A Holiday Wish

At this time of year it is worth pausing for a moment and remembering how lucky we all are. Life comes at us so very fast. It is all too easy to become completely immersed in our daily grinds. As we struggle to stay above water between work, family obligations, school, health problems, politics, world events, and money matters, it is easy to forget the small things.

So, rather than write a pithy commentary on some legal item, I thought I would just ask you, dear reader, to take a moment and take in all that we have. Whatever the problems and challenges of these times, we are lucky beyond comprehending to here in this wonderful country, at this amazing time.

And therefore, no matter whether you celebrate Christmas, Chanakah, Kwanzaa, something else, or nothing at all, may you have a happy holiday season and a healthy, prosperous New Year. God bless us, everyone.

Kreiner Claims Another Victim--Michigan Court of Appeals Rear-Ends Another Critically Injured Plaintiff

The Michigan Court of Appeals continues to use the hideous Kreiner v. Fisher decision to rob injured Michigan citizens of their right to recover for legitimate injuries sustained in auto accidents. The most recent atrocity is a decision called Jones v. Jones (Unpublished per curiam, No: 274627, Nov. 15, 2007). Dr. Evil would be proud.

Since the Kreiner decision came down from the Supreme Court in the summer of 2004, hundreds of plaintiffs have been denied any recovery from the negligent drivers who injured them. No less than 200 of those cases have been taken up on appeal and each time the injured plaintiff has lost. The plaintiffs have only prevailed in 30 such cases.

To illustrate the point, a closer look at Jones v. Jones may be instructive. Cynthia Jones was crossing the street one day when she was hit by a car. The car was being piloted by Sharon Jones (no relation, apparently). Sharon was negligent. The impact caused severe leg fractures that required a very serious open reduction surgery in which stabilizing plates and screws were surgically inserted. All this stabilizing hardware remain there in her leg to the present day and probably always will. (Woe to the poor traveler who finds himself behind Ms. Jones in the airport screening line). She required a wheelchair for an extended period, finally graduated to a walker, and endured months of in-home nursing attendant care to assist her with even the most basic daily needs. She also missed several months of work. She testified in her deposition that she still has pain and problems with standing and walking, even years after the accident.

Cynthia Jones brought suit against the negligent driver to recover for her pain and suffering. Unfortunately, the trial judge granted the defendant's motion for summary disposition and dismissed the case on the ground that, under the Kreiner decision, Cynthia Jones did not suffer a "serious impairment of an important body function." In other words, her injuries were not serious enough to meet the no-fault threshold requirement. She appealed. The Court of Appeals agreed that Cynthia Jones' injuries were not serious enough as a matter of law and affirmed the dismissal. There you have it. Case dismissed. End of story. Like the hundreds of plaintiffs just like her, unlucky enough to be injured through the negligence of others, Cynthia Jones faces the rest of her life with no compensation. The negligent driver gets off free, and Cynthia Jones is left to contemplate her broken body, scars, plates, syndesmotic screws, arthritis and pain. Victims of drunk or negligent drivers are being systematically victimized again by our courts. This is not fair. This is not justice. This is Michigan.

And lest we all forget, this is why we have insurance. To protect ourselves (and those we injure) from our mistakes. We are forced to have the insurance. But to what end? Have your rates gone down? The legislature has promised a fix for the ongoing scandal that is festering quietly, largely unnoticed in the Michigan courts. Let's hope it comes--and soon.

For an excellent discussion of the Kreiner dilemma, see Steven Gursten's article in the December 10, 2007 Lawyer's Weekly. The analysis is spot on.

Tattoos and Body Piercing Establishments to be Licensed

Have you kept up with the number of tattoo and piercing reality shows on cable these days? It's astonishing. I've noticed one from Miami ("Miami Ink", Tuesdays at 10:00 p.m. on TLC), one from Los Angeles (L.A. Ink, Tuesday at 8:00 on TLC), and now there is another one coming from London (with the unpredictable title, "London Ink") that is supposed to start soon. Evidently it stars the guy who tattooed David Beckham (whoever he is). Blimey.

