Hogwash Volume 24

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April 2014
Welcome to Hogwash!

Greetings,

Rosi and Gardner

If this is the first edition of Hogwash! you've received it's because someone you know thought that you would like to receive it and perhaps pass it on to a friend.

If you enjoy this E-newsletter and know others who you think would like to be on our list or receive a copy by mail, please let us know at info@rosigardner.com

The highest compliment we can receive is a referral from a friend. Although we've been in business together for more than twelve years, have more than 50 years of combined legal experience experience, we are never too busy to help those you refer to us: your family, friends, neighbors, and co-workers.

Who Gets "Pet Custody?"

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In Michigan (like many other states), pets are property, legally speaking, just like the living room set and the fishing boat in the garage. For many of us, our pets are much more like members of the family (albeit with four legs). In New York, one judge recently gave some legal recognition to that treatment, and set a different standard for deciding what happens to the "animal children" of divorce. Albany County Supreme Court Justice Michael C. Lynch said:

Today, we should take the next step in recognizing that pets are more than just "personal property" when it comes to resolving a dispute between owners. In such disputes, to adopt the characterization . . . [that] pets should be recognized as a "special category of property."

If the spouses cannot agree who should take and care for the pet(s), the Court will use a new "best for all concerned" standard to determine pet custody. The Court will consider the following factors to determine who will be given "custody" of the family pet:

  • How the pet was acquired
  • How the pet was cared for during the relationship
  • The actual arrangement between the parties for spending time with pet after the parties split up.

Just like a similar case in New York City case, the court will not establish a "shared custody" schedule for the family pet. One person will be awarded "sole custody" if the parties are not able to come to an agreement themselves.

When the System is Broken: Food, Farmers and Migrant Workers

Don't let early April snow fool you: growing season is just around the corner, bringing along with it all the opportunities and uncertainties that our region's farmers know all too well.

But who exactly will do the work? By most accounts at least two out of every three agricultural workers in the United States are foreign-born. The reason for that is relatively straightforward: even in poor economic times U.S. workers do not take manual farm jobs. Yet Americans need to eat so U.S farmers understandably turn to foreign help to grow America's food. Federal immigration laws seek to accommodate America's need for foreign farm hands through the H-2A visa program. Under that program, U.S. farmers may ask the federal government to issue temporary visas to seasonal migrant laborers, to make up for the shortage of U.S. workers.

As with other aspects of U.S. immigration law, not all is well with the H-2A program. Before approving visa requests, the federal government requires farmers to somehow prove that

(1) "there are not sufficient able, willing, and qualified US workers" to take those jobs, and that
(2) the employment of H-2A workers will not bring down the wages of similarly-situated U.S. workers. The approval process involves several federal agencies, resulting in a cumbersome and time-consuming process-a big "no-no" for farmers whose needs may change depending on weather events, such as an early thaw (which probably won't be an issue this year!).

It comes as no surprise that few U.S. farmers register with the H-2A program, relying instead on unauthorized workers who make up a large percentage of the America's temporary agricultural workforce. According to federal government figures, only about 55,000 H-2A visas were granted in 2011-corresponding to just a tiny fraction of the approximately one million hired farm workers estimated by the Department of Agriculture.

At present, then, U.S. farmers are all but forced into hiring undocumented workers… who in turn continue to live on society's fringes. Because our existing laws do not match up with the realities of our food system, the current system essentially encourages both sides – the farmers and the workers – to break the law so we can eat. And that's hogwash!

New Eminent Domain Legislation May Affect Private Property Rights

In 1929 – when the oil and gas industry in Michigan was in its infancy – the Legislature enacted Public Act 16 of 1929. Part of that act granted any corporation, association or person the right of condemnation by eminent domain of the private property of others for the purpose of transporting petroleum by pipelines.

