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.


MSC: Emergency school manager oath-of-office case moot

Robert Davis, the Highland Park school board’s secretary who last week pleaded not guilty to federal charges of converting school district funds, has one less thing to worry about, courtesy of the Michigan Supreme Court.

The Court yesterday threw out his suit, Davis v. Emergency Manager of the Detroit Public Schools, which challenged Roy Roberts’ authority to serve as the emergency manager of the Detroit Public Schools.

In May 2011, Gov. Rick Snyder appointed Roberts under MCL 141.1501 et seq., Michigan’s emergency manager law. Roberts went to work without taking an oath of office.

Davis, a vocal critic of the law who backs up his views with litigation, asked Attorney General Bill Schuette to initiate a quo warranto action, claiming that without the oath of office, Roberts had no authority to run the Detroit schools.

After Davis sought quo warranto relief, Roberts took the oath, and a few days later, Schuette declined Davis’s request.

Davis’s next stop was at the Court of Appeals, which also turned him down. In an order dated Oct, 6, 2011, the COA said Robert’s failure to immediately take the oath didn’t violate MCL 201.3(7), which meant the office of emergency manager “was not, and did not need to be, declared vacant.”

The COA also ruled that Roberts fixed the problem by taking the oath of office before Davis filed his COA action, and that before taking the oath, Roberts was functioning as a de facto officer.

The Michigan Supreme Court yesterday approved the result but not the reasoning.

[W]e VACATE that part of the of the Court of Appeals October 6, 2011 order providing the legal reasoning for the denial of the application.

In all other respects, the application for leave to appeal is DENIED as moot in light of the fact that Roy S. Roberts was reappointed to serve as Emergency Manager for the Detroit Public Schools, effective April 2, 2012, and he signed an Oath of Office on that date.

In a concurring statement, Chief Justice Robert Young Jr. questioned whether an emergency manager is even constitutionally required to take an oath of office. Young said the issue need not be decided because the case was moot.

Young’s concurrence prompted Justice Stephen Markman to respond:

Given that the responsibilities of the emergency manager are, during extraordinary economic circumstances, to carry out the duties of the mayor and the members of the city council of a municipality, all of whom themselves are required to take oaths of office, it would seem anomalous that an official serving in their stead would not also be required to make the same commitment to the laws and constitutions of the United States and Michigan.

MSC upholds county apportioning law

A divided Michigan Supreme Court has upheld 2011 PA 280, which limits county commissions to 21 members in counties with 50,000 or more residents.

In addition, in counties with more than 1 million residents, the act reassigns apportionment duties from county reapportionment commissions to the board of commissioners.

Counties not in compliance with the act have 30 days to adopt a conforming apportionment plan.

What’s the practical effect of all of this? It’s an enormous gift to Oakland County Republicans, according to the legislation’s critics.

As the act is written, Oakland County is the only county that will have to redraw its election maps right now. And because the county has more than 1 million residents, Oakland’s reapportionment commission, where Democrats have a 3-2 edge, gets cut out of the picture, and the Republican-controlled county commission is now in the driver’s seat.

Earlier this month, the Michigan Court of Appeals sided with the plaintiffs in Houston, et al. v. Governor, et al. (majority opinion) (concurring/dissenting opinion), and ruled that the act was unconstitutional.

The COA majority reasoned that because the act affected Oakland County only, it was a local act that required a two-thirds vote by the Legislature. The act is invalid because didn’t muster the required number of votes under the state constitution, the COA majority ruled.

Defendants, Gov. Rick Snyder and the Oakland County Board of Commissioners asked the MSC to grant leave to appeal. The MSC heard oral arguments on an expedited basis. Plaintiffs, in defending the COA’s ruling, hammered on two points: first, the act’s effects resulted from an exercise of raw political power, and second, the COA got it right — the act is a local act because it affects Oakland County only.

Late yesterday, in a 4-3 order, the MSC majority responded “so what” to the first point and “reversed” to the second point.

The majority, Chief Judge Robert Young, and Justices Stephen Markman, Mary Beth Kelly and Brian Zahra, acknowledged the case was a political hot potato but said that simply doesn’t matter:

Plaintiffs make much of the alleged political motivations behind the Act, calling it a “political favor” to the Oakland County Executive and citing numerous supportive editorial comments.

