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In a recent opinion, the Michigan Supreme Court in People v Trakhtenberg, __ Mich __; __ NW2d __ (2012)(Docket No 143386) addressed a very narrow issue (among many larger issues) - the use of collateral estoppel by the prosecution to prevent a criminal defendant from challenging his trial counsel’s effectiveness. Defendant Trakhtenberg, after being convicted by the trial court and losing his direct appeal, filed a civil lawsuit alleging legal malpractice. This was summarily disposed of, by motion, and his appeal denied. In his criminal case, Defendant Trakhtenberg had filed a motion for relief from judgment which was denied by both the Trial Court and the Court of Appeals. However, the Supreme Court retained jurisdiction while remanding back to the COA to remand to the Trial Court for a Ginther hearing. Based on this hearing, the Trial Court ruled that Defendant’s counsel was ineffective and ordered a new trial, however, the COA reversed. The Supreme Court granted leave. The Supreme Court distinguished this case from cases like People v Gates, 434 Mich 146 (1990) and Yates v United States, 354 US 298 (1957) by noting first and foremost, it was the prosecution and not the Defendant asserting collateral estoppel “to estop the Court’s full review of defendant’s claim that he received ineffective assistance of counsel.” Ultimately the Court held that the COA erred when it applied the doctrine of collateral estoppel to Defendant Trakhtenberg’s ineffective assistance of counsel claim because the defendant did not have a “fair and full opportunity to litigate his claim in the malpractice proceeding.” While a narrow holding, this is still a potentially big win for similarly situated defendants.

Labels: appeal, appellate review, collateral estoppel, criminal appeal, ginther hearing, legal malpractice, michigan supreme court, Oakland County, offensive collateral estoppel, prosecutor, trakhtenberg

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Same-sex marriages and adoptions continue to reach the Michigan appellate courts. A parent in a former same-sex relationship challenged the other parent’s custodial rights by arguing that the probate court who granted the adoption lacked subject matter jurisdiction because it was same-sex adoption. The Court of Appeals disagreed in Usitalo v Landon, per curiam Opinion of the Court of Appeals, approved for publication January 10, 2013 (Docket No. 308240). By holding that the probate court which granted the adoption had subject matter jurisdiction to hear any adoption, the Court of Appeals seemed to purposefully leave open a huge question–is same-sex adoption proper under Michigan law? If the answer is no, then how do adoptive parents from same-sex couples exercise their rights to child support, custody, and parenting time? Does the Child Custody Act and best interests analysis apply? Who is looking out for the children? The concurring opinion by Judge Shapiro raised some very real concerns about the parent's efforts to win a custody battle by challenging the underlying adoption. Recall the case from a few years back, Giancaspro v Congleton, unpublished per curiam Opinion of the Court of Appeals, issued February 19, 2009 (Docket No. 283267). Defendant, a woman that adopted three children with her same-sex partner in Illinois, challenged Plaintiff’s motion for custody, support and parenting time on the grounds that, since the parties were previously in a same-sex relationship and adopted the children together, and Michigan law does not recognize same-sex marriage or same-sex couple adoption, that Plaintiff cannot motion for custody, support and parenting time pursuant to the Child Custody Act as a matter of Michigan public policy. The Court of Appeals ruled that the Child Custody Act does not contemplate the parties’ relationship to each other, but only that they are a natural or adoptive parent of the child. Since both Giancaspro and Congleton were adoptive parents of the children, then the Child Custody Act applied and a best interest analysis would control. Importantly, though, in this case, the parties adopted the children out of state. Again, the Court of Appeals was not forced to consider Michigan Adoption Law. Regardless of whether a Michigan court will recognize the validity same-sex adoption, shouldn’t the paramount question really be – what is in the best interests of the children?

Labels: appeal, best interests of child, child custody act, custody appeal, Michigan, Saginaw County, same-sex adoption, same-sex couple, same-sex marriage, subject matter jurisdiction, validity of adoption

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I'll be honest. When I first started reading the 6th Circuit's opinion in Keith v Oakland County (decided 01/10/13 in a published opinion), I asked myself, how is it possible for a deaf lifeguard to safely perform his duties? But then the opinion cogently described the evidence, including expert evidence, presented in that case about the functions of a lifeguard, and how hearing has almost little to no impact on a lifeguard's performance of safety functions. In fact, the lifeguard with the world record for saving lives was a deaf person and there are many programs to certify deaf lifeguards. Some of the other non-safety related job functions of a lifeguard, such as speaking with patrons who have questions, or attending meetings, could be reasonably accommodated under the American with Disabilities Act. The opinion was very compelling and quickly persuaded me that the plaintiff had created a genuine issue of fact for a jury to decide whether he was qualified to serve as a lifeguard. It apparently is also the first opinion in the country to squarely address this topic. Apparently, the First Circuit issued a decision which opined that denial of employment to a deaf lifeguard could form the basis of an employment discrimination case. That case, however, was not an employment discrimination suit, but a suit regarding the YMCA's revocation of a deaf lifeguard's certification because he could not hear noises and distress signals.

Labels: 6th Circuit, ADA, American with Disabilities Act, appeal, appeals, appellate, deaf, Detroit, employment discrimination, lifeguard, Michigan

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