proponents of the proposed amendment had attempted to revive a previously repealed statute regarding the regulation of liquor in part of the proposed amendment.  Id. at 646.  However, they did not include the text of that statute in the petitions for the proposed amendment.  Id. at 646.  They claimed that the part of the amendment referring to the statute was "merely declaratory of law."  Id. at 646.  The court disagreed stating, "[t]he argument that section 12 of the proposed amendment is merely declaratory of a rule of law, that since section 11 of article 16 of the Constitution repealed, or made inoperative, the liquor laws, the proposed amendment of that section will ipso facto revive them is essentially unsound.  It is not true that in this state the repeal of a repealing statute revives the statute repealed."  Id.   The court essentially ruled that a constitutional amendment initiative could not be used to revive a repealed statute.  This case should still be valid law as another part of it was cited earlier this year by the Michigan Supreme Court.  Protect Our Jobs v. Board of State Canvassers, 145748, 145753, 145754, 145755 (September 5, 2012).

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

November 17

 I took the oath to join the Michigan Bar on November 17, 2006 in Ann Arbor, MI - Six years ago today!



s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Veterans Day

In honor of Veterans Day here is a link to how the holiday came to be starting of course with the armistice ending World War I:

http://www1.va.gov/opa/vetsday/vetdayhistory.asp
http://www.history.com/topics/history-of-veterans-day/videos#bet-you-didnt-know-veterans-day

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Double Jeopardy - Michigan v. Evans

This past week the United States Supreme Court heard oral arguments in Michigan v. Evans.  The issue in this case is whether a defendant can be retried after a judge erroneously grants a directed verdict.  The defendant can move for a directed verdict at the end of the Prosecution's case and before the defense begins to present its case when the prosecution has failed to meet its burden of proof. 

In Evans the defendant was being tried for arson.  The trial court granted a directed verdict of acquittal to the defendant because prosecutor's had not proved that the burnt house was a dwelling.  While proving that the burnt property was a dwelling was required at common law, it is not an element of statutory arson that the prosecution must prove in Michigan and most other jurisdictions.  The Michigan Court of Appeals and the Michigan Supreme Court reversed the trial court's directed verdict as erroneous and allowed the prosecution to try the defendant again.  The Michigan Supreme Court ruled 4-3 that the trial court's action was not an acquital, but a mere dismissal.  The opinion focused on the lack of a factual resolution in the trial court's rationale as the trial court was focused on a matter of law.  Evans appealed to the United States Supreme Court claiming that double jeopardy precluded a retrial. 

From the transcript it seems like the Court may be leaning towards allowing retrial in limited circumstances.  For instance it could take the position of the Justice Department and allow retrial in cases where judges add an additional element to the offense, but not allow it in cases where the trial court misconstrued an element of the offense.  Errors of substance could also be distinguished from errors of procedure.  Additionally, the Court could distinguish between procedural rulings and rulings that there was insufficient evidence to convict as Justice Breyer proposed.  Under this rule Evans would prevail.  Retrial is already allowed in cases of errors of procedure such as most mistrials and most instances of prosecutorial misconduct, but not when there is a verdict of acquittal based on insufficient evidence.  Another possible distinction would be between errors of law and factual errors.  That said, oral arguments are hard to read as many judges and justices will test both sides with difficult questions even if they have a good idea of which way they will rule.  Both sides at times undermined their own arguments.

http://www.reuters.com/article/2012/11/06/us-usa-court-doublejeopardy-idUSBRE8A51BC20121106

The United States Supreme Court Oral Argument Transcript and Audio:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-1327.pdf

http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-1327

The Michigan Supreme Court Opinion:

http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/SCT/20120326_S141381_58_evans-op.pdf

The Michigan Court of Appeals Opinion:

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20100513_c290833_45_69o-290833-final.pdf

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Election Law - Natural Disasters

While it is unlikely given the set nature and historic momentum behind the timing of our elections, Hurricane Sandy has led to the media exploring the possibility of postponing an election due to natural disaster.  It is possible since state's have the authority to  run their own elections.  Congress could also change the date.

