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It is amazing that it took over five years from the first time Woods requested costs and attorney's fees for his work as a guardian ad litem and two separate appeals, not to mention various litigation in the circuit court, for Woods to be awarded costs and attorney's fees. However, the Court of Appeals decision makes sense and hopefully will provide other guardians ad litem the ability for easier recovery for their work.

The United States Court of Appeals for the Sixth Circuit recently released a published opinion holding that the plaintiffs, four self-described "Juggalos" and two members of the band Insane Clown Posse, had standing for their claims against the US Department of Justice and the FBI that they suffered violations of their First and Fifth Amendment rights. Parsons v US Dep't of Justice, Docket No. 14-1848 (September 17, 2015). The Sixth Circuit reversed the District Court's dismissal for lack of standing and remanded for consideration of the defendants' FRCP 12(b)(6) (failure to state a claim) arguments.

The Juggalos are fans of the Insane Clown Posse (ICP) and other bands on ICP's independent record label, Psychopathic Records. ICP plays various types of music, some of which that is self-described as "horrorcore hip hop" using harsh language. Juggalos frequently have distinctive tattoos and insignias on their clothing. They also paint their faces to look like clowns. These identifying features often use a "hatchetman" logo, which is specifically a Juggalo symbol. A simple google search will reveal information about their distinctive culture. When Congress created a National Gang Intelligence Center (NGIC), it also created a gang information database and directed the NGIC to submit a report to Congress on gang activity. The 2011 NGIC Report classified Juggalos as a "loosely-organized hybrid gang." Slip op at 4. The Report indicated that Juggalos commit crimes, but they are mostly sporadic less serious crimes; though there are some Juggalos that engage in "more gang-like criminal activity." Slip op at 4.

The plaintiffs alleged separate injuries for the complaint, though many had similar experiences. The basic categories were: "chilling effects on their freedoms of speech and association; stigmatic reputational injury; and various harms inflicted by third-party law enforcement agencies, such as improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations." Slip op at 10. The details of each of their alleged injuries are described in the slip opinion at pages 5-7. A common thread in the injuries was that the Juggalos had visible ICP-related tattoos, clothing, or displayed insignias and were purportedly legally injured because of Juggalos classification as gang members in the 2011 NGIC Report. The two ICP band members allegedly lost a contract for an annual music event because the local police department asked the venue to cancel the event due to the federal Juggalo gang designation.

The Sixth Circuit determined that the plaintiffs had met their burden of proving cause in fact for the purposes of standing for all of their claims. For the plaintiffs' First Amendment and Due Process claims, the Sixth Circuit held that the alleged chilling effect was insufficient alone as an injury because "the 2011 NGTA Report does not regulate, constrain, or compel any action on the part of the plaintiffs." Slip op at 10 (internal quotations omitted). The alleged reputational injury, however, was enough to establish injury in fact, especially because the claims of chilling effect were combined with the "concrete allegations of reputational harm." Slip op at 11. The Sixth Circuit also held that stigmatization was injury in fact for the standing analysis. For the plaintiffs' procedural APA and Declaratory Judgment Act claims, the Sixth Circuit indicated that "procedural rights are treated uniquely under the standing inquiry" and that a "person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy." Slip op at 12 (internal quotations omitted). The Sixth Circuit held that similar to Wright v. O’Day, 706 F.3d 769, 771-72 (6th Cir. 2013) where the Sixth Circuit found freedom from placement on a child-abuse registry was an injury in fact for a procedural due process claim, the Juggalos "freedom from placement in the 2011 NGIC Report" was a sufficient basis to establish standing requirement of injury in fact for a procedural due process claim.

The Sixth Circuit also held that the Juggalos and ICP members had proven causation for standing, indicating that the alleged injury must only be "fairly traceable" to the challenged action and need not be proximate or but-for. Further, that third parties had to exercise independent judgment did not obviate the causation for the purpose of standing. The Sixth Circuit noted, "The Juggalos' allegations link the 2011 NGTA Report to their injuries by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question." Slip op at 14. The Sixth Circuit said that "it is still possible to motivate harmful conduct without giving a direct order to engage in said conduct." Slip op at p 14. 

The Sixth Circuit held that Juggalos requests for relief met the standing requirement of redressability because an order setting aside the 2011 NGIC Report would "abate the reflection of Juggalo criminal activity as gang or gang-like by the Agencies." Slip op at 18. The Sixth Circuit further stated the plaintiffs sufficiently argued that the reputational harm and chill would be alleviated.

