Persistence did not pay off

The Michigan Court of Appeals recently decided an unusual jurisdiction case – Vijayalakshmi v Sivagnanam Thamilselvan, which involved competing jurisdiction claims from Oakland County and India.

Both parties are Indian citizens and were married in India as an arranged marriage. Only three weeks after their marriage, the husband moved to Florida, and the wife joined him a year later. They had a daughter in the US and moved to Michigan when she was an infant, settling in Farmington Hills. In late 2017, the wife and daughter left the husband, citing abuse, but remained in Michigan. The husband wanted to reconcile and decided to try and accomplish this by filing for divorce in Oakland County, hoping the family would return to him after he filed a motion for their daughter to return home. His plan didn’t work, so he dismissed the divorce.

The wife filed her own divorce action in Oakland County a month later, which forced the husband to concoct another plan to stay together. His reach was much farther this time, asking the Family Court in India “for restoration of his conjugal rights, as a form of reconciliation or mediation with [his wife].” As far as I know, Michigan has no equivalent to this type of petition, and I was surprised to learn this was an actual option. Not willing to stop there, he also petitioned the Indian High Court for an “anti-suit injunction,” which would stop his wife from pursuing the Michigan divorce.

The wife fought the Indian legal actions, but an injunction was ultimately entered in India. In the meantime, the husband filed the typical answer to complaint for divorce in Oakland County. He also filed two motions to dismiss the Michigan divorce, arguing that only India had the jurisdiction to divorce the couple. The court disagreed and would not enforce the Indian injunction, because doing so would prevent the wife from obtaining her legal right to a divorce. After a trial, the Oakland County divorce was granted in May 2019.

The husband appealed the finding of jurisdiction ruling, lack of recognition of the Indian order and some property values. The Michigan Court of Appeals found in favor of the wife on all issues.

Michigan’s jurisdiction of the court is found in MCL 552.9(1), which mandates that a judgment of divorce cannot be granted unless one of the parties has lived in Michigan for 180 days immediately preceding the filing of the divorce, and with few exceptions, one of the parties must have lived in the county where the complaint was filed for 10 days immediately preceding the filing.

The Court of Appeals emphasized that a party’s intent is the key factor in determining residence, and that the statute only mandates the residence requirement for one party, not both. In examining the family’s history in the US, they had lived and worked in Michigan for over 18 years, educated their daughter here, purchased two Michigan homes and paid taxes. The Court of Appeals gave deference to the trial court’s determination of the wife’s testimony as being credible to residency.

What was also key was the fact that the husband availed himself to the jurisdiction of Oakland County when he first filed for divorce and also when he answered the complaint. Basically, you can’t have it both ways. He also argued that only an Indian court could grant a divorce, yet he never petitioned the Indian court for a divorce – in fact, he did the exact opposite.

The husband also took issue with the lack of comity afforded to the injunction issued by the Indian court. Unfortunately for him, ‘[t]he rule of comity…is a discretionary doctrine…and is not allowed to operate when it will contravene the rights of a citizen of the State where the action is brought.” While it takes two to get married, you only need one to get a no-fault divorce in Michigan. If the Michigan court recognized the Indian injunction, it would be denying the wife’s inalienable legal right to a divorce.

The saying “throw it against the wall and see what sticks” is particularly fitting for this case, given the husband’s persistence in preventing the divorce. This same persistence cost him thousands as he was ordered to pay part of his wife’s attorney fees. It turns out persistence doesn’t always pay off.

Extras may not count toward child support

As parents, we want to provide our children with not only the things they need, but “extras” to help them be well-rounded individuals, like sports and extra-curricular activities. A lot of parents find that a phone and car are essential items for their kids – not just for safety but for convenience. Let’s be honest, driving kids to and from all of their activities is not my favorite pastime, and they have far more of a social life than I do at this point.

These extras can cost hundreds and thousands of dollars a year. Some separated or divorced parents choose to divide the costs; others take full responsibility. Cars don’t just come with the loan payment, they include car insurance, registration, driver’s ed costs, maintenance, etc., which adds up quickly.

