Step-Parent Adoption Goes to the Michigan Supreme Court

By: Timothy P. Flynn

Sometimes, in the post-judgment phase of a divorcee's life, things can go haywire.  The divorce process can push good parents "off-the-grid".

There is a statute in Michigan that provides for the termination of a divorcee's parental rights if that parent neglects to pay child support and fails to communicate with the children for two years.  For this to occur, the other parent must re-marry and the new spouse must petition for the termination of parental rights as part of a step-parent adoption proceeding.

In a case just recently accepted for briefing and argument by the Michigan Supreme Court, the concept of legal custody within the context of the step-parent adoption statute will be decided.  It could come down to the High Court's interpretation of how the legislature used the words, "a" and "the".

The Kent County case, In Re: ARJ, takes a look at whether the re-married parent must have sole legal custody in order for the step-parent adoption petition to be granted.  The case is significant to the extent that it will interpret this important statute as well as possibly provide additional meaning to the phrase "legal custody"; a phrase over which many a battle have been fought in the family courts throughout Michigan over the decades.

The Kent County Family Court terminated the father's rights after a two day trial.  This termination was reversed by the Michigan Court of Appeals which basically held that the parental termination was done in error because both parents had joint legal custody.

So here we have a parent that has basically disappeared for the requisite two years  -no support, no contact-  but who clings to his parental rights through the label in the judgment of divorce awarding him joint legal custody.

In its order granting leave to appeal the Court of Appeals' decision, the Supreme Court specifically identified one of the issues to be briefed, argued and decided as:

Whether the phrase 'legal custody' in [the step-parent adoption statute] is synonymous with the concept of joint custody in the Child Custody Act, whereby 'the parents share decision-making authority as to the important decisions affecting the welfare of the child...

Our High Court also expressly invited the State Bar of Michigan's Family Law Section and the Michigan Chapter of the American Academy of Matrimonial Lawyers to file amicus curiae briefs in the case.

Stay tuned to see how the Michigan Supreme Court interprets this crucial phrase; we will track the case for you.  The decision will likely have important implications for divorce proceedings that involve the custody of minor children.

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Posted in: child custody,family court,family law,Michigan Court of Appeals,Michigan Supreme Court,step-parent adoption

Local Ordinance Banning Medical Marijuana Argued at Michigan Supreme Court

By: Timothy P. Flynn

Earlier this year, I was arguing a medical marijuana case before the Michigan Court of Appeals.  My case was probably about the 100th time a panel of our intermediate court of appeals had to address some facet of the Michigan Medical Marijuana Act over the past 5-years.

I could tell from the panel, which included Judge Christopher Murray, that the novelty of the MMA was wearing thin on the judges.  "Oh boy, here we go again; not another medical marijuana case."

Now, these cases are percolating up to the Michigan Supreme Court, which will be hearing arguments tomorrow on yet another medical marijuana case; this one with an interesting twist.  The case, Ter Beek v City of Wyoming, involves the legal challenge brought by a card-carrying pot smoker against his hometown for an ordinance that was passed in response to the MMA.

The challenged Wyoming ordinance subjects people to a violation for possessing marijuana on the basis of the federal prohibition of marijuana as a Schedule I drug, as set forth in the federal Controlled Substance Act. John Ter Beek, a qualified medical marijuana patient, challenged this ordinance in his law suit which seeks a declaratory judgment that the ordinance is invalid because it directly conflicts with state law: i.e. the Michigan Medical Marijuana Act.

The Court of Appeals struck down the Wyoming ordinance on the grounds the ordinance is preempted -swallowed whole- by the medical marijuana act.  In addressing the potential federal preemption of the Controlled Substance Act, the appellate court noted that Congress has traditionally left matters of public health and drug regulation to the police powers of the states.

Tomorrow's oral arguments before the Michigan Supreme Court should prove to be very interesting.  We here at the Law Blogger, having predicted back in 2009 that the MMA would be a great ride, will monitor this case and will post the MSC opinion as soon as it is made available sometime next spring.

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Posted in: John Ter Beek,medical marijuana,Michigan Court of Appeals,Michigan Supreme Court

Troy District Judge Invalidates Driving While High Law

52-4 District Judge
Kirsten Hartig

By: Timothy P. Flynn

This ruling is going to get some attention in high places.  Troy District Judge Kirsten Nielsen Hartig has ruled that Michigan's motor vehicle code provision criminalizing the operation of a motor vehicle with the presence of a controlled substance [marijuana] violates the equal protection clause of the Michigan and United States Constitutions.

The case, People v Sulaka, arose in 2010 when the accused was allegedly speeding and, when pulled-over, could not produce a drivers license.  In the process of making an arrest for this seemingly innocuous violation, the Troy Police officer detected the odor of marijuana coming from the car and took Sulaka to the hospital for a blood draw which yielded a trace amount of THC.

Our friend, Superlawyer Neil Rockind, argued that the controlled substance provision of the motor vehicle code improperly created a strict liability crime, improperly shifted the burden of proof from the prosecutor to the accused, and unconstitutionally created two classes of people treated differently under the law.

Judge Hartig was persuaded to invalidate the motor vehicle code on equal protection grounds.  Here's how the idea works: there are two classes of people subjected to the controlled substance provision of our motor vehicle code.  One group of drivers have medical marijuana cards and are permitted to have THC in their blood stream while driving, so long as the level does not impair their ability to drive [so says the Michigan Supreme Court in a recent case dealing with the medical marijuana act].  The other group of drivers has no such pot card and are strictly liable for operating a vehicle with any amount of THC in their blood.

In her ruling, Judge Hartig relied on a case from the Georgia Supreme Court that held that the effects of legally used marijuana [i.e. medical marijuana here in Michigan] are indistinguishable from the effects of illegal marijuana consumption: the driver is still buzzed under either set of circumstances.  Therefore, no rational public safety interest is served by creating these distinct classes of drivers thus, the equal protection clause of our Constitution is offended.

The case has already made one trip to the Oakland County Circuit Court for the prosecutor's appeal of Judge Hartig's initial dismissal of the case.  Oakland Circuit Judge Colleen O'Brien relied on the now-reversed Court of Appeals decision in the People v Koon case, which ruled that even drivers with medical marijuana cards violated the motor vehicle code when driving with THC in their bloodstream.  [The Law Blogger's take on the Koon case is here.]

Of course, the Oakland County Prosecutor has again appealed Judge Hartig's second dismissal so the case seems destined to grind further through the appellate process.  Regardless of how Judge O'Brien rules in the [second] appeal of right, both sides are heavily invested in this case and can be expected to apply for further discretionary appeal to the Michigan Court of Appeals.

We shall see whether the Court of Appeals will grant leave in light of our High Court's ruling in the Koon case.  At some point, our legislature needs to address the disconnect between the motor vehicle code and the medical marijuana act.

