State High Court Justices Survive Election

Supreme Court Justice Brian Zahra

If you are a Justice on your state Supreme Court, and were up for re-election, then last Tuesday was a good day for you, except if you work in Ohio.  Here in Michigan, the two incumbent Justices, our friend Brian Zahra, and his colleague, Stephen Markman, were re-elected in a hard-fought race.

The High Court election results mean that the conservative 4-Justice majority in Michigan stays intact for now.  The newcomer to the Michigan Supreme Court is UM Law Professor Bridget Mary McCormack, a Democratic nominee.  Professor McCormack replaces retiring Justice Marilyn Kelly; a long-serving Justice and a Judge's jurist if there ever was one.

The November 2012 election featured tight High Court races in other states around the country.  In Iowa, Justice David Wiggins was the only survivor of a 4-Justice block that decided a case recognizing same-sex marriage back in 2009.  His three High Court colleagues were defeated in the 2010 election.

Meanwhile, in Florida, the local Republican party targeted three justices as "too liberal" and "too extreme" to be worthy of their High Court.  The effort failed, however, as all three liberal Justices retained their seats.

In Michigan, as in most states, our jurists are "elected".  Many, if not most, of our jurists, however, take their seats on the bench through a gubernatorial appointment, then get elected after finishing out the term to which they were appointed.  The advantage is being able to run as a sitting judge or justice.

Justice Zahra is a good example.  He was initially appointed to the Wayne Circuit bench by former Governor  Engler, then elevated to the Court of Appeals by Engler.  After Governor Snyder was elected, one of the first things he did was to elevate Zahra to our High Court.

While the judicial ballot is "non-partisan", this past election confirms an age-old trend in judicial elections; you cannot remove politics from the courtroom.

Postscript:  Here is an editorial from the NYT referencing the huge sums spent on Michigan's High Court election.

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Posted in: Bridget McCormack,Justice Brian Zahra,Justice David Wiggins,Justice Marilyn Kelly,Justice Stephen Markman,Michigan Supreme Court,same-sex marriage

Oakland Circuit's Spousal Computer Privacy Case Rejected by Supreme Court

Leon Walker with his former
spouse in happier times

There is an interesting privacy law criminal case percolating through the appeals courts that originated here in Oakland County.  The case involves the alleged hacking access by a husband of his former wife's computer.

Last Friday, the Michigan Supreme Court denied Leon Walker's application for leave to further appeal from a Michigan Court of Appeals order that similarly rejected his effort to quash the criminal information filed in his case.


On appeal, Walker's lawyers have asserted that the legislature did not intend to criminalize the domestic relations nature of his conduct.  Also, although Walker did not challenge the constitutionality of the statute, he simply asserted that the evidence adduced by the prosecutor at the preliminary examination did not comport with the proscribed conduct set forth in the statute.

The case now goes back down to Oakland Circuit Judge Martha Anderson for further proceedings and trial.

Back in 2009, Walker suspected his wife was having an affair.  Employed as a computer technician for Oakland County, he had expertise on how to access computers.  Allegedly, he hacked into a computer that the prosecutor alleges had been gifted to his wife, discovering evidence of the affair.

This blog covered the case in an earlier post when the matter seemed to be heading for trial.

In speaking with Mr. Walker yesterday [he contacted our law firm], he said he is looking forward to his trial when all the facts will come out before a jury.  Among those facts, he says the laptop computer at issue in the case was premarital and that he never gifted it to his former wife.

Walker also claims that the Oakland County Sheriff, or their computer expert, may be responsible for evidence spoilation; they claim to have lost or misplaced his laptop.

Although the Supreme Court declined to decide the case at this time, some of the Justices hinted at their concern that the language in the statute is very broad and could be used to criminalize otherwise legal conduct.

Justice Marilyn Kelly, who voted to hear the appeal, stated her concern in the High Court's order:

The factual basis for one of the charges against defendant is that he allegedly accessed his wife’s e-mail account without her permission.   This may be the first time in the 33 years since MCL 752.795 became law and the 16 years since it was amended to its present form that the statute has been used as the basis for criminal charges for the behavior in question. 

Justice Kelly goes on to note that the Michigan legislature submitted a bill to the House Judiciary Committee last year seeking to amend the unauthorized computer access statute.  This bill would carve-out an express exception in the statute for spouses, provided that certain conditions were satisfied.