The Sixth Circuit therefore reversed and remanded for consideration of the defendants' FRCP 12(b)(6) (failure to state a claim) motion to dismiss. 

*The title to this post is a play on lyrics in the ICP song "Miracles," ("Fucking magnets, how do they work?"), which is frequently poked fun at in online forums.

***Update*** The Livingston County judge who presided over this case, Judge Reader, filed a motion in the Court of Appeals to correct the opinion discussed in this blog. However, before the Court of Appeals ruled on Judge Reader's motion, the mother of the child tragically passed away. On October 21, 2015, the Court of Appeals issued an order that stated that some of the facts in its September 15, 2015 Opinion were in error. Instead of correcting the opinion, the Court of Appeals decided to entirely vacate the September 15, 2015 Opinion.  It then dismissed the case as moot. The Opinion is no longer available on the Court of Appeals' register of actions and now links to the order vacating the Opinion.
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This week, the Court of Appeals released a published opinion in McConchie v Voight, Docket No. 326651 (September 15, 2015) (Shapiro, J, author), addressing the "grossly improper" actions of Judge Reader of the Livingston County Circuit Court and one of the Friend of the Court referees in regard to the custody of the parties' child.  Slip op at 5. The referee and judge violated a host of well-established procedural and substantive requirements in awarding the father with sole physical custody. The basic background is that the parties had a child together in 2009 and subsequently entered various consent orders that resulted in the mother having sole physical custody and the parties having joint legal custody, with reasonable parenting time for the father. In April 2014, the father filed a motion for change of custody based on an incident where the mother had fallen asleep and the child was locked out of the home. In September 2014 the referee found the mother had the established custodial environment, and the father had not proven there was proper cause or change in circumstances to warrant a change in the established custodial environment. The referee also ordered the parties into family therapy and set a scheduled a "parenting time hearing" in March 2015. At this hearing, the referee ordered the immediate transfer of sole physical custody from the mother to the father.

The Court of Appeals explained the shockingly expansive list of errors committed by the FOC referee and the trial court. First, the referee violated the mother's constitutional due process rights by changing physical custody even though the father had not filed a motion to do so and by interfering with her ability to cross-examine the family therapist and offer her own witnesses. The referee first indicated there was very little time for cross-examination and if the mother wanted to cross-examine the therapist, she would have to pay the therapist her hourly professional rate. The referee also did not allow the mother to call any of her own witnesses and did not continue the hearing to allow mother an opportunity to be heard.

The referee also committed substantive errors in changing custody to such a degree that the Court of Appeals described her decisions as “what appears to be a complete disregard for the substantive law governing a court's decision when considering a change of custody.” Slip op at 3. The referee did not make findings on proper cause or change in circumstances, determine the child's established custodial environment, and made no best interest findings before changing custody. Apparently, the referee realized her error and decided to make a ruling from the bench on the best interest factors without the parties or their counsel present. At a later hearing, incredibly, the referee argued that her failure to follow the well-established law governing changes of custody did not matter because 1) she did not change custody (despite the directly contradictory language in her order) and 2) there is no such thing in the law as "primary physical custody." 

The Court of Appeals addressed the referee's claim that the law does not have anything called "primary physical custody." First, the Court of Appeals indicated that caselaw repeatedly defines and describes physical custody and MCL 722.26a of the Child Custody Act specifically mentions physical custody. The Court of Appeals recognized that there is not always a clear distinction between mere changes in parenting time and changes in an established custodial environment. However, the Court of Appeals held that in this case that the change was a change in custody was clear because the order changed sole physical custody to father along with switching parenting time to give them the exact opposite of what they had before, meaning the mother only had every other weekend and a weekday visit. The Court of Appeals also noted that, despite her later claims, the referee seemed to be aware that her order changed custody because she went back on the record to specifically address the best interest custody factors, not the parenting time factors.

The referee and trial court also engaged in egregious procedural errors wherein the trial court improperly delegated its judicial power to the referee. Specifically, "rather than issuing a recommendation and proposed order," as required under the Court Rules, with an opportunity for the parties to object and invoke the right to a de novo hearing by the trial court, "the referee stamped the judge's name on the order changing custody." Slip op at 4 (emphasis added). The mother was, therefore, deprived of her right to object to the order and have a de novo hearing. While the trial court has authority to make a referee's interim order take immediate effect pending a judicial hearing under MCR 3.215(G)(1), the trial court cannot give immediate interim effect to a referee's order that changes custody under MCR 3.215(G)(3)(b). Further, the trial court itself was not even the authority giving interim effect to the order. The Court of Appeals held that the referee was completely without authority to give interim effect to its order, and "the judge cannot give carte blanche permission for the referee to sign his name without the judge ever seeing the order or knowing anything about the case." Slip op at 5.

