In The News

Dana Nessel Named Woman of the Year!

Michigan Civil Rights LawyerAs reported in Michigan Lawyers Weekly, we’re so proud to share the news…

“Nessel received the award at MiLW’s annual Women in the Law event Sept. 10 at the Detroit Marriott Troy. She was selected by a vote of the 30 members of the Women in the Law Class of 2015, all of whom are featured in this special section.

Nessel, a criminal defense and family lawyer at Nessel & Kessel Law, represented the plaintiffs in DeBoer v. Snyder, which challenged the Michigan Marriage Amendment and the Michigan Adoption Code. DeBoer was consolidated with three similar cases, and in June, a 5-4 Supreme Court ruled that all states’ same-sex marriage bans were unconstitutional.”

Read the full article here.

Same-Sex Marriage Means Tax Windfall For States

It’s been a month since the landmark Supreme Court ruling that legalized same-sex marriage nationwide, and the positive implications have never been more evident.

Nessel and Kessel clients April DeBoer and Jayne Rowse will never again have to worry about the safety and security of their children; likewise, couples and families just like theirs can marry and reap the benefits opposite sex couples have long enjoyed.

But that’s truly only the start.

The Williams Institute at the UCLA School of Law, which has been tracking the effect of same-sex marriage on states since 2001, has projected that the same-sex marriage ruling could ultimately result in $184.7 million annually in state and local tax revenue.

Read more:

Same-sex marriage means tax windfall for state.

The following content was originally published by The Herald on July 26, 2015.

The Williams Institute projects that in Alabama, for instance, gay marriage will boost the state’s revenue by $1.8million a year and generate 108 jobs in the next three years in the wedding business and related industries, such as hospitality and transportation. Kansas will gain $1.2million in tax revenue annually, along with 75 new jobs in the next three years.

The institute bases its projections on the effect that same-sex unions had on the states that allowed them before the court decision. A state-by-state study shows that in the first three years in which marriage was made legal in those states, economic activity and state tax revenues grew.

In each of the first three years after California legalized gay marriage in 2008, the state added $31.4million in tax revenue and 2,178 jobs, the study found.

“For many years, we’ve known there was a positive revenue impact of marriage,” said Christy Mallory, the senior counsel with the institute who helped prepare the report.

Even before any state made gay marriage legal, Mallory said, same-sex commitment and civil unions buoyed the wedding and tourism industries and increased revenue from sales and visitors taxes.

But the findings also provide a caution for state tax collectors. After an initial surge, revenue leveled off as did the number of marriages — although revenue continues to grow in the 36 states that legalized same-sex marriage before the court’s June 26 decision.

Detroit News Recognizes Dana Nessel

In a recent article by Laura Berman, of the Detroit News, you can begin to gain an understanding of the herculean task it was to bring this case.  As is true with many things in life, the behind the scenes work and effort may never be truly understood by those not directly involved.  In fact, some us directly involved are still dumbfounded by what trying this case took out of us all.  There are certainly many more battles ahead, but for now, it’s time to take a breath and enjoy the sunshine…at least for one day.

Same Sex Couple Wins Healthcare Battle

In yet another victory, this time without the help of the courts, LGBT rights attorney Dana Nessel has helped a same-sex couple gain equal access to benefits previously denied.  Our clients, Elizabeth Gardiner and Stephanie Citron, were one of the couples able to marry in Michigan after the decision in the Deboer-Rowse case.  Unfortunately, though the marriage was legal, Ms. Citron’s employer, Kroger, used an insurance company that refused to extend marital insurance benefits to Ms. Citron’s wife, Elizabeth. 

Even when presented with all the applicable information, the insurance company refused to recognize Ms. Citron’s right to have her wife receive benefits.  Enter Dana Nessel, whose determination and success on these issues is now known world-wide.  After Ms. Nessel made clear that this type of blatant and illegal discrimination against a same-sex couple would not stand, with the threat of lending legal action, the health insurance company decided to reword their insurance p0licy.  As of today, Ms. Citron and her wife, Elizabeth, are not fully covered as a marital couple.   

Here is a link to the story done by Channel 7.

