Legal Blog

Dana Nessel Discusses the Expansion of LGBT Protections Under the Elliott-Larsen Civil Rights Act

Dana Nessel, one of the leading litigators of LGBT issues in Michigan, spoke out in an interview with Stateside about the lack of federal laws protecting LGBT people.

Currently, there are no federal or state protections for sexual orientation or gender identity. Prior protections imposed by the Obama administration are currently being rolled back by the Trump administration. Without support on the federal level, it is up to each state to implement protections for the LGBT community.

Because of her extensive litigation experience, Dana Nessel is considered one of the top criminal attorneys in Michigan. She began her private practice in 2005 and became a staunch defender of constitutional rights. Dana is currently recognized as one of the premier litigators of LGBT issues.

Dana is concerned by the injustices faced by the LGBT community in Michigan. She spoke with Stateside last month about these issues.

“The LGBT community frequently faces evictions, termination from employment and refusal of medical treatment for both them and their children.” said Dana Nessel of Nessel & Kessel Law. “This makes it incredibly scary to be an LGBT person in the state of Michigan.”

Expanding the Elliott-Larsen Civil Rights Act to include the LGBT community could be extremely beneficial to the bottom line of Michigan-based businesses. It would make it possible for companies to access and retain top talent and increase their sales. Currently, LGBT people and their allies avoid living in Michigan because of its treatment of the LGBT community.

The Elliott-Larsen Civil Rights Act passed in Michigan in 1977. The act prohibits discrimination based on religion, race, color, national origin, age, sex, height, weight or marital status when it comes to housing, education, employment and access to public accommodations. There have been many efforts since 1983 to expand the Elliott-Larsen Civil Rights Act to include the LGBT community.

“70% of Michigan residents support equal rights for LGBT people.” said Nessel “Unfortunately, because of gerrymandering this expansion is not likely to occur in the near future. The best opportunity we have for an amendment of the Elliott-Larsen Civil Rights Act is through a ballot proposal.”

About Nessel & Kessel Law

Nessel & Kessel Law was established in 2012 by Dana Nessel and Chris Kessel. Nessel & Kessel Law specializes in cases that other attorneys tend to avoid. Nessel & Kessel received national attention for Dana Kessel’s case against Michigan’s ban on same-sex marriage. Today, Nessel & Kessel law is one of Michigan’s top criminal defense firms. For a consultation, you can contact us.

Hiring a Lawyer in Michigan Requires Planning & Research

A lawyer isn’t someone whose name you pick from a simple Google search result and ask, “Where do I sign?” No. Just as you would plan and research any major investment, so too should you carefully vet any Michigan lawyer for hire to serve your case. When faced with family litigation or criminal charges, consider the following steps to hiring an attorney.

Conduct a thorough interview to determine if the attorney’s skillsets match your needs.

Most reputable attorneys in Michigan host an initial consultation appointment free of charge; use this opportunity to get to know the lawyer you are considering to hire, and to assess his/her ability to serve your case. Ask of his experience in the particular legal matter; how long he has been in practice; her track record of success; the weight of her overall caseload; any special skills and certifications; fees and billing; and for references too.

When hiring a lawyer in Michigan, it is important to know how he will keep you apprised of the goings on in your case, but also just as important is how she makes you feel: Was she prompt and courteous in response to your questions? Is she someone with whom you’ll feel comfortable sharing private details of your life?

Trust your instincts, but also:

Run a background check.

Before hiring any lawyer for any reason at all, you might be wise to contact the Attorney Discipline Board to confirm he is in good standing as a member of the bar.

Ask other attorneys.

No one understands the legal system and how to navigate it like lawyers, and so the best resource available to you is another lawyer. Just as, perhaps more important to consider when hiring a lawyer in Michigan than education and fees is ethics, competence, reputation. Other attorneys will be best able to share this information with you.

Tour the law office.

They say first impressions are everything. So drop by for a visit.