 http://t.news.msn.com/politics/could-hurricane-sandy-delay-the-election

http://www.theatlantic.com/politics/archive/2012/10/could-hurricane-sandy-postpone-the-presidential-election/264254/

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Bail bonds

In case there was any doubt about this absconding to a foreign embassy and claiming asylum will result in a forfeiture of bail.  That is what happened this week to the people that served as bail sureties for Julian Assange.  His actions will cost them about $150,000.

http://www.abc.net.au/news/2012-10-09/assanges-bail-guarantors-ordered-to-pay-out/4302318

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Linkedin Account Lawsuit

A federal judge in Pennsylvania ruled that an employer's taking of a former employee's Linkedin account did not constitute a violation of the federal Computer Fraud and Abuse Act. 
http://lawyerist.com/linkedin-account-stolen-by-employer/

That is not surprising as this case is more of a case in state privacy law.  The blog post cited above refers to the Plaintiff's remaining state law claim as one for conversion.  However, the tort of conversion probably isn't the most applicable here.  A right to publicity claim under privacy tort law for misappropriation of her linkedin profile might be more appropriate.  The case facts assert that after the Plaintiff was fired from her job the employer changed the password on her Linkedin account and replaced her name and picture with that of her successor leaving the rest of the profile intact.  It would be a more clear-cut claim if the company had left the Plaintiff's name or photo on the account, but the screen name did not change and it appears neither did the other content on the profile.  So there is probably still enough there for a misappropriation of right of publicity tort assuming that the Plaintiff did not give the employer ownership of or continuing consent to use her right of publicity. 

Privacy tort laws vary from state to state.  Pennsylvania has both statutory and common law versions of the right to publicity tort.  She would have to prove damages as well by showing that account had commercial value and her losses from the misappropriation or she could seek an injunction.  There is also a separate invasion of privacy by misappropriation of name or likeness tort that does not require proof that the misappropriation is commercial in nature.  http://www.citmedialaw.org/legal-guide/pennsylvania-right-publicity-law 

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Alien Tort Statute

The Supreme Court reheard arguments in Koibel v. Royal Dutch Shell this past week.  I discussed this case on this blog back in February.  The issue before the court now is whether the alien tort statute can be used when the parties and the case have no connection to the United States. 

http://www.npr.org/2012/10/01/162110683/high-court-takes-up-human-rights-on-first-day-back

Previous Posts on the Alien Tort Statute:

http://koehlerlegal.blogspot.com/2012/03/alien-tort-statute-revisited.html
http://koehlerlegal.blogspot.com/2012/02/corporate-liability-under-alien-tort.html

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Federal Student Loan Collections Article

The Detroit Free Press has an interesting article today about the methods the federal government uses to collect student loans in certain jurisdictions including the Eastern District of Michigan.  In jurisdictions where the federal government hires private lawyers on a contingency basis (based on money actually collected) to file student debt default lawsuits there are far more lawsuits filed than in jurisdictions where it does not.  The article notes that the government collects about 80 cents on every dollar owed when the cases go into the court system.  The fact that student loan debt cannot be discharged in bankruptcy likely contributes to this number.

http://www.freep.com/article/20121007/NEWS06/310070254/Beware-metro-Detroit-The-feds-are-out-and-looking-for-payback-on-late-student-loans?odyssey=tab|topnews|text|FRONTPAGE

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

FICA Tax on Severance Payments

In United States v. Quality Stores, Inc.  the United States Court of Appeals for the Sixth Circuit (Michigan, Ohio, Kentucky, Tennessee) ruled that supplemental unemployment benefit payments (severance payments) are not subject to FICA (social security and medicare) taxes.  By statute Supplemental unemployment benefit payments are not wages and are only treated as wages for federal income tax withholding only. 

While the government argued that an explicit exemption from withholding was required for income to not be subject to the FICA tax, the court disagreed.  It held that as the benefits were not wages they could not be subject to FICA withholding as there was no explicit allowance for withholding as there was for federal income taxes.  The severance payment could not be compensation for services rendered.  Instead they must be compensation for the loss of employment and must be contingent on the loss of employment whether temporary or permanent. They are still subject to federal and state income taxes.