Same-Sex Marriage Bans in Michigan and Around the Country Violate Equal Protection Clause of the 14th Amendment, Says SCOTUS

Today is a truly historic day.

Today is a day for celebration.

Today, on June 26, 2015, the Supreme Court of the United States decreed — by a vote of 5–4 — once and for all that marriage is an equal and fundamental civic right for all American citizens, regardless of sexual orientation and regardless of where they live.

This long-awaited decision on marriage equality

This long-awaited decision on marriage equality affects our own clients here in Michigan, April DeBoer and Jayne Rowse, but also families just like theirs throughout the Sixth Circuit, and the nation.

With the long and short of it, Justice Anthony Kennedy:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.

Marriages in Michigan are expected to begin immediately.

County clerks lined up by the dozen this morning, ready to issue marriage licenses to same-sex couples in Michigan who’ve waited so long for the day they got to say ‘I do’. And now? Now, there’s no more waiting.

Congratulations, Michigan. Congratulations to us all.

Love won.

Laws Regarding Homeschooling in Michigan Under Fierce Scrutiny

As an eager nation awaits word from the Supreme Court of the United States in the same-sex marriage case of Obergfell v. Hodges — which could come as early as tomorrow, or as late as June 30 — Michigan is tuned into a different sort of injustice hanging heavy like a cloud over the Great Lakes State.

In March of this year, the bodies of two young children, Stoni Blair and Stephen Berry, were found in a freezer, only when their mother, Michelle Blair, was evicted from her Detroit apartment. Evidence indicates that the children had been dead for several years. Blair, 35, had removed Blair and Berry from school under the pretense that they would be homeschooled.

Michiganders, parents, educators, and lawmakers are appalled, and asking:

How could this have happened, and what can we do to ensure it never happens again?

The answer might be:

Overhaul Michigan’s homeschooling laws.

There are strong feelings on both sides of the issue.

The following text was originally published by The Battle Creek Enquirer.

Michigan is one of only 11 states that does not require homeschooling parents to register with the state or have any contact with officials. But legislation introduced recently could impact the way homeschooling operates in Michigan.

Detroit residents Abbey and Kevin Waterman have home­schooled all eight of their children over the last 24 years and said they believe more oversight would create an unnecessary burden on families.

“The way it is right now has made home educating in Michigan a lot less complicated,” Abbey Waterman said. “We already do all of our own administration, we have our own books, our own home library and we’re responsible for it all. Having yet another administrative responsibility to the state is burdensome and awkward for us. I really appreciate the fact I don’t have to register and validate. … Homeschooling in Michigan is wonderful. Don’t weigh us down with another burden.”

But Lansing resident Cheryl Overly, who has home­schooled her seven children for 12 years, said that while most who choose to homeschool are wonderful parents, more oversight is needed. Overly submits a report to the state annually because two of her sons receive speech therapy services. Overly said the process is simple and non-intrusive.

“A lot of people are intimidated by registering with the state, but it’s not an undue burden, by any means,” she said.

The legislation would require parents or a guardian who chooses to homeschool to:

  • Provide their address and names of the children who will be homeschooled to their school district.
  • Require that homeschooled children meet twice a year with someone from an approved list of individuals, such as a physician, licensed social worker, school counselor or teacher.
  • Require parents to keep records of those meetings and make them available upon request.

Where do you stand on the laws regarding homeschooling in Michigan?

To be plain, the answers on same-sex marriage are unclear.

As we wait for the inimitable Supreme Court justices to finish their debates and issue their collective — or perhaps not so collective, as the case may end up — opinion in the matter of same-sex marriage as adjudicated in the Sixth Circuit: Our clients, April DeBoer and and Jayne Rowse, have gone back about the business of raising their children. They raise their children, and work their jobs; they go to the grocery store, and to the park, and they wait. They wait alongside so many hundreds of other families just like theirs, for a decision that could change their lives forever.

They wait. And we wait. And the nation waits.

But what will the answer be?

The attorneys at Nessel & Kessel, and those who represent the other plaintiffs in this all-important case can tell you what we hope the answer will be, but when these nine Americans sworn to uphold the Constitution get involved, it’s never quite clear.