Michigan has its own tattoo establishments, too. But they aren't regulated by the state. It looks like Lansing is finally going to get around to regulating them. Amazingly, with the exception of a parental consent rule and a prohibition on tattooing drunk people, there are no laws regulating tattoo and piercing parlors in Michigan. This, despite that the fact that tattoos and piercings can carry with them a host of undesired consequences (hepatitis, methicillin-resistant Staphylococcus aureus--a.k.a. MRSA--staph, and other sundry infections to name just a few).

That could soon change if, as expected, Governor Jennifer Granholm signs legislation passed last week requiring body art shops to get a $500 state license. They must also meet safety and sanitary standards. As it stands, local governmental units decide whether to license and inspect body art shops or not. Wayne and Oakland counties in southeast Michigan are among the few that have their own regulations and inspectors to enforce them. But most other counties (up to two-thirds of Michigan Counties) don't have any such regulations. Starting in 2009, all county health departments would have to conduct annual inspections under the proposed law.

Tattoo artists and body piercers seem to be generally in favor of the move. "We are dealing with blood and body fluids. We're not just cutting hair," said Kris Lachance, who owns the tattoo and body piercing studio in East Lansing near Michigan State University.

Maybe we'll be seeing a "Detroit Ink" show soon, now that we're going legitimate.

How Free is Blog Speech?

An age-old controversy has come to the Blogosphere, courtesy of a chemistry teacher in Wisconsin. Protected free speech vs. speech that incites violence is on the front page. Free speech proponents from all over are coming to the defense of James Buss, a teacher in the Oak Creek school district. Oak Creek is a suburb outside Madison. Recently Buss was arrested for leaving a provocative post on a conservative political website: www.bootsandsabers.com. The anonymous post praised the boys responsible for the Columbine High School shooting that took place in Colorado in 1999. Twelve students were killed and another 23 were wounded. Law and order types who are more sensitive to this kind of behavior are calling for Buss' head, urging that he be prosecuted or at least fired.

The post caused one teacher to call police in West Bend, Wisconsin where the blog's administrator lives. The administrator gave up Buss' IP address. Police tracked down Buss and arrested him. Now prosecutors are deciding whether to file charges or not.

The offending comment was made during a discussion over teacher salaries after some other commentators complained teachers were underworked and overpaid. Buss, who is a former president of the local teacher's union, apparently wrote that teacher salaries made him sick because they are lazy and work only five hours a day. He then went on to praise diabolical work of Eric Harris and Dylan Klebold, the two teen gunmen who killed 12 students and a teacher before committing suicide in the April 1999 attack at Columbine High School. Here is the text of the post left on November 16: "They knew how to deal with the overpaid teacher union thugs. One shot at a time!" he wrote, adding they should be remembered as heroes.

Washington County District Attorney Todd Martens is now considering whether to charge Buss with disorderly conduct and unlawful use of computerized communication systems.

Not everyone was alarmed by the post. Some observers said it was merely a sarcastic attempt to discredit critics of education spending. Buss was merely trying to mock the conservative view on teacher salaries, or so the theory goes. After his arrest, Buss spent an hour in the Washington County jail before he was released on $350 bail.

Police Capt. Toby Netko stands by the decision to arrest. He said the teacher who complained was disturbed by the reference to "one shot at a time." Other teachers agreed it was a threat.
Netko likened Buss' statement to saying "bomb" or "terrorist" in an airport. People are taken into custody all the time for that sort of behavior. If you don't believe it, try it sometime.

Now, for the most part all kinds of offensive, controversial, intolerant, hateful, ugly and stupid speech is protected by the First Amendment. In order for the speech not to be protected (i.e., for the speech to be illegal), it has to be intended to incite violence. The constitution protects most speech, even this comment if it was tongue-in-cheek or a bad joke.
Under the circumstances, it is unlikely that the prosecution will succeed. Though it was in very poor taste, it's a stretch to make this moronic statement into a call to violent action. However, it is likely that Buss could be disciplined by the school district (perhaps even fired) for his comments. The chemistry teacher has been placed on paid administrative leave while his school district considers what action to take.