Unlike alcohol, which utilizes a blood-alcohol threshold for driving, there is no similar scale for drivers who recently smoked marijuana.  As long as there are lawyers like Rockind out there to skillfully protect the rights of the accused, this will continue to be a problem for the courts.  Perhaps its time for the legislature to act on this issue instead of leaving it up to local law enforcement, prosecutors and municipal judges.

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Posted in: Judge Kristen Nielsen Hartig,Michigan Court of Appeals,Michigan Medical Marijuana Act,motor vehicle code,Neil Rockind,Oakland County Circuit Judge Colleen O'Brien,People v Koon

Marijuana Brownies Get An Evidentiary Hearing In Oakland County

By: Timothy P. Flynn

Does the Michigan Medical Marijuana Act presume that a certified patient can only consume marijuana by smoking herb, or can pot brownies do the trick?  That was the question posed by a case from the Oakland County Circuit Court that went to the Michigan Court of Appeals.

Now, on last week's remand back to the Oakland County trial court, an evidentiary hearing will be conducted in the People v Carruthers case to determine whether the accused was using a "reasonable" amount of marijuana by baking the pot brownies.

Earl Carruthers was charged with illegally manufacturing marijuana when pot brownies and several ounces of "loose" pot were found in his vehicle; he possessed a medical marijuana card and a caregiver certificate at the time of his arrest.  Oakland County Circuit Judge Michael Warren precluded him from submitting evidence to the jury about his status as a card-carrying medical marijuana patient and care provider.  Judge Warren also ruled that the entire weight of the pot brownie mixture [some 55 ounces] could be taken into account relative to the manufacturing charge.

Even though the circuit court allowed Carruthers to appeal the evidentiary rulings prior to his trial, the Defendant elected to plunge into the trial without the ability to present an affirmative defense as to his medical marijuana use; he was jury-convicted. In appealing this conviction, the broad immunity provision and the narrower affirmative defense section of the MMA were once again interpreted by the Michigan Court of Appeals; this time in the "usable marijuana" context.

 Complicating this issue is the fact that the MMA itself defines "usable marijuana" two different ways: first, the Act references the broad definition set forth in the public health code, then proceeds to promulgate its own, much narrower definition of marijuana:

"Usable marihuana" means the dried leaves and flowers of the marihuana plant and any mixture or preparation thereof, but does not include the seeds, stalks, or roots of the plant.

Whether Carruthers could avail himself of the MMA's immunity provisions [case dismissed; no jury trial] hinged on the weight of the edible.  Judge Warren ruled the whole pot brownie had to be weighed; Defendant asserted that only the net weight of the THC, the active ingredient in marijuana, could be taken into account.  Although the prosecutor's expert stated that THC was present in the brownies, it was impossible to conclude how much.

This ruling could make it difficult for a marijuana patient or care provider to produce pot brownies in conformity with the weight limitations of the MMA.  Critics within the defense bar expressed concerns that the Court of Appeals' decision limits ingestion via the lungs, i.e. with smoke.  Patients that have lung conditions and cannot smoke are thus precluded from legally ingesting baked goods laced with marijuana.

The case will be heading to the Michigan Supreme Court for certain.  Our High Court will once again be called upon to "fill-in-the-blanks" of the MMA.

We here at the Law Blogger must say that the ingestion of pot brownies by a legitimate card-carrying patient sure seems to be consistent with the spirit, if not the letter, of the Medical Marijuana Act.  Stay tuned, as we will be following this one...

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Posted in: Earl Carruthers,medical marijuana,Michigan Court of Appeals,Michigan Medical Marijuana Act,Oakland Circuit Judge Michael Warren,Oakland County Circuit Court

Do Teen-Aged Murderers Deserve a Second Chance?

Barbara Hernandez

Barbara Hernandez was convicted in 1991 of first degree murder and sentenced to life in prison; she was sixteen years old.  The facts adduced at her trial were that she coaxed her victim, a 28-year old auto mechanic, into a vacant crack-house in Pontiac where her boyfriend, or pimp, depending on who you believe, stabbed him 25-times. 

The motive: robbery to obtain funds to fuel said boy friend's raging crack habit. Sympathy rating on scale of one to five; zero.

More than 20-years after her capital conviction, views on the Hernandez case remain polarizing.  For example, in an AP article detailing the murder, the prosecutor that tried Hernandez here in he Oakland County Circuit Court recently reflected on the case she submitted to the jury.

During her years with the Oakland County Prosecutor, Donna Pendergast, now an Assistant Attorney General, tried many high profile murders.  She had this to say about Hernandez:

Contrary to her assertion that she's cowering around the corner under some sort of influence of her boyfriend, quite the contrary. She's right in the mix and the evidence shows that.  At 16 years old, when you're involved with a scheme of that (kind of) deadly ramifications, you know what you're doing.  

On the other hand, one of the now-retired investigators who took a statement from Hernandez soon after the incident, recently claimed that he no longer recalls her saying that she may have held the victim; he told the AP:  "why I testified to that; who knows?"

Although the U.S. Supreme Court recently decided in Miller v Alabama that mandatory juvenile lifer laws violate the 8th Amendment's prohibition against cruel and unusual punishment, critical aspects on the application of this decision were not addressed by the SCOTUS.  For example, recent cases percolating through the appellate courts here in Michigan address whether SCOTUS' Miller decision should be applied retroactively.

In People v Carp, the Michigan Court of Appeals recently held that the SCOTUS' Eighth Amendment ruling did not apply retroactively.  In doing so, Judge Michael J. Talbot conducted a tour de force of juvenile and capital sentencing jurisprudence, mandating lower courts with pending cases to take a juvenile offender's tender years into account; exhorting the legislature to address this perceived gap in our justice system; but nevertheless refusing to retroactively apply Miller on a collateral review.

Of course, Raymond Carp's attorneys have applied for further appellate review to the Michigan Supreme Court.  The briefs are in, with the Michigan Attorney General having just filed a brief in opposition earlier this month; and [update] an op-ed piece in the Detroit News.

Juvenile lifers recently received a big boost by a decision of United States District Court Judge John O'Meara who ruled that the SCOTUS Miller decision was retroactive for the 350 lifers convicted as juveniles and that prisoners so convicted deserved a chance at parole.

Convicts in Barbara Hernandez's position await the outcome of this decision while their lives burn-down like a candle.  Michigan's oldest juvenile lifer is 68; convicted of murder in 1962.

We here at the Law Blogger have to wonder: do murdering teens deserve a second chance in life?

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Posted in: Barbara Hernandez,Donna Pendergast,Judge Michael Talbot,juvenile lifer law,Michigan Attorney General,Michigan Court of Appeals,Oakland County Prosecutor,SCOTUS

Michigan Supreme Court Shuts Down Medical Marijuana Dispensaries

The case discussed in this note involves marijuana dispensaries.  They're out there folks; maybe not like Santa Monica Blvd, but they're out there.  Take a look at this Directory of Dispensaries.

