COA further limits medical-marijuana defense

A man who was growing marijuana before he obtained a doctor’s certification or a registry identification card under the Michigan Medical Marijuana Act cannot invoke the act’s affirmative defense, even though he was arrested after he obtained both the certification and registry card.

Brian Reed’s marijuana plants were spotted from a police aircraft. At the time, Reed lacked both the physician’s authorization and registry identification card. The card is a prerequisite to invoking the MMMA’s affirmative defense to avoid prosecution for certain marijuana offenses.

By the time Reed was arrested for manufacturing marijuana, he had all of the MMMA’s required documentation. He moved for dismissal, invoking the act’s affirmative defense. He appealed when the trial court denied his motion.

On appeal, Reed relied upon People v. Kolanek. Kolanek hadn’t obtained the act’s required documentation until after his arrest for possession of marijuana. In refusing to dismiss marijuana charges against Kolanek, the Michigan Court of Appeals ruled that “the relevant deadline for obtaining the physician’s statement required to establish the affirmative defense in MCL 333.26428 was the time of a defendant’s arrest.”

Reed argued his documentation was in place before he was arrested, so dismissal was required under Kolanek.

The Court of Appeals ruled against Reed and further limited the MMMA’s affirmative defense:

We now extend [Kolanek] and hold that, for the affirmative defense to apply, the physician’s statement must occur before the commission of the purported offense.

We further hold that defendant has no immunity under MCL 333.26424 because defendant did not possess a registry identification card at the time of the purported offense.

The case is People v. Reed.

Fired worker takes on Ford Motor Co.

The U.S. Equal Employment Opportunity Commission (EEOC) has filed suit against Ford Motor Co. Inc. for failing to provide a reasonable accommodation to a disabled worker at its Dearborn facility.

According to the EEOC, Ford refused to let employee Jane Harris participate in its liberal telecommuting program as a reasonable accommodation for her gastrointestinal condition, which she said had rendered her disabled. The EEOC claims that instead of accommodating the worker, Ford criticized her job performance, and placed her on a “performance enhancement plan.” She complained about being denied the accommodation, and a few months later, Ford fired her, which EEOC said is a violation of the ADA.

The EEOC said that it tried to reach a pre-litigation settlement. The agency is seeking back pay and compensatory damages for emotional distress, and punitive damages. The case is EEOC v. Ford Motor Company Inc., Case No. 2:11CV13742, and was filed in U.S. District Court for the Eastern District of Michigan.

COA turns down Kilpatrick appeal to keep book money

The Michigan Court of Appeals today denied former Detroit Mayor Kwame Kilpatrick’s appeal to keep profits from the publishing of his memoir, which have been ordered into an escrow account to pay $860,000 in restitution to the city of Detroit.

The court denied the appeal “for lack of merit in the grounds represented.”

Kilpatrick’s lawyer, Daniel P. Hajji, argued in his brief that Michigan’s “Son of Sam” law, which prohibits people convicted of crimes from profiting from publicity they garner as a result of those crimes, is an unconstitutional content-based restriction on speech.

Hajji said in an email to Michigan Lawyers Weekly that his client intends to appeal to Michigan Supreme Court. In the brief, Hajji stated that this is a case of first impression.

Isn’t it ironic? Children can’t sue under federal lead-paint law

For many years, lead was a key component of paint.

Pigments used to color paint contained lead. Lead is highly opaque, so a little paint could go a long way — think “one-coat” coverage. Lead is also a very durable material and almost impervious to water, so a dirty wall could be scrubbed clean without affecting the painted finish.

But no paint job, not even a lead-based paint job, lasts forever. It eventually it cracks and peels, producing lead dust. The process also produces chips, which apparently taste sweet.

Kids just love ‘em.

But lead is toxic. Over time, if you get enough of it in you, it attacks the nervous system, among other things. You begin to act as if your brain has turned to mush. Some historians say this explains the often-insane behavior of ancient Roman nobility, who swilled wine from goblets made of lead.

Recognizing all of this, Congress enacted the Residential Lead-Based Paint Hazard Reduction Act of 1992 (RLPHRA), 42 U.S.C. §§ 4851-4856. From Sixth Circuit Judge Richard Allen Griffin, writing in Roberts v. Hamer, et al.:

Congress enacted the RLPHRA based upon its findings that low-level lead poisoning, caused primarily by the ingestion of household dust containing lead from deteriorating or abraded lead-based paint, endangers the health and development of children living in as many as 3.8 million American homes. 42 U.S.C. § 4851.

The act requires property owners to disclose the potential presence of lead-based paint in residential structures and to provide information about how to guard against the paint’s dangers. If the disclosures aren’t made and the information is not provided, the act allows someone who buys a home or rents a residence, “the purchaser or the lessee” in the act’s words, to collect three times their provable damages.

