Chalking tires deemed unconstitutional

What does 15 parking tickets in three years add up to?  A winning lawsuit.  Michigan resident Alison Taylor loved to park in the city of Saginaw almost as much as parking enforcement officer Tabitha Hoskins loved issuing her tickets.



Employing a frequently used method to determine how long a car has been in the same parking space, Hoskins marked car tires with chalk, noting the time when circling back through her rounds.  If the same car had stayed beyond the legally allowed limit, Hoskins issued a citation.



Three years of parking tickets was apparently the limit for Ms. Taylor.  In 2017, she sued the City of Saginaw and Hoskins, claiming the tire chalking was a violation of her Fourth Amendment right against unreasonable searches.  The lower court sided with the defendant and dismissed the lawsuit.  Taylor appealed to the United States Court of Appeals (6th Circuit).  The Court of Appeals reversed the district court’s dismissal in April 2019, agreeing with Taylor that at Fourth Amendment violation had occurred.



The court set forth the two questions it had to examine – if the chalking was a search under the Fourth Amendment, and if it was, was that search reasonable.  Noting that a search did not have to include a “physical intrusion,” the court stated that a common-law trespass was “ ‘an act which brings about intended physical contact with a chattel in the possession of another.’ ”



By chalking the tires of Taylor’s car, Hoskins intentionally made physical contact with the vehicle.  The purpose of chalking was to gather information (how long the car was parked in the same spot) and to issue citations based on this information.  The court deemed chalking to be a Fourth Amendment search, and the City of Saginaw had the burden of proving an exception to the warrant requirement.



The court of appeals explained that while cars have a lesser expectation of privacy, a warrantless search of a vehicle is permissible if the officer has “ ‘probable cause to believe that the vehicle contains evidence of a crime.’ ”  While Taylor racked up parking tickets, there was no probable cause to use the automobile warrant exception.  In fact, the search began when the car was legally parked, prior to any possible violation of the law.



The court also disagreed with the City’s attempt to justify the search under the community caregiver exception.  Chalking does not promote public safety, and is used for the purpose of generating revenue through the collection of ticket fees.  It will be interesting to see how various jurisdictions counter this now invalid method of ticketing.  I bet a lot more parking meters will be popping up, because time has expired for chalking tires.

Divorcing man's luck runs out

To most people, winning the lottery is a dream come true.  You may have a lot more “friends” than you used to, but winners are thrilled to be able to share their good fortune with loved ones and enrich their family’s lives.  While timing is almost never perfect, it’s safe to say that 2013 was not the right time for Richard Zelasko to win $80 million in the Mega Millions jackpot.  Why?  He was going through a divorce.



A July 13, 2019 unpublished opinion by the Michigan Court of Appeals upheld the arbitration award that provided Mary Zelasko with a good chunk of her husband’s lottery earnings.  The parties were married less than ten years when Mary filed for divorce.  As part of the process, arbitrator John F. Mills was appointed to issue awards on contested matters.  His rulings dealt with normal run of the mill divorce issues – parenting time, expenses for the kids – and then Richard won the lottery.  Mills noted that most people play the lotto more than once in their life, and that the parties had probably lost marital money playing the lotto in the past, so any win should be rightfully shared.  Richard had also not provided financial support for the parties’ three children during the divorce. Mills concluded that the jackpot was part of the marital estate, and awarded Mary $15 million.  



As one would expect, Richard asked the court to vacate the lottery award to Mary, and the court said no.  This pattern continued for other awards that Richard didn’t agree with.  The last hearing with the parties and Mills occurred in June 2014, with Mills to issue his final award by July.  This last award was to “incorporate all of the interim awards” that he had already decided.  Unfortunately, Mills died before issuing the last award.



The parties entered into a consent judgment of divorce, but in a last ditch effort, Richard appealed the judgment.  He argued that the arbitrator exceeded his authority and failed to apply Michigan law appropriately.  The Court of Appeals provided an in depth opinion which detailed the very limited number of reasons for a court to vacate an arbitrator’s award.  Unfortunately, none of pieces fit into Richard’s puzzle. 



The court didn’t agree with Richard’s contention that Mills was biased, an error had been made, or that there was an issue with the arbitration awards being untimely issued.  Interestingly enough, Mills had gone beyond the 60 days allotted to issue his awards in the past, but neither party complained.  The timeliness became a problem after the lottery earnings were divided.  Richard had actually agreed to the arbitration for the jackpot proceeds, probably expecting a result more favorable to him.  The Court of Appeals refused to vacate Mary’s award.


