The Affordable Care Act (ACA) was a massive law, covering 947 pages. It included mandates for private insurers, employers, and individuals, as well as making some significant changes to government run insurance programs: Medicaid (covering children, pregnant mothers, and disabled adults), and Medicare (covering the elderly).

Much of Medicare will remain basically the same. The agency adjusts coverage a little every year, and these changes are expected to continue. But like all other insurance, Medicare will now include full coverage on key preventative health items such as physicals and x-rays.

The one big change is that the ACA provides for significantly more prescription drug coverage. In 2010 when the law passed, seniors who paid full price for prescriptions were entitled to a $250 tax credit. Since then the program has included 50% coverage of name-brand prescriptions for seniors who fall in the Medicare “donut hole.” If the ACA remains unchanged that hole will be closed by 2020.

The bigger news is in Medicaid. Under the ACA, any state receiving federal Medicaid funds would have been required to expand its program to include non-pregnant adults earning up to 133% of the poverty line. The additional cost would have been 100% covered by federal funds through 2016. That funding would gradually decreased to 90% by 2020. If the states refused to expand their program they would have lost all federal Medicaid funding.

But 26 states, led by Florida and including Michigan, sued to prevent the Medicaid expansion from occurring. In January 2013, the Supreme Court agreed, sort of. Even though the federal government has broad discretion in spending federal money, the Court found that threatening to take away all Medicaid funding was coercive and forced the states to act. It struck down the enforcement provision, holding that the federal government could not add that kind of new condition to existing federal funding.

As a result, each state now has the ability to opt in to the ACA Medicaid Expansion. Those that choose not to will continue to get the funding they have gotten up to this point but no more. States that choose to include low-income adults will receive the additional federal funding described in the law.

At the time of this article, Michigan is on the fence. Governor Snyder has called for Medicaid expansion, but the Michigan Senate  passed a budget last week that does not include the program. The Michigan House of Representative is currently considering a bill to opt in, but it is unclear whether that bill become law. Without it, the state’s Medicaid program will change very little under the ACA.

For more information:

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Power Point Presentation: Obamacare_ACA

1. A Lawyer is Your Guide to the Courts

The biggest problem with DIY divorce services is that the help ends just when your need is greatest. If you and your ex-spouse are on good terms, coming to a resolution on property distribution is the easy part. But when you walk into the courtroom, if you’re like most people, you will get nervous. Suddenly, you need to present your case to a judge in a robe sitting behind a big stand. If you are lucky she’s bored. If you aren’t, she’s angry from the five cases that went before you.

Your attorney has experience dealing with the judges and often has a relationship with them that can help calm them down. He or she will also be more comfortable talking to the judge and presenting your settlement. Keep in mind, even if there are no contested issues you will still have to appear before the judge at least once to have the judgment signed. A lawyer can make that visit go more smoothly.

2. Your Judgment is Not Just for You

As Judge Hallmark recently noted, for many divorces “the Judgment is only Phase One.” It hotly contested matters the parties will often be back again on post-judgment enforcement issues or custody modifications. But even in uncontested matters problems can arise when your Judgment does not say exactly what you and your ex-spouse meant it to say.

The Judgment of Divorce is more than just a Settlement Agreement between the parties. It also governs how other entities handle your affairs. This can include banks, financial managers, realtors, and insurance providers. Template forms often will not give these organizations the instructions they need to properly handle your division of assets. A lawyer can do two things:

1. He or she can customize your Judgment to describe exactly what you want to happen.
2. If problems arise in enforcement, he or she can work with the organization to make sure your intent is honored.

Divorce proceedings are not just the end of a contract. They amount to an untangling of two people’s lives. You need a professional to help you navigate the waters, interact with the judges, and get the result you both want.

Once the issue of custody is raised, the court must consider the 12 Best Interest Factors in determining custody:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute. MCL 722.23

Factors (a), (b) and part of (c) all look at the current relationship between parent and child. Judges consider these factors very heavily because they usually do not want to disturb the child’s routine. Factor (c) also addresses financial support, but the courts often discount this, since any need can be met through child support payments.

Factors (d), (e) and (h) tend to be considered together. Again, the court tries to maintain consistency for the children when appropriate, but (h) may show that the child is having trouble and would benefit from a change.

Parties like to emphasize factors (f) and (g) by casting blame on the other parent, but dad’s fondness for alcohol or mom’s depression will only matter if it gets in the way of being a parent.

The child’s preference (i), is the weakest of all factors. Most courts believe that a child has likely been coached or influenced by the parents during the divorce. It is best to show the preference through statements made to third parties before the case was pending.

Factor (j) is complicated by issues of fault, violence, and loyalty. What one side sees as interference with a parent-child relationship, the other will see as protecting a child’s safety. This is a heavily considered factor that the courts spend a lot of time on.