The Michigan Supreme Court outlawed medical marijuana distribution schemes pot farmers have been using since 2008 to achieve some basic economy of scale and, imagine this, make money from the effort. The Act provides immunities and defenses for legitimate “patients” and “caregivers”, but pecuniary schemes like the one at issue in this casenote are clearly not protected by the MMMA.

Compassionate Apothecary, a medical marijuana dispensary, or “provisioning center”, was the business model that underwent recent scrutiny by the Michigan Supreme Court in People v McQueen. The Court’s decision spells the end of these easy distribution schemes.

The Compassionate Apothecary (CA) was a “pot club”, if you will. Except for their revenue generation, this club was run about as close to the requirements of the Michigan Medical Marijuana Act as possible. Our High Court, however, determined that the scheme did not comply with the Act, largely on pecuniary grounds.

Brandon McQueen was both a registered patient and the primary care giver to three patients. His business partner, Matthew Taylor, cared for two registered qualifying patients. Together, they ran CA, a membership organization with a physical location consisting of lockers for pot storage and transfer. To be a member, you have to verify your status as a “card-carrying” patient or provider.

The High Court’s syllabus best describes how the collective operated:

To be a member of CA, an individual had to be either a registered qualifying patient or a registered primary caregiver. Caregivers could only be members of CA if a qualifying patient with whom he or she was connected through the state’s registration process was also a member. Patients and caregivers who were members of CA could rent lockers from CA. Patients would rent lockers from CA when they had grown more marijuana than they needed to treat their own debilitating medical conditions and wanted to make the excess available to other patients. Caregivers would rent lockers when their patients did not need all the marijuana that they had grown. Patients and caregivers desiring to purchase marijuana from another member’s locker could view the available marijuana strains in CA’s display room. After the patient or caregiver had made a selection, a CA employee would retrieve the marijuana from the appropriate locker, weigh and package the marijuana, and record the purchase. The price of the marijuana would be set by the member who rented the locker, but CA kept a service fee for each transaction.

CA’s recorded pricing and service fees placed them out of compliance with the Act. Thus, it was a no-brainer for the High Court to affirm the intermediate appellate court and outlaw dispensaries.

In Ypsilanti, Third Coast Compassion Club takes issue with the decision. Without disclosing whether Third Coast charges different prices for various pot strains, or fees to facilitate transactions, their spokesperson said, “ultimately, we’re a private club, not a public store…” Well, good luck with that…

While the decision no doubt spells hardship for those in the, er, budding industry, Jim Lynch of the Detroit News observes “Panicked Uncertainty”. Hardly; but dedicated legitimate patients must now go underground or grow their own.

Free Press coverage touched on the legislative history of the Act; the Freep spoke with pot lobbyist Tim Beck of Detroit, a retired health insurance executive who was one of the scriveners of the original proposal put on the 2008 ballot. Beck indicated the words “sale” or “dispensary” were far too dangerous to use in the ballot initiative, so they were deliberately kept out of the text of the initiative.

The distribution concept integrated into the MMMA is one of: “grow your own”.  Professional horticulturists were not contemplated by the initiative and are not found within the scope of the Act.

Michigan Attorney General William Schuette, who joined the Isabella County Prosecutor in filing the complaint for a permanent injunction against Compassionate Apothecary as a public nuisance, said the Supreme Court’s decision clarifies the MMMA as follows:

 The law does not allow retail sales of medical marijuana.
 Sales or transfers are limited to those between caregivers and their five registered patients.
 Sales or transfers between registered patients are barred.
 Caregivers are not protected when selling or transferring marijuana to unregistered patients.

Among the patients and caregivers that commented to the state’s media yesterday, the theme seemed to be, “where am I gonna get my pot now?” Some medical marijuana patients that spoke with the Oakland Press, the Detroit News and Free Press said they were disappointed in the ruling because it will make marijuana more difficult to obtain.

87th District State Rep Mike Callton (R Nashville) introduced a bill last May which he characterizes as follows:

This isn't about restricting anyone's freedom or access to a substance that is now legal for those with a prescription. This is about making sure patients are safe and the product is safe. Since medical marijuana became legal in Michigan, dispensaries are popping up left and right and we need to make sure these places pass the grandma test.

Well, technically, the Act refers to a physician “certification”, not prescription; like the word “sale”, the word “prescription” does not appear in the MMMA.  So, to fill-in this gap, Rep Callton articulates the “grandma test” on his official website:

If you wouldn't feel safe having your grandma go to one of these places to pick up her medical marijuana, as if she went to a pharmacy, then it needs to be cleaned up or closed down.

Bottom line: the Supreme Court’s decision is a rationale application of the MMMA. Legitimate patients can legally obtain and use marijuana. But, growers beware; and take care not to make a profit, least you find yourself on the wrong side of felony charges.

For now anyway, pot farming is a labor of love…

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Posted in: Brandon McQueen,Compassionate Apothecary,criminal defense lawyer,dispensary,Matthew Taylor,medical marijuana,Michigan Court of Appeals,Michigan Medical Marijuana Act,Michigan Supreme Court

Kent County Prosecutor Challenges Grand Rapids Pot Ordinance

Modeling their voter initiative on the ordinance that has been on the books in Ann Arbor for the past 35-years, Grand Rapids took a stab at de-criminalizing marijuana use and possession.  "Not so fast ...", said the Kent County Prosecutor, William Forsyth, and the GRPD.

Pot lobbyists were successful in Grand Rapids last November getting a pot de-criminalization initiative passed.  Promulgation of the city ordinance, however, has been complicated and now, litigated.

The Kent County Prosecutor claims that the ordinance cannot interfere with a state law, and has requested an injunction from a Kent County Circuit Judge.  The prosecutor's argument is that Grand Rapids cannot turn a state law into a civil infraction.

The Grand Rapids City Attorney and a lawyer for Decriminalize GR, the local pot lobby, assert that the voters passed a legal charter amendment which should now apply to those present within the city limits; just like the Ann Arbor, MI ordinance.  The Michigan Constitution, the City Attorney's argument goes, provides citizens with the authority to decide such issues by voter initiative.

The ordinance injunction issue is currently pending with Kent County Circuit Judge Paul Sullivan.  Whoever winds-up on the short end of his opinion will no doubt appeal the decision to the Michigan Court of Appeals.

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Posted in: Decriminalize GR,Grand Rapids,Kent County Circuit Court,marijuana,Michigan Court of Appeals,ordinance,William Forsyth

Michigan Civil Service Extends Healthcare Benefits

It is safe to say that healthcare and the availability of benefits are important to all working people in Michigan.  Nothing wreaks havoc on our day-to-day life more than an unexpected illness, especially when we lack the healthcare benefits necessary to secure the proper treatment.  

