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Tuesday, November 27, 2018

Clean the snow off of your car, or face being on Santa’s naughty list

Winter in Michigan sparks a plethora of interesting human behavior – people driving like they’ve never seen snow before, bundling up like you’re about to trek to the North Pole, and impatient people who decide that despite the two feet of snow covering their entire car, wipe off a mitten-sized spot in front of their steering wheel and hit the road.


Most of us find it annoying to have to stand out in the cold, scraping ice and snow off the car with whatever we find handy.  For most of us, there is a 50/50 chance that we will remember to toss the snow scraper in the back seat or trunk after Halloween.


Did you know, however, that if you fail to adequately remove the snow from your car before you start to drive, that you can be ticketed?  Michigan law, specifically 257.677a, reads: “(2) A person shall not remove, or cause to be removed, snow, ice, or slush onto or across a roadway or the shoulder of the roadway in a manner which obstructs the safety vision of the driver of a motor vehicle other than off-road vehicles. (3) A person shall not deposit, or cause to be deposited, snow, ice, or slush onto or across a roadway or the shoulder of the roadway in a manner which obstructs the safety vision of the driver of a motor vehicle. (4) A person shall not deposit, or cause to be deposited, snow, ice or slush on any roadway or highway.”


Michigan laws dealing with the ability to see your headlights, taillights and driver visibility also come in to play with respect to cleaning off your car.  If you do not clear off the mountain of snow, people are less likely to see your lights, and your headlights are less effective.  Other than some historical cars, you need to have a “device” (aka windshield wipers) for cleaning snow off of your windshield as well.  Snow can easily slide off of your car, covering your rear windshield while you are driving.  The snow can fly off of your vehicle and significantly obstruct other drivers’ visibility, as well as causing erratic driving and swerving to avoid the hit. 


So if you start throwing snow off of your car while driving down I94, smacking other drivers; or my personal favorite – the entire sheet of ice and snow that flies at you like a UFO – you are violating the law.  And Santa is watching very carefully this time of year.

New Bicycle Law Takes Effect

I often see signs and bumper stickers telling me to “Share the Road” and “Look Twice, Save a Life,” both of which are typically reminding drivers to look out for motorcycles on the road.  It’s not very often that I am blasted with advertising about good old fashioned pedal bicycle safety when I’m driving.  Sure, lots of places have designated bike lanes, but the awareness and safety aspect is far less when it comes to riding your Schwinn versus your Harley.


As of September 26 of this year, Michigan now has a three feet bicycle passing law, which requires drivers of vehicles to maintain a minimum of three feet of distance between their vehicle and the bicycle that they are passing on the road.  Specifically, the law reads:


The driver of a vehicle overtaking a bicycle proceeding in the same direction shall, when otherwise permitted by this section, pass at a distance of 3 feet to the right of that bicycle or, if it is impracticable to pass the bicycle at a distance of 3 feet to the right, at a safe distance to the right of that bicycle at a safe speed.  MI House Bill No. 4265.


I doubt many of us recall everything we learned when we first received our driver’s permit or license; my most tangible memory is that my instructor continuously ate sugar free mints (don’t worry, I have a good driving record anyways). Beginning in 2019, driver’s education will include at least an hour of instruction on pedestrian, motorcycle and bicycle laws in the state of Michigan.  Violations of the law are treated as civil infractions. 


According to the National Conference of State Legislatures, the vast majority of states have similar three feet passing laws for bicycles, although North Carolina allows two feet, while Pennsylvania provides for four feet of space.  South Dakota requires three feet if the speed limit is 35 mph or less, but it increases to six feet for roads that have speed limits over 35 mph.  Some states require you to completely change lanes if the road has two lanes in the same direction.


It may be hard to judge a distance of three feet when driving, and I plan on continuing to give bicyclists as much space as possible when passing.  Considering that I’ve got two children who love to ride their bicycles (streamers, bells and baskets included), I’m pretty happy the law is catching up to the safety of bicyclists on the road. 

No money, no problem in California criminal court

Starting October 1, 2019, the phrase “bail me out” will have less meaning in California criminal courts.  California Governor Jerry Brown recently signed a new law that eliminates cash bail requirements for individuals charged with a crime.  It is the first state to completely eliminate bail money.


The California Money Bail Reform Act is meant to even the playing field for individuals accused of a crime by taking money out of the equation.  We have all seen news reports of wealthy individuals being charged with a crime who easily post the bail requirements and are left to roam free until their court date (Ethan Couch, the “affluenza teen” comes to mind).  Meanwhile, those without financial resources are abandoned in jail until, and if, they can scrape up enough money for their release, whether through family and friends, or a bail bondsman.


The new system will focus on risk assessment rather than cash flow.  Pretrial assessment services will be formed, which could be done utilizing court employees or by contracting with an outside agency.  This group will lump offenders into three categories:  high risk, medium risk and low risk.  High risk is defined as someone who is “categorized as having a significant level of risk failure to appear in court as required or risk to public safety due to the commission of a new criminal offense while released on the current criminal offense.”  Thankfully, these individuals will not be released.