It is hard to forget the images of teachers and students as they fled the horror that was unfolding inside Columbine High School. As dumb as this comment was, and as much poor judgment as it shows coming from a teacher, he shouldn't be prosecuted for it. However, public comments like this do have consequences. Words do have meaning. At the very least he owes an apology to the victims of the Columbine shooting and to the families of those who didn't survive.

Mind Your P's and Q's on MySpace--They're Watching You

It seems that increasingly MySpace is the focus of unwanted publicity. Either young people are doing things on MySpace that get them into trouble, or others are using MySpace for illicit purposes. Don't put anything on MySpace you don't want the whole world to see. Okay, there are probably a few people out there who don't know what MySpace is. MySpace is one of a number of internet sights that offer an interactive, user-submitted network of friends, personal profiles, blogs, groups, photos, music and videos internationally. Started in 2003, the popularity of the sight exploded among high school and college students as a way to post pictures and meet people of similar interests. In 2005 MySpace, with 45 million users, was purchased by Rupert Murdoch's News Corporation for $580 million. In August 2006 the MySpace accounts passed the 100 million mark.

But MySpace is not all just good clean fun anymore. Just this week a prosecutor announced he would not be filing charges against a Missouri woman who used a fake MySpace account to pose as a young boy named "Josh" in order to contact, Megan Meier, a 13-year-old girl living down the street. Turns out this woman actually wanted to do a little spying on Megan, who was also a friend of the woman's daughter. The woman believed that Megan was spreading rumors about her own daughter and created the fake profile to find what was being said.

In September 2006 Megan and the fake Josh began exchanging messages and struck up a friendship. Then, after a month of on-line corresponding, "Josh" suddenly broke off the relationship and told Megan she was a bad person and cruel. Megan suffered from attention deficit disorder and depression. Distraught over the way her relationship with Josh ended, the next day Megan committed suicide by hanging herself in her bedroom.

Megan's family learned later that Josh never actually existed; he was created by members of a neighborhood family that included a former friend of Megan's. The girl's mother, Tina Meier, said she doesn't think anyone involved intended for her daughter to kill herself. "But when adults are involved and continue to screw with a 13-year- old, with or without mental problems, it is absolutely vile," she told the Suburban Journals of Greater St. Louis. The prosecutor cannot find any law on the books with which to charge the woman.

More recently, in Belleville, Michigan, four Belleville High School students were were expelled after photos of them with guns, drugs and piles of cash appeared on a MySpace website.
Van Buren Public Schools Superintendent Pete Lazaroff has said that the photos shown on the social networking Web site were taken after a limo picked the students up from a school dance. After the posted photos were discovered, the school district commenced expulsion procedures. The students were expelled following a closed hearing.

The students appealed the hearing, alleging that the way in which it was conducted violated their constitutional rights to due process. A Wayne County Circuit Court Judge agreed. Judge Cynthia Stephens criticized the district for failing to keep a record of the closed Nov. 3 disciplinary hearing that led to the expulsions. She reversed the expulsion and ordered the teens be readmitted to school, but also ruled the expulsion hearings could be reconvened if done according to constitutional standards. The school district did so and one of the expulsions was upheld. Oh, and the parents are suing for a million dollars per kid. Just a little parental responsibility sometimes would be nice.

In a similar episode, three students were expelled from a Kamiakin, Washington high school for posting photos of themselves on MySpace flashing gang signs. The district has a zero-tolerance policy for gangs. Read more: Kamiakin.

I suppose the lesson here is two fold. First, if your children are creating profiles on MySpace, FaceBook, YouTube or any of the other social networking websites, carefully monitor their activity. You never know who they could run into. These sites are prowled by undesirables of every stripe looking for victims. The nature of cyberspace makes it nearly impossible for the sight administrators to monitor their millions users. Cyber bullies can attack their victims almost at will with little fear of any consequences. Cyberspace has become an extension of the playground. Report unusual activity.

And second, if you or your children are posting to these sights, remember that you never know who could be seeing the post. School administrators and police do monitor these sites. Incriminating photos, statements or other information can be used in court and other proceedings. While a photos of a drunken college binge may seem funny now, a prospective employer probably won't think so. And many do check.