A recent decision by the Michigan Court of Appeals held that the Michigan Civil Service Commission (MCSC) could expand the eligibility of health care benefits for state employees to their co-residents, if those persons are at least 18 years old, NOT relatives, and have resided within the same household as the state employee for at least 12-months (but not as a renter or tenant).  

This potential coverage expansion applies to employees who do not have an eligible spouse. Thus, the coverage would apply to boyfriends, girlfriends, and/or same sex partners, as long as they meet the criteria for coverage.

The issue arose when the MCSC allowed for the additional healthcare coverage, and the Attorney General sued on the basis of a violation of Equal Protection; the expanded coverage discriminated against married state employees by excluding married employees from being able to cover non-spouses or other blood relatives. The Attorney General suggested that the policy was a way to circumvent Michigan’s “Marriage Amendment,” which prohibits the recognition of any “agreement” other than “the union of one man and one woman in marriage.” 

The Court of Appeals found the Attorney General’s argument unpersuasive and affirmed the trial court's dismissal of the case.  The appeals court held that the new policy, “does not in any way prohibit incidentally benefiting such agreements, particularly where it is clear that an employee here could share benefits with a wide variety of other people.”   The Court further explained that the policy does not, “depend on the employee being in a close relationship of any particular kind…beyond a common residence.”

Further, the Court of Appeals determined that the matter deserved a heightened standard of review, and as such, the policy is “rationally related to advance a legitimate state purpose.”  Specifically, the Court held that as the MCSC drafted the eligibility criteria after negotiating with the unions, “it is not the place of the courts to second-guess the wisdom, need, or appropriateness of the state action.” Lastly, the appellate court recognized the Civil Service Commission as having “plenary and exclusive authority” in setting eligibility guidelines for state workers, “because they are provided in exchange for services rendered by state employees.”

In sum, if you are an unmarried Civil Service employee, you may be able to provide healthcare benefits for anyone who has been living with you, as long as they have done so for at least 12 continuous months, they are not a tenant or renter, they are not a blood relative, and they are at least 18 years old.

Apparently, our court of intermediate appellate review does not wish to tread upon the authority of the state bureaucracy when it comes to providing health care benefits for its own.  We here at the Law Blogger think perhaps that is as it should be under our separation of powers.

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Posted in: Attorney General,civil service,health care,Michigan Civil Service Commission,Michigan Court of Appeals

Tale of Two Parole Boards

Jacob Trakhtenberg

Sitting on a parole board must be tough.  When reviewing a convict's petition for parole, the board member has an enormous amount of pressure to "get it right".

One option is to take the easy route by erring on the side of caution and letting the petitioner's sentence "run it's course".  Eventually, if flopped enough times by the parole board, a convicted felon simply gets released from the penitentiary by serving a statutory maximum period of incarceration.

That is what happened to two convicted felons that have been making headlines this month: one local; the other from Upstate New York.  This post takes a look at the circumstances of the cases, addressing the challenges of the parole system presented in each.

First, the Michigan case.  In 2005, Jacob Trakhtenberg, a former Chief Engineer for Chrysler, was charged in Oakland County Circuit Court with 5-counts of criminal sexual conduct.  The charging instrument did not specify dates of the alleged sexual assaults against his minor daughter, 8-years old at the time, and was silent as to the specific nature of alleged sexual contact.

His initial court-appointed lawyer elected to conduct a bench trial before former Oakland Circuit Court Judge Deborah Tyner, who found the accused guilty on 3 of the five charges.  One of the alleged deficiencies of Trakhtenberg's court-appointed defense counsel was that she did not conduct any investigation whatsoever relative to the prosecutor's disclosed witnesses.

Trakhtenberg was in prison during the years in which his appeals have [twice] traveled the gamut of the Michigan appellate courts.

Although his appeals have finally gained some traction thanks to our friend, appellate specialist Robyn Frankel, this relief may have come too late for the convicted felon.

In November, the defendant was placed on parole, having served 2/3 of his maximum 10-year sentence, and being eligible for release under the applicable Michigan statute.  His second appeal, known as a "6500 appeal" after the specific court rule that provides for such a last bite at the procedural apple, was decided in his favor last week in a Michigan Supreme Court opinion that remanded the case to the Oakland County Circuit Court for a new trial.

In a 4-2 decision [Justice Hathaway abstained], our High Court held:

In this case, defense counsel failed to exercise  reasonable professional judgment when deciding to forgo particular investigations relevant to the defense, including her
failure to identify the factual predicate of each of the five charged counts of criminal sexual conduct, her failure to consult with key witnesses, and her failure to sufficiently develop the defense presented at trial.  Accordingly, her representation fell below an objective standard of reasonableness.  Defendant was unfairly prejudiced by counsel’s deficient performance.  The key evidence against defendant was the complainant’s testimony.  Therefore, the reliability of defendant’s convictions was undermined by defense counsel’s failure to introduce impeachment evidence and evidence that corroborated defendant’s testimony that defense counsel was unaware of because she decided to forgo those investigations.  Had the impeachment evidence and the evidence that corroborated defendant’s testimony  been introduced, there was a reasonable probability that the result of the trial would have been different.  [Syllabus, page 2]

The effective assistance challenge to Trakhtenberg's conviction, ultimately successful in this case, is a critical component of an accused's basket of Sixth Amendment rights guaranteeing a fair trial.

No word yet as to whether the Oakland County Prosecutor will go forward with a second trial considering Defendant has already served a maximum sentence.  Since the completion of his first set of appeals, the initial trial judge, Judge Tyner, resigned from the Oakland County Circuit Court bench and was succeeded on the case by Judge Daniel O'Brien.

The tough part of criminal sexual assault convictions is that the Michigan Department of Corrections has a bright-line policy whereby the offender must complete sexual abuse counseling prior to achieving eligibility for parole.  Often, convicted offenders maintain their innocence, adhering to a campaign of total denial.  This renders them ineligible for an early parole.

While the resulting extended prison stay is justified for a properly convicted abuser, it is a tragedy if the person is wrongly convicted as concluded by the Michigan Supreme Court in Trakhtenberg.

Meanwhile, in Webster, NY, the criminal justice system attempts to make sense of how William Spengler should have been handled.  Spengler, a paroled murderer, allegedly killed two first responders to a fire he started as a decoy prior to killing himself on Christmas Eve.

It has now come to light that Spengler was paroled after serving a 17-year prison sentence for murdering his grandmother with a hammer.  Prior to his release from prison, 4 consecutive parole boards denied Spengler parole despite finding him to be well-spoken, well-behaved and intelligent.