We strive to make the law offices of Nessel & Kessel an accessible, welcoming place for potential and current clients. Here you’ll be met with friendly, smiling faces working efficiently for you.

When you need a lawyer in Michigan, call Nessel & Kessel.

Nessel & Kessel Law is one of Michigan’s top criminal defense firms and general litigation experts. We have a record for fighting for our clients and gaining excellent outcomes. Let us help you get the results you deserve.

Self Defense and Deadly Force

Last night in the City of Detroit, a store owner shot and killed a man who reportedly attempting to commit a robbery inside the store.  There was no weapon recovered from the victim of the shooting.  I was asked a number of questions about the shooting by a young attorney when I was in court today, which made me realize how little most people (even attorneys)  understand about the law of self defense. 

Citizens in the State of Michigan have the right to use force to defend themselves.  However, as a criminal defense attorney in Michigan, I can promise you that the right of self defense is not absolute.  In order to legally use force to defense yourself: 1) you must be in a place that you are legally allowed to be; and 2) the force you use must be proportional to the force being applied to you.  In other words, if someone shoves you, you cannot pull out a gun and shoot that person.  The force used to defend one’s self must only be force that one “honestly and reasonably” believes is necessary to fight off the impending threat.  Another important note is that you may not be in the course of committing a crime when you use self defense.  This means that someone who broke into a house and was confronted by a homeowner possessing a gun could not take out his/her own gun and shoot that home owner and claim self defense.

When it comes to the use of deadly force, the same rules apply.  This means that a person who “reasonably believes” that they are faced with the risk of death or great bodily harm may use deadly force to combat that risk.  A person may also legally use deadly force is they reasonable believe that force is necessary to stop/prevent a sexual assault.  However, again, if there is neither of these risks, deadly force may not legally be used.   

Finally, Michigan is now a “stand your ground” state.   This means that so long as you are in place where you are legally allowed to be, there is no “duty to retreat” before using force to defend one’s self. 

Here is a link to Michigan’s self defense statute.

“The police didn’t read me my Miranda rights?”

When police need to read you your Miranda rights.

Many times when a client first walks through the door of Nessel and Kessel Law and we begin to discuss their case, I’m often asked “how can they charge me, the police read me my rights?!”  As some of the top Detroit criminal defense attorneys, I can tell you that this question comes from too many people watching too much Law & Order type television.  While many people may not know it, the “rights” they are referring to are commonly referred to as “Miranda rights.”

Continue reading ““The police didn’t read me my Miranda rights?”” »

How to File for a No-Fault Divorce in Michigan

Filing for divorce can be a very difficult and traumatic process. Not only are you putting an end to a relationship and life, but there can also be assets to separate and custody arrangements to settle. Nessel & Kessel, premier Michigan divorce attorneys, can help you navigate these complicated and, and often emotionally charged, waters.

Michigan operates as a No Fault Divorce state. This means the spouse filing for divorce does not have to prove fault of their soon-to-be former spouse in order to file. All that is needed to file is to give a reason that the state honors for divorce. The most common reasons given are “irreconcilable differences” or “irreparable breakdown of the marriage”.

A spouse cannot object to a petition for a no fault divorce. The petition itself will be viewed by the court as an irreconcilable difference. Fault does become an issue in regards to child custody, property rights, and spousal support. In terms of actually filing, however, both spouses do not need to be in agreement for the divorce to proceed.

It is important to note Michigan does have residency requirements in order to file for divorce. At least one spouse must have lived in Michigan for at least six months. The spouse seeking divorce—also known as the plaintiff in the process—must file in the county in which they have lived with their spouse—the defendant—for the last 10 days.

The plaintiff pays a filing fee and files a complaint within the family division of the circuit court, asking to be granted a divorce. This complaint identifies the parties involved, describes the grievances, and how they are seeking remedy.

The court then issues a summons, along with a copy of the complaint, to be served to the defendant. They have 21 days to respond by filing an answer in the same circuit court. If the defendant fails to file an answer or responsive plea, the court may enter a default judgment and rule in favor of the plaintiff.

