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The MI Court of Appeals (In re Shawna Maye Galehouse, No. 326712) upheld a trial court order for the parents to reimburse the Montmorency Child Care Fund for costs of care and services for their child, Shawna.

Facts: Shawna was judged delinquent in juvenile delinquency proceedings in September, 2008. For the next five years until April, 2013, Shawna was in and out of foster care homes and public and private institutions. In March 2014, the appellant parents were ordered to appear in court to explain the arrearages in each of their accounts for the cost of care and services for Shawna. The trial court reviewed the file and after deciding the orders of placement were proper, ordered the parents to each pay $50.00 a month until the account balance ($126,494.22) was paid off.

Under Michigan law, MCL 712A.18(2), cost of care for juveniles placed outside the home is to be reimbursed by the juvenile, parent, guardian or custodian. And, this reimbursement provision applies during the entire time the juvenile is in care and under court supervision unless the child is in the permanent custody of the court.

The COA (Court of Appeals) held as follows:

The decision of the trial court was affirmed.

            Tweets meant to ridicule and satirize another’s social media presence in a humorous way are parody and thus protected by the First Amendment Right to Free Speech according to a recent opinion issued by the Michigan Court of Appeals (COA).

           

The Facts in Levittv Felton (No. 326362) are as follows:

Todd Levitt is a lawyer and former adjunct professor at Central Michigan University (CMU). Since students were a primary source of clients for his law firm, he actively marketed on social media including Twitter, representing that he was a “badass lawyer.” He also made several posts referencing marijuana and alcohol use. His Twitter identity for his account, since closed, was “Todd Levitt@levittlawyer.”

In April, 2014, noticed an account “Todd Levitt 2.0 @levittlawyer that included his photo and law firm logo. A CMU student, Zachary Felton, was responsible. In addition to tweeting a disclaimer stating this was a parody account, Felton posted satirical comments such as:

            1. What’s the difference between the internet and my tweeted legal advice? A: none. They’re both 100% accurate.

            2. Partying=Defense Clients. Defense Clients=Income. If I endorse partying, will  my income grow? It’s like a Ponzi scheme for lawyers.

            Levitt contended the statements were defamatory and that he lost business and couldn’t continue as a professor at CMU and asked the court to award him damages and an order for the immediate termination of the imposter parody account.

           

The COA Opinion

            Arriving at the decision that the imposter Twitter account was protected speech, the COA reasoned:

            1. A statement is defamatory if it tends to lower an individual’s reputation in the community.

            2. But, the First Amendment protects statements that include hyberbole as found in satire, parody and cartoons. If such statements could not be interpreted by a reasonable listener to be fact, the are protected.

            3. When read in context, the defendant’s tweets are a parody and can’t be reasonably thought to have come from Levitt, a lawyer and a professor.

            4. Also, the account was labeled “Todd Levitt 2.0” which is a common term for an upgrade of an existing account and defendant Felton posted several disclaimers even posting Levitt’s Twitter address.

            This is just one of the #Twibel (Twitter plus libel) cases. Courtney Love (Jan. 2014) won her case where the California Jury decided she shouldn’t be held liable a tweet directed at her former lawyer. The Jury verdict was upheld by the California Appeal Court. Given the nature of the medium, it is predictable there will be more litigation as time passes.

Will he accept?

Michael Barrett, Director of the Missouri State Public Defender (MSPD) office, recently exercised his authority to “delegate the legal representation of any person to any member of the state bar of Missouri” to appoint Governor Jay Nixon to represent an indigent defendant facing incarceration and in need of representation.

What led Barrett to take such a step?

In Barrett’s letter to the Governor, he cited the Governor’s repeated cutting of public defender funding, which has led to a severe reduction of staff. Missouri’s indigent defense system ranks 49^th in the United States. The Governor:

1. Cut the MSPD budget by $3.47 in 2015,

2. Is restricting it by 8.5% in 2017, and

3. Claimed the reduction in revenues led to fiscal discipline yet didn’t reduce his own budget.

Barrett continued “This action comes even after the Civil Rights Division of the Department of Justice found that poor black children are being systematically deprived of their rights in Missouri due…to the lack of public defenders.”

Will Governor Nixon accept the appointment?

Probably not, but time spent in crowded court room with its organized chaos might make him more aware of the needs of the poor who deserve competent counsel for their defense. Maybe he would then be willing to take the 6^th and 14^th amendments more seriously and find some funding to help solve the problem.

Hon. Peter D. O’Connell turned to the Court of Claims seeking a writ of mandamus to force the the Director of Elections to consider his Affidavit of Candidacy for a six-year term on the Court of Appeals (COA). When the Court of Claims (COC) dismissed his complaint for want of subject-matter jurisdiction, he appealed to the Court of Appeals (Peter D. O’Connell v Director of Elections, Bureau of Elections and the Department of State. No 332132, Court of Claims, LC No. 16-000038-MB).