As with any redistricting of political maps, the parties here vie to create maps that benefit their own interests, and a dispute with partisan implications has not surprisingly arisen. Notwithstanding this reality, “[t]he validity of legislation can never be made to depend on the motives which have secured its adoption, whether these be public or personal, honest or corrupt.” Cooley, Constitutional Law, p 154.

In a case like this, someone’s ox was bound to be gored:

In reaching our decision, this Court, as it is always, is engaged in applying the equal rule of law to the best of its ability. That there may be some partisan advantage to one side or another in this decision is simply a function of the fact that there is no conceivable decision that could have been reached in which one side or the other could not have asserted that partisan advantage accrued to the other. We believe that a fair review of the decisions of this Court in which some partisan advantage was at issue would make clear that our decisions have been marked by a commitment to a faithful reading of the law.

As to the merits, the majority looked to the two-part test in Dearborn v. Board of Supervisors, 275 Mich. 151 (1936), for determining whether an act is local or general.

First, the limiting criteria of the act must be reasonably related to the overall purpose of the statute. Second, the act must be sufficiently open-ended so that localities may be brought within the scope of its provisions as such localities over time meet the required criteria. …

2011 PA 280 satisfies the Dearborn test. First, the limiting criteria are reasonably related to the overall purpose of the Act. Here, the overall purpose is to limit the number of districts a county may apportion, and the population criteria set forth in the Act seem a reasonable means of achieving that purpose.

Second, the Act is open-ended. It provides various population ranges and places corresponding limits on the number of districts for every county within those ranges. As a county’s population increases above or below a given range, the number of districts that may be apportioned by that county will increase or decrease respectively.

That the transitional provision, requiring compliance with the Act within 30 days by counties whose apportionment does not currently satisfy the requirements of 2011 PA 280, practically applies only to Oakland County frustrates neither of the elements of Dearborn. …

Absent a transitional period during which some counties must necessarily be treated differently from others, it would be impossible for the Legislature to make general, uniform changes to public policy pertaining to local government.

That is, to bring counties that are out of compliance with the Legislature’s preferred public policy into compliance, and to establish uniform policy, those counties out of compliance must be treated differently during the transition or else uniformity can never be achieved.

The transitional provision here accomplishes just such a purpose by ensuring that Oakland County will not be the only county that operates outside of the apportionment limits of the Act until the next census.

Justice Marilyn Kelly, joined by Justice Michael Kelly, dissented. Justice Diane Hathaway, in a separate dissent, agreed with Kelly’s dissent.

The act’s effective date is March 28.

The political cartographers in Oakland County are sharpening their pencils in anticipation.

MSC stays precedential effect of COA suspended-license case

The Michigan Supreme Court has stayed the precedential effect of a Court of Appeals decision that requires county prosecutors trying driving-with-suspended-licenses cases to produce at trial the state clerks who mailed the suspension notices to the defendants.

In People v. Nunley (majority opinion) (dissenting opinion), the COA reasoned that proof of notice to defendants is an element of the crime. As such, a certificate that the notice was mailed is testimonial and Confrontation Clause principles apply. Those principles include the right to confront in court the person who mailed the certificate.

Michigan Attorney General Bill Schuette was granted intervenor status in the case. His motion to stay the precedential effect of the case and to enlarge the record on appeal was granted in a MSC order released Dec. 2.

For an analysis of the COA’s opinion in Nunley, see “Mailing certificate testimonial, state clerk must appear at trial,” which appeared in our Oct. 21 issue.

The Washtenaw County prosecutor’s application for leave to appeal remains pending.

MSC will review pension tax law

The Michigan Supreme Court has granted Gov. Rick Snyder’s request for an advisory opinion on the constitutionality of reducing or eliminating tax exemptions for pension incomes.

The MSC will hearing arguments on the constitutionality of 2011 PA 38 on Sept. 7.

The questions submitted for the MSC’s review are:

  • (1) whether reducing or eliminating the statutory exemption for public-pension incomes as described in MCL 206.30, as amended, impairs accrued financial benefits of a “pension plan [or] retirement system of the state [or] its political subdivisions’ under Const 1963, art 9, § 24;
  • (2) whether reducing or eliminating the statutory tax exemption for pension incomes, as described in MCL 206.30, as amended, impairs a contract obligation in violation of Const 1963, art 1, § 10 or the US Const, art I, § 10(1);
  • (3) whether determining eligibility for income-tax exemptions on the basis of total household resources, or age and total household resources, as described in MCL 206.30(7) and (9), as amended, creates a graduated income tax in violation of Const 1963, art 9, § 7; and
  • (4) whether determining eligibility for income-tax exemptions on the basis of date of birth, as described in MCL 206.30(9), as amended, violates equal protection of the law under Const 1963, art 1, § 2 or the Fourteenth Amendment of the United States Constitution.

The Attorney General will submit separate briefs arguing for and against the legislation’s constitutionality.

Deposit law challenge canned

A law requiring unique Michigan markings on returnable beverage containers does not, on its face, violate the federal Commerce Clause, according to Western District Judge Gordon Quist.

A suit filed by the American Beverage Association against several state officials claims the law unfairly limits interstate commerce.

The Michigan-specific markings enable deposit-return machines to recognize that the container was purchased in Michigan. The state argues that the law is necessary to prevent situations like this one:

All kidding aside, deposit-return fraud is no small matter, wrote Quist:

[A]lthough it has never been stated with precision how many bottles are fraudulently redeemed each year, Plaintiff does not deny that the problem exists, and Defendants have presented sufficient evidence that estimates the scope of fraud to be, conservatively, 10 million dollars per year.

Yet to be determined in the litigation: whether burden imposed on the beverage manufacturers outweighs the benefits that the state obtains from the unique-marking requirement.

The case is American Beverage Ass’n v. Synder, et al.

Sixth Circuit reflects on mirror ornament law

Fuzzy dice, rosaries, beads and all that other stuff you see dangling from rear-view mirror posts while you’re motoring around town (or maybe from your own if you’re into ornaments) are once again fair game for a police stop in Michigan, thanks to the 6th U.S. Circuit Court of Appeals.

What are you talking about? Never knew that pair of laced-together baby shoes could get me in trouble in the first place.

Well, maybe yes and maybe no.

MCL 257.709(1)(c) has been on the books for years. It says:

A person shall not drive a motor vehicle with any of the following … [a] dangling ornament or other suspended object that obstructs the vision of the driver of the vehicle, except as authorized by law.

The Sixth Circuit, in its Dec. 19 ruling in United States v. Davis, said the law gave the cops too much leeway to determine whether, in Davis’ case, a four-inch tall Tweety Bird air freshener obstructed his vision:

This law does not ban all dangling objects; rather, it bans only ornaments that “obstruct the vision of the driver of the vehicle.” Yet the statute does not specify to what degree the driver’s vision must be obstructed or for how long. This leaves an undefined category of dangling ornaments that arguably violate the statute – one that could be very large depending upon how individual law enforcement officials interpret it – because the statute itself provides no additional guidance to govern enforcement. This is problematic for two reasons. First, the breadth of discretion it delegates to law enforcement: legislatures have a constitutional duty to set out “minimum guidelines to govern law enforcement,” Kolender v. Lawson, 461 U.S. 352, 358 (1983), but here no such neutral, objective standards are set forth. Second, the discretion delegated to law enforcement by this statute has a potentially far-reaching application in practice.

It sure did in Davis’ case. Westland cops stopped Davis around 2 a.m. after spotting his air freshener. Davis couldn’t produce a driver’s license. One thing led to another, and before long, the prosecutor and defense counsel were arguing whether the guns, drugs and open pint of cognac found in Davis’ vehicle were admissible evidence.

The Sixth Circuit had little trouble concluding that all the contraband was admissible under the good faith exception to the exclusionary rule. But the court ruled that the statute itself was unconstitutional:

Objects hung from rearview mirrors are legal in Michigan and are indeed quite common. Many vehicles on the road today have something hanging from the rearview mirror, whether it be an air freshener, a parking pass, fuzzy dice, or a rosary. And many organizations, both public and private, either encourage or require their use. Because of this, many vehicles on the road may violate the obstruction law, but the statute itself provides no guidance either to motorists or police as to which ones do. It is simply up to the officer on the street to decide. We believe that the Constitution requires more of Michigan’s legislature.

Happy days for everyone with a graduation mortarboard tassel suspended from the rearview mirror.

But wait! Not quite two weeks later, on Dec. 31, the Sixth Circuit changed its mind and withdrew the opinion.

How come?

The Associated Press talked to the court’s clerk, who said she had no idea why but ventured that a new opinion was in the works.

In the meantime, it’s once again up to the cops to decide whether you can see the road well enough with those dog tags, bridal garters, dried flowers or what have you dangling in front of the windshield.