In the end, Richard lost the legal lotto battle, but not for a lack of trying.  His luck had simply run out.

90 days to change Michigan's sex offender law

The State of Michigan was recently ordered again to revise its Sex Offender Registration Act (SORA) which was deemed unconstitutional in 2016.  Almost three years ago, the United States Court of Appeals for the Sixth Circuit ruled that the law exacted punishment, and the various amendments unconstitutionally applied ex post facto (retroactively).  You might be wondering why it has taken years to change the law after it was found to violate the Constitution.  Well, the State argued that the court ruling only applied to the parties who initiated the civil lawsuit, so if registrant A was a part of the lawsuit, the law was deemed unconstitutional as it applied to him.  But if registrant B had not successfully won in court over the same issue, he had to follow the law or face the consequences.



SORA has undergone many changes since its inception in 1994.  Originally, it was strictly used by law enforcement agencies.  In 1999, the registry went online for use by the general public, and required that sex offenders register in person.  Photographs of the offenders came online in 2004.  While I’m sure many registrants didn’t appreciate these initial requirements, the ones added in 2006 and 2011 were the drive behind the lawsuit.



In 2006, the law restricted registrants ability to live, work or loiter within 1,000 feet of a school, and in 2011, individuals on the registry were separated into a three-tiered system, with the categorization based on the conviction.  The latter change also forced registrants to physically come in and update changes in their lives, such as new vehicles or email addresses.  Violations subjected offenders to criminal penalties, and the new changes applied retroactively to all registrants.



The lawsuit was filed by six registrants who challenged SORA’s constitutional compliance, arguing that it was vague, violated the First and Fourteenth Amendments, and that the retroactive requirement was an Ex Post Facto punishment.  The lower court held that there were parts which were unconstitutional, but that it was not an Ex Post Facto law.  

Citing a case from 1798, the US Court of Appeals stated that “…the Constitution’s ban on Ex Post Facto laws does not bar all retroactive lawmaking, but only retroactive punishment.…”  The court went into an in-depth discussion of punishment, and concluded that SORA met the definition, in addition to its effect being punitive.  It also noted that the sex offender tier designation is unappealable, and an offender’s failure to comply with SORA may result in imprisonment.  Reversing the lower court’s decision, the Court of Appeals opined that regardless of the crime, “punishment may never be retroactively imposed or increased.”



Despite the Court of Appeals decision in 2016, Michigan did not modify SORA and continued to apply it to all registrants other than those who successfully sued.  As the US Supreme Court declined to hear the case, I don’t think there should have been any confusion about what needed to happen next.  Michigan is now forced to revise SORA within 90 days, or go back to court and explain the delay.



Personally, I believe that SORA is a helpful tool for the public and necessary to protect past survivors who understandably suffer anxiety and trauma related issues.  It does, however, need to comply with the law in all aspects, and there is no excuse for ignoring a court order.  Reforming SORA seems especially appropriate as it should be helping to reform its registrants.

The bird has the last word

We’ve all wanted to give someone a piece of our mind after a perceived grievance.  Most of us can rein it in and let our frustrations out after the incident is over.  That was not the case in June 2017 when Debra Cruise-Gulyas was pulled over by Taylor police officer Matthew Minard.



Debra was driving a wee bit too fast, which caught Minard’s attention.  Minard must’ve had a split second feeling of compassion, and issued her a non-moving violation ticket, a less serious offense than speeding.  The stop concluded and Debra drove off, but not before leaving Minard with a parting gift of raising her middle finger.



Minard’s previous compassionate attitude quickly evaporated as he witnessed the less than polite gesture directed at him.  He pulled her over again and changed the ticket to a speeding offense.  This time, Debra responded with a lawsuit.



In March 2019, the US Court of Appeals (Sixth Circuit) sided with Debra and found that Minard violated her constitutional rights in stopping her a second time and increasing the severity of the ticket.  Minard argued that he had qualified immunity, which “protects police from personal liability unless they violate a person’s clearly established constitutional or statutory rights.”  Unfortunately for him, he did just that.



Police have to justify their stops, and the first time Minard pulled Debra over, she was speeding, so he had cause.  But the second stop was a completely different story.  Despite her gesture being offensive, it is not illegal to “flip the bird” to a police officer.  The cause for justifying the first stop disappeared after the stop was concluded.  Pulling her over a second time violated Debra’s Fourth Amendment rights.