The COA reversed the COC order and remanded the matter back to that court.

The Facts:

Judge O’Connell was reelected to the COA for a six-year term beginning in November, 2012 and ending on January 1, 2019. Judge O’Connell will be ineligible to run for re-election for his term ending in November, 2018 because he will be 70 years old. In the meantime, Judge Gadola, appointed to complete the term of retiring Judge Whitbeck, can run for election in November 2017 for a term to end in 2023. Judge O’Connell, who will not be 70 in 2017, decided to step down from his current position and run for re-election for that 2017-2023 term.

To that end, he filed an Affidavit of Candidacy and Affidavit of Identity, which were rejected by the Bureau of Elections. Judge O’Connell then filed a Complaint for Mandamus in the COC. The COC dismissed his complaint because, it decided, it didn’t have subject-matter jurisdiction. Judge O’Connell appealed that decision to the COA.

Standard of Review and Principles of Construction:

Because this matter is a statutory question, it will be reviewed de novo or anew and the court will use the plain meaning of the words of the laws to determine the legislature’s intent.

Analysis:

The COA agreed with Judge O’Connell that the COC has subject matter jurisdiction over actions for mandamus or an order to a public official or a state department to perform its duty. The decision in his favor was based on:

Using the words of the law as a basis for its decision, the COA decided that the Court of Claims law superseded the Circuit Court jurisdictional law and the COC does have the power to hear and decide Judge O’Connell’s case. 

The Michigan Court of Appeals (COA) concluded that the equitable-parent doctrine does not extend to unmarried couples, whether heterosexual or same-sex couples. And, because the doctrine doesn’t apply, Plaintiff Michelle Lake does not have standing to seek parenting time with the child. Therefore, the COA remanded the matter back to the trial court for entry of an order granting summary disposition in the defendant’s favor. Judge Douglas B. Shapiro wrote a concurring opinion, stating the circumstances where he could see a different outcome.

The facts of Lake v Putnam (No. 330955) are:

The plaintiff and defendant Kerri Putnam were in a romantic relationship from 2001 to 2014. During which defendant Putnam gave birth to an artificially inseminated child. When the relationship ended, defendant denied plaintiff visitation. Plaintiff filed suit and the Washtenaw Circuit Court granted her supervised visitation. Defendant appealed that decision to the Court of Appeals.

The COA opinion:

The court first turned to the standing issue, stating:

1.  Plaintiff is a third person as defined by MCL 722.22(k) as one who is an individual other than a parent, or one who is not a natural or adoptive parent of the child,

2.  Third persons under the Child Custody Act have limited standing in the following circumstances: a) they are guardians or limited guardians, or b) are unmarried biological parents or are related to the child but don’t have custody.

3.  Therefore, the plaintiff lacks standing since she meets none of the above scenarios.

Plaintiff also asserted she had standing under Michigan’s Equitable-Parent Doctrine. Under this doctrine a husband who is not the biological father to a child born during the course of the marriage can be considered the child’s father if:

1.  The husband and child have or the mother acknowledges their father-child relationship.

2.  The husband wants parental rights and is will to pay child support.

Plaintiff doesn’t have standing under this dshaoctrine since the parents were never married thus the child was not born during the course of a marriage. Michigan’s equitable doctrine applies only to married couples.

Plaintiff argued that her constitutional rights to due process and equal protection were violated. The court didn’t agree stating her argument wasn’t supported on the facts or the law. She was not married to the defendant and had she been so “regardless of whether the biological parent was male or female, the outcome of this appeal would have been different.”

Judge Shapiro, concurring:

Judge Shapiro, in a separate opinion, stated that the case would have turned out differently if the Plaintiff had shown that she and the defendant would have married before the child’s birth had the states where they lived, Michigan and Florida, allowed it. He referred to a COA case (Stankevichv Milliron, 31 Mich. App. 2233 (2015) where the couple married out of state before the child’s birth, which the court used to determine the standing of the non-biological parent and grant visitation. He would not limit this application to cases where the couple actually married in another state. Using the intent of Obergefell v Hodges, 15 S Ct 2584, he would expand the equitable parent doctrine to include situations where the couples were prevented by state law from marrying but lived together as a married couple and raised the child as co-parents. Because the facts of this case didn’t support that but for the state law ban the parties would have married, he supported the majority opinion.

He pointed out, however, that in a different scenario, where the parties show that they would have married had they been able, “I believe the courts would be required to recognize the parental rights of the non-biological parent” and determine custody and visitation considering the best interests of the child.