After being released from prison, Spengler kept to himself for about a decade, until he apparently solicited the assistance of a young neighbor's daughter to purchase a shotgun and an assault rifle.  We now know that these were the weapons used in Spengler's murder-suicide.

Comparing these two cases brings the difficulty of the parole process into focus.  Once a person has been warehoused in prison for several years, what does the justice system do with them upon release?

What about persons wrongfully convicted [or unconstitutionally convicted] such as Trakhtenberg?  If ultimately acquitted, he may be entitled to millions in civil damages.  Will this potential exposure play into the Oakland County Prosecutor's decision to re-try the former automotive engineer who has already served all the prison time he could serve?

Are hardened killers such as Spengler ever truly rehabilitated?  Apparently, there is always a significant risk in allowing such killers to walk free among us.

This blog does not claim to have the answers to these tough questions.

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Posted in: Jacob Trakhtenberg,Judge Daniel O'Brien,Judge Deborah Tyner,Michigan Court of Appeals,Oakland County Circuit Court,Oakland County Prosecutor,Robyn Frankel,Sixth Amendment,William Spengler

Anonymous Internet Critics II

This blog has covered the defamation lawsuit filed by the Cooley Law School against one if it's more vocal critics from the beginning.  The defamation defendant is one of the legion of graduates that has trashed the law school; in this case, a blog titled "The Thomas M. Cooley Law School Scam".

This is an important privacy law and First Amendment case.  This post brings our readers up-to-date with an important development in the case: oral argument at the Michigan Court of Appeals.

Cooley's defamation suit, pending in the Ingham County Circuit Court, was assigned to Circuit Judge Clinton Canady III. Cooley is represented by the Miller Canfield law firm and the anonymous blogger, using the pseudonym "Rockstar05", is represented by Washington D.C. lawyer Paul Levy of Public Citizen, and Berkeley, MI attorney John Hermann.

For their part, Miller Canfield had been vigorously prosecuting their cause of action, issuing subpoenas in two states [Michigan and California] to the Rockstar05's Internet service provider, seeking to rip the lid off the blogger's identity.

In September and October of last year, hearings were conducted on Rockstar05's motion to quash Cooley's subpoenas.  Somewhere along the way, the internet service provider in California apparently made an inadvertent disclosure of the blogger's identity to the Miller Canfield firm, who immediately moved the court to amend the complaint, seeking to add the now-disclosed individual to the suit.

Judge Canady initially sequestered the pleadings and documents that referenced Rockstar05's identity while it considered supplemental briefings on this First Amendment issue.  The lower court denied Rockstar05's motion to quash the subpoena, providing time for defendant to lodge an interlocutory appeal, and allowing an amicus [various media organizations] to intervene in the case.

Rocktar05 appealed Judge Canady's decision relative to the subpoena, filing this brief on appeal through his [or her; we do not know] high-powered Washington D.C. media lawyer.  For it's part, the media has filed a hard-hitting amicus brief.

Oral arguments were conducted last week at the Michigan Court of Appeals in Lansing.  This blog predicts [hopes] that the Michigan Court of Appeals will decide in favor of the critical blogger.

The primary issue before the intermediate appellate court is whether Cooley must disclose to the trial court a rational litigation-oriented basis to divulge the blogger's identity; something other than revenge.  The blogger's appellate lawyer asked the Court of Appeals to adopt the "developing consensus" standard.  When asked to un-mask an anonymous speaker, this standard would require the trial court to:

• Provide notice to the anonymous speaker and an opportunity to defend the speaker's privacy;
• Require the defamation plaintiff to identify the specific allegedly tortious statements;
• Ensure the defamation plaintiff's complaint sets forth a valid cause of action;
• Require an offer of proof supporting the claims made in the defamation complaint; and
• Balance the relative harms to the plaintiff and defendant as to the anonymity.

For it's part, the Miller Canfield law firm argued on behalf of Cooley that Michigan law does not require a preliminary showing that it is likely to prevail on the merits prior to un-masking the anonymous litigant and blogger's identity.

We here at the Law Blogger will monitor this case and report back to our readers as to how the Court of Appeals decides this privacy law issue.

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Posted in: anonymous blogger,Cooley Law School,defamation,developing consensus standard,evidence,First Amendment,Judge Clinton Canady,Michigan Court of Appeals,Miller Canfield

Sibling Visitation – Does it Exist?

We have all heard the term “visitation” before, especially if you have been involved in a child custody dispute or divorce.  The term most often used by family law lawyers and professionals is “parenting time”; referring to the legal right [and obligation] of a parent to spend time with one’s child following a divorce. 

Even grandparents, under limited and specific circumstances, may have a legal right to visit with their grandchildren according to Michigan law.

But what about siblings?  Does a brother or sister have the right to visit their sibling, if for some reason they are no longer living within the same household? 

The short answer is that sibling visitation is not recognized as a legal right in Michigan.   The Child Custody Act does not provide for visitation rights between siblings.  Add adoption into the mix and the result remains the same – but for a more specific reason.  

Earlier this month, the Michigan Court of Appeals grappled with, and attempted to decide

this very issue in Wilson v King; a published thus binding opinion of the intermediate appellate court.

Marquita Wilson, the plaintiff-mother in this case, had three children who were eventually adopted into a new family in 2008 after her parental rights had been terminated.  Ms. Wilson then gave birth to a fourth child; Mac.  

The adoptive parents of Ms. Wilson's three children initially allowed Mac to visit with his siblings.  Sadly, for reasons not stated in the Court of Appeals opinion, the adoptive parents ultimately discontinued these sibling visits.  

Ms. Wilson filed suit on behalf of Mac in Wayne County Family Court.  The family court judge dismissed the claim on the basis that the right to “sibling visitation” does not exist under Michigan Law.  On appeal, Ms. Wilson argued that Michigan law does provide for a cause of action for sibling visitation and that the lower court had erred in dismissing her case.  

The Court of Appeals upheld the trial court’s decision – but did not find one way or the other on whether or not Michigan law provides for a cause of action for sibling visitation.  Instead, the Court focused on the fact that Mac’s older siblings had been adopted.  

Adoption legally severs any ties to the prior, natural family, and creates, in its place, a new adoptive family recognized at law.  This means that, legally speaking, Mac’s older siblings (once they had been adopted) were no longer his legal siblings in the eyes of the law.   

The Court of Appeals held that even if a cause of action regarding sibling visitation existed (which the Court made sure to footnote that they offered “no opinion as to the viability of such a claim”) in Mac’s instance the claim must fail as the three adoptive children were no longer his siblings. 

While we recognize the psychological importance of eliminating contact with biological parents in order to facilitate growth in the new adoptive family, this ruling strikes us as similar in spirit to the old paternity act that denied a biological father standing to seek any parenting time with his child whatsoever.