The court chastised Minard when it opined that he violated Debra’s right to free speech, stating “Any reasonable officer should know that a citizen who raises her middle finger engages in speech protected by the First Amendment.”  Relative to Debra’s claims of a Fourteenth Amendment violation, the lower court ruled that claim could proceed.  Minard did not provide an argument separate from the First and Fourth Amendment issues in the appeal; therefore, the court affirmed the decision in allowing Debra’s lawsuit to continue.  It’s honestly shocking to me that Minard is appealing the ruling.  If he needs a lesson in free speech, he should starting reading Twitter.



The next time I’m pulled over, I will know that I can safely express my Italian side and talk with my hands.  It won’t earn me any points in heaven, but it won’t cost me any points on my driving record.

Trolls beware - Michigan law makes cyberbullying a crime

Cyberbullying is certainly a hot topic at the moment, making its way into the political arena quite often.  Just about everyone has posted something online and had a “troll” comment with harassing statements, some of which are significantly offensive and perhaps even scary.  According to the website stopbullying.gov, 15% of high school students experienced cyberbullying.  This number jumps dramatically to 55.2% for those students who identify as LGBTQ. Before leaving office, former Michigan Governor Rick Snyder signed a law making cyberbullying a crime – Public Act 457 of 2018.  The law became effective March 27, 2019.



Cyberbully is defined in the law as “…posting a message or statement in a public media forum about any other person if both of the following apply:  (i) The message or statement is intended to place a person in fear of bodily harm or death and expresses an intent to commit violence against the person.  (ii) The message or statement is posted with the intent to communicate a threat or with knowledge that it will be viewed as a threat.”  It does not matter if the public forum requires a membership or password, which in my opinion, makes the law more effective as it will apply to more mediums.



The first conviction is a misdemeanor, with the sentence being no more than 93 days and the fine being no more than $500.00.  If that doesn’t deter the troll, his or her second offense includes jail time of up to one year, and a $1,000.00 fine.



Unfortunately, cyberbullying can lead to harm or even death of the victim.  Far too often I read that a teen has died by suicide after extreme bullying, online or in person. When the bullying “involves a continued pattern of harassing or intimidating behavior,” and serious harm occurs to the victim, the crime is considered a felony with the offender facing five years in prison with a $5,000.00 fine.  If that bullying results in the victim’s death, the offender may be sentenced to 10 years in prison and a $10,000.00 fine.  



In order to be considered a “pattern of harassing or intimidating behavior,” the offender must engage in a “series of 2 or more separate noncontinuous acts of harassing or intimidating behavior.”



With there now being a legal consequence to this type of behavior, the hope is that it will decline and be taken more seriously by adults and children.  At minimum, the possibility for justice now exists for those who have lost loved ones to cyberbullying.



For resources and help talking to others about bullying, visit stopbullying.gov, or one of the many other websites available that address this topic.

From the baseball diamond to the love triangle - part 2

I first wrote about Detroit Tigers first baseman Miguel Cabrera’s family law debacle in May 2018, and it appears that the matter has finally concluded.

 

Miggy fathered two children with his ex-mistress Belkis Rodriguez, and was previously ordered by a Florida court to pay $12,247 per month in support, along with a lot of fancy “extras,” like top of the line theme park passes, gifts and Rodriguez’s attorney fees.  Mind you, he has three children with his wife as well.  The 2017 paternity suit filed by Rodriguez made it very apparent what off the field activities Cabrera was engaging in.

 

Despite mediation and attempted negotiations, all attempts to settle the case backfired.  As I noted in my previous article, I doubted that either party would back down from their position.  Rodriguez wanted her kids treated the same as Miggy’s children with his wife in terms of financial advantages, especially considering his $30 million a year salary.  She was seeking $100,000 per month in child support.  Cabrera continuously accused his former mistress of attempting to extort him, which is why he chose to start paying her voluntarily prior to the lawsuit commencing.  However, when he started to cut back on the payments in attempts to save his marriage, he alleges that she continued to threaten him, and the paternity suit was filed.

 

After the recent January 2019 trial, the judge ordered Cabrera to pay $20,000 per month in child support, but also ordered the star to pay for insurance, extra-curriculars, tuition, vacations (consistent with what his other three children enjoy), Rodriguez’s attorney fees, and to maintain $5 million life insurance policies for the children he fathered with her.  He must pay off Rodriguez’s house by July of this year to the tune of almost $1 million.  Oh, and the theme park perks continue as well.

 

In an interesting turn of events, in early February 2019, the judge has decided to exercise his discretion and re-examine the $20,000 per month child support ruling after reviewing final judgments that were submitted.  Florida law suggests that child support for two kiddos should be 7.5% of a person’s net income, which would be more per month than Rodriguez’s request for $100,000.  Not surprisingly, Cabrera’s attorneys believe his extreme wealth doesn’t mesh with the statute’s intent.