When a parent takes on these extras for their children, they need to be aware that those expenses do not negate his or her obligation under a child support order. If you have a child support order, that obligation needs to be satisfied, and then you can pay for the voluntary extras. Some child support orders may take into consideration extra costs and deviate from the guideline recommended amount of support because the parent, or parents, pay for these additional expenses. Unless you have a court order requiring the horse boarding, teenager’s cell phone bill, or car payment (whatever the extra is) to be taken into consideration for purposes of child support, the guidelines do not specifically call them out as a reason to deviate from the formula recommended amount. There is the “catch all” deviation factor of “[a]ny other factor the court deems relevant to the best interest of a child,” but I’ve never relied on that factor to lower child support because a parent voluntarily pays for something the child does not need.

Some cases have orders that require parties to pay for these expenses, and set forth the percentage split and parameters for the costs – the order may state that the expenses have to be mutually agreed upon, it may include up to a maximum cost per year, and so on.

Parents who have been shelling out money for their child’s car, tuition, or tennis coach are often upset when they learn that absent a court order, these payments don’t have a place in the child support formula. As I often say, support is a “plug and play” program – plug in the numbers it asks for and hit go. There is no spot for me to plug in these costs, much to the paying parent’s dismay. These costs can be excessive, and the paying parent is not automatically entitled to a “break” in support because of it.

Similarly, items that you may provide your now adult children won’t be taken into consideration absent an agreement between the parties, or court order. Not to say it doesn’t exist, but I have not run across an order (absent consent) that requires support of an adult child to be considered when calculating support for the minor child. I suppose you can always ask, right?

So, before you take on additional financial responsibilities for your kids, understand that those perks you are providing to your children may not be relevant to your child support obligation. Pay them because you can and you want to, not because you are looking for a credit down the road. Discuss the matter with your ex, read over your court order to see if it requires a division of the costs, and decide what you want to do after you’ve done your due diligence. It will make your bank balance a lot easier to look at.

Hosting a Zoom hearing

I decided to do another article on Zoom hearings, but this time from the perspective of the person hosting the hearing or mediation. As I become more familiar with our new normal, I am finding that I am also becoming more skilled in what I can do (hooray!), and realizing the worth of Zoom’s features during a hearing.

My favorite option to utilize is the breakout room feature. When I have in-person hearings, if a potential settlement is offered, the attorneys almost always want time alone with their client to discuss and decide whether they want to accept. They walk into the hallway or into a separate room, away from the ears of the other party and counsel.

My first thought when learning that we would use Zoom was that this very important “alone time” would be impossible. I was pleased to learn that Zoom provides breakout rooms – a virtual room that the host can assign individuals to, which allows them to have a private conversation in the same manner as they would in person. You can use the automatic breakout room assignment (which I’m guessing I would never use, as entertaining as that might be to randomly assign people), or the manual assignment. I use the manual assignment and choose the number of rooms (usually two for me – one for each party and their attorney), putting each client in the room with their attorney. Once I “open” the rooms, the participants must join, and they disappear from the main meeting, so no one else can hear or see them.

A helpful feature is that I can join various breakout rooms and check in with everyone. Participants can ask for help while they are in the breakout, which I admit I have missed in the past because I use breakout room time to quickly refill my drink or use the restroom (I’m pretty sure that the breakout time is often used as a break for the host). If the participants don’t rejoin the main meeting at the time I’ve instructed, I can unilaterally close the breakout room and essentially force them into rejoining the main session. I can also broadcast messages to the individuals in the breakout rooms, giving them time warnings or let them know of a new issue.

Another great feature, which the host and others can use, is screen sharing. If I am running a calculation and want the parties to see the figures I am inputting into the program, or want to explain a document, I can use the screen share option, letting everyone see exactly what I’m working with. I would caution that if you have multiple screens, or multiple programs open on your computer, make sure you carefully choose the correct screen and document to share. If you are sharing your screen that also has instant message open, move instant message to the other screen, or else a new message will pop up on the shared screen when it’s received. Depending on what that message says, you may not want others to see it. Don’t share a screen

with any confidential information about another case, or the case you are working on. When you are done using screen sharing, make sure you stop the sharing by hitting the appropriate button so you can continue working privately.

