Goodbye, and hello

After exactly 40 years, Don Stemmermann decided to call it a career.

The Michigan Lawyers Weekly publisher tendered his resignation on Aug. 27, the very same day, four decades ago, that he entered the newspaper business. Over that time, he worked in sales and publishing, including his two-year stint here as publisher of MiLW.

What’s next? Don said that he plans to spend more time working with Angela Hospice and other non-profits he is involved with. He is also planning multiple trips to Cincinnati to visit with his granddaughter.

All the staff at MiLW and at the Dolan Company wish Don the very best. The door is always open and we expect pictures.

Which brings us to me.

I am the publisher of Virginia Lawyers Weekly, MiLW’s sister paper in Richmond. For the next several months, I will be the interim publisher here.

I joined VLW in 1988 after practicing law in Southwest Virginia for three years, and for the past 24 years, I’ve worked at bringing the latest legal news to attorneys in the Old Dominion – in print, on the web, on mobile.

The mission at VLW is the same mission here – to provide the practical, timely information you need to practice law more efficiently and more effectively. I look forward to working with the excellent team here at MiLW. And I look forward to meeting you and talking to you.

Personal note: This post is a bit of a homecoming for me. I lived in Michigan for several months in 1984, when I was a summer associate with the firm then known as Foster, Swift, Collins & Coey in Lansing.

My fiancée, later my wife, and I ended up staying in Virginia, where we went to law school and where she already was practicing.

The Michigan tourism department used a campaign slogan for years: “Say YES to Michigan!”

When the folks at Dolan asked me if I was interested in the interim gig here, what other answer could I give?

– Paul Fletcher

In their opinions: What did you think would happen?

Having worked hard to appear suspicious in an armed-and-loaded visit to the park, Embody cannot cry foul after park rangers, to say nothing of passers-by, took the bait.

– Sixth Circuit Judge Jeffery Sutton, in Embody v. Ward.

Leonard Embody went for a leisurely Sunday afternoon stroll in a nature area. He was outfitted with a camouflage suit and a Draco AK-47 pistol slung across his chest, all loaded up with a 30-round clip, all perfectly legal under Tennessee law, which allows handguns in public places such as nature areas.

He had a permit for the pistol. The pistol was barely legal: if the barrel had been a half-inch longer, it wouldn’t have qualified as a handgun. One other thing, the tip of the barrel was painted orange, typically done to indicate a weapon is actually a toy.

Embody had an audio recording device with him, apparently expecting that he’d draw some attention.

Mission accomplished. One person saw Embody and put his hands in the air without any prompting. Two others found a park ranger and expressed concern about Embody. An elderly couple told a ranger that they saw a man walking around with an assault rifle.

A ranger stopped Embody. Embody produced his permit. The ranger was unable to tell if the weapon was legal. The police were consulted. A ranger ordered Embody to the ground at gunpoint and disarmed him. After a couple hours, having determined that Embody’s weapon was legal, the authorities gave it back to him and sent him on his way.

Embody celebrated his release by suing the ranger that took him down at gunpoint. The weapon was legal, Embody said. That’s all that matters to make a case under the Fourth and Second Amendments.

The federal district court made short work of the case by granting the ranger summary judgment. Embody fared no better on appeal.

“[T]he constitutional question is whether the officers had reasonable suspicion of a crime, not whether a crime occurred. Otherwise, all failed investigatory stops would lead to successful § 1983 actions,” said Sutton, disposing of Embody’s Fourth Amendment claim.

As for the claimed Second Amendment violation, § 1983 provides remedies for federal law violations. Even if the ranger violated state law, Embody didn’t explain how that would rise to a federal constitutional offense, Sutton said.

Applying the legal principles in this case was like … well, it was like a walk in a park.

In their opinions: We know it’s a double dip but that’s the law

This is a case in which plaintiff chose not to purchase any automobile insurance and, yet, remarkably, the majority rules that plaintiff properly has and will continue to make a profit every time he is treated by a doctor.

– Court of Appeals Judge Henry Saad, dissenting, in Lee v. Farmers Ins. Exchange (unpublished per curiam).

In 1978, Antoine Lee was a passenger in a car. A traffic accident left him seriously injured. He had no insurance and there was no other no-fault coverage available to him. Farmers Insurance Exchange got Lee’s case from the Assigned Claims Facility and paid no-fault PIP benefits.

But Lee also received Medicare coverage to pay of his medical expenses. These dual payments apparently were made for almost 30 years before Farmers balked at paying expenses already covered by Medicare.