As half of the FICA tax is paid by the employer and half by the employee both the employer and the employee stand to recover a refund.  In this case Quality Stores sought a one million dollar refund.  The government's total liability could be over four billion dollars. 

The federal circuit concluded that severance payments were subject to FICA taxes in 2008 so there is now a circuit split on this issue and the government will likely request a hearing en banc before the entire Sixth Circuit.  The case may be ripe for review by the United States Supreme Court.  Given the amount the government might have to refund if this decision stands an appeal is likely.  The government had argued that congress had "decoupled" withholding of federal income tax from withholding of FICA taxes in 1983 and that income not subject to withholding for federal income taxes was not

http://www.ca6.uscourts.gov/opinions.pdf/12a0313p-06.pdf

http://www.forbes.com/sites/ashleaebeling/2012/09/13/severance-pay-fica-tax-refunds-for-employers-and-employees-back-on-the-table/

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Child Support Nonpayment - Impossibility Defense

The Michigan Supreme Court issued an opinion supported by a 4 justice majority in People v. Likine on July 31, 2012 that allows a defendant to raise the common law defense of impossibility in felony non-payment of child support cases.  The court did not adopt an inability to pay defense.  Three justices dissented and would have adopted the broader inability to pay defense.   Likine combined three separate appeals of felony non-payment of child support convictions into one appeal.  In one instance the defendant had been unemployed for over three years and was on social security for mental illness.  Her child support payment was over $1,000 per month at one point.  

Felony non-payment of child support under MCL 750.165 is a strict liability offense.  The statutory maximum for a conviction of felony non-support is 4 years in prison and or a $2,000 fine.  The impossibility defense is a high standard to meet.  The defendant must make a prima facie case of impossibility or the defense will not be submitted to the jury.  This means that the defendant must establish facts at trial sufficient for a reasonable jury to find impossibility or the judge will not send the defense to the jury.  If the defense goes to the jury the defense must prove impossibility by a preponderance of the evidence.

To do this the court ruled that the defendant must show that he or she acted in good faith and made all reasonable efforts to pay the amount due, but was unable to do so through no fault of his or her own.  Efforts to seek employment or borrow money are needed, but the court made clear that the defendant must go beyond that and use all resources at the defendant's disposal to pay the child support.   It must have been impossible for the defendant to obtain the resources to pay. 

The court included a non-exhaustive list of factors including that the defendant: 1) "diligently sought employment", 2) attempted to secure additional employment; 3) whether investments were liquidated; 4) whether the defendant received gifts or an inheritance; 5) whether the defendant owns a home where refinancing is possible; 6) whether assets can be sold or used as loan collateral; 7) the priority the defendant placed on paying child support over the purchase of luxury or non-essential items; 8) whether reasonable precautions were taken to guard against "financial misfortune and has arranged his or her financial affairs with future contingencies in mind, in accordance with one's parental responsibility to one's child;" 9) the existence of "unexplored possibilities for generating income for payment of court-ordered support; and 10) major unexpected circumstances preventing payment.  The court explicitly stated that passivity, neglect, and failure to plan will not excuse non-payment of child support.  Hiding or being untruthful about resources or assets or the failure to seek a timely change to the child support order when circumstances indicate it is impossible to pay may also prevent the defendant from using the defense. 

Overall this is a very narrow defense that must be carefully presented at trial or the defense may never get to the jury.  Individuals in a situation where they cannot pay child support must be aware that they must exhaust every possibility or option they have to make good on their obligation if they are to avail themselves of this defense.


http://www.freep.com/article/20120802/NEWS05/308020123/Michigan-Supreme-Court-clarifies-child-support-ruling

http://courts.michigan.gov/supremecourt/Clerk/11-12-Term-Opinions/141154-141181-141513-Opinion.pdf