Zoom also has a god-like power available to the host – you can mute a participant. A party can also mute him or herself, but the host can also do that unilaterally if needed. We’ve all been there, with a client (or attorney) who is yelling, making inappropriate comments and completely interfering with the ability to hold the hearing. When that happens on Zoom, you can stop it immediately by muting the unruly participant. I always give a warning before doing so, and if the behavior continues, I can use my magic mute button and deescalate the situation. When (and if) things calm down, I can unmute and allow everyone to participate again.

Zoom has allowed me to continue my work safely and offers features that I don’t have available at my in-person hearings (like the mute button – wouldn’t that be amazing). I’m certain that there are plenty of other tools Zoom offers that I am unaware of and hope to be able to learn about them and put them to good use. Happy Zooming!

Preparing for a Zoom hearing

The COVID-19 pandemic has changed how we live, work and interact with family, friends and strangers. Some of these things have been met with resistance and anger, while others have been a little bit easier to handle. One major development that has impacted the practice of law is the significant increase in virtual court hearings. Most counties across Michigan and the country are utilizing ZOOM or other virtual meeting technology to hold appointments, court hearings, mediation and the like.

While the medical field has utilized virtual visits for years, the practice of law was slow to join the technology trend. Until recently, most counties in Michigan did not have the capability for online filing of court pleadings; now, it is often required. It can be nerve wracking to have to prepare for a hearing in front of a judge, and it can be equally as confusing to have to do so from your living room or office. Additionally, there is always the etiquette question of whether or not you have to wear pants if the camera is only from your waist up.

I recently returned to work from a three month stay home order, and have begun to venture into the world of virtual hearings. The most important thing that I have learned over the last few weeks is that mistakes will happen, and it’s simply not realistic to believe everything will go seamlessly. I have double-booked hearings, provided the wrong password, and forgot to turn the video off each time I had to leave the room for something. I’m positive that I will make more errors, because I’m human and this is an entirely new way of practicing law. The good news is that not one single person has chastised me, or gotten angry that these mistakes have been made. Most people laughed it off and shared their own stories of trial and error with our “new normal.”

My number one piece of advice to those attending virtual court hearings is to be patient. Be patient with the other parties, be patient with the attorneys, and the judge or referee. Everyone is new to this format and things will take longer until we get used to it.

Prepare the same way you would for an in-person hearing. The fact that the hearing is virtual does not absolve you from following procedure and simply neglecting to file briefs and bring evidence. The same goes for being on time. Make sure ZOOM is downloaded on your computer or phone before the day of the hearing. Test it out with a friend if you want to. Waiting until a few minutes before the hearing and realizing you need to install software is not going to be helpful, and could result in the hearing starting without you.

Appear with video if you can, instead of voice only. I like to see who I am talking to for various reasons – it ensures I am talking to the person that I am supposed to be having the hearing with, and it helps me determine the truthfulness of testimony. If you do appear with video, this is not a movie premiere. While family court hearings can be very entertaining, do not invite a group of friends to hang out in your living room while you have your hearing. Please make sure that your children are not in the room and exposed to the conflict that exists between their parents.

Appearing via video also allows screen sharing which is helpful for exhibits and other documents that are being shown. I can also show you the draft of a consent order if you and the other party reach an agreement.

Try to be in a reliable area for internet service so you aren’t cutting in and out during the hearing, and don’t assume the hearing will be faster because it’s virtual. Chances are it may take longer if there are technical issues, or if someone is unfamiliar with the format.

Virtual hearings will likely be more convenient for those who don’t have access to reliable transportation, or have issues with mobility. It may be difficult for those who are not tech-savvy or do not have access to the technology necessary to join the hearing (don’t forget you can join via a phone call too). I doubt that the use of virtual hearings will disappear when the pandemic is over, and it will continue to work its way into the justice system. Whether you are a fan or not, at least you won’t have to pay for parking.