A final issue was that after the mother objected to the referee's order, the judge held a hearing and labeled the referee's order as "interim" and ordered the evidentiary hearing be completed. This was not sufficient to correct the referee's error, as the trial court had no authority to give interim effect to a referee's order changing custody, especially where none of the substantive requirements had been met. Perhaps unsurprisingly, after the trial court's order, the referee again did not do as required and did not complete the hearings as ordered by the trial court.

The Court of Appeals entered a very specific form of relief because of the highly egregious actions of the trial court and the referee. In addition to vacating the trial court's order and returning primary physical custody to the mother, the Court of Appeals indicated that the father must file a motion to change custody for any proceedings to proceed regarding custody. If the father did file such a motion, the proceedings were to be expedited and the trial judge had to conduct the hearings rather than referring them to the referee.

In an interesting twist, Judge Sawyer dissented from the Court of Appeals decision, not because he disagreed regarding the numerous errors committed, but because he did not agree with the relief provided. Judge Sawyer thought the most appropriate remedy was not to reverse or vacate the change of custody, but to remand the issue to the trial court with directions that the trial court directly conduct the evidentiary hearing and reach a final resolution instead of having the trial court "start over." Judge Sawyer found this appropriate because of the trial court's labeling of the order as a temporary order pending a full resolution of the custody issue.

In light of the current uproar regarding published versus unpublished opinions, it is interesting that this opinion was one chosen to be published. Certainly, the case is fascinating and shows just how wrong cases can go when procedural, constitutional, and substantive requirements are ignored. However, all of the law in the case is well-established and clear, making it an interesting choice for publication, as normally published opinions are used to address novel issues. Regardless of the reason for publication, this case certainly demonstrates why procedural and substantive requirements are in place to ensure an opportunity to be heard and to prevent the unnecessary removal of a child from an established custodial environment without proof of the proper bases. 

Recently, the Court of Appeals released an opinion in In re KJP-D, KFP-D, Minors, issued August 11, 2015 (Docket No. 323596), a Section 45 adoption case affirming the trial court's ruling that the decision of the Superintendent of the Michigan Children's Institute denying petitioners consent to adopt was not arbitrary and capricious. As basic background, the Superintendent is given statutory authority to approve or deny petitions to adopt, but Section 45 of the Adoption Code (MCL 710.45) allows petitioners who were denied consent to have a hearing where the trial court determines whether the Superintendent's decision was arbitrary and capricious, which must be proven by clear and convincing evidence. These hearings involve intensive factual development, but very infrequently result in the Superintendent's decision being overturned. The In re KJP-D case was no different. After lengthy proceedings, the trial court decided that the Superintendent's decision was not arbitrary and capricious. The Superintendent's decision is so often affirmed because the Court of Appeals has interpreted the statutory language to mean that the trial court cannot find the decision arbitrary and capricious if the Superintendent has "one good reason to withhold consent." Unpub op at 7. The Court of Appeals' opinions, including In re KJP-D, are clear that the reviewing court should not inquire into whether the Superintendent's decision was correct, but only whether it was arbitrary and capricious. 

Under this harsh standard of review, after an in-depth analysis, the Court of Appeals upheld the trial court's decision in In re KJP-D. Interestingly, though, the Court of Appeals expressed deep empathy for the petitioners and said that it was affirming the trial court "with compassion and appreciation for the depth of petitioners [sic] love for and commitment to the children." Unpub op at 1. It even indicated that though it lacked authority to legally compel such a result, it hoped that the petitioners could remain a part of the adoptees' lives. The Court of Appeals further stated, "Nonetheless, we are constrained by the record and the applicable standard that governs our review of this matter, and we must answer the legal question raised in this case in accordance with the laws of this state." Unpub op at 8.

It is unknown whether the petitioners were in pro per during the Court of Appeals' briefing and argument because the Court of Appeals' clerk, for reasons of confidentiality, refused to answer when asked. If in pro per, the Court of Appeals' repeated statements of empathy may be explained by wanting not to seem harsh to this couple who deeply desired to adopt the minors at issue. Perhaps the Court of Appeals' sympathetic remarks can be explained by its understanding the frustration of the Section 45 Hearing process, which seems to only serve to offer individuals baseless hope by providing an appeal of a legally almost irreproachable decision by the Superintendent.