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Plain Language

Below is an amusing article about legislative attempts to make administrative agencies and Departments of the federal government write in plain language. The Plain Writing Act of 2010 attempted to mandate this, but that is not likely to happen quickly especially in the military related departments. Passive language and acronyms tend to obscure things very quickly. The legal profession isn't much better at it. 

http://usnews.msnbc.msn.com/_news/2012/07/19/12840181-government-gobbledygook-its-dying-a-slow-painful-death?lite
http://www.cantondailyledger.com/news/x1914867724/Plain-language-law-off-to-a-spotty-start
http://www.plainlanguage.gov/plLaw/index.cfm
http://centerforplainlanguage.org/resources/plain-writing-laws/plain-writing-act-of-2010/
Executive Order 13563 http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf
Executive Order 12866 http://www.plainlanguage.gov/populartopics/regulations/eo12866.pdf
Executive Order 12988 http://www.plainlanguage.gov/populartopics/regulations/eo12988.pdf

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Arizona Immigration laws

This has been an eventful week in law on a number of fronts. The Arizona immigration case, Arizona v. United States, limited states to doing brief immigration status checks on people arrested for some other reason. http://www.supremecourt.gov/opinions/11pdf/11-182.pdf. Last year the Supreme Court upheld an Arizona law in Chamber of Commerce of the United States v. Whiting that sanctioned employers for intentionally or knowingly employing illegal aliens by suspending or revoking their licenses. http://www.supremecourt.gov/opinions/10pdf/09-115.pdf. The law also required employers to use e-verify. The Arizona law for employer compliance was not preempted by federal law. This is not just an American reaction to immigration nor is it new. The same protectionist sentiment could be found today in Europe and Asia. It was also quite prevalent into the 1850s in the United States. In fact it was A major force in the splintering and end of the Whig party at that time. Now China is also cracking down on illegal immigration. http://abcnews.go.com/International/t/story/china-law-targets-foreigners-working-illegally-16684735

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Supreme Court Admission

On June 4 I was in Washington and took the oath to join the bar of the United States Supreme Court.  I went with the annual Phi Alpha Delta Day at the Supreme Court.  There were a couple of other groups there as well for the same purpose.  We got to eat breakfast and wait for the court hearing in the Rehnquist dining room.  The court issued two opinions during the hearing with Justice Thomas giving the opinion summary for Reichele v. Howards and Justice Breyer giving the summary for the opinion in Armour v. City of Indianapolis.  After the opinions were read they had each of us stand in turn after our names were read as part of the motion for admission made by Tom Bentz, a PAD attorney in Washington.  The entire group was then administered the oath by the court clerk Gen. Sutter.  Afterwards we returned to the dining room for a while and then left for pictures outside.  We had a group lunch at B. Smith's in Union station.

http://www.pad.org/upcoming-events/pad-day-at-the-supreme-court/

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Memorial Day

Happy Memorial day! 36 USC Section 116: "The President is requested to issue each year a proclamation— (1) calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace; (2) designating a period of time on Memorial Day during which the people may unite in prayer for a permanent peace; (3) calling on the people of the United States to unite in prayer at that time; and (4) calling on the media to join in observing Memorial Day and the period of prayer."

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Corporate Forms

The Economist has a thoughtful article out this week on the changing nature of corporate forms.  It postulates that the public corporation has seen better days and that other alternative forms such as State Owned Enterprises and hybrid limited liability partnerships and LLCs might be on the rise.   http://www.economist.com/node/21555552

The last decade has also been full of corporate scandal dated back to Enron, Tyco, and Worldcom 10 years ago.  I remember the surreal days when formerly giant companies like Worldcom or Lehman Brothers fell.  The end comes only after weeks of denials and attempts to sell the public on the enduring future of the company.   But, I don't think these scandals really say much about the future of the public corporation.   They are warnings about greed and remind us of the need for vigilant investors and regulation.  Yet these scandals are the extremes.  The middle does not follow in the footsteps of the extremes though it is affected by the regulation those scandals have inspired. 

However, the public corporation, for all its faults, is probably the best way to raise a large amount of capital if you can convince people to invest.  The downside is that return is demanded in the short term meaning that long-term investments are often overlooked.  State Owned Enterprises may have some strengths, but they also have all the weaknesses of the command economy practices in the bygone communist second world.  These include corruption, monopoly, lack of vision, fear of risk, etc.  The State Owned Enterprise might seem to be on the rise now mainly in China and in socialist states, however that is mainly due to extensive growth.  At a certain point that extensive growth will hit the wall after these emerging economies fully integrate their populations into the world economy.  Then they will have to try their hand at intensive growth which requires far more innovation and risk taking.  State Owned Enterprises have not proved particularly adept at this in the past. 

As to partnerships the article below about the problems with the law firm Dewey & Leboeuf illustrates the main disadvantage of large traditional partnerships.  Namely all of your investment is on the line and you can be adversely affected by the actions of your partners that you had little to with. 
http://online.wsj.com/article/SB10001424052702303879604577412452010873254.html.   

Every corporate form, whether it be a sole proprietorship, family closely-held corporation, partnership, corporation, LLC, SOE, trust, or other entity, has its pros and cons. It is important to choose the best fit for any corporation and that fit may change over time. Hybrid business forms provide more of that needed flexibility and simplicity. The rise of the LLC and its use by small and large corporations alike is a sign of the future. 

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Law Day

The first of May is law day.  To celebrate here is a great link to the Library of Congress: http://www.loc.gov/law/help/commemorative-observations/law-day.php.

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Update on the Alien Tort Statute and torture statute cases

I blogged about the alien tort statute case, Kiobel v. Shell Petroleum, a few months ago.  That case won't be decided until the next Supreme Court term.  The Court did decide a separate case,  Mohamad v. Palestinian Authority, which presented a somewhat similar issue.  The Court unanimously ruled only individuals and not corporations or organizations can be sued under the Torture Victim Protection Act.  The use of the word "individual" in the statute was decisive in the opinion written by Justice Sotomayor. 
http://www.bloomberg.com/news/2012-04-18/torture-suits-against-companies-blocked-by-top-u-s-court.html

The opinion: http://www.supremecourt.gov/opinions/11pdf/11-88.pdf

The oral argument transcript: http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-88.pdf

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Haunted Rental Home Lawsuit

Suing the landlord because your rental home is haunted sounds like a very difficult case to prove.  Getting out of a lease is not easy and ghosts aren't going to suffice.  Maybe if every former tenant ran out of the apartment screaming that might help.  Flickering lights, voices, clothes flying from closets, and taps on the shoulder or TV could be better explained as maintenance issues.  

Maintenance issues probably wouldn't get them out of the lease, but might get them some sort of credit.  I don't see how they could establish constructive eviction either way.

http://news.yahoo.com/blogs/abc-blogs/family-flees-haunted-house-sues-landlord-165255598--abc-news-topstories.html

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Afghanistan Warrants

The agreement described in the article below might be wonderful for diplomacy with the Afghan government, but it requiring soldiers to not only consult with Afghan officials but also get a warrant from an Afghan judge before engaging in night raids is no way to fight a war.  Warrants are a great check on government executive power in a functional country that is not a war zone.  However, even in that context we have exceptions to the warrant requirement for certain situations.  In a country that is not functional and a war zone it doesn't take much foresight to see that this is not going to work.  Frankly, we should either fight the war the right way with achievable objectives or withdraw completely. 

The main problem facing the United States in Afghanistan is one of endurance and expectations.  In order to win the war we have to essentially end the Taliban as an organization.  That is not an easy task in a country with terrain like Afghanistan and neighbor, Pakistan, that has a porous border and areas that provide safe haven to the Taliban.  Meanwhile as is often the case for an insurgent group mere survival would be a victory for the Taliban.  All they have to do is keep a force in the field and avoid decisive battle until we tire of the fight and go home.  Furthermore, we have taken upon ourselves the burden of building up an Afghan state and army. Both tasks are never going to be successfully accomplished by outsiders.  You could spend 50 years at the task and still fail.  The Afghans value independence above all else and dislike foreigners telling them what to do.  Afghans have been fighting wars for over 30 years.  That we have not been able to put together a suitable army consisting of people with plenty of fighting experience only underlines the futility of the task.  As for nation building a tribal society is simply not a society that will accept a modern centralized nation state.