Force of lockdown gets a blunt cut

Most Michiganders have been lamenting the closure of businesses and facilities during the COVID-19 lockdown. One of the most complained about was hair salons and barber shops, because, well, vanity, and we also love our stylists. The economy has undoubtedly suffered due to the shutdown, and like many others, stylists were left without any source of income.

In the Michigan town of Owosso, barber Karl Manke took up the cause in rallying against Governor Gretchen Whitmer’s shutdown order. After the state banned the operation of salons, he continued to cut hair, and joined other hairdressers in doing so outside of the state’s capital. His barber’s license was suspended and citations were issued for his defiance of the order, with a legal battle being filed against him by the Michigan Department of Health and Human Services. When the department failed to obtain a temporary restraining order against Manke at the trial court level, it appealed and won, shutting his shop down.

Manke’s defense rested on the Governor’s executive orders being a violation of his Constitutional rights to First Amendment speech, and equal protection under the law. On June 5, 2020, the Michigan Supreme Court unanimously ruled in Manke’s favor, invalidating the lower court’s ruling that Manke had to shutter his doors. While Manke is no longer in violation of the executive order allowing his shop to legally open, his barber’s license has yet to be restored.

Manke’s attorney, David Kallman, has stated that they are seeking the suspension to be frozen by a local judge. Whitmer recently announced that barber shops and salons can open June 15, making most of this moot. However, Manke’s case will prove to be influential if Michigan faces a lockdown in the future. People certainly have been swept up in his story.

Michigan's secret wedding law

Most of us want our wedding to be celebrated by many, sending out save the date cards to ensure that people have enough time to plan their attendance. On Christmas Eve 2019, however, just the opposite happened for a couple in Owosso, Michigan. John Gleason, who acts as Genesee County’s Clerk-Register, performed an on the spot, unplanned wedding for a couple who were about to give birth to their child in the hospital.

No marriage license had been obtained prior to the ceremony, something that most people assume is mandated to validate any Michigan wedding. A couple must wait three days from the application before the license is granted, per Michigan law. The applicants have to bring birth certificates, valid state photo identification and provide their Social Security numbers.

The couple that Gleason married did not do any of this, as the baby was an emergency delivery. Gleason called Shiawassee County Clerk Caroline Wilson on Christmas Eve and asked for permission to perform the wedding prior to marrying the couple. While he was granted permission, Wilson claims that Gleason was not entirely forthcoming with all of the facts surrounding the wedding. Gleason has maintained that after he performed the ceremony, he learned the couple was undocumented.

Michigan’s probate judges have the unique ability to approve secret weddings, if the court is presented with good reason as to why the wedding should remain private and not part of the public record. They can also backdate the license. Michigan’s secret wedding law dates back to 1897 (Act 180 of 1987; MCL 551.202).

Very few secret marriages take place in Michigan, with only eight occurring in 2018, which is the most recent year with data. The reasons for wanting a secret marriage could be that the couple is particularly young, or they need to keep the wedding quiet for another reason, such as a work policy prohibiting the relationship.

In this case, it took over a month after the wedding for a judge to approve the marriage. There is now an investigation into Gleason’s behavior as he allegedly requested that the clerks backdate documents, and made inappropriate remarks to them when doing so. Gleason denies the accusations. The investigation surrounding Gleason’s actions recently concluded the end of April 2020, and the report was sent to the Tuscola Prosecutor’s office for potential criminal charges. Due to Gleason’s position in Genesee County, the case was transferred out of county.

While the couple may be grateful to Gleason for the quick ceremony, it appears that no good deed will go unpunished.

Stimulus checks won’t be in the mail for those behind on child support

First and foremost, I hope that everyone reading this article is healthy and safe during this surreal situation we are all in. I have a new appreciation for my amazing daycare providers and educators that provide my children with direction and guidance throughout the year. My latest attempt at supporting a PE curriculum includes purchasing a bouncy house for my kids to “exercise” in.