Medium risk individuals are those who have only a moderate level of risk, and low risk is reserved for those with a “minimal level” of risk, with respect to attending court hearings and public safety.  Low risk individuals must be released, while a medium risk person may be released or held in detention.  Review of the low and medium risk cases must be completed within 24 hours of booking, which can be extended to a maximum of 36 hours if good cause is demonstrated.


The review itself is comprised of three main parts:  1)  risk score/level, calculated by using a “validated risk assessment instrument;” 2)  the current criminal charge, and the person’s criminal history, which includes reviewing any failures to appear in court for the last three years; and 3) any additional information that addresses the risk to society or failing to appear in court.  An attempt to contact the victim of the crime will be made as well.


While there are exceptions, if you are charged with a misdemeanor, you “shall be released from custody without a risk assessment…within 12 hours of booking.”  Being released requires you to sign an agreement to appear as ordered by the court, to remain in the state, to waive extradition, obey laws and orders, and acknowledgment that you are aware of the consequences of violation of the agreement.


Time will tell if the system will truly improve the equity between the haves and the have nots in the state of California. After all, in the words of the late Notorious B.I.G., “mo money, mo problems.”

Planet Fitness gets K.O.’d at the Court of Appeals

While I don’t necessarily enjoy working out, I understand the importance of maintaining one’s physique and improving overall physical health.  Yvette Cormier joined the Planet Fitness gym in Midland, Michigan in 2015.  A month after joining, Yvette was surprised to see a transgender woman using the locker room designated for women.


Upset by the incident, she complained to management, who told her that members could use whichever facility they identified with.  While Yvette continued to use the gym after learning of the unwritten policy, she took it upon herself to “warn” other women about the situation.  Planet Fitness eventually terminated her membership a few days later.


Yvette sued, and the trial court sided with the gym, granting summary disposition in its favor.  The Michigan Court of Appeals affirmed the trial court’s ruling, but the Michigan Supreme Court vacated the Court of Appeals’ decision relative to Yvette’s claim of a Michigan Consumer Protection Act (MCPA) violation, and remanded the issue back to the Court of Appeals.


On July 26, 2018, the Court of Appeals issued its decision after remand, reversing itself and holding that Yvette “sufficiently sets forth claims of violation of the MCPA under MCL 445.903(1)(s), (bb), and (cc).”  See MI Court of Appeals, No. 331286.


The MCPA “ ‘prohibits the use of unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce.’ ”  In this case, Yvette argued that Planet Fitness advertised separate gender locker rooms and other facilities, all the while having an unwritten rule that a person could use whichever facility he or she self-identified with.  Moreover, she had no real way of knowing of this policy, and had she known, it would have impacted her decision to join Planet Fitness.


The Court of Appeals dismissed several of her allegations as failing to state a claim for violation; however, it concluded that Planet Fitness’ failure to disclose the unwritten “self-identification” policy was germane to Yvette’s agreement to become a gym member.  As evidenced by her actions, policies on which individuals were allowed to use the various locker and rest rooms were an important part of her decision to join the gym, and could affect other members as well.


The Court emphasized that even though Yvette still used the gym after learning of the policy, this did not void her claim.  The Court of Appeals reversed its previous ruling, and remanded the case for further proceedings.  Yvette may have won this round, but it remains to be seen who will prevail in the next match.

Unconventional will cuts mom out from inheritance

On July 17, 2018, the Michigan Court of Appeals upheld an unconventional will left by 21 year old Duane Horton II (See Michigan Court of Appeals Case No. 339737).  Duane committed suicide in 2015, but before doing so, he wrote in his journal one last time.  In the undated and handwritten entry, he referenced a note he had left on his cell phone.  He provided the password and email so that the note could be accessed.


On his cell phone, Duane had typed a will, detailing his belongings and the individuals he wished to inherit the items.  He specifically left out his mother, stating, “If at all possible, make sure that my trust fund goes to my half-sister Shella, and only her.  Not my mother.” 


Duane already had a court-appointed conservator, Guardianship and Alternatives, Inc. (GAI), and it filed to be the personal representative of his estate.  Not surprisingly, Duane’s mother, Lanora Jones, also wanted to be the personal representative of her son’s estate.


The lower court in Berrien County determined that GAI had set forth “clear and convincing evidence” that Duane’s “electronic note was intended by decedent to constitute his will.”  Under MCL 700.2503, the probate court accepted the cell phone note as a valid will.


Duane’s mom appealed this ruling, arguing that the document could not be construed as a valid will under Michigan law.  She further believed that the lower court was incorrect in determining that GAI offered enough evidence to prove her son intended the document to be his will.


Michigan statute 700.2502 provides that a will must be in writing, signed by the testator (or by someone else at his direction and in his “conscious presence”) and witnessed by two individuals.  If all of these requirements are not met, it could still be considered a “holographic will,” so long as the document is dated, contains the testator’s signature and the meat and potatoes of the will are in his handwriting. 


MCL 700.2502 provides for exceptions to the requirements for a will – one of those is set forth in MCL 700.2503.  In part, MCL 700.2503 states that despite not complying with the formal statutory requirements of a will, a “document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute any of the following:  (a) The decedent’s will….”