If both parties reach an agreement for divorce, and do not want to go to trial, they move into the settlement process, where the division of property, assets, debts and liabilities, and settling matters of child support, custody, and visitation.

In the event of a trial, the plaintiff and defendant move into the discovery and pre-trial procedures phase of the divorce. The discovery phase is used to gather as much information about things like debts, assets, and net worth though interrogations, depositions, and subpoenas. Lawyers use the pre-trial procedures to attempt to settle the divorce before going to trial, using various meetings, evaluations, and conferences.

If the pre-trial procedures are unsuccessful at settling the divorce, the final step is a divorce trial. Michigan allows trials before a judge or a jury. Both options function very much the same. Each party explains the nature of their case, calls witnesses, and proves their evidence. After the trial has ended, the judge or jury will arrive at a verdict.

The Knife found on OJ’s Property and Double Jeopardy

In a story that has made headlines all over the world, literally, news broke today that almost 20 years ago, a knife was recovered from the property of OJ Simpson.  While the origin of the knife is not totally clear, it is entirely possible that this knife could yield further evidence about the murders of which OJ was accused.

In what was easily one of the most, if not the most, famous criminal trials of the 20th century, OJ Simpson was accused of murdering his wife, Nicole, and her friend, Ron Goldman.  After a 7 month trial, OJ was found not guilty on all charges.  Even though news of the knife is fresh, I have already been asked by many people; what if the knife has Nicole’s blood on it?  The answer is two fold.  With respect to the families of the victims, this may give them some final piece of mind.  With respect to OJ’s criminal case, it means nothing.

The double jeopardy clause of the US Constitution (located conveniently in the 5th Amendment) states that “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”  Translated into today’s English, once you have been tried for a crime you cannot be tried again for the same crime.  Of course, as with anything in the legal world this one sentence is not the final word on this issue.

The double jeopardy clause of the 5th Amendment does not “attach” itself when a person is arrested, charged, or even after they’ve made several court appearances.  At any of these points a case may be dismissed and then brought again.  Jeopardy only “attaches” at two distinct points.  In a jury trial “jeopardy” attaches when the jury is sworn in.  In a bench trial (a trial where the judge sits as the trier of fact and there is no jury), “jeopardy” attaches when the first witness is sworn in before testifying.

But simply saying that a defendant cannot be tried twice for the same crime is not the end of the story.  For example, if a defendant is found guilty of a crime, but the conviction is later overturned because of an error in the trial, the defendant may (and probably will) have to go through the trial again.  The fact that he was already tried once does not mean he cannot be tried again, in this instance.  However, if a defendant is found “not guilty” by a judge or a jury (which obviously happens after jeopardy has attached), then that is the final word and the defendant cannot be tried for the offense again…even if the prosecutor was able to, let’s say, find a murder weapon linking the defendant to a killing.

While this brief synopsis of double jeopardy only scratches the surface of issue of double jeopardy, I hope that it explains why, for the purposes of the criminal case, the discovery of this knife will have no impact on any criminal proceedings.

New Michigan Gun Law

 

On March 4, 2015, Gov. Rick Snyder signed a bill that would change the way concealed pistol licenses (CPL) were issued.  Yesterday that bill went into effect.  According to the Governor, the new bill will “streamline” how CPL’s are issued.  However some, including those at Nessel & Kessel Law, are concerned that the new law will allow for more potentially dangerous persons to possess and conceal weapons.

Under the “old system” each county had a 3 member “gun board” that would consider applications for CPL’s.  The board’s were comprised of various law enforcement officials; one of which was usually a member of the County Sheriff’s office.  If the applicant was not expressly prohibited by law from receiving a CPL, the board could still request an interview with the applicant.  The application could then be granted or denied based on the interview.