We will be keeping an eye on this hot case.

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Posted in: computer hacking,Justice Marilyn Kelly,Leon Walker,Michigan Court of Appeals,Michigan Supreme Court,Oakland Circuit Judge Martha Anderson,Oakland County Prosecutor,privacy law

Biological Father Cannot Parent His Law School Love Child

They were students at Cooley Law School in the late 1990s.  She was married; he was from Buffalo, New York. 

Their long-term adulterous affair eventually led to the birth of a child in 2002.  Although Mother's husband was on the birth certificates of both her children born during her marriage, she informed her law school lover that he was the biological father of the child born in 2002; subsequent DNA testing confirmed this fact.

When his love child was three years old, and armed with the confirming DNA results, bio-dad sought an order of filiation in a paternity action he filed in New York state.  For her part, Mother challenged the New York family court's jurisdiction, as the paternity suit did not name her husband as a necessary party, and the paternity of her second child was already established by operation of Michigan law.

Not so fast.  The New York family court found that some of the couples' adulterous liaisons took place within the state of New York thus, the child could have been conceived in that state.  Conceding that it did not have personal jurisdiction over Mother or her husband, and acknowledging that paternity of the child had been established in accord with Michigan law, the New York family court nevertheless refused to dismiss bio-dad's paternity action, ultimately granting bio-dad's order of filiation.

Meanwhile, paternity actions were cranked-up back here in the Wayne County family court by Mother's Husband and bio-dad.  All three parties sought summary disposition of the paternity issue.  Bio-dad's petition sought to enforce the order of filiation issued by the New York family court; the family court judge in Wayne County agreed, citing the full faith and credit clause of the United States Constitution.

Mother appealed and the Michigan Court of Appeals reversed the Wayne County family court, holding that bio-dad lacked standing to sue here in Michigan.  The case hinged on the definition of a child born "out of wedlock".  The Court of Appeals reasoned that because the married couple did not seek a determination that their child was born out of wedlock, bio-dad cannot seek that determination, regardless of his New York order of filiation.

Bio-dad also asserted that the Wayne County family court was required to give his order from New York full force and effect under the United States Constitution.  In the most interesting portion of the published opinion, the Court of Appeals rejected bio-dad's assertion, holding that the comity clause of the constitution does not apply when the issuing court lacks jurisdiction.

The Court of Appeals ruled that the New York court conceded it lacked personal jurisdiction over the Husband, and that the New York family court left enforcement of the order it issued to the courts in Michigan.

Last week, the Michigan Supreme Court denied leave for further appeal in an evenly divided 3-3 ruling; Justice Brian Zahra did not participate as he was on the Court of Appeals panel at the intermediate appellate court.

Justice Marilyn Kelly wrote a thoughtful dissent, noting the case presented issues of jurisprudential significance.  She is not conviced that the Court of Appeals properly concluded that the New York order was not entitled to the full faith and credit of the Wayne County family court.  Justice Kelly noted that bio-dad did have proper standing in the New York family court that issued the order of filiation.  Also, she noted that this order was issued and affirmed on appeal in New York prior to any paternity action being filed in Wayne County.

For these reasons, she would have granted leave to appeal so that the issues presented in the case could be resolved.  For now, this question will continue to percolate throughout the family courts of our state.

DNA has long been available to determine paternity.  The Michigan legislature, however, in both the child custody act and the paternity act, has been reluctant to allow such conclusive test results to disrupt an established family.

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Posted in: biological father,Cooley Law School,family court,family law,filiation,Justice Brian Zahra,Justice Marilyn Kelly,Michigan Court of Appeals,Michigan Supreme Court,Wayne County Circuit Court

Should Justices Be Elected or Appointed & Do You Care?

This content is the original content of the Michigan Lawyer, the official blog of the weekly law-related newspaper, Michigan Lawyer's Weekly.  The title of their post is, "A Lamentable State of Affairs". 

When it comes to the workings and personnel of the third branch of government, the Michigan Supreme Court in particular, people who should have at least a rudimentary grasp of the subject don’t. And folks who attempt to keep up are frequently confused.
Three vignettes for your consideration:
Jack Lessenberry, a commentator for Michigan Public Radio, recounted this story last Friday:

Rick Snyder, the Republican nominee for governor, was asked on television if he knew who the chief justice [of the Michigan Supreme Court] was. He said he didn’t know how to pronounce their name.Their name happens to be, by the way, Marilyn Kelly.