Fast forward 85 years to the recently enacted House Bill 5225 that would amend the 1929 law to extend the power of condemnation to those persons or entities that seek to "transport by pipeline gaseous or liquid substances, consisting primarily of CO2, that will be put in storage or that have been or will be used to produce hydrocarbons in secondary or enhanced recovery operations."

Legislative Analysis of the legislation concluded that "As written, the bill would have an indeterminate effect on state revenues."

The Hogwash! editorial analysis of the bill causes us to voice a broader concern.

In 2004 the Michigan Supreme Court rejected a claim by Wayne County that it could condemn private property to construct a large business and technology park – something Wayne County claimed was authorized in a 1911 law.

This was an earthshaking decision and one that involved Article 10 of the Michigan Constitution which says that "Private property shall not be taken for public use without just compensation therefor being first made and secured in a manner prescribed by law."

In its ruling the Supreme Court concluded that Wayne County's condemnation attempt "did not pass constitutional muster because the taking was not for public use within the meaning of Article 10". Why? Because the proposed park would be sold to private entities and not be subject to public oversight.

In reaching that conclusion the Supreme Court reversed a 1981 decision in Poletown Neighborhood Council v Detroit. In that case, the Supreme Court had upheld the taking of land in a neighborhood known as Poletown and later conveyed by the Detroit Economic Development Corporation to General Motors was consistent with a "public use."

In the County of Wayne decision, the Supreme Court considered that the use of condemnation for gas pipelines was appropriate because the State of Michigan retained sufficient control of petroleum pipelines designed to transport petroleum products from wells to market, a matter of public interest, through the offices of the Public Service Commission. However, it specifically overruled the decision in Poletown as there was no such public interest to be advanced in that case.

Why, you may ask, do we at Hogwash! question the current legislation? The purpose of the legislation is found in its plain words. The CO2 which is to be transported is not intended for any market nor does there appear, at least to us, to be any "public use" associated with it. Rather, its purpose is solely to "be used to produce hydrocarbons in secondary or enhanced recovery operations," for the benefit of both the oil and gas producer and the landowner from which the oil and gas is to be produced. In short, we do not see how any condemnation of land for such a pipeline would pass constitutional muster.

YOUR COMMENTS WOULD BE WELCOMED

Disclaimer: We do not represent any Client faced with the issue.

Issue: 24
In This Issue
Who Gets "Pet Custody?"
When the System is Broken: Food, Farmers and Migrant Workers
New Eminent Domain Legislation May Affect Private Property Rights
Local Hero of Distinction
National Karaoke Week: What is Your JUHACHIBAN?
Humor
April is Jazz Appreciation Month ("JAM" of course; what else!)
Karen's Home Cooking

Local Hero of Distinction

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Who doesn't like trees? Large, tall, enormous, ancient trees?

Unless you are close to a lumberman who, as he walks through a forest, sees only the value of "Board Feet" or firewood, chances are that everyone around you likes such trees and welcomes the opportunity, indeed pleasure, that comes with seeing and even touching a forest giant that has been here for more years than any of us can count.

Unfortunately the presence of such trees are few and far between. Yet there is someone in our own neighborhood that is trying to do something about it. David Milarch who lives in Copemish in Manistee County with his family began and now runs the Ancient Tree Archive. The archive's focus is to capture, save and propagate new trees using DNA from historic giants, some of which still exist in remote regions and some of which only exist as stumps from which the DNA can be successfully extracted.

To learn more we urge you to visit their website, read the April 2014 issue of Reader's Digest and the New York Times Bestseller, The Man Who Planted Trees by Jim Robbins. Then share with us and other Hogwash! readers what you think.

National Karaoke Week: What is Your JUHACHIBAN?

Time to clear your throats and get ready to belt out your favorite tunes: April 20-26 is National Karaoke Week. Celebrated since 2006 during the fourth week of April, National Karaoke Week aims to raise public awareness of a still-growing industry in the United States.

Karaoke machines were first developed in Japan in the early 1970s, spreading to other parts of the world during the 1980s. While in Asia the most popular type of karaoke venue is a rented "karaoke box" room, Europeans and North Americans usually get their karaoke on at bars, restaurants, or other public lounging venues that allow aspiring singers to share their vocal chops with the world at large, free of charge.

No longer considered a fad, a moderate karaoke habit also comes with alleged benefits such as increased self-esteem and stress release. In fact, the Japanese have a word for that one song that a karaoke singer uses to boost their confidence and show off his or her singing abilities: juhachiban. Although our vocal skills here at Rosi & Gardner vary widely from person to person, we prepared a list of our tentative juhachibans:

Jessica:

"I Love Rock N' Roll" by Joan Jett

Gary:

"Rock Me Amadeus" by Falco

Karen:

"Ring of Fire" by Johnny Cash… (Nah, let's try "Livin' on a Prayer" by Bon Jovi!)

Phil:

"Splish Splash" by Bobby Darin

Marcelo:

"White Wedding" by Billy Idol

No Snowballs

It's a good thing we don't have the same laws as Aspen, CO up here in Northern Michigan, especially after this winter.

According to the City of Aspen's Municipal Code it's unlawful for any person to throw a snowball upon or at any vehicle, building, or other public or private property, or upon or at any person, or in any public way or place which is public in nature. It's also unlawful to throw a stone, or other missile, or discharge a bow, blowgun, slingshot, gun, catapult, or other device.

Seriously though? A snowball?

April is Jazz Appreciation Month

("JAM" of course; what else!)

As someone who listens to a lot of jazz, I do so in a variety of forms. I have a lot of CDs. I borrow some other discs from the Traverse Area District Library . And, I listen to some streaming jazz, from real, live broadcast stations that are streaming through the web. Here are three sources that have had some of my "ear time" of late:

Chris Greene Quartet, an album called "A Group Effort" from 2012.

The liner notes on this include: "The newest album from the Chicago-based saxophonist, bandleader and musical visionary – recorded LIVE at the historic Mayne Stage in Chicago. At a time when jazz continues to seek new audiences, the Chris Greene Quartet sits poised on the future s cusp. In much the way that classical composers have historically used native folk elements as the basis for their art, the CGQ uses familiar modern materials the funk and hip-hop saxophonist Chris Greene heard growing up as a bridge between jazz and other genres." Click here for a link to the band's website where you can listen to samples, read about the band, and buy music.

The other place from which I am drawing jazz, new and old, is a jazz radio station in the Northwest, streaming on the web (I am listening via an app called "Tune In"), Jazz24.

Jazz24 plays around-the-clock jazz, with a good mix of classic, current, vocal & instrumental, along with an occasional blues or soul cut. For local live jazz, Jeff Haas & Friends, Thursday evenings at Traverse City Cambria Suites, is always great music and an enjoyable setting.

Check Jeff's Facebook page. There is nothing else quite like live jazz, with an energy all its own, exchanged and shared between the artists and the audience. Take in some jazz this month!

Gary's Soapbox: Paying Off Criminal Charges?

"Toyota is paying $1.2 billion to resolve a criminal charge." That's how National Public Radio put it. Read their story here.

The criminal probe was a four year investigation, led by the office of the U.S. Attorney for the Southern District of New York. In that investigation, the questions came to focus on what, when, and how much, was known by executives of the Toyota Motor Corporation, when their vehicles were experiencing "unintended acceleration" and people were being killed. Attorney General Eric Holder described the wrongdoing this way: "Rather than promptly disclosing and correcting safety issues about which they were aware, Toyota made misleading public statements to consumers and gave inaccurate facts to Members of Congress. And they concealed from federal regulators the extent of problems that some consumers encountered with sticking gas pedals and unsecured or incompatible floor mats that could cause these unintended acceleration episodes."