Under the new law, these gun boards have been dissolved.  When a person applies for a CPL, the clerk’s office has 45 days to issue a CPL.  If the applicant does not receive a denial after 45 days, his or her application will actually serve as a valid, temporary permit.  Additionally, now it is the county clerks and state police that will take responsibility for the application process. Applicants must disclose whether they’ve been diagnosed with any mental illness.  However, federal law prohibits the Michigan state police (which will now determine an applicant’s eligibility) from gaining access to mental health records.  The only exception is if the applicant was involuntarily ordered to receive treatment by a court.   Thus it’s likely no one will catch an applicant if he or she lies.

All this means that it will now become easier for citizens of Michigan to obtain CPL’s.  Unfortunately the minimal training required to receive a CPL does not do nearly enough to prepare a person in the event that they are forced (or simply choose to) use their firearm.  It is all too often that a person who legally owns and conceals their firearm will find themselves charged with a crime based on their use of the weapon.  It only takes a few seconds and a person can find themselves facing gun charges like Felonious Assault, Brandishing a Firearm, Reckless Discharge of a Firearm, and Felony Firearm.

If you or a friend or family member has been charged with a gun crime, contact the defense attorneys at Nessel and Kessel Law.

 

Attempted Murder Charges Dismissed

Attempted murder, felony firearm, and reckless discharge of a firearm were just some of the charges that were dismissed after a preliminary exam held by defense attorney Chris Kessel, in the district court in the City of Taylor, Michigan.  It was alleged that our client, JM, had used a shotgun to shoot his son in the arm, in an attempt to kill him.  The allegations were supported by witness statements that claimed that the client had raised the weapon at his son, who was standing in a hallway in the family home, and fired a single shot, hitting him in the arm. 

During the exam the prosecutor continually tried to elicit testimony to show the defendant had acted intentionally.  The complaining witness (our client’s son) testified that there was a fight earlier in the day, which lead to a confrontation over the weapon that was later fired.  The prosecutor went over where the two men were standing, the position of their hands on the firearm, and spent a considerable amount of time on the significant injuries that the complaining witness sustained.  

Despite the allegations, the complaining witness, on cross examination, testified that he believed that the shooting was an accidental one.  The judge appeared skeptical at first, but then attorney Chris Kessel, with the help of the witness, reinacted the shooting for the court.  After the reenactment the judge told Chris Kessel that he found the demonstration most helpful…he then proceeded to dismiss all the charges.  The prosecutor tried to get the judge to add additional misdemeanors to the charging document, but the judge refused.

Our client went from looking at a possible prison term of a minimum of over 10 years to being home for dinner that night. 

If you or a friend or family member has been charged with any offense, make sure you have the best representation possible.  Contact the attorneys at Nessel and Kessel Law today for a free consultation. 

New HYTA Law

Recently, the Michigan Legislature made what some what call a surprising move…they made life a little bit easier for young criminal defendants.  For years, criminal defendants aged 17-20 have able to take advantage of HYTA – the Holmes Youthful Training Act – as a way of avoiding a criminal conviction from staining their record.  When a youthful offender pled guilty to a certain offense, he or she, upon successful completion of that probation, would have the conviction suppressed from their criminal record.  The determination of whether or not HYTA status would be granted was in the sole discretion of the judge.  However, the new HYTA statute, while not perfect, has opened the door for more youthful offenders to be granted HYTA status.

Under the new statute, offenders up the age of 24 are eligible for HYTA probation.  However, there is a catch…for those aged 17-20, the decision regarding HYTA still resides with the judge.  For those aged 21-23, the decision to allow for HYTA rests not with the judge, but with the prosecutor.  This gives the prosecutors more leverage in negotiating pleas for those who wish to receive HYTA probation.

Defendants who enter guilty pleas to life offenses, traffic offenses, major drug offenses, or criminal sexual conduct charges, are disqualified from receiving HYTA probation.

Those placed on HYTA probation may be required to complete school, maintain employment, be placed on electronic tether, or be subject to a number of other requirements.  There is also the possibility of spending time a special branch of the MDOC, for up to 3 years.  However, there are certain offenses for which a defendant may NOT be sentenced to a term of incarceration.