Absolutely unpronounceable.
***
Friday evening, I was at a neighborhood party. I was introduced to a Lansing City Council member. We exchanged pleasantries and discussed a recent brownfield development potboiler that’s received some play in the local media.
I was asked what I do. I explained in general and commented about the upcoming Michigan Supreme Court election and the irony of a constitutionally mandated nonpartisan judicial ballot and the highly charged political atmosphere that goes along with it.
My comment drew this response: “Election? Aren’t they [the MSC justices] appointed for life?” I explained that federal judges are appointed for life and that in Michigan, many judges start their judicial careers via gubernatorial appointment but then face election if they want to keep their seat on the bench.
“Oh, of course. Of course,” was the muted reply.
Of course.
***
Saturday afternoon, I and a family member took a break from household chores to catch some collegiate football on the tube. (How ’bout those 7-0 Spartans?)
During a break in the action, on came an ad touting Robert Young and Mary Beth Kelly for the Michigan Supreme Court. It featured sound bites from ordinary-looking folks explaining why the two will be getting their votes.
When it was over, I said, “We’ll be seeing a lot of that for the next two weeks.”
“Wait a minute. What’s she doing running with him?”
“What do you mean?” I replied.
“Well, Kelly’s a Democrat and Young’s a Republican. What’s going on here?”
“Marilyn Kelly is a Democrat, and she’s already on the court. She’s the chief justice. She’s not up for election this time around. Mary Beth Kelly is a Wayne County judge. The Republicans nominated her.”
“Well, that’s pretty confusing.”
Just as intended.
***
Some years back when Michael Cavanagh was the MSC’s chief justice, he was fielding reporters’ questions following a budget presentation to the Legislature. Asked to justify his funding request, he replied with just the slightest tone of exasperation, “Look, we’re not talking about garbage collection. We’re talking about the third branch of government.”
It’s tough to fault someone for not knowing the names of the guys who pick up the trash, or exactly how the refuse truck works or where the landfill is located.
It’s less easy to forgive those in the political arena for not having at least a high school civics class understanding about the judiciary and who populates it at the highest level.
And pity the poor voter. Except for the most motivated, the average voter makes choices on the judicial ballot, if at all, armed with a fund of information gleaned from the media.
And, for the most part, what’s available are ads, commentary and editorials chock-full of banalities, sound bites and half-truths.
It’s tough to know whether to laugh or cry.

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Posted in: attorneys,elections,Jack Lessenberry,Justice Marilyn Kelly,lawyers,Michigan Public Radio,Michigan Supreme Court

Nice Try: Mich Supreme Court Takes a Pass on Constitutionality of Appointed-Attorney System

Last March, we posted on the ACLU's constitutional challenge to Michigan's court-appointed attorney system. Duncan v Michigan was then heading for oral argument before the Michigan Supreme Court and it looked like the challenge was going to acquire some legs.  Here is an update.

After hearing arguments in the case in April, the Supreme Court at first affirmed the 2-1 decision of the Michigan Court of Appeals, sending the matter back to the Ingham County Circuit Court (the trial court) for further trial proceedings to determine whether our court-appointed criminal defense system supplied criminal defendants their constitutional right to legal counsel. The Supreme court held that it was too early to dismiss the case below and the Ingham Circuit Judge did so prematurely.

The Supreme Court reversed course in July, granting the Attorney General's motion for reconsideration, vacating its previous order, and expressly adopting Judge William C. Whitbeck's 35-page dissent in favor of dumping the case at the summary disposition level.

What changed? What happened?

The high court was divided 4 justices to 3 on this reversal, with Justices Corrigan and Young joining Justice Markman's statement of concurrence. The majority simply pronounced that their prior order was wrong.  Four justices held that allowing the case to proceed further would amount to having the judiciary inappropriately determine Michigan's system of local funding and control of legal services to indigent people.

Justices Cavanagh and Hathaway joined Justice Marilyn Kelly's dissent, claiming that the certified class of litigants did have a "justiciable" action; that nothing new had been raised on reconsideration to justify reversing the high court's prior order; and that, "[t]oday's order slams the courthouse door in plaintiffs' face for no good reason."