The economic repercussions that have gone hand in hand with the COVID-19 pandemic are astounding, and the President has recently approved a $2 trillion relief package. Part of that package is a cash stimulus, which provides Americans with up to $1,200 per adult, and $500 per qualifying child in the household. How much income a household earned in 2019 or 2018 is taken into consideration in determining the actual dollar amount you might receive.

Another potential consideration is whether or not you owe past due child support that has been reported to the Treasury Department.

Similar to how tax returns can be garnished for those with child support arrearages, the stimulus checks may also be reduced or completely eliminated for those who have failed to pay child support. March and April are big months at the Friend of the Court, with individuals asking where their tax refund money has gone, or when they can expect to receive a portion of their ex’s refund. Pursuant to the Debt Collection Improvement Act of 1996, when states report child support arrearages to the Treasury Department, it will intercept the tax refunds that people receive and reroute those funds to the recipient of child support. That intercept now includes the COVID-19 stimulus checks, which are considered federal payments.

According to Treasury Secretary Steven Mnuchin, the majority of Americans should see their funds by April 17, which is just around the corner. With many states having issued stay home orders, courthouses are closed, or functioning in a very limited capacity, and access to relief through the courts is undoubtedly diminished. By time people can file pleadings to address any issues with intercepts of their stimulus checks, the money may be long gone.

The legal system will continue to be hard hit by this illness when courts fully reopen, with a flood of filings, both delayed and emergent. In the meantime, as long as you have the ability, keep paying your child support and stay safe.

En garde! Trial by combat

It’s not unheard of for a fight to break out at a courthouse, or on the way to or from a court hearing. People’s emotions are high, and depending on the court’s ruling, they may intensify once the gavel hits the bench. Shouting matches and physical fights are one of the unfortunate outcomes of our legal system.

In his Iowa court case, ex-husband David Ostrom decided to take a different route, and actually asked the court for permission to engage in “trial by combat” with his ex-wife, or her attorney. David and his ex Bridgette are involved in an apparently highly contested battle concerning their two children and property taxes. Obviously he’d like to seek swift justice in the matter, but only once he was adequately prepared.

While adjournments are not unusual, David’s reasoning for one was – he needed three months to secure the appropriate Japanese samurai swords for the trial. To be fair, I did some research, and making a “katana,” as the swords are called, is a very labor-intensive process, requiring multiple workers, with the polishing alone taking one to three weeks. In other words, a three month adjournment seems reasonable to me.

According to the Iowa Carroll Times Herald, Ostrom’s pleadings stated that he wanted to give Bridgette and her attorney, Matthew Hudson, “the chance to meet me on the field of battle, where I will REND THEIR SOULS from their ... bodies.” Ostrom relied on the fact that a trial by combat has not been “explicitly banned or restricted as a right in these United States.” Attorney Hudson requested that Ostrom’s relief be denied, noting that the risk of harm outweighed the benefit of this unusual judicial remedy. To be fair (again), he is probably right.

The court responded by telling both sides nothing was moving forward unless proper procedure was followed. In this case, Pat Benatar was wrong - love is not a battlefield.

Can you hear me now?

There are a multitude of items that you can’t bring into a courthouse, with weapons arguably being the most well-known. Depending on the county, the list of prohibited items may vary. Knitting needles, nail files and clippers are items that you may not think of, but they are a no-no in multiple counties. If you’re considering wearing your brass knuckles, bringing your curling iron, bingo markers or dental floss to your court hearing, don’t go to Wayne county. Be mindful of your attire as well, because there are rules governing your pants, shorts, shirts and other apparel. One of the best outfits I saw at a courthouse was a shirt which read: “Only God can judge me.” I bet the judge was impressed with that; I know I was.