We need to figure out what our objectives are in Afghanistan and select one that is achievable.  It would not take as many troops as we have there now to simply contain the Taliban.  Containment would mean keeping them out of power and from getting to comfortable in any one area to the point that they could establish training camps for their soldiers or terrorists.  A mix of quick reaction mobile ground forces suitable to hostile terrain and airpower could probably achieve that.  Typical counter insurgency techniques don't work well when the people of a country don't feel comfortable working with you because they think you will leave meaning that they are stuck dealing with a vengeful Taliban.  And in Afghanistan even if they don't think you will leave they also won't cooperate and will probably fight you as they just don't like foreign troops in Afghanistan.

http://worldnews.msnbc.msn.com/_news/2012/04/08/11083361-afghanistan-gets-veto-power-over-nato-night-raids?fb_ref=.T4IGdCAjVUU.like&fb_source=profile_oneline

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Health Care Oral Arguments

This week the Supreme Court took up the recent federal health care reforms in oral argument.  The questions the justices ask during oral argument do not necessarily indicate how they will rule.  It is also not a very good idea to try and predict how the justices will rule on any given issue.  Still it is at least likely though not certain that there is a 5-4 majority to strike down at least the individual mandate as exceeding congress' commerce clause powers.

The idea is that congress has enumerated powers under the constitution.  The very concept of enumerated powers is meant as a limitation on federal power.  It means that the federal government has certain powers, but no powers beyond those.  An individual mandate is something that a state could adopt assuming that its own constitution does not prevent that.  However, it is probably not something that the federal government can do.  At some point there has to be some limitation on congress' power regardless of how far the Supreme Court has pushed the commerce clause since the new deal era.  Similarly, the necessary and proper clause cannot justify plenary federal power.  It too must have a limit at some point.  Of course, the federal government could simply link something such as federal highway funds to a health insurance mandate by requiring that states enact the mandate as a condition for receiving federal money.  The federal government required states to set their drinking age at 21 as a condition for receiving highway funds at one point. 

The oral argument audio can be found at the links below:

March 26: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Monday

March 27: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-398-Tuesday

March 28: http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-400

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

FMLA

Today, the U.S. Supreme Court issued a 5-4 opinion in the case Coleman v. Court of Appeals of Maryland.  The issue was whether a state could be sued for money damages for firing an employee for taking time off using the self-care provision of the Family and Medical Leave Act of 1993 (FMLA).  The FMLA allows an employee to take up to 12 weeks of unpaid leave to recover from serious illnesses or medical conditions.  While states can be sued for money damages for violating the FMLA in terms of unpaid leave for employees who take time off to care for ill family members, in the case of self-care time off they cannot be as state sovereign immunity applies.  Instead the employee can sue for injunctive relief to get their job back.

http://www.reuters.com/article/2012/03/20/us-usa-court-medicalleave-idUSBRE82J0PC20120320

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

St. Patrick

The story of the real Saint Patrick is below:

Saint Patrick

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

"Stand Your Ground" Laws

The link below is to a tragic situation in Florida involving Florida's stand your ground laws.  I'm not going to get deeply into the facts on this one other than to point out that the shooting happened outside in the parking lot of a gated community.  The local law enforcement decided not to arrest the shooter or press charges due to the stand your ground self-defense statute.  The state authorities are also investigating and I suspect that the federal government will definitely get involved if Florida declines to prosecute the case.  The story is linked below.

At common law self-defense in both civil and criminal cases required retreat before using deadly force unless a person asserting self-defense is in their own home.  The modern trend is for states to modify this rule by statute.  Florida is one state that has significantly modified the rule by statute.  The stand your ground laws do away with the duty to retreat in many settings outside of the home. 