Among others, we here at the Law Blogger eagerly anticipated seeing how the proofs would have developed regarding the delivery of legal services to the poor people of neighboring Genesee County. For the moment, however, and probably forever, the appellate courts have passed on deciding the issue.

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Posted in: ACLU,criminal defense,Justice Marilyn Kelly,Justice Maura Corrigan,Lee Duncan,Michigan Court of Appeals,Michigan Supreme Court

Mich Supreme Court Passes on DNA Paternity & Parenting Case

Every so often, the seven Justices of the Michigan Supreme Court have a golden opportunity to consider momentous legal issues arising from our county family courts.  As recently as last week, the Supreme Court had the chance to decide a crucial case involving the use of DNA to determine the rights of competing Fathers.

Suprisingly, however, the high court passed on the Genesse County Family Court's Lipnevicius case, remanding the matter to the Michigan Court of Appeals for a determination of parenting-related legal issues.

Months earlier, the Michigan Court of Appeals likewise took a pass on the case when it denied leave to appeal one of the lower court's orders. Essentially, by remanding the case, the Supreme Court is now forcing the intermediate appellate court to decide the issues, despite that court's earlier reluctance to do so.

The case arose in October 2006 when Mother filed for divorce and sought a determination that her husband was not the biological Father of their minor son.  (Note: In Michigan, there is a rebuttable presumption that children born during a marriage are the biological issue of that marriage for purposes of a divorce proceeding.)  DNA testing confirmed that husband was not the biological Father of the boy.

Complicating matters procedurally, bio-Dad (the "other man") was allowed to intervene in the divorce.  Also, Genesse Family Court Judge Michael Theile determined that Mother effectively rebutted the presumption of her husband's paternity with the DNA test.  For his part, Husband requested the family court judge to determine that he was the equitable father of the child, thereby granting him all the rights and responsibilities of a natural father.

The case came close to a trial in November 2008. Interlocutory appeals have since tied the matter up; the case has yet to have a divorce judgment entered as the matter runs its course. The tortous proceedings have included several collateral issues such as drug-testing for the parents, psychological evaluations for everyone, discovery motions, show cause hearings, and a change of domicile to Ohio.  Michigan's jurisdiction over the child also may be tested in the pending appeal.

Meanwhile, Bio-Dad has married Mother and the parents currently live together with their minor son.  The ex-husband has lost significant contact since the child, now 5, was only two years old at the time the divorce was filed. What a mess. 

In Michigan, the equitable parent doctrine was formally established more than 20-years ago in a Michigan Court of Appeals case, but has it's roots in the "equitable adoption" doctrine from over a century ago.  The doctrine seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.  In the well-known 1987 divorce case of Atkinson v Atkinson, the Court of Appeals established the following test for application of the doctrine:

[W]e adopt the doctrine of equitable parent and find that a husband who is not the biological father of a child born or conceived during the marriage may be considered the natural father of that child where (1) the husband and the child mutually acknowledge a relationship as father and child, or the mother of the child has cooperated in the development of such a relationship over a period of time prior to the filing of the complaint for divorce, (2) the husband desires to have the rights afforded to a parent, and (3) the husband is willing to take on the responsibility of paying child support.

The equitable parent doctrine has a long tradition here in Michigan and is recognized in many other states.  Ohio, Illinois, Wisconsin, Pennsylvania, Nebraska, New York, Kansas, Oregon and Massachusetts all apply this paternity doctrine in one form or another.  The doctrine is for the benefit of the child, not the parent. 

The Lipnevicius case is destined to return to the Michigan Supreme Court.  Justice Marilyn Kelly, among others, believes the Supreme Court should decide the unique questions of law presented in the case rather than leaving development of the equitable paternity doctrine to the intermediate appellate court.

The case goes to the heart of what constitutes a family and a parent.  Unfortunately, in the modern era of no-fault divorce, given the seemingly ubiquitous nature of contemporary adultery, our family law jurisprudence needs devices such as the equitable parent doctrine in order to protect our children from ourselves.

If you need legal guidance in matters of a parenting schedule, paternity or custody, contact our office to discuss your legal options.

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Posted in: DNA,equitable parenting doctrine,Judge Michael Theile,Justice Marilyn Kelly,Lipnevicius,Mich Court of Appeals,Mich Supreme Court,paternity