The ruling seems to foster the notion of wiping-out all traces of the adopted child's  biological family.  Many adopted children, as they mature, seek out traces of their biological families.  Some of these children, as they mature into adulthood, obsess over their lost families and seek therapy to deal with the loss.

At base, however, there is really no-way in cases like this to allow sibling visitation, without also focusing on the biological parents.  Our adoption laws currently do not provide for the maintenance of two families; just one: the adoptive family.

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Posted in: adoption,child custody,Child Custody Act,divorce,family court,family law,family law lawyer,Michigan Court of Appeals,Wayne County Circuit Court

Double-Dipping on Alimony

The original "double-dip".

Many of us, when we think of “double-dipping,” immediately envision George Costanza nonchalantly eating chips and dip at a boring party. He bites the chip, dips, bites again, dips again, oblivious and happy.

Meanwhile, a fellow party-goer and disgusted onlooker cannot contain the impulse to put a stop to this obvious dip-contaminating behavior and confronts George. Inane hilarity ensues; check it out here.  [Note: Post-Seinfeld generation and long-time Seinfeld enthusiasts – you’re welcome.]

Double-dipping, in the world of family law, typically refers to the way assets are valued in the division of a marital estate.  A recent Michigan Court of Appeals decision, Loutts v Loutts, addresses this issue of “double-dipping” in the spousal support context.

This divorce case originated in the Washtenaw County family court.  One of the main issues in the case was how to determine an appropriate spousal support award where the marital assets included a business valued at more than a quarter million dollars.

The husband started, owned, and operated the business. When the family court awarded half of the business value to his wife, the question became: what income should be imputed to husband now that half the value of the business had been conveyed to wife?

When determining spousal support, the parties’ incomes must be determined so that the family court may decide how to equitably balance the incomes. The Michigan Court of Appeals has articulated a balancing test such that:

the primary purpose of spousal support is to balance the parties’ incomes and needs such that neither party will be impoverished, and spousal support must be based on what is just and reasonable considering the circumstances.

The family court can only perform this balance test on a case-by-case basis – typically unwilling to follow any bright-line rules for determining the rate and term of a spousal support award.

The family court in Loutts, after awarding wife half the value of the business, imputed approximately $130,000 income to husband.  This imputed income was utilized to “equitably balance” the incomes of the parties.

In doing so, the family court judge relied on case law to determine that “the value of a business may be used for the purpose of either property distribution or spousal support, but not both.” On appeal, wife argued that the court should have used the full-value of the business in determining her spousal support award.

The Court of Appeals disagreed, remanding this issue back to the family court for a re-determination of spousal support based upon the specific facts and circumstances of the case.  In their opinion, the Court of Appeals stated that the trial court’s reliance upon the Heller v Heller case was misplaced to the extent that, “the appellate court stated that its determination that a double-dip was inequitable was based on the facts of that case alone and was not a determination that double-dipping is never permissible.”  [The emphasis is ours.]

The obvious "take-away" from this recent case is that, when it comes to determining spousal support, bright-line rules simply do not apply. Rather, the family court judge should consider a variety of factors, including: the conduct of the parties, their ability to work, their ages, needs, health, present situation, prior standard of living, ability to pay alimony, and general principles of equity.

Double-dipping might be ok – given specific factual and equitable circumstances.  Exactly what those circumstances are remains a fuzzy, mutable, arguable enigma, ripe for the art of legal persuasion.

The one constant is that each case before the family court is unique and should be considered so by the judge.

Also of note in the Loutts decision is that the Court of Appeals wasted no time in upholding a 3-year non-compete provision that applied to the business and to which wife agreed, but appealed.  The Court held that you get what you bargain for.

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Posted in: alimony,double dipping,family court,George Costanza,Michigan Court of Appeals,Seinfeld,spousal support,Washtenaw County Family Court

GPS "House Arrest" Tether Not Available for Felony Drunk Driving Sentences

A few years back, this blog touted Oakland County's "virtual work release" program.  To alleviate chronic jail overcrowding, the Sheriff developed the program which utilizes a global positioning system to ensure that offenders are truly under "house arrest" when they complete their work day.

There is a certain class of offenders, however, that cannot take advantage of the virtual work release program, and must do their time in a physical jail cell.  The Michigan Court of Appeals' decision in People v Pennebaker takes the "house arrest" option away from sentencing judges in felony drunk driving cases.

In Pennebaker, a case originating in the Oakland County Circuit Court, the Court of Appeals held that people convicted of a felony drunk driving offense must perform a minimum of 30-days incarceration pursuant to the drunk driving statute, and that "incarceration" cannot involve "house arrest", no matter how technologically sound the GPS tether system.

 Oakland Circuit Judge Phyllis McMillen, impressed with the Oakland County Sheriff's relatively new virtual work release program, decided to utilize the tether-based monitoring system for the drunk driving punishments she was meting out.  Sounds logical to us over here at the Law Blogger.

Problem: The Oakland County Prosecutor took issue with the meaning of the word "incarceration", arguing at both Pennebaker's sentencing and on appeal that house-arrest does not cut it; felony drunk drivers must actually sit down for a minute in the county jail.  The Court of Appeals agreed, reversing Judge McMillen's sentence, and sending the case back to McMillen for re-sentencing.

In doing so, the intermediate appellate court quoted the following language from one of its earlier decisions on point:

Under no circumstances can we reasonably  conclude that confinement in one’s
home or apartment is the equivalent of confinement “in  jail.”  This is so even
where, as here, the conditions of home confinement require the person confined to
go directly to work, to return home immediately from work, and to be at home at
all times unless approval is given by  a probation officer.  Home detention does
not include the highly structured setting of a prison or jail.  One cannot remain on
the phone for extended periods, invite friends for extended visits, order a pizza,
watch television during periods of one’s own choosing, or have free access to the
refrigerator in jail.   

 We here at the Law Blogger would like to know what you think about the difference between tether-based "house arrest" and a jail sentence.  We welcome your comments.

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Posted in: drunk driving,GPS tether,Judge Phyllis McMillen,Michigan Court of Appeals,Oakland Circuit Court,Oakland County Prosecutor,Operating While Intoxicated,Pennebaker

Michigan Supreme Court Selects [Another] Medical Marijuana Case

The criminal defense bar saw all this litigation coming from a distance.  At this blog, we knew that the Michigan Medical Marijuana Act would be challenged, diced, and spliced for years after its passage in 2008. 

Well, no disappointment on that front, as the Michigan Supreme Court has selected yet another medical marijuana case for briefing and argument during their term which will commence next week.  This case will follow the Supreme Court's seminal Kolanek decision and nearly a dozen opinions from the intermediate appellate court issued over the past four years.

This time, the action arises from Kent County and the issue involves the collective farming and distribution scheme of a certified "care provider".  The case, People v Bylsma, was decided by the Michigan Court of Appeals in a published decision one year ago.