Domestic violence (k), is the 500 lb. gorilla. If it is present in a case, the alleged abuser will have to fight on every factor to overcome the assumption that he or she should not have custody. However, there is also a trend of parties claiming domestic violence when there is no proof it exists. Courts are looking for evidence of such behavior more than a single unexplained bruise.

There will be occasions where one factor takes on more or less weight than usual, but in every case the court is required to consider all of them including any other factor relevant to the child’s custody (l). Make sure you talk to your attorney about custody and decide what are the important factors in your case.

In Grand Rapids, Kent County Prosecutor William Forsyth filed a lawsuit to prevent the charter amendment from becoming law. He argued that federal and Michigan laws that make marijuana possession or use a crime overshadow and prohibit cities from legalizing the drug.  Forsyth claimed that the charter amendment conflicted with Michigan laws and would interfere with his responsibility as a prosecutor to uphold those laws.

Here is the exact language of the proposal offered to voters:

PROPOSAL 2 PROPOSED AMENDMENT TO TITLE XVIII (MISCELLANEOUS PROVISIONS) OF THE CHARTER OF THE CITY OF GRAND RAPIDS, CONCERNING THE DECRIMINALIZATION OF MARIJUANA

A proposal to decriminalize possession, control, use, or gift of marijuana, through a Charter amendment prohibiting police from reporting same to law enforcement authorities other than the City Attorney; prohibiting the City Attorney from referring same to other law enforcement authorities for prosecution; prohibiting City prosecution except as civil infractions enforced by appearance tickets with a maximum fine of $100.00 and no incarceration; waiving fines if a physician, practitioner or other qualified health professional recommends the defendant use marijuana; and providing an affirmative defense to prosecution for defendants intending to use marijuana to relieve pain, disability, or discomfort.

Shall this amendment be adopted?

On May 6, 2013, Kent County Circuit Court Judge Paul Sullivan dismissed the lawsuit and ruled the amendment valid. He noted that it is still a crime to possess or use marijuana in Grand Rapids. All the charter amendment did was create an additional civil infraction and direct city law enforcement to use this law, rather than the state controlled substance statutes.

Other law enforcement, like state police or federal investigators are still allowed to investigate and prosecute the state and federal drug laws. For city officials like City Attorney Catherine Mish, though, the fines connected to the civil infraction are so small ($25 – $100) they do not cover the cost of prosecution. The city may decide to save its resources and not enforce the civil infraction at all.

But the litigation is not necessarily over. Prosecutor Forsyth has the ability to appeal the court’s decision, in which case the effect charter amendment could be delayed for several more months, or even years. Change, it seems, will not come swiftly to Grand Rapids.

In divorce actions it is very common for both parties to lay claim to the marital home. Both husband and wife have a lot of emotional investment in it, and neither party wants to cut their losses. On top of that, courts prefer to keep kids in their home rather than change schools, so to an extent, he who gets the home gets the kids too. (Although there are many other factors to consider too.)

From the financial side, the home is likely the single most valuable asset in the marital estate. Courts divide the marital estate equitably (usually close to 50/50 based on value). If there is a lot of equity in the home, it might be impossible for one spouse to buy out the other’s interest without refinancing. It may also be difficult for either party to keep up with the payments.

So before you take a hard line on the marital home, take a good look at your future finances. You may find it’s in your best interest to walk away. Here are some things to consider in making your decision:

• How much will the household income drop? Most households these days are based on 2 incomes. Divorce cuts that down to one. While child and spousal support are sometimes available, you will probably have less money coming in after the Judgment of Divorce is signed.
• What are the monthly expenses?  How much will you pay in electricity, water, and heat? What about taxes? If your spouse used to take care of the bills, this amount might surprise you. Even though your household income will drop, these expenses probably won’t.
• Will you need a new mortgage? You will probably have to refinance the home to remove your spouse’s name. Consider whether the bank will want a higher monthly payment, or whether you will need a second mortgage to pay off the other spouse’s share.
• Will you have to pay for child care or support? If you were used to one parent staying home with the kids while the other worked, the sudden need for daycare can put a dent in your financial planning, even if your spouse pays some of it through child support.

Once you do the math you should be able to tell whether maintaining the house you shared with your spouse is doable, or whether it will only increase your stress. The responsible thing to do is evaluate your new means and live within them, even if it doesn’t feel good.

Michigan is one of many states that ban gay marriage.  The Michigan Constitution was amended in 2004 to say:

“To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” Art. 1 Sec. 25

A state statute goes further, saying:

“Marriage is inherently a unique relationship between a man and a woman. As a matter of public policy, this state has a special interest in encouraging, supporting, and protecting that unique relationship in order to promote, among other goals, the stability and welfare of society and its children. A marriage contracted between individuals of the same sex is invalid in this state.” MCL 551.1.