In Duane’s case, the Court of Appeals found it very clear that he wrote the document knowing it would be read after his death; he offered apologies and said goodbye to those he was leaving behind.  The distribution of his property was also explicit, describing who he wanted to leave certain items to, and in this case, who he did not intend to inherit his estate.


The Court of Appeals concluded that Duane and his mother had “at best, a strained relationship,” which supported his decision to not leave anything to her.  It upheld the lower court and affirmed that the cell phone note was indeed a valid will.  This was one case where a mother’s love (or lack thereof) was not forgotten.

No Labradors for able bodied litigants

Support animals are increasingly common – we see them on airplanes, at restaurants, schools, stores and even in courtrooms.  Several prosecutor’s offices in Michigan have therapy dogs, and the Troy Police Department recently adopted a “police cat.”  They definitely serve a purpose, as I’ve written in past articles, but the Michigan Court of Appeals recently drew a line as to their appropriateness in courtroom proceedings in a June 7, 2018 ruling.

In the case People of the State of Michigan v Dakota Lee Shorter, Michigan Court of Appeals number 338629, the court declined to follow its 2016 holding in People v Johnson, 315 Mich App 163, citing the numerous differences between Shorter’s case and that of defendant Johnson.  Both men were tried and convicted of sexual assault – Johnson’s victim was a six year old family member, and Shorter’s accuser was an adult female friend. 

In each case, the lower court allowed a support dog to accompany the complainants when testifying in court.  However, the court determined there was a “fundamental difference” between the two cases – one involved testimony given by a child, and the other was testimony of a grown adult.  Additionally, the dog’s handler was also present during Shorter’s trial, which required prior notice under MCL 600.2163a(4).

The Johnson court provided a plethora of cases across many jurisdictions which lent support to the appropriateness of a support animal for a child who was called to testify.  In those instances, the court believed that jurors could easily understand why a child would be nervous in a courtroom, and why a dog would be beneficial yet not prejudicial.  However, in the Shorter case, the court opined that “[w]ith a fully abled adult, a juror is far more likely to conclude that the reason for the support animal or support person is because the complainant was traumatized by the actions for which the defendant is charged.” 

The appeals court was also unable to find any case in the state of Michigan or nationwide, that allowed a support animal to accompany a non-disabled adult when testifying.  The complainant in Shorter’s case did not fit the definition of a person 16 years or older with a developmental disability, nor was she a vulnerable adult.  If she was either of these, the statute would have afforded her the opportunity for a support “person.”  Instead, the prosecution argued for the use of the dog because it had made the alleged victim less emotional during trial prep.

The court went so far as to determine that the use of the dog in Shorter’s case “undermined the reliability of the verdict,” and the error was not harmless.  Specifically, the court wrote that “it was particularly improper to allow a comfort dog to help the complainant ‘control her emotions’ while testifying.  If the adult complainant’s emotional state constitutes evidence of guilt, the jury is entitled to evaluate her emotional state uninfluenced by outside support…”  In this case, there was no DNA evidence and no witnesses, and the case hinged on the credibility of those involved.  The Court of Appeals reversed and remanded Shorter’s case for a new trial.

With the popularity of support/service animals on the rise, I expect to see more legal questions about the appropriate times and places that they can sit, and stay.

This Rose has a thorn for Veterans

Having just celebrated Memorial Day, I thought it was fitting to write an article on Veterans’ benefits.  In the US Supreme Court case Charlie Rose v Barbara Rose, 481 US 619 (1987), Charlie argued against his Veterans’ Administration (VA) benefits being used as income for his child support obligation.


A Tennessee Circuit Court held Charlie in contempt for failing to pay his child support.  Unlike many other parties who don’t pay support, Charlie was a completely disabled Veteran, and his VA benefits were his primary source of income.  The lower court determined that his VA benefits could be used for the purposes of child support.  Charlie disagreed, and appealed to the Tennessee Court of Appeals, which I’m sure to his dismay, upheld the lower court’s decision.  The case made its way up to the US Supreme Court, where Charlie lost once again.


Charlie’s argument was short and sweet – only the Veterans’ Administration had “exclusive jurisdiction to specify payments of child support from the disability benefits it provides.”    Federal law grants the VA discretionary authority to determine how a Veteran’s children are to receive disability monies; however, as opined by the US Supreme Court, this law “is not an exclusive grant of authority to the VA to order that child support be paid from disability benefits, and does not indicate that exercise of the VA’s discretion could yield independent child support determinations in conflict with existing state-court orders.”


If the law had meant for the VA’s decisions to usurp state statutes in this regard, the Court believed that it would have expressly provided for that power.  The state courts are the ones most familiar with handling child support cases, and it didn’t make sense for the VA to control what it had little knowledge of.


The Court noted that VA benefits are not just for the Veteran himself, but are for his family as well.  Most importantly, the Court ruled that “…although veterans’ disability benefits may be exempt from attachment while in the VA’s hands, once they are delivered to the veteran a state court can require that they be used to satisfy a court order.”


This is one case where the rose truly has a thorn for those receiving Veterans’ benefits.