The care provider was the subject of a raid conducted by the Grand Rapids PD which yeilded more than 88 plants from a grow operation housed in a commercial rental facility.  Problem: this care provider only had two certified "patients"; a person is allowed up to five under the Act.  You may possess up to 12 plants for each patient.

In the trial court, Mr. Bylsma asserted the immunity afforded by the medical marijuana act, and moved to dismiss the case.  He also argued that the Act does not prevent multiple care providers from collaborating their grow operations.  The lower court denied the motion to dismiss, and Bylsma's appeal to the Michigan Court of Appeals resulted in that decision being affirmed.

Now, the Michigan Supreme Court will take a look.  Its decision will further develop our growing medical marijuana jurisprudence.

This case presents an opportunity to further address one of the primary tensions that have developed between care providers attempting to distribute medical marijuana, and perhaps turn a profit in doing so, and the law enforcement agencies that have been uncertain about what is legal and what remains illegal.

The Kolanek decision smoothed out the mechanics of the immunity and affirmative defense provisions of the Act.  Prosecutors took a very restrictive view of the latter, while the criminal defense bar argued for a broader application of the defense.

We here at the Law Blogger recently had the opportunity to brief this issue in a case pending before the Court of Appeals.  Both Kolanek and now Bylsma will affect the outcome in our case.

As for Bylsma, let's just sit back and see whether the Supreme Court will interpret the Act in a manner which will allow these pot farmers to make some money.

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Posted in: criminal defense lawyer,Kolanek,lawyer,medical marijuana,Medical Marijuana Act,Michigan Court of Appeals,Michigan Supreme Court,Ryan Bylsma

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

Michigan Supreme Court Rules on Medical Marijuana

This is a tale of one statute and two defendants.  One defendant will be sporting a conviction for marijuana possession, while the other defendant's charges are now dismissed.

This week, the Michigan Supreme Court decided an important case involving Michigan's Medical Marijuana Act.  The case, People v Kolanek, consolidated the separate convictions of Alexander Kolanek, and Larry King; the former an Oakland County case, the latter from Shiawassee County.

As detailed by this blog over the past three years, the Michigan Medical Marijuana Act has had a brief and tortured existence.  Prosecutors, law enforcement and even judges have taken a restrictive view of the use and immunities provided by the Act.  With much success, until now, they have managed to limit the use, or even the assertion of the affirmative defense set forth in section 8 of the Act.

Not surprisingly, several cases have percolated up through Michigan Court of Appeals.  Two of these cases culminated in the High Court's Kolanek decision.

In the King portion of the decision, Larry King grew six marijuana plants in an enclosed locked dog kennel.  King had a valid medical marijuana registration card.

He moved to dismiss the case against him at both the district and circuit courts; the latter agreed that he was entitled to assert the affirmative defense under the Act and dismissed the case.  The Court of Appeals reversed the dismissal and remanded the matter back to the trial court.

In Kolanek, the defendant was arrested with a half dozen joints on his person.  A week after his arrest, he obtained a statement from his physician that he would receive a palliative benefit from the use of marijuana; Mr. Kolanek apparently suffered from Lyme disease.

Interestingly, the circuit court in this case held that, even though Mr. Kolanek did not obtain his physician's statement until after his arrest, the affirmative defense in the Act was nevertheless still available to him on the basis that he did at least secure a statement from the treating physician.

Kolanek's case also moved through the Court of Appeals, which reversed the circuit court, holding that to avail oneself of the affirmative defense of the MMA, a person must secure a physician's statement prior to one's arrest for marijuana possession.  Makes sense, don't you think...

The High Court reversed the Court of Appeals in King, holding that the MMA sets forth two separate defenses: one is the affirmative defense while the other is a broader immunity to prosecution.  A defendant charged with possession may assert the affirmative defense, even if that defendant has not yet obtained a medical marijuana registration card.  In order to secure a complete immunity from prosecution, however, an accused must have been issued said registration card and otherwise be in compliance with all the requirements of section 4 of the MMA.

The decision is also notable in that it affirmed the intermediate appellate court's decision in Kolanek to the extent that a defendant must have secured a physician's statement prior to asserting the affirmative defense provided for in the MMA.

The local blogosphere has hailed the Kolanek Court as a victory for medical marijuana users.  The decision will be cited in support of the following tenets within the medical marijuana jurisprudence:

• The MMA provides for two separate and distinct protections from marijuana prosecution: an affirmative defense available to assert to a jury for accused persons that have received a physician's statement that marijuana is therapeutic treatment of a chronic condition and a broader immunity from prosecution for those issued a registration card; 
• The decision affirms the MMA's definition of the legal, albeit limited use of marijuana; 
• The immunity set forth in section 4 of the MMA is broadly construed; 
• Interpretations of the MMA must give effect to the intent of the electorate through the passage of the medical marijuana initiative.

This may not be the end of the medical marijuana cases.  The issues of cash pot transactions and inter-patient transfers are winding through the court system.

For now, however, at least defense attorneys can get down to the business of asserting the affirmative defense on behalf of their clients, as provided by the express language of the MMA, and not have this tool removed from the shed by over-zealous prosecutors and wrong-headed jurists.

Folks, as always, the best way to get a marijuana possession charge dismissed is to carefully comply with the requirements of the MMA, and obtain your registration card before you purchase, grow, or possess marijuana.  After your registration card has been issued by the State of Michigan, be sure to stay within the strict limits of the Act.

Good luck out there.

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Posted in: affirmative defense,medical marijuana,Michigan Court of Appeals,Michigan Medical Marihuana Act,Michigan Medical Marijuana Act,Michigan Supreme Court,Oakland Circuit Court

Boyfriend's Background Check Refusal is Just Cause for Custody Modification

In this modern day, it is very important to know with whom your children are associating.  Danger lurks everywhere, including in the home next door, down the street, across town, or across the country.

Earlier this week, the Michigan Court of Appeals issued an opinion for publication [meaning that it now binds all lower courts] in a case from the Newago County Family Court.  The case, Mitchell v Mitchell, holds that a Mother's refusal to abide by a family court's ruling to provide a background check on her live-in boyfriend is "just cause" to modify custody.

In Mitchell, the parents divorced and Mother eventually moved to Texas.  Apparently, Mom's boyfriend was instrumental in the all-too-common process of alienation directed at the non-relocating parent.  Mom did not fire-up the Skype and botched a few Texas to Michigan trips, as ordered by the family court at the time it granted leave for the relocation.

Most importantly, however, Mom and her boyfriend refused to provide the court-ordered background check.  This proved fatal to her custody case and now, Dad has the kids.  What a mess.

From time to time, our law firm gets cases where one parent, in moving on to other relationships, exhibits risky behavior relative to the selection of his or her live-in partner.  In such cases, what can the other parent do; just sit back and wait for the damage to be done?