These laws could be affected by the recent Proposition 8 and DOMA cases before the Supreme Court, but right now the state will not recognize a marriage between two men or two women, even if it was validly performed in another state.

So what happens when those marriages break down? Most states require one of the parties to live in that state for some time (6 months in Michigan) before filing for divorce. Michigan will not divorce parties that were not legally married. Gay couples living in Michigan will therefore not be able to get a divorce here after they separate. Their only solution is to leave Michigan for 6 months or more.

But what about trans individuals? A Michigan Court of Appeals recently tackled this question. A man and a woman were married in Michigan in 1984. They remained married through the defendant’s male-to-female gender reassignment surgery. Then in 2003, the plaintiff’s guardians sought a divorce. The defendant claimed the Michigan courts did not have jurisdiction to enter a divorce because the marriage was now between two women, but the court looked at the genders of the parties at the time of the marriage. It said,

“Once validly entered into, one spouse’s actions cannot unilaterally result in the legal dissolution of the marriage without court involvement.” slip op. p. 7.

In a footnote, the court took a very limited, genetically based definition of gender. (That all men have X and Y chromosomes and all women have only X chromosomes). By doing so, it emphasized genetics over legal status and raised the question of whether a post-op trans woman could marry a woman in the state simply because she still carried Y chromosomes.

As the state and federal courts continue to wrestle with gay rights issues, the laws and procedures in these kinds of cases will continue to change and evolve. If these issues affect you, make sure you have a lawyer who keeps up with the law.

The last post described just how limited students’ rights under the 4th Amendment really are.  This trend continues with the 5th Amendment right to remain silent.

Outside of schools people have a right not to incriminate themselves. Police are required to remind suspects of this before beginning custodial interrogations by reading them their Miranda rights. The recital of these 4 sentences represents a promise by police to respect the 5th Amendment rights of the suspect.

But school administrators do not have to read students their rights. Even though students retain their right not to incriminate themselves during in-school investigations, no one has to tell them they can just remain silent. Instead, the principal can pull a student into his or her office, not let the child leave or talk to anyone (including parents or lawyers) for hours, and ask tricky and compulsory questions, without any assurance of protection.

Together with the narrow protections of the 4th Amendment in schools, this creates a dangerous situation for students. For example, Principal Smith performs a suspicionless search of all the students’ lockers. In Joey’s locker he finds cigarette rolling papers. This gives him reasonable suspicion that Joey violated the school’s rule against smoking. Principal Smith calls Joey into the office and questions him about the rolling papers. The questioning goes on for a number of hours.

As part of the questioning, Principal Smith also searches Joey’s backpack, revealing a small plastic bag of dried leaves. Joey says it is tobacco at first, but eventually admits that it is marijuana. Principal Smith has Joey write a letter to his parents admitting he brought marijuana to school and gives him a temporary suspension. So far, so good.

But then, Principal Smith gathers up the evidence and takes them to the school’s in-house police officer. The officer arrests Joey for possession of marijuana and criminal charges are filed. Probable cause to believe a crime had occurred did not exist for the locker search, backpack search, or questioning.  But at court, the letter, baggie, and rolling papers are all properly used against Joey and he is convicted of a controlled substance misdemeanor. The conviction will stand even though none of those pieces of evidence would have been available if the police had conducted the investigation.

This feeds into what the American Civil Liberties Union (ACLU) has called the “School to Prison Pipeline.” It teaches students that their rights do not matter and that they are powerless against administrators and police. It guts minors’ rights simply because they are enrolled in public school, and it causes increasing numbers of students to leave high school with criminal records instead of diplomas.

Students may not ”shed their constitutional rights . . . at the schoolhouse gate,” but their 4th Amendment rights are much more limited than the 1st Amendment rights discussed earlier. Schools have a compelling government interest in the safety of their students that often justifies searches impermissible outside of school.

The pivotal question is who performed the search. Even within the walls of the school, if a police officer is conducting a search, it must be based on “probable cause” – an objective probability that a crime has been committed and that the search will uncover evidence of that crime.

But if a school administrator is doing it he or she must only have reasonable suspicion that a law or school rule has been violated. Reasonable suspicion is significantly lower than probable cause, and is often little more than an anonymous tip.

When schools use “enforcement officers” the question is even more difficult. Whether probable cause applies can come down to who signs the officer’s checks rather than the training received or the job description.

Sometimes searches are allowed without suspecting any individual student. Searches instead are based on some “special need” of the school, like safety or preventing disruption of the educational process. Courts have allowed schools:

• To search lockers (based on the school’s published policy);
• To do drug dog sweeps of schools and students;
• To require drug testing of students in sports or extracurricular activities, or who drive to school;
• To require a pregnancy test to participate in sports; and
• To pat down the clothing and backpacks.