Lee sued. Farmers took the position that Lee was double-dipping from both the assigned claims facility and Medicare. Lee argued that the medical expenses were allowable no-fault expenses that Farmers was obligated to pay, even though Medicare had already paid them.

The trial court found for Lee but stayed execution of the $155,000 judgment until Farmers was through with its appeal.

The COA affirmed on a 2-1 vote. The majority opinion noted that a combination of circumstances required judgment for Lee:

  • [T]he Legislature has … specifically permitted recipients of assigned-claims no-fault benefits to receive duplicative compensation from Medicare by making the assigned-claims payment structure partially uncoordinated as to Medicare. Whether or not that is a wise policy choice, the trial court correctly ruled that defendant may not set off the Medicare payments.
  • Because plaintiff’s accident occurred in 1978, it preceded the congressional enactment of the Medicare Secondary Payer provision of the Omnibus Budget Reconciliation Act of 1980, 42 USC 1395y(b)(2)(a), which prevents Medicare from acting as the primary payer for auto accident injuries. The statute only applies to accidents that occurred after December 5, 1980. …
  • We need not address whether any offset would be appropriate under MCL 500.3109(1), however, because that statute, and the case law addressing that statute, contemplates a payee receiving benefits pursuant to some kind of purchased no-fault insurance policy. …
  • [I]t is impossible for MCL 500.3109a to have any bearing: no insurer could have offered plaintiff a coordinated policy because plaintiff had no insurance at all. …
  • MCL 500.3172(2) states that PIP benefits paid by the assigned claims facility “shall be reduced to the extent that benefits covering the same loss are available from other sources,” but further states that Medicare is not one of those “benefit sources.”

The majority acknowledged Saad’s and Farmers’ frustration with the outcome, but explained that “[h]owever anomalous the situation might seem, our Supreme Court has repeatedly instructed that our Court must enforce legislation as written rather than weigh its wisdom.”

The case is Lee v. Farmers Insurance Exchange. (majority opinion) (dissent)

One-person grand jury to investigate alleged election-rigging in GOP house race

Responding to a petition by the Michigan Democratic Party, a majority of the Ingham County Circuit Court judges has authorized a one-person grand jury investigation of alleged election-rigging by House Speaker Jase Bolger and Rep. Roy Schmidt.

Judge Rosemarie Aquilina will conduct the probe of the two House Republicans and Matt Mojzak. Mojzak was allegedly recruited as a straw candidate to run a write-in campaign as a Democrat in Schmidt’s district after Schmidt made an 11th hour jump from the Democratic Party to the GOP.

Mojzak was allegedly offered money to stay in the race after it was learned that he couldn’t satisfy the residency requirements to run in Schmidt’s district.

We blogged some of the meaty details last month when the story first broke.

Michigan panhandler law struck down

The Associated Press has reported that U.S. District Judge Robert Jonker has ruled a state law banning panhandling in public places violates First Amendment protections for free speech and the 14th Amendment’s equal protection clause.

The opinion concerns James Speet and Ernest Sims, two Grand Rapids men arrested in 2011 for begging. They were represented by the American Civil Liberties Union.

Speet, who is homeless, was arrested for holding up signs seeking “work or help.” Sims pleaded guilty to panhandling after asking for spare change. Both men receive food stamps, and Sims also receives $260 per month in state disability insurance.

Grand Rapids enforced the panhandling ban 399 times between Jan. 1, 2008, and May 24, 2011, the ACLU said.

“Pending future developments in this case, Grand Rapids police will not be enforcing this state law,” said Catherine Mish, Grand Rapids’ city attorney, adding that it’s too early to tell whether an appeal will be filed.

Word of the day: Dubitante

Many thousands of court opinions have crossed my desk in the nearly 26 years I’ve been with Michigan Lawyers Weekly.

Unanimous opinions. Concurring opinions. Dissenting opinions. Opinions that concur in part and dissent in part. En banc opinions. Memorandum opinions. Plurality opinions.

But until this morning, I never saw an opinion bearing the title “Dubitante.”

Dubitante. I reached for my Black’s Law Dictionary, the Thick-Coating-Of-Dust Edition. Here’s the entry: “Term is affixed to the name of a judge, in the reports, to signify that he doubted the decision rendered.”

Well, then it should be a concurrence, I thought, the sort of concurrence that begins, “I reluctantly concur with the majority.”

But a dubitante opinion, according to law professor Jason J. Czarnezki, is a fairly rare thing, and has a different shade of meaning.

“In the United States,” as of June 30, 2005, says Czarneki, “the term has been used in only 626 written opinions.”

Clearly, concurrences, not dubitante opinions, are the norm when expressing reservations, but deciding to vote with the court’s majority. However, the term is most frequently used to express doubt in general, not to define a judge’s disposition in a given case.

Czarnezki, “The Dubitante Opinion,” March 30, 2006.

Czarnezki says that only a handful of judges have styled an opinion as “dubitante.”

The latest member of the club is Judge Jeffrey S. Sutton of the Sixth Circuit.

Of interest, Sutton’s dubitante opinion follows his unanimous opinion in United States v. Jeffries. In other words, Sutton wrote the opinion, was joined by two other circuit judges, and then wrote a separate, dubitante opinion expressing some general doubt about his majority opinion.

What caused Sutton’s reservations?

Franklin Delano Jeffries was convicted of violating 18 U.S.C. § 875(c), which, in part, prohibits transmitting in interstate commerce “any threat to … injure the person of another.”

Jeffries’ threats came in a song he performed and then posted on YouTube and Facebook a few days before a custody hearing. In his majority opinion, Sutton described the performance.

The song contains sweet passages about relationships between fathers and daughters and the importance of spending time together. The rest boils into an assortment of the banal (complaints about his ex-wife), the ranting (gripes about lawyers and the legal system) and the menacing (threats to kill the judge if he doesn’t “do the right thing” at an upcoming custody hearing). Jeffries set the words to music and created a video of himself performing the song on a guitar painted with an American flag on it. The style is part country, part rap, sometimes on key, and surely therapeutic.

And also illegal under 18 U.S.C. § 875(c), a federal prosecutor decided. A jury agreed.

On appeal, Jeffries argued that the jury should have been instructed that to convict, the jury had to find that he subjectively intended to threaten the judge. Not so, according to Sutton’s majority opinion.

A § 875(c) prosecution … generally requires the government to establish that the defendant (1) made a knowing communication in interstate commerce that (2) a reasonable observer would construe as a true threat to another. Once the government makes this showing, we have held it matters not what the defendant meant by the communication, as opposed to how a reasonable observer would construe it.

Sutton cited precedent from the Sixth Circuit and other jurisdictions to affirm Jefferies’ conviction.

But why is there only an objective component to § 875(c), Sutton asked in his dubitante opinion.

Every relevant definition of the noun “threat” or the verb “threaten,” whether in existence when Congress passed the law (1932) or today, includes an intent component. …

Conspicuously missing from any of these dictionaries is an objective definition of a communicated “threat,” one that asks only how a reasonable observer would perceive the words. If words matter, I am hard pressed to understand why these definitions do not resolve today’s case. The definitions, all of them, show that subjective intent is part and parcel of the meaning of a communicated “threat” to injure another. …

Ever since the Watts decision in 1969, it has been clear as a matter of constitutional avoidance that threat prohibitions like this one cover only “real” threats, threats in other words that a reasonable observer would take as true and real. Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam). That is all well and good, as it makes sense to interpose this objective requirement on the criminalization of speech. But that consideration offers no basis for alchemizing the normal meaning of threat into an objective-intent question alone. What should happen instead is this: The statute should require first what the words say (a subjectively intended threat) and second what constitutional avoidance principles demand (an objectively real threat). …

When some law-making bodies “get into grooves,” Judge Learned Hand used to say, “God save” the poor soul tasked with “get[ting] them out.” Hand, The Spirit of Liberty 241–42 (2d ed. 1954). That may be Franklin Delano Jeffries’ fate — and ours. The Department of Justice, defense lawyers and future courts may wish to confirm that the current, nearly uniform standard for applying § 875(c) is the correct one. I am inclined to think it is not.

The case is United States v. Jeffries.  “SUTTON, J., delivered the opinion of the court in which GRIFFIN, J., and DOWD, D. J., joined. SUTTON, J. (pp. 16–20), also delivered a separate dubitante opinion.”

Nadis & Neuman acquired by Couzens Lansky

Couzens, Lansky, Fealk, Ellis, Roeder & Lazar PC has absorbed the lawyers and staff of Farmington Hills firm Nadis & Neuman PC.

Ronn Nadis and Phillip Neuman have become shareholders, while Michael Dorocak and Sarah Heisler Gidley are associates and Robert Berlow is of counsel. They specialize in commercial real estate transactions, real estate litigation, landlord-tenant matters, commercial and corporate law, and business disputes.

Couzens Lansky, which has offices in Farmington Hills and Detroit, was ranked 34th largest firm in the 2012 edition of Michigan Lawyers Weekly’s “Michigan’s Largest Law Firms.”