The point of the duty to retreat is obviously to see if a situation can be resolved without resorting to deadly force.  Eliminating the duty to retreat tends to escalate situations.  People have a tendency to resort to the method of self-defense that is safest for themselves even if it is wholly disproportionate to the situation.  This is particularly true as a person feeling threatened may not accurately assess the actual level of danger presented by a situation and is likely to over-react especially if they have a gun.  Whereas over-reaction with less than deadly force will likely end without anyone getting killed, over-reaction with deadly force will problem end with a death. 

There are most likely other factors at play in the case discussed in the article.  The most obvious one, and the one that might lead to federal charges, is race.  However, I only wanted to write about the stand your ground statutes in general so I'm not going to get into that today.

http://www.csmonitor.com/USA/Justice/2012/0316/Trayvon-Martin-killing-in-Florida-puts-Stand-Your-Ground-law-on-trial/(page)/2

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Asymmetrical Law Careers

Last night on CNN I saw the documentary linked below on the canonization process in the Catholic Church.  The story is about one particular cause for sainthood.  The role of lay lawyers acting as postulators in this process is intriguing.  The story doesn't offer much detail about the work they do, but it is interesting nonetheless. 

Part 1:  http://www.cnn.com/video/#/video/bestoftv/2012/03/05/money-and-miracles-necessary-to-be-a-saint.cnn

Part 2: http://www.cnn.com/video/?/video/bestoftv/2012/03/03/drew-saint-makers.cnn#/video/bestoftv/2012/03/03/drew-saint-makers.cnn

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Mississippi Pardons

As expected the pardon power wins out over superficial notice requirements.  The Mississippi Supreme Court ruled all 198 pradons valid. The major issue is that of separation of powers. The judiciary simply can't intrude into the executive's pardon and commutation power nor can the legislature.  The real question is why some of these pardons were issued in the first place.  In the end as much as they may not like it now, the people of Mississippi gave that power to their governor and elected the man to fill the office.  Pardons might be something to question the candidates about next campaign.  That said, the pardon and commutation power is probably used too sparingly in modern government.  It is likely it will be used even less after this episode.

http://www.usatoday.com/news/nation/story/2012-03-08/mississippi-governor-barbour-pardons/53417198/1

http://www.cnn.com/2012/03/08/justice/mississippi-pardons/index.html

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)

Michigan Civil Rights Initiative - Proposal 2 on the 2006 Ballot - Federal Lawsuits

Proposal 2, an amendment to the Michigan Constitution banning the use of affirmative action with facially neutral language, passed in the November 2006 general election with 58% support. 

The amendment reads:

1. The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
2. The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
3. For the purposes of this section "state" includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.
4. This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
5. Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
6. The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Michigan anti-discrimination law.
7. This section shall be self-executing. If any part or parts of this section are found to be in conflict with the United States Constitution or federal law, the section shall be implemented to the maximum extent that the United States Constitution and federal law permit. Any provision held invalid shall be severable from the remaining portions of this section.
8. This section applies only to action taken after the effective date of this section.
9. This section does not invalidate any court order or consent decree that is in force as of the effective date of this section.

Opponents of the ballot initiative sued in U.S. District Court.  The amendment was upheld as constitutional by Judge David Lawson.  Last year the U.S. Sixth Circuit Court of Appeals 3 judge panel reversed in a 2-1 decision asserting that the constitutional amendment reorders Michigan's political process to place special burdens on minorities.  It appears that the panel was of the opinion that taking the issue to the statewide constitutional ballot initiative level and consequently away from the discretion of the individual college/university administrations was a reordering of the state's political process.  The full Sixth Circuit agreed to consider the case en banc meaning that the ruling of the panel overturning the law was vacated and all the judges on the Sixth Circuit will consider the case and issue a ruling.  A split opinion is certain on this one.  The only question is will one side or the other come out with more votes.  If the judges split evenly the district court ruling that the amendment is constitutional will be affirmed by default.

 Oral arguments were scheduled for today.

News Source:

http://www.detroitnews.com/article/20120307/METRO/203070336/Court-debate-Mich-affirmative-action-ban?odyssey=mod%7Cnewswell%7Ctext%7CFRONTPAGE%7Cs

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)