An early court case allowed schools to install 2-way mirrors in the bathrooms based on the students’ lower reasonable expectation of privacy in school. However, a later court decision said a school could not put video surveillance in locker rooms because the students still have a reasonable expectation against someone of the opposite gender seeing them undressed.

A court has even allowed a principal to strip search a student suspected of carrying drugs in his crotch, holding that requiring a student to undress in front of a same-sex administrator was less invasive than a pat down of the student’s genital area.

The latest issue is whether schools are allowed to search a student’s cell phone. Some schools have suspicionless search policies. Those have yet to be challenged in court, but a recent case struck down a search done after a student was texting in class. Earlier searches were justified though because the student had made suicidal comments.

The rights of students to be free from unreasonable searches is very narrow in the school setting, but this most recent case shows that the schools are not the ultimate authority. Searches still need to be directly tied to some compelling school interest.

The issue of students’ rights is often a complicated question of several conflicting interests. Of course there are the rights of the students which must be weighed against the compelling interests of the schools. However, when dealing with religion matters, quite often the question is who has the right to make decisions for the student: the teacher or the parent.

The parents come into the debate because they have a fundamental right to raise their children in their own faith tradition. Students also have a fundamental right to express their own religious beliefs.

Students’ beliefs or expression need not conform to any recognized religion. Instead it must be based on the sincerely held religious belief of the student or parents. Because they are so subjective, the courts rarely challenge the validity of any alleged sincerely held religious beliefs.

National interests can get involved too. In 1943, parents of Jehovah’s Witness students objected to the school’s policy of daily mandatory recitation of the Pledge of Allegiance. According to their beliefs, the Jehovah’s Witnesses were not permitted to pledge or swear to anyone or anything other than God.

Three years earlier the Supreme Court had required students to salute the flag citing the need to instill nationalism in public school students, but this time the Court held differently. It ruled that the school had to allow students to opt out of the Pledge for religious reasons. Similar rulings have been made with regard to sexual education and evolution.

But the parents can’t require the school to teach or not teach something due to their religious beliefs. They may not dictate the curriculum of the school or prohibit the school from exposing students to religiously objectionable material. Instead if parents object to the curriculum chosen by the school, they have the right to withdraw their children from public schooling.

On the other hand, schools may not favor one religion over another. Teachers may not do anything that could be seen to endorse any particular religion including leading prayers.

So what if the parents have opted their students out of a particular issue but the student does not want to leave? Does the teacher have to enforce the parents’ wishes? That is not clear. What is clear is that teachers must not put pressure students to stay against their religious convictions.

The rules are relatively clear surrounding freedom of religion in public schools but litigation continues around the edges. Because schools are most often controlled on the municipal level, multiple lawsuits are needed to create uniform enforcement of students’ and parents’ religious rights.

The Supreme Court has famously said that students do not “shed their constitutional rights . . . at the schoolhouse gate.” However, those rights are often restricted by the school’s compelling government interests in:

• Educating its students
• Teaching civic values to young citizens
• Protecting the safety of children

Schools also act in loco parentis (as the local parent) for children in their custody, which allows them to regulate student behavior more easily than public colleges or other government entities that deal with adults.

Student speech can only be disciplined if it substantially disrupts a school function or educational purpose or interferes with another person’s rights. For example, the courts have ruled:

• Students may wear black arm bands to protest war
• Students can’t be required to recite the Pledge of Allegiance and must be given the ability to opt out

However, the school is generally only permitted to discipline students for behavior on school property or at a school function. So when a student gave his teacher the finger at a restaurant one evening, the school was not allowed to discipline him the next day.

Schools are still allowed to restrict the time, manner, and place of speech (for example by banning obscenities or requiring students to remain quiet in the library).

They have much broader authority to regulate speech that could appear to be endorsed by the school. In that context, schools are allowed to exclude or punish speech that does not match their educational purpose. Decisions can be based on the content of the speech, which is very rarely allowed outside the school context. It has been used to discipline students who:

• Use lewd innuendo in a speech during an assembly,
• Run articles on teen pregnancy and divorce in the school paper, and
• Hold up drug-related signs during a school field trips.

Today’s big issues center on Internet speech and bullying. Michigan schools are required to have anti-bullying policies that prohibit speech intended to harm or harass another student. The limits of these policies have not been tested, but likely will be in the future.

Schools are also trying to punish speech that occurs on the Internet (through Facebook, Twitter, or Instagram). The courts are divided on how to address this issue, but generally the school must show a disruption did or was likely to happen at the school before disciplining the student. Most courts also require some connection between the speech and some school function:

• Where the speech was created,
• Where it was viewed,
• Whether it created on a school-owned device, or
• Whether it was directed at a teacher or administrator.

The courts have made clear that Free Speech cases are fact-driven, so results can vary based on each case’s circumstances. They are hard to predict, but interesting to follow.

For more information:

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