Monday, December 31, 2012

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.

Thursday, December 27, 2012

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 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.|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or amending Public Act 4 rather than a referendum on Public Act 4 then the initiative could have only been amended or repealed by another vote of people or a 3/4 majority of both chambers of the state legislature.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)

Monday, December 24, 2012

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:

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:

Information about the Howard Banking Company of Boston:

NPR Planet Money Podcast on the history of Paper Money:

Information about Santa Claus notes and the Saint Nicholas Bank Note:

The Twas the Night Before Christmas Poem:

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

Saturday, December 22, 2012

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.|newswell|text|FRONTPAGE|p

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

Friday, December 21, 2012

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.

The opinion is here:

More information about the Filibuster can e found in NPR's Planet Money Podcast:

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

Wednesday, December 12, 2012

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.

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


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 ( 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.  

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:

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

Thursday, December 6, 2012

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).

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?,", (April 14, 2011).
"Michigan Officials Bust Bottle-Deposit Fraud Ring",,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.  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.

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