The U.S. Justice Department filed charges against the company, and then immediately agreed to defer prosecution: "As part of the resolution of this case, Toyota will fully admit wrongdoing. It will pay a financial penalty of $1.2 billion. And going forward, the company will submit to rigorous review by an independent monitor that will examine and assess the manner in which Toyota reports safety issues to the public and its regulator."

Okay, it's a lot of money, $1.2 billion. But, consider this: analysts estimate that Toyota is sitting on about $35 billion in cash. Does less than 4% of cash reserves really sting? Is it likely to change the behavior of the world's largest automaker? More importantly, what is the penalty for the executives who made the decision to conceal information, mislead the public and Congress, and hide facts and information from federal regulators and investigators?

Let's be clear here: people, not "the company" could have gone to jail for the kinds of actions set forth in the criminal complaint filed by the Justice Department. It is individuals, people, executives and members of the Board of Directors (who are often one and the same), who make decisions about what, and when, to tell the public, customers, and investigators. The "fine" or settlement being paid by the company will be paid, I am sure, by "the company." That is, effectively, by the shareholders. Not, mind you, from the personal accounts of the executives who made the decisions that gave rise to the criminal charges.

Is that what we want? A similar investigation, regarding recalls, has been launched against General Motors. If General Motors executives are found to have engaged in criminal behavior, do we want to let those executives buy their way out of criminal charges with company money?

April's Special Offer

Who do you know with questions about immigration?

Free, confidential (attorney-client privileged) consultation, by phone or in person, regarding any immigration issue.

Offer Expires: May 31, 2014

Karen's Home Cooking

Bring on Spring… But in the Meantime

Here we are – that time of year when we are anxiously waiting for the first crops. Asparagus, morel mushrooms, radishes, spinach, lettuce, and oh give me some fresh strawberries!

It's been a long cold winter and the supplies are down. At home, we've been creating meals using a "little bit of this and a little bit of that." Last night it was a vegetarian meal my husband didn't complain about (not that he ever complains about my cooking!). You know it's satisfying when he doesn't need to fry up a steak for a side dish.

Curried Garbanzo Beans with Pureed Celery Soup on Rice

Soup

I made this the day before and served it with Pleasanton Onion Dill Bread and Smoked Lake Trout

1 large onion

3-4 small to medium carrots

10 medium-length stalks of celery

3 tablespoons extra-virgin olive oil

2 cloves garlic, chopped

1 can tomatoes

4-6 cups of vegetable broth (or water)

1 cup cooked wild rice (left over from day before)

Chop the veggies into small pieces. In a large soup pot over medium high heat combine the olive oil, onion, carrots, celery and a few big pinches of salt. Sauté for about ten minutes or until the onions and celery soften. Stir in the garlic and add the stock and tomatoes. Bring to a simmer and let cook for another 10 minutes. Add the wild rice last and heat through. Let the soup cool and then puree in batches.

Garbanzo Beans

Garlic

onion

Chili sauce

Curry powder

lime

cilantro

Heat olive oil. Add a whole chopped onion, cook on medium heat until they become transparent. Add pressed garlic (as much as you want!) and beans. Sprinkle heavily with curry powder. Add some chili sauce (I used Ajeeka). Add some more olive oil and the juice of a lime. Keep cooking on low and adjust flavors to suit your own taste. I have recently discovered Celtic sea salt which makes everything taste better.

While you are cooking the beans, get your rice going (Jasmine or Basmati). Use extra water – you want your rice to be sticky. Add curry and olive oil to the water.

Presentation — It makes your food look pretty AND taste better!

Dollop the rice in a large bowl. Top with Garbanzo bean mixture. Top with pureed soup. Add shaved Parmesan, a squirt of lime and fresh chopped cilantro. Serve with corn chips.

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Rosi & Gardner, P.C.
735 S. Garfield Avenue
Suite 202
Traverse City, Michigan 49686
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Philip R. Rosi

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Gary Allen Gardner
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