Now, thanks to the published Mitchell decision, one safeguard that can be requested is for the family court to order a background check of the individual.  If used properly, this device will provide some information that would otherwise be unavailable.

A competing concern is, of course, the privacy of the individual.  This ruling can, and no doubt will, be used offensively and improperly as often as it is used in the fashion intended by the 3-judge panel of the Michigan Court of Appeals.

All we here at the Law Blogger can say about that is: is he or she really worth it?  Best to err on the side of caution for the safety of the children.

In our practice, we routinely counsel clients to take it slow when it comes to introducing young children to the new "significant other".  Divorce is unsettling enough; the new person is most often seen by the kids, even when nice, as a threat.  They may repress their anxiety in order to gain approval from the relocating parent.

What a mess we can make right in our own kitchens.

The best defense to all of this is to exercise good judgment and to err on the side of putting the kids first; something that Kate Mitchell was found not to have done.  In so doing, she has unwittingly handed us family law attorneys a defensive weapon which can be wielded in the protection of the children.

Post Note:  Since this post, I learned that my friend and colleague here in Oakland County, Daniel Victor, has been hired by Mom, Kate Mitchell, and has filed an application for leave to appeal to the Michigan Supreme Court.  Great case to land on appeal.  Of course, an opposing brief was filed by Dad's family court lawyer, Melissa K. Dykman.

While no stranger to the Supreme Court Justices, Mr. Victor will have a tough road convincing four of them to reverse the Court of Appeals.  Not so sure I'm wishing him luck on his effort(s) in this one either folks...

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Posted in: child custody,Daniel Victor,domicile,family court,family law lawyer,John Mitchell,Kate Mitchell,Michigan Court of Appeals,Newago County,relocation

Shariah Law and Divorce

In an unpublished decision released toward the end of last week, the Michigan Court of Appeals found fault with the Wayne County Family Court in a divorce case that touched on the application of Shariah law.

Specifically, the Hammoud case involved the imposition of spousal support in a realaitively short-term marriage. The Court of Appeals was troubled that the family court conditioned the duration of the "open ended" support on wife obtaining an "Islamic divorce" decree, noting:

As structured by the trial court, plaintiff has no incentive to become self-sufficient or to vigorously pursue an Islamic divorce as she is assured an ongoing income ad infinitum.  The trial court also failed to address or seek further clarification of plaintiff’s contention that she was in possession of a document that would permit others to assist or assure her the attainment of an Islamic divorce without defendant’s consent.  Plaintiff indicated that an agreement existed that would permit her brother and brother-in-law to authorize the Islamic divorce, potentially rendering it within plaintiff’s control to prolong her receipt of spousal support.

The implication, as held by the Court of Appeals, was that the family court pressured the husband into agreeing to an Islamic divorce when, under the establishment clause, it had no power to do so.

The Court of Appeals was not impressed with the lower court, the litigants, or their attorneys.  The case also featured an [untranslated] Arabic language prenuptial agreement proffered by husband to support his position that his wife agreed to forgo any spousal support.

The Hammoud case received national attention with a reference in Law Professor Eugene Volokh's law blog; the Volokh Conspiracy.

We here at the Law Blogger agree that family court is not the place for the implication or enforcement of religious laws; that is for the house of worship and is a private matter between the litigants.

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Posted in: divorce,Eugene Volokh,Islamic divorce,Michigan Court of Appeals,prenuptial agreement,prognosticator,Shariah law,spousal support,Wayne County Circuit Court

What Happens to Frozen Embryos After A Divorce?

In happier times, the Stratfords, Jude and Jayane, did what an increasing number of marital couples are doing; they froze one of Jayane's eggs that had been fertilized by Jude's sperm; i.e. they cryopreserved an embryo.  When the dust settled in their subsequent St. Clair County divorce proceeding, the now-divorced couple realized they had forgotten to address their frozen embryo in the consent judgment of divorce.

Jude went back to the family court seeking permission to allow an anonymous couple to utilize the single fertilized and frozen egg.  Jayane objected, asserting her desire to donate the embryos for research.

After carefully balancing the respective interests of the parties following an evidentiary hearing, St. Clair County Family Court Judge Elwood Brown concluded that Jude held a "superior interest" in the embryo, and promulgated a thoroughly-researched opinion and order on this ground-breaking topic that has no precedent in Michigan's statutory or common law.

Judge Brown ruled that: "[Father] may provide for the embryo to be donated anonymously by the fertility clinic for the purpose of adoption by another willing couple."  Jayane appealed Brown's ruling to the Michigan Court of Appeals.

The MCOA reversed the family court in an unpublished and thus non-binding per curiam decision, holding that the lower court erred by obligating the fertility clinic, not a party to the Statford divorce, and further held that the family court order was too vague relative to Father's right/duty to donate the fertilized egg to another "willing couple".

The appellate court was particularly troubled by the lack of a contract between the divorced parties and the fertility clinic.  Addressing the family court's creation of duties to a non-party, the MCOA stated:

Aside from the permissive nature of the order, the order imposed upon the clinic several obligations that the clinic may be unwilling to accept or unable to perform.  For example, the record does not indicate whether the clinic is able to make the embryo available for adoption.  Similarly, the record contains nothing to demonstrate that the clinic is willing or able to accept the order’s apparent restriction that the embryo be adopted only by a willing couple.  In addition, the record does not identify who, if anyone, is currently paying for any of the clinic’s costs arising from cryogenic preservation until a “willing couple” is available for adoption.  We are further left to assume from this record that there is preservation in fact, viability, and, non-abandonment of the embryo.  Moreoever, in the event plaintiff opts not to donate the embryo, the record does not indicate whether the clinic is willing or able to continue to preserve the embryo indefinitely.

In so ruling, the MCOA compared the Statford's circumstances with an earlier "zygote" case from 1999, Bohn v Ann Arbor Fertility Clinic, which involved a similar family court "custody" dispute, along with a companion "breach of contract" cause of action.

In each case, the Court of Appeals focused on the agreement, or lack thereof, between the biological donors and the fertility clinic.  In deciding each case, the MCOA emphasized the poor quality of the lower court record relative to upholding the plaintiff's claims or, in the Stratford case, the lower court's rationale.

Nor did the Stratford panel endorse the lower court's "balance of interests test", ruling that such was within the purview of the legislature and not the courts.  We here at the Law Blogger heartily agree.

Stay tuned to see whether either party applies for leave to further appeal or whether there will be additional proceedings in the family court.

Also stay tuned to see whether our state legislature passes legislation to address the proprietary rights of zygotes, oocytes, and other pre-embryonic cells.

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Posted in: child custody,cryopreserve,cryopreserved embryo,divorce,embryo,family law,Jayane Stratford,Jude Stratford,Michigan Court of Appeals,oocytes,privacy law