For a bit more guidance, we turn to SCOTUSblog:

No clear answers on same-sex marriage: In Plain English

The following excerpt was originally published on SCOTUSblog on April 28, 2015.

It could turn out to be a nailbiter. After two-and-a-half hours of oral argument in the same-sex marriage cases, it was not clear where Justice Anthony Kennedy — and therefore the rest of the Court — was headed. Let’s talk about the oral argument in Plain English.

The arguments started with what many people refer to as the “marriage question” — whether the Constitution requires states to allow same-sex marriages. Representing the same-sex couples challenging the state bans, Mary Bonauto ran into tough questions from Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia. Roberts suggested that adopting Bonauto’s position would “redefine” marriage, adding that “every definition I looked up until about a dozen years ago” defined marriage as a union between a man and a woman. The plaintiffs could not have been encouraged when Justice Anthony Kennedy, who is probably their best bet to join the Court’s more liberal Justices to strike down the bans, echoed this idea. He told Bonauto that the traditional definition of marriage has been around for millennia, but it has only been a little over a decade since the Court held that Texas could not criminalize sex between two consenting adults of the same sex. That may be a long time for scholars, he pointed out, but it isn’t very long compared to the big picture, and “it’s very difficult for the Court to say we know better.

[…] Arguing on behalf of the federal government in support of the plaintiffs, U.S. Solicitor General Don Verrilli faced a similar barrage of questions from the Court’s more conservative Justices during his fifteen minutes at the lectern. In particular, Justice Kennedy reminded Verrilli that in an earlier case, the Court had indicated that it should define a “fundamental right” in “its narrowest terms” – a precedent that would not necessarily bode well for the plaintiffs. What, he asked Verrilli, should the Court do about that rule in this case? As he had during Bonauto’s argument, Justice Scalia then suggested that the Court should leave the issue for “the people” to decide, but Verrilli countered in his final remarks that the plaintiffs in the case deserve to have their constitutional rights now, without being required to wait to gain public support.

[…] [John Bursch, the former solicitor general of Michigan] spent most of his oral argument time sparring with the Court’s four more liberal Justices — Breyer, Ginsburg, Kagan, and Sotomayor — about the states’ rationale for prohibiting same-sex marriage. Bursch maintained that the states were not limiting marriage to opposite-sex couples because they wanted to confer second-class status on same-sex couples, but because of society’s vision of marriage as an institution centered around having children and encouraging parents to stay married and bonded to their children. The idea that marriage is about love and commitment is important, he said, but the state doesn’t have any interest in that idea. All four of the more liberal Justices seemed highly skeptical of his justifications. How, Justice Ginsburg asked, does allowing same-sex marriage take anything away from opposite-sex couples? Being married, Justice Sotomayor pointed out, doesn’t stop parents from getting divorced and abandoning their children. Justice Breyer chimed in, observing that a “very high percentage” of opposite-sex couples don’t have children, while a similarly high percentage of same-sex couples do.

So where does this leave us?

It leaves us to wait, but we won’t have to wait long.

A decision from the Supreme Court of the United States is expected before its recess in June.

Love Must Win. Love Can’t Wait.

Today is the day!

Today, this moment — this moment is the moment for which April DeBoer & Jayne Rowse (and the dozens, hundreds, nay thousands of families just like theirs in Michigan, Ohio, Kentucky, Tennessee, and around the country) have waited. As we are seated in the hallowed halls of the Supreme Court of the United States, arguments have begun.

In the case of Obergefell v. Hodges:

The argument is bifurcated.

Mary L. Bonauto, a prominent gay rights advocate who was instrumental in establishing a right to same-sex marriage in Massachusetts, will first take the podium to present before the nine Justices the plaintiffs’ stance on the core question of whether states must issue marriage licenses to same-sex couples. Then will appear Solicitor General Donald B. Verrilli Jr., representing the Obama administration, before Joseph Whalen comes to defend the same-sex marriage bans in place in the Sixth Circuit.

Later, Douglas Hallward-Driemeier — a former assistant United States solicitor general — will take to the floor to argue for the position that states must recognize legal same-sex marriages performed elsewhere. Joseph Whalen will again argue this point for the defendant.