Starting May 1, 2020, one of the biggest prohibitions will be lifted – bringing cell phones and other electronic devices into court (MCR 8.115). Many courthouses only allow attorneys and selected individuals to carry these devices with them. With permission, the general public can bring phones or devices to a hearing for an express purpose; generally, it has evidence on it that the party wished to introduce at the hearing. Attorneys skirted around this rule by carrying their clients’ phones into the courthouse – after all, it’s fairly common for people to have a business and personal cell phone. However, if you didn’t have an attorney, and didn’t think to ask for permission, you could be at a disadvantage compared to others.

A good amount of people attend court for their family law case. When you are a working parent, the chances that your kids are in daycare or school are high. It can be nerve wracking to be without your phone when your baby is at daycare, or your first grader has a medical concern. You may not learn about an extremely important phone call until hours later. If both parents are at the hearing, as is often the case, the daycare or school has to move on to other emergency contacts who may not be as reliable. The cell phone prohibition can have a trickle down negative effect.

Pursuant to the new change, people can also use their device to take pictures of court records, which helps eliminate the cost barrier for those who don’t have the money necessary to obtain the copies. As a side note, I’ve never found a courthouse with a decent copier, and most people don’t carry $20 in loose change on a regular basis.

Not everyone is happy with the new rule – there are valid concerns relative to disruptive behavior, unapproved recording and communication, and taking pictures of witnesses and jurors. Devices must be silenced during proceedings and the court can address disruptive behavior.

With the world only moving forward with technology, the new rule is not unexpected, and in my opinion, will be largely welcomed.

Japanese court ruling harms alienated parents

Parental alienation has become a “buzz word” in family law circles. People are quick to throw the term out, which can diminish the seriousness of the event when it actually does occur. It is not always easy to prove, and there are questions as to what rises to the level of parental alienation, or if it even exists. Parental alienation can be loosely described as occurring when one parent’s actions harm the relationship between the child or children and the other parent. Parental Alienation Syndrome examines the consequences that the actions have on the child, and is defined by the American Psychological Association as “a child’s experience of being manipulated by one parent to turn against the other (targeted) parent and resist contact with him or her.”

In 2019, the World Health Organization (WHO) recognized parental alienation as a health condition. It is termed “Caregiver-child relationship problem,” and described as “[s]ubstantial and sustained dissatisfaction within a caregiver-child relationship associated with significant disturbance in functioning.”

Across the globe in Japan, parents who have been alienated from their children were recently dealt a crushing blow to their cases, as the Japanese court ruled that the country is not at fault if separated parents, who have visitation rights, are unable to see their children. Fourteen parents, only one of whom was not Japanese, sued the Japanese government for failure to have a legal remedy which ensures visitation with their children.

While Japan is a party to the Hague Convention on the Civil Aspects of International Child Abduction, it does not have a joint custody system in cases of divorce. The Tokyo District Court ruled that while the treaty was an agreement which respected the rights of parents, it was not binding.

Online news articles describe the plight of Tommaso Perina, the non-Japanese plaintiff in the lawsuit. Perina is still married, and has a nominal two hours of visitation per month with his 6 and 4 year old children. However, he hasn’t seen them in over 2 years as his wife fled Tokyo, taking the children with her to a different location in Japan. His parental rights are fully intact, and his requests for help from high-ranking Japanese government officials have led nowhere.

There’s not much point to an order that can’t, or won’t, be enforced. There is a huge risk of long-term psychological impact on a child who is essentially banned from seeing one parent. Of course there are always situations where this is for the benefit of the child, such as legitimate

safety issues, or abuse and neglect concerns. Sadly, this ruling implies consent to the deterioration of the parent-child bond.

Back to life means back to prison

As an attorney, there are times when I think I’ve heard it all, and then something else comes along that leaves me shaking my head. That happened the other day when I read about Iowa inmate Benjamin Schreiber’s latest court ruling.

Schreiber was sentenced in 1997 to life without the possibility of parole for his conviction of first degree murder. I’d imagine that this type of sentence leaves one with plenty of time to ponder ways to magically be released from prison. In 2015, Schreiber fell ill while locked up, and was found unconscious. At the hospital, he had to be resuscitated five times, and was diagnosed with sepsