What better day to discuss the marijuana laws in the State of Montana than 4-20? There is a lot of talk about marijuana today, but with the changes happening in all states surrounding recreational marijuana, it is important to know the laws surrounding the use of Marijuana to ensure you aren't setting yourself up for some legal trouble.
So, what should you do to protect yourself moving forward? Be aware of the laws, especially DUI laws, and make sure you aren't driving under the influence or driving when your blood may show THC above 5 ng/mL, or you could end up facing legal issues. Importantly, Marijuana DUI's in Montana hold the same consequences as Alcohol DUI's, and come with stiff penalties.
If in doubt, ask a lawyer. Hope this is helpful and not too much of a "buzz kill" for your day.
This one is for the parents of teens and young adults. If you've been reading for a while, you may recall the blog done in May, 2020 where we discussed how to protect your kids from social media trouble. You can find that blog here. But this time, we are talking Snapchat directly. Snapchat is one of the most widely-used platforms for kids. Here's what Parents need to know when considering your kids using Snapchat:
1. Privacy: Ok, so even adults don't read the "terms of service" before clicking "agree" and having that app handy to use. But Snapchat's Terms should scare parents. Here are just a few of the things you are agreeing to when signing up for Snapchat:"
- No one under 13 is allowed to create an account for services. Additional services may require you to be even older."
- "You Grant us a license to use your content. How broad that license is depends on the Services you use and the Settings you have selected."
- "You grant Snap, Inc. and our affiliates a worldwide, royalty-free sublicensable and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, and distribute that content."
But the Terms aren't the only thing we should be looking out for. Snapchat has the ability to track its users to a very specific location, to include their home. The Snapmap will even show what the user is doing, ie. using a phone, driving a car, sitting outside in the cold, etc. Do you want your child being tracked by their "friends?" Most kids will say they only add true friends, people they know, but research shows this is simply not true, and that often times users have many "friends" they don't even know. If your kid is going to use Snapchat, make sure they are in "Ghostmode" and not sharing their location with anyone and everyone.
2. Addiction: Statistics show that 95% of teens have access to a smartphone, and 45% feel addicted to their smartphone. Let's face it, parents likely feel addicted to their smartphones. The addiction factor is real, and Snapchat has cleverly marketed their app to ensure the addiction continues. Users are given notifications of "streaks" (where a user Snaps another user every day). Streaks become a form of popularity in the teen world, and teens feel they have to respond to each Snap and be constantly checking their Snaps. Even more clever, Snapchat has a tool that puts emojis next to the Snap Friends, telling each user if they are "best friends, close to best friends, etc." Snapchat has become a popularity tool as well. Of course your teen will find themselves needing to constantly use the app.
3. Inappropriate Content: Your kid might argue that they don't do anything inappropriate on the app, or that their friends don't send them inappropriate content. All it takes is one swipe right to find the "Discover" portion of the app, and I can assure you, you don't want your kids viewing that content.
4. Everything Disappears: The number one concern most parents have with Snapchat is that everything "disappears." Except, it doesn't. The disappearing factor of Snapchat provides Kids with a sense of security that simply isn't there. They will find themselves sending pictures and messages that they wouldn't normally send via text or other platforms, because they are just so sure it will disappear. Except it doesn't. Nothing disappears on the internet. If there is one lesson we can teach our kids regarding internet safety, that is the lesson. A screenshot by the other person, and the Snap is forever permanent. On the flip side, most Parents don't want their kids using an app where everything disappears, as there is no ability to monitor the communications.
Let's also talk about the Snapchat Vault, "My Eyes Only". This feature is used to keep memories and photos from being able to be seen. Kids might use this feature to keep parents from seeing Snaps that have been sent, saved, etc. This is often a place where inappropriate pictures might be stored for later use.
5. Legal Problems: Snapchat can land your child in some serious legal trouble. Everything from "Sexting" to Videoing, to Sharing Photos of Others, to Threats, have been and will be found on Snapchat and used to form the basis for arresting the Snapchat user. All it takes is a simple Google search to find thousands of articles where teens have landed themselves in criminal trouble for their Snapchat behavior.
Snapchat can be fun, when used with parental supervision. I hope this helps you stay informed. Happy Parenting!
On January 13, 2022, the United States Supreme Court issued two long-awaited opinions after hearing arguments on January 7, 2022. The Supreme Court has issued a stay (a legal term used when a Court stops a legal proceeding or actions of a party) of the OSHA Vaccine Mandate and has upheld (a legal term meaning it will not change) the Medical Facility Mandate.
OSHA Mandate: In a decision that is sure to make history, the Supreme Court ruled on January 13, 2022 that the OSHA vaccine mandate would be stayed. The mandate applies to employers with at least 100 employees, and affected nearly 84 million workers. The mandate required workers to receive a Covid-19 vaccine, or test weekly at their own expense and wear a mask each workday.
The Supreme Court noted that OSHA has never before imposed a mandate of this sort, and Congress has declined to enact any measure similar. The Supreme Court held that "this [is] no 'everyday exercise of federal power.'" Instead, it is a "significant encroachment into the lives - and health - of a vast number of employees." The Court held that "although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most." The Court went on to say that COVID-19 comes with a universal risk and is no different from the day-to-day dangers that all face. "[A] vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, 'cannot be undone at the end of the workday.'" In summary, the Court held that OSHA was not put in place to issue mandates such as this.
The Court addressed OSHA's argument hat the mandate was necessary by stating "it was not [the Court's] role", stating [A]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given given that agency the power to regulate public health more broadly."
Medical Facilities Mandate: The Secretary of Health and Human Services administers the Medicare and Medicaid programs, providing health insurance for millions of Americans. The Secretary issued a mandate stating that medical facilities must ensure staff is vaccinated if they wish to continue to receive funding.
The Supreme Court held that the Secretary has long-established conditions required by medical facilities in order to receive funding, to include vaccination requirements. The Court held that the Secretary's mandate falls within the scope of authority granted to the Secretary. The Court additionally considered the widespread support of the mandate by healthcare workers and public health organizations, citing to several organizations and briefs filed in support of the mandate.
The Court held that "[t]he Secretary did not exceed his ... authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19."
No matter where you fall on vaccines, we hope this information is helpful in keeping you informed.
Keep yourselves informed, and read on here for the decision: www.supremecourt.gov/opinions.
Christmas is upon us, and many find themselves contemplating what the perfect gift might be for their loved ones. I would venture to guess the perfect gift, is the gift of an estate plan wrapped in a nice package, so they don't have to worry when you pass away. Many find themselves in unexpected positions when their parents or loved ones pass away with no will or estate plan. Give the gift of an estate plan to your loved ones so they don't have to muddle through the process without any direction.
So, what do you need to have prepared for your end of life?
Finalizing these plans and finalizing documents outlining your wishes is a gift that will be so appreciated by your loved ones at the end of your life. Meet with a trusted attorney and discuss your wishes and concerns, and I think you'll find the process is less daunting than you may think. Happy Holidays, and Happy Gifting.
Hunting season has come and gone, and many Montanans have found themselves purchasing ammunition, firearms, and other tools of the trade over the past several months. If you are looking to add a silencer to your tool belt, now is the time to start planning. Many know that it takes months, if not close to a year, to obtain the silencer.
A firearm trust can be used under the National Firearms Act of 1934 (NFA) and 1968 revision of the Gun Control Act to include silencers/suppressors, large caliber weapons, and other specialized firearms. NFA weapons have to be registered with the Bureau of ATF and may only be possessed by the registered owner, unless the weapon is in a trust.
Why Do I Need a Firearm Trust? Firearm trusts have several benefits, one of which includes the ability to have more than one person able to possess the weapon. This is important so that family members and close friends aren't committing an accidental crime when they allow their family member to borrow their rifle with a silencer during a hunt. Firearm trusts also allow the owner to have a gun or silencer held in trust, enabling the owner to pass the firearm or silencer on to beneficiaries as the owner desires. Other firearms can be placed in a firearm trust as well if one desires. Firearm trusts can also be helpful at the end of life, when it comes to distributing the firearms of the owner in an effort to ensure they are distributed the way the owner wishes, privately and legally, and outside of probate.
How Do I Use the Firearm Trust? Once the firearm trust is established, the Trustmaker or "responsible person" is able to purchase a firearm or silencer in the name of the trust. The document is provided as part of the application process, and the silencer or firearm is purchased in the name of the trust. It is a common misconception that a background check is not required for a firearm trust purchase. In 2016, the law changed to require background checks, even with a firearm trust, and the background check must be done by a "responsible person", generally the trustmaker.
Many Montanans are interested in owning a silencer for their hunting rifles and other firearms. A firearm trust is a great way to ensure that silencers are able to be used by the owner's family without legal complications. Contact a trusted attorney to help you set up your firearm trust and start the process of setting up your firearm trust and obtaining a silencer.
No matter where you fall on the spectrum of political viewpoints, recent news will no doubt leave you wondering what authority the government does or does not have. And if you aren't wondering, you should be. At the end of the day, no matter your beliefs, government mandates will impact you. So, let's talk about what a mandate is, and whether the government has the authority to mandate vaccines.
Let's talk about sex. School is starting again, which means that - whether we like it or not - young people are bound to start mingling. Having had many conversations over the last several years with parents, friends, and community members, it has become apparent that most people don't know the laws surrounding sex between young adults. So, let's talk about it.
What better time to write about Freedom of Speech, than the week of Independence Day. The Supreme Court recently addressed freedom of speech in Mahonoy Area School District v. B.L., in a case discussing a high school student's expressed frustration with the school on Snapchat. The high school cheerleader had tried out for the cheerleading team, and did not make it. So she posted a couple of photos on her Snapchat with middle fingers raised, stating "Fuck school fuck softball fuck cheer fuck everything." The school suspended the student from the team, and so ensued this case.
I'll remind parents now, this might be a good time to read the other blog post on protecting your kids from social media trouble, found here.
So, was the student's off campus speech, on her smartphone, via Snapchat, protected under the First Amendment? The Court said YES. The Court, in its holding, reminded that students do not "shed their constitutional rights to freedom of speech or expression" even "at the school house gate." See Tinker, 393 U.S. at 506. The Court went on to say that Minors are entitled to significant measures of First Amendment protection. There are some instances in which the student speech may be regulated in the school: lewd, vulgar speech uttered on school grounds or during school assembly; speech uttered during class that promotes "illegal drug use"; and speech that others may reasonably perceive as bearing the imprimatur of the school (such as statements in school newspapers). And finally, the Court has held that schools do have a special interest in regulating speech that "materially disrupts classwork or involves substantial disorder or invasion of rights of others." See Tinker, at 513.
So, even though the school may have the right to limit speech of a student in certain circumstances, the Court has held that generally, there are a few circumstances where student speech cannot be regulated. First, off-campus speech should normally fall within the zone of parental responsibility, rather than school responsibility. Second, courts are more skeptical of a school's effort to regulate off campus speech, because doing so may result in the student not having any right to free speech, at all. And third, schools should work to ensure that future generations understand the workings in the well-known statement: "I disapprove of what you say, but I will defend to the death your right to say it." In other words, schools should encourage students to express the unpopular opinion and engage in meaningful conversation.
In summary, the Court found that the student's speech about the school was essentially criticism of the team, the coaches, and the school. It did not involve any statement that would place it outside the normal First Amendment protections. While crude, the statement did not amount to fighting words and did not pose a threat. In fact, had the student been an adult, the speech would have been provided strong protection under the First Amendment. See Snyder v. Phelps, 562 U.S. 443, 461 (2011), a case which held that the First Amendment protects "even hurtful speech on public issues to ensure that we do not stifle public debate."
So, what does this mean for your kids? Can they say what they want, when they want? Not really. The Court relied heavily on the fact that this student's statements were made outside the school grounds and outside of school hours. The Court also relied on the fact that these statements were not shown to disrupt the school in any way, other than a few small conversations by students who had seen the post. Finally, the Court considers whether the parents should be acting, or if it is speech that the school should be regulating.
In the words of George Orwell, "If liberty means anything at all, it means the right to tell people what they do not want to hear." Happy Independence Day, Friends.
Divorce is a topic that many hope they never find themselves researching, but there has been an increase in divorce over the last year, and if you find yourself in that position, you should be prepared. Below are some tips for navigating the divorce process from start to finish. Hope you find these tips helpful.
1. Is There An Agreement? The first question you should ask yourself is whether you and your spouse are in agreement. Are you in agreement that a divorce needs to happen, and are you in agreement with how things should be settled? If so, you may be able to proceed with a divorce action without an attorney. While it is always a great idea to consult with an attorney, Montana has done an excellent job of providing resources to those who may not be able to afford that option, and find that they can get things done themselves. See this link for forms on filing a divorce and parenting petition in Montana, and some very helpful information to guide you through that process.
2. Do you have minor children? If you have minor children, the most commonly discussed area will certainly be the parenting plan. Most parents find themselves wanting the most amount of time they can get with their children, and this piece of the divorce puzzle can be very difficult emotionally. If you have minor children, and you and your spouse are not on the same page with regard to the parenting of those children, it would be a good idea to find an attorney. An attorney can be a great resource to provide you with reasonable expectations, the law regarding parenting time, and what to expect in a parenting plan. One of the biggest issues with parents doing a parenting plan without an attorney tends to be the lack of information contemplated in that plan. Unfortunately those parents often end up needing to remedy those issues at high-stress times. When children are involved, it is a great idea to have an attorney as a counselor to guide you through that process.
3. What is the First Step? Whether or not you have an attorney or represent yourself, the first step in getting a divorce moving will be for one party to file a Petition for Dissolution action. This person filing the petition will serve their spouse, and their spouse will then have 21 days to respond to the petition. This starts the process for divorce, but know that the process is still a long ways from being complete. There are many steps between filing and finality, and patience is a virtue.
4. What Can I Expect? Divorce is an emotional process, and you should expect that the process will probably not go perfectly. The settlement of property and the parenting of children requires big decisions to be made, and taking your time is a good idea. You can expect in Montana that the Judge may order mediation to be done prior to seeing the Judge. Many Judge's in Montana require mediation prior to trial, in an effort to allow the parties to settle without going to court and having a full trial.
5. What is Mediation? Mediation is a private, confidential, informal dispute resolution process where an impartial third party (the mediator) assists parties in resolving their differences. See M.C.A. 26-1-813. In other words, mediation is a meeting with a third party mediator where the mediator tries to help the parties work out a resolution with regard to the divorce: property settlement and parenting if necessary. Your settlement offers and statements you say in mediation cannot be used against you in trial. The goal of mediation is to provide parties with an opportunity to speak freely and openly about what they may be willing to settle for, without feeling like that could be used against them if they don't settle and have to go to court. Mediation can be a fruitful process, saving the parties many long hours of stress, anxiety, and legal fees in preparation for trial. To be successful in mediation, be prepared and ready to talk about all of the issues that need to be settled.
6. What if We Have to go to Court? If you have to go to court, that means you have likely exhausted all the discussions about settlement and have a trial date set by the Court. You will need to make sure you have all of your witnesses (people who can testify about the issues you need to bring up) and exhibits (documents you need the Judge to see to make a decision) ready to go and given to your attorney if you are represented. Preparation and organization will serve you well if you end up in Trial.
In summary, do your research and do some self reflection when deciding how you want to proceed with divorce. If you feel like you and your spouse may be able to resolve things on your own, feel free to utilize the resources above. If you feel like you and your spouse could use some assistance or will have difficulty communicating throughout the process, it would be a good idea to get an attorney involved and have their assistance. Hope these tips are helpful in navigating this difficult process.
Well, we are on Day 45 of the Montana Legislative Session and the people of Helena are busy. If you are interested in what's happening in Helena, and what may or may not affect you, I would suggest going here for an overview.
Here are some new laws that I thought might interest my readers:
There are many other laws in the works that might interest you. I would suggest doing a search for topics of interest so you can see what's happening. If you have questions about what is coming, please feel free to send a message or comment and I will provide updates as they are available.
Stay informed, educate yourself, and keep up to date. These things matter to all of us in one way or another.