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I attended a fantastic SCAO Child Welfare Seminar on February 22, 2013 on "Building a Legal Arsenal to Defend Clients." One of the major recommendations/themes I heard repeated during that conference pertained to what a non-respondent parent should do if the trial court is looking to take jurisdiction of the child due to allegations against the other parent. It is likely that I noted this issue because I have a case pending on appeal where the trial attorneys did not make any attempt to protect the rights of the non-respondent parent, who was the father of the child, but had recently divorced from the child's mother. Several presenters emphasized that the non-respondent parent should request that the child be immediately placed with that non-respondent parent. The only reason a trial court would not make such a placement is if the trial court made a finding that the non-respondent is an unfit parent. Unfortunately, the practice in many counties is to accept a plea to jurisdiction from the parent against whom the allegations have been made, which in turn drags in the non-respondent parent, even though that parent is fit, and even though none of the allegations of abuse and neglect have anything to do with the non-respondent parent. There is a legal presumption that favors a fit parent, so there is no reason that a child should be placed in foster care, or even with another relative, when the non-respondent parent is willing and able to take his child into his home and become the custodial parent.

Labels: appeal of termination of parental rights, child welfare, immediate placement, jurisdiction over the child, termination of parental rights

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A win for gun advocates and privacy advocates alike was recently decided when the Michigan Court of Appeals addressed an issue of first impression: does the Second Amendment bar the prosecution of an individual for possessing or using a firearm while intoxicated under MCL 750.237, where the individual is in their own home? People v Deroche, published opinion of Michigan Court of Appeals, issued January 29, 2013(Docket 304759). Reportedly, Deroche was intoxicated and inside a home with a gun. But once inside the home, police officers found that Deroche was not in actual possession of the gun. In fact, Deroche was located on the upper level of the home, away from the gun which was located on the first level. Still, he was arrested for the possession of a firearm while intoxicated. The Court of Appeals found that the infringement of Deroche’s Second Amendment rights under these circumstances was unconstitutional. The Court looked mainly to District of Columbia v Heller, 554 US 570 (2008), which provides, in essence, that the Second Amendment grants individuals the right to keep and bear arms for protection. Courts acknowledge, as did the Court of Appeals here, the recent problems with handgun violence in the United States and the apprehension surrounding this issue. But in the end, the Court of Appeals agreed with Heller that the Second Amendment trumps the policy decisions involved with this issue because the rights vested under the Second Amendment are sacred constitutional rights. Of Course, limitations on Second Amendment rights do exist for felons, the mentally ill, etc. But the big concern in this case is the ban of handguns in the home because of its limiting effect on an individual’s ability to protect their home and family as is expressly authorized in the Second Amendment. The Court did not decide whether MCL 750.237 is constitutional. Instead, it answered two dispositive inquiries: (1) whether MCL 750.237 regulated conduct within the scope of the Second Amendment as it has historically been understood and (2) whether the government can justify, under an intermediate scrutiny standard, the burden placed on Deroche. Again citing Heller, the Court reasoned that Deroche’s conduct in this case was protected by the Second Amendment because he was acting as a law-abiding citizen. Accordingly, he had a right to bear arms in his home as a means of self-defense. Furthermore, while the government’s objective to prevent intoxicated individuals from committing crimes with handguns is important, the infringement on Deroche’s Second Amendment rights was not substantially related to that objective. In the end, the Court stated that Deroche’s possession of the gun when the police entered the home was constructive, rather than actual; and as a practical matter, applying MCL 750.237 to Deroche under the circumstances involved in this case would unreasonably force a person to choose between possessing a firearm in his or her home and consuming alcohol.

Labels: constructive possession, criminal appeal, Michigan, michigan court of appeals, Novi, protection of property, reversed trial court, right to bear arms, right to privacy, second amendment

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The Michigan Supreme Court reversed in a part a trial court's award of attorney's fees in a divorce case. But the victory was hollow for the party who brought their attorney's fee challenge all the way to the Supreme Court in Desai v Desai, issued February 6, 2013 (Docket 144818). In Desai, the appellant and his attorney had been sanctioned by the trial court jointly and severally for $10,044.25 in attorney's fees for filing a frivolous action. The Court of Appeals affirmed the trial court's sanction in an unpublished opinion, Desai v Desai, issued December 8, 2011 (Docket 300330). The appellant proceeded to challenge the sanction in the Supreme Court. Over a year later, the Supreme Court agreed that one cost item included in the trial court's sanction was "for services that were not incurred in connection with the plaintiff’s complaint for divorce." The Supreme Court thus subtracted that $342 item from the attorney's fees sanction. It is a pyrrhic victory because the appellant paid $375 to file the supreme court application (not to mention attorney's fee for preparing the application, and the costs and fees associated with the appeal to the Court of Appeals) all to reduce the judgment by a mere $342.

Labels: appeal of sanction, attorney's fees, award of attorney fees, divorce judgment, Michigan, supreme court application, Washtenaw County

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On Wednesday, a Federal Judge gave some Michigan inmates a ray of hope. Prison inmates who had been convicted as a juvenile and sentenced to life without parole filed suit seeking a ruling that MCL 791.234(6)(a) - Michigan’s parole statute - was unconstitutional under the U.S. Supreme Court’s ruling in Miller v Alabama. 132 S Ct 2455 (2012). Noted by Judge O’Meara in his opinion in Henry v Snyder, Eastern District of Michigan (2013) (Case No 10-14568), “[i]n Miller, the Court found mandatory life without parole sentencing schemes for juveniles convicted of homicide to be unconstitutional.” The Federal District Court went on to say that in its opinion, the Supreme Court’s decision in Miller would apply retroactively for a couple of reasons. The first, is that this proceeding was not a collateral review; secondly, because this was a substantive ruling, rather than procedural; and finally, because this case was pending while Miller was decided. However, the Trial Court also stated that because Plaintiffs could not and did not challenge their sentences under the § 1983 suit, their sentences would not be affected. That being said, the Trial Court also stated that “[a]s a result [of MCL 791.244(b) being found unconstitutional], Plaintiffs will be eligible and considered for parole.” The Trial Court concluded its opinion by setting dates for briefing of how the Plaintiffs will be afforded “a fair and meaningful possibility of parole.” Therefore, inmates like Jennifer Pruitt–who was convicted of first degree homicide even though she did not commit the murder, now have hope of someday being released on parole and potentially attacking their sentences under habeas review.

Labels: constitutional violation, juvenile offender, mandatory lifetime sentence, Michigan, miller v alabama, parole eligibility, unconstitutional

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