 

Whether or not the judge issues a new ruling remains to be seen, but I’m betting neither party will receive what they want in terms of the financial settlement.  At least Miggy’s got the guaranteed yearly $30 million until 2023, regardless of his performance.  If only we could all be so lucky.

Help for those using hemp products

Working in Ann Arbor has definitely made me more liberal in my thinking.  With Ann Arbor hosting the annual Hash Bash (now in its 48^th year), marijuana is and typically has been viewed as perhaps more of an “acceptable” past time, even when recreational marijuana was illegal in Michigan.

 

According to Merriam-Webster’s online dictionary, “hemp” is defined as “a tall widely cultivated Asian herb (Cannabis sativa of the family Cannabaceae, the hemp family) that is cultivated for its tough bast fiber and edible seeds and oil and that is often separated into a tall loosely branched species (C. sativa) and a low-growing densely branched species (C. indica).”  Hemp products do not produce anywhere near the levels of THC that marijuana does, with their levels being no more than 0.3%, and marijuana coming in anywhere from 5 to 35%.  Simply put, you’re not going to get high when you use industrial hemp.

 

Medically, industrial hemp products, such as CBD oil, are used to treat those suffering from pain, epilepsy/seizures, anxiety and depression.  A new law filed in Michigan on December 28, 2018, now protects those using industrial hemp products by excluding those products from the legal definition of marijuana.  The law defines industrial hemp as having “a delta-9-tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis.” (See Public Act 642 of 2018, (2).)  A user of these products would not be required to have a medical marijuana card as the products are no longer considered marijuana thanks to the updated law.

 

Hopefully this change will make it easier for those suffering from various health ailments to obtain treatments, and boost the industry that supplies the product.  The new law, Public Act 642 of 2018 takes effect on March 28, 2019. 

Alimony tax changes are now in effect

For family law attorneys, 2019 is a year of change when it comes to spousal support.  Prior to January 1, 2019, a person who paid spousal support to his or her ex-wife or ex-husband had the ability to deduct the support paid on his or her taxes.  The ex receiving spousal support had to include those payments on his or her taxes as income.  Typically, it is the high income spouse that ends up paying spousal support to the low income spouse, so being able to deduct spousal support on one’s taxes was a great benefit to the payer.  If the parties agreed to it, they could forgo including the spousal support as income and as a deduction, but this was not common practice.

 

Thanks to the Tax Cuts and Jobs Act (TCJA) of 2017, specifically Section 11051, “Repeal of Deduction for Alimony Payments,” alimony is no longer tax deductible and is no longer included as income.  The law applies to all divorces and separate maintenance agreements entered with the court after December 31, 2018, Unallocated support (a type of combination support that was both for the children and the spouse) is no longer deductible under the TCJA of 2017.  According to the IRS, approximately 600,000 taxpayers took advantage of the old law.

 

As you would imagine, we saw a significant increase in cases being finalized in the months leading up to the end of 2018.  Payers naturally wanted to push the divorce through in order to be able to finalize it by the drop dead date of December 31, 2018, so they could still write alimony paid off on their taxes.  Recipients, however, were more inclined to take a relaxed approach, knowing that pushing the finalization of the divorce beyond the end of the year meant they did not have to claim any spousal support as income.

 

Child support remains the same as before – it’s not tax deductible and not included in the recipient’s income.  If you were divorced prior to January 1, 2019, and had taken advantage of the tax deductible/tax includable spousal support law, you are still “grandfathered” in and the new law will not impact you.  The TCJA of 2017 also mentions changes to orders entered before 2019, stating that the “amendments made by this section shall apply to….(2) any divorce or separation instrument (as so defined) executed on or before such date [December 31, 2018] and modified after such date if the modification expressly provides that the amendments made by this section apply to such modification.”

 

The new law may make negotiations of final settlements a bit harder to come by.  Some have suggested that any alimony paid will simply take into account the tax consequences for the parties and adjust the amount paid accordingly.  I’ve also read that another option may be for the higher income spouse to pony up more money from his or her IRAs as a form of lump-sum alimony, as withdrawing this money would cause the higher income spouse to pay taxes on it.  By giving the IRA to the ex spouse, the higher income spouse is eliminating that tax consequence for himself or herself.

I always tell people that I am not an accountant, and they should consult with a trusted expert to ensure they are protecting themselves the best way they can.  I would especially emphasize this point when dealing with alimony and finalizing your divorce in 2019.