In all, the arguments will last two-and-a-half hours.

A decision can be expected in June.

Follow The New York Times for live updates.

Former police chief explains resignation

On most occasions the attorneys at Nessel and Kessel Law find themselves battling with police officers from jurisdictions from all over the state.  However, today Dana Nessel has the privilege to represent the former Chief of Police for the CIty of Inkster, Vicki Yost.  For the past five months, Vicki Yost served the City of Inkster as their “top cop.”  That all came to an end yesterday, as Vicki Yost submitted her resignation to the city council.  Technically Ms. Yost submitted her 30 days notice, but it was the council that decided that her resignation would be effective immediately.  
In what has become a national news story, Vicki Yost’s resignation was triggered by an incident between an Inkster police officer and Floyd Dent.  Video shows the officer striking Mr. Dent a number of times, all while Mr. Dent appears not to be resisting in any way.  Immediately after the incident, (then) Chief Yost made a copy of the video available for the Wayne County Prosecutor’s Office and began her own investigation into the incident.  It was not until weeks later, when the video was made public, that Vicki Yost found herself at the center of a media storm.  It has been suggested by some that Vicki Yost was not completely forthright with the information she possessed with respect to the incident.  Nothing could be further from the truth.    
Not only did (then) Chief Yost immediately make the video available to the Wayne County Prosecutor’s Office, but she was later told by both the Michigan State Police and the Wayne County Prosecutor, Kym Worthy, to stop her own investigation so that they could investigate the matter.  Unfortunately, the city council for the City of Inkster repeatedly asked Chief Yost to provide information that could have compromised the investigations into the incident.  At this point it was clear that Chief Yost and the city council had very different ideas about how the police department should be run, prompting Vicki Yost to submit her resignation.  
Here is a link to a story, run by Fox 2, containing video and direct quotes from Vicki Yost and attorney Dana Nessel.    

New Michigan Statute Regarding Field Sobriety Tests Causes Confusion

Whether you’d like it to be or not, nothing having anything to do with the law is black and white. Wording is unclear; different people have differing opinions regarding how, and when enforcement is appropriate; and the whole system is upended: Guilty people slide by, while innocent people are punished.

This is exactly what’s happening in Michigan.

Recent changes to state statute regarding field sobriety tests for impaired drivers are confusing, and frustrating police and prosecutors, and leading judges to throw sobriety test evidence out of court entirely.

Lawmakers’ intention was to create new standards that made it easier for Michigan police to arrest, and charge suspects with drugged driving. But as Livingston County Prosecutor William Vailliencourt has pointed out, the Legislature failed to clearly define whether or not field sobriety tests are admissible, which has left attorneys and judges across the state to interpret the law as they see fit.

Vailliencourt and his associates posit that the language of the law allows for field sobriety tests — which have traditionally included backwards recitation of the alphabet; the placement of finger to nose; and/or a roadside breath analysis — an argument with which Livingston County District Judge Carol Sue Reader agrees. (She has admitted roadside test evidence in at least two recent cases.)

But many defense attorneys in the state disagree with Vailliencourt and Reader. Citing the same language of the law, one Michigan defense attorney in particular, Lyle Dickson, has not minced words when saying he believes that the “admissible” interpretation is wrong.

“Obviously their cases are devastated without field sobriety tests coming in,” Dickson said Monday. “I don’t understand how Bill Vailliencourt can read the statute and say the plain language allows it to come in. It is only allowed in under certain, specific situations … which rarely apply.”

In Dickson’s particular case, his client — a Jackson County resident — was seen weaving, and later arrested and charged — in Livingston County — with operating under the influence of a controlled substance. Reader, who was the judge in the case, admitted testimony regarding the field sobriety tests conducted, as well as that from a drug recognition officer, which Dickson believes should not have been admissible, and which led to his client’s conviction.

What prosecutors, police, and defense attorneys can all agree on in this instance is that the law needs “tweaking (Vailliencourt’s word). And that’s exactly what’s happening.

“The wording is there and it’s ready to go,” said State Representative Dan Lauwers, regarding the omission of a clear definition for field sobriety tests.