Christina Roberts, whose two children were conceived and raised in an apartment, alleged that her landlords didn’t follow the act. She sued as next friend on behalf of her children, who, she alleged, were poisoned by lead paint in the apartment.

The federal district court dismissed the case.

Griffin agreed. Roberts’ children have no cause of action under the act, he said.

We consider … the text of the relevant provision. …

“Any person who knowingly violates the provisions of this section shall be jointly and severally liable to the purchaser or lessee in an amount equal to 3 times the amount of damages incurred by such individual. 42 U.S.C. § 4852d(b)(3).”

The language plainly and expressly limits private recovery to a “purchaser or lessee” of target housing, and no one else. … “Where a statute names the parties granted the right to invoke its provisions, such parties only may act.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6-7 (2000) … .

Because the language is plain — indeed, it could not be more so — we stop here and hold that children of a lessee may not sue a lessor for violations of the RLPHRA’s disclosure requirements.

We decline to expand the cause of action or to infer an implied one where Congress has expressly created one. …

Congress created a cause of action for purchasers and lessees, not those who happen to benefit from the sales and leases, yet are not, themselves, purchasers or lessees.

All is not lost, noted Griffin, citing Mason ex rel. Heiser v. Morrisette, 403 F.3d 28 (1st Cir. 2005), for the proposition that children can pursue causes of action under state and local lead-paint abatement laws.

No quibble here with Griffin’s analysis. The quibble is with Congress, which enacted a law out of concern for millions of children who are at-risk for lead poisoning but didn’t provide the children with a federal remedy.

Frederick Douglass said it best, “At a time like this, scorching irony, not convincing argument, is needed.”

Foster Care Review Board looking for a few good judges, attorneys

The Foster Care Review Board is seeking nominations for its annual Child Welfare Awards, which honor judges, lawyers, foster care workers, and foster parents for exemplary service to children in Michigan’s foster care system.

“The awards recognize those who protect, care for, and advocate for foster care children and their parents,” said James Novell, FCRB program manager. “These people have tremendous responsibilities, yet receive little, if any, recognition. The Child Welfare Awards were established to honor them and call attention to their difficult and demanding work.”

Categories include Jurist of the Year (judges and referees); Foster Care Worker of the Year, LGAL of the Year (lawyer guardians ad litem); Foster Parent of the Year; and Parent Attorney of the Year.

Deadline is Sept 15. Award recipients will be recognized at the Nov. 10 FCRB annual training conference. Nomination forms can be found at

The FCRB provides a third-party review of the foster care system, and is administered by the State Court Administrative Office.

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COA: State workers’ mandatory health-care charge unconstitutional

A statute requiring public employees to contribute three percent of their pay to finance state retiree health-care benefits is unconstitutional, the Michigan Court of Appeals has ruled.

In AFSCME Council 25, et al. v. State Employees Retirement System, et al., the court upheld a lower court ruling that struck down MCL 38.35.

The state and unions representing state workers negotiated a three percent pay raise, which the state Civil Service Commission (CSC) approved.

The statute negated the raise by requiring state workers to contribute the amount of the raise to fund health care benefits for state retirees.

Court of Appeals Judge Karen M. Fort Hood, joined by Judges Jane M. Beckering and Cynthia Diane Stephens, ruled that the CSC has plenary authority over state workers’ pay.

Fort Hood explained that Michigan’s Constitution has an express mechanism to override the commission.

[A]n increase in the rate of compensation authorized by the commission may be rejected or reduced by the Legislature “by a two-thirds vote of the members elected to and serving in each house” provided the vote occurs within 60 calendar days of the transmitted increase. Mich Const 1963, art 11, § 5, ¶ 7.

The Legislature tried but failed to override the CSC in this manner, and then enacted the statute.

But, Fort Hood ruled, by enacting the statute:

the Legislature acted to reduce the compensation of classified civil servants by three percent without an accompanying agreement with the unions or the [commission].

NLRB requires employers to post worker rights notices

It doesn’t matter if you’re a union shop or not. Starting in mid-November, you will be required to post notice of worker rights to organize, and to be protected from abuses by labor unions.

The National Labor Relations board issued the final rule — following a 60-day comment period that drew some 7,000 responses — which requires most private employers to notify employees of their rights.

Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted, according to a press release from the NLRB. Also, employers who customarily post notices to employees regarding personnel rules or policies on an Internet or Intranet site will be required to post the board’s notice on those sites. Copies of the notice will be available from the agency’s regional offices, and it may also be downloaded from the NLRB website.

The notice, which is similar to one required by the U.S. Department of Labor for federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

To see a list of frequently asked questions, click here.