If you or a family member of friend believe you may be eligible for HYTA probation, contact the criminal defense attorneys at Nessel and Kessel Law.

Why you need a second-parent adoption.

Having your name on the birth certificate is not enough; you need a second-parent adoption.

On June 26, 2015, the United States Supreme Court ruled that denying marriage licenses to same-sex couples violates their 14th Amendment rights; specifically the Due Process and Equal Protection clauses. This meant that once these same-sex couples were issued licenses and were officially married, they would have the same rights as their opposite sex counterparts. As counties across Michigan began issuing marriage licenses and couples began getting married, those same couples were left unsure as how to proceed with respect to their children; specifically what is the best way to protect the second – non-biological – parent’s rights as a parent to a child born during the course of their marriage?

Initially, the consensus was that if the non-biological parent was placed on the birth certificate, they would simply become the second “legal” parent, thus their parental rights would be protected. However, this is absolutely not the case. In fact, the non-biological parent in a same sex marriage is particularly susceptible to losing their status as legal parent of their non-biological child, regardless of whether their name is on the child’s birth certificate.

In order to better understand the problem, it is necessary to understand two legal issues: 1) the definition of “parent” in accordance with Michigan’s Custody Act; and 2) the rebuttable presumption of paternity.

The Michigan Custody Act (MCA) defines a “parent” as “the natural or adoptive parent of a child.”

The rebuttable presumption of paternity is a fairly simple concept; a child born while a couple is married is presumed to be the biological child of the married couple. This presumption is codified in MCL 700.2114(a), where the “parent and child relationship” is defined follows:

“If a child is born or conceived during a marriage, both spouses are presumed to be the natural parents of the child for purposes of intestate succession. A child conceived by a married woman with the consent of her husband following utilization of assisted reproductive technology is considered as their child for purposes of intestate succession. Consent of the husband is presumed unless the contrary is shown by clear and convincing evidence. If a man and a woman participated in a marriage ceremony in apparent compliance with the law before the birth of a child, even though the attempted marriage may be void, the child is presumed to be their child for purposes of intestate succession.”

However, this presumption may be rebutted by another party, who may claim that they are the actual, natural parent of a child. This is where things can get complicated and where merely having a second parent’s name on a birth certificate (instead of performing a second parent adoption) can get couples into trouble.

The MCA is clear about what defines a parent in the state of Michigan: a person must be either the “natural or adoptive” parent of a child. Having a name on a birth certificate is not good enough. It may be a nice document to get framed, but it does not protect the second – non-biological parent – from having their parental rights stripped.   This could happen in the form of a third party, claiming to be the actual parent, who wants custody of a child. Sadly, this could also come when a same sex-couple’s relationship dissolves and the natural parent does not want the second – non-biological parent – to be in the life of their child. See the case Dana Nessel argued in Harmon v Davis, 489 Mich 986 (2011) for context about the devastating realty of this scenario. Detroit Free Press article

The issue is even more apparent when examined through the lens of the rebuttable presumption of paternity. The rebuttable presumption may be challenged by showing that the second – non-biological – parent is not the “natural” parent of the child. The reason this is such a problem for same-sex couples is obvious as only one spouse in a same-sex couple can be the biological parent of a child.

Fortunately, there is an incredibly simple way to avoid the very serious complications and pitfalls of not being considered a true parent even when your name is already on a child’s birth certificate. Second-parent adoption is not only the easy solution, it is the only solution to the problem. Once you complete a second-parent adoption, you are considered a parent to your child under Michigan law. Problem solved.

The area surrounding the legal rights of same-sex couples and their families is a new and sometimes confusing one. However, the attorneys at Nessel and Kessel Law are the most knowledgeable and experienced attorneys in the State of Michigan on these matters. If you wish to discuss second-parent adoption to protect yourself and your family, contact us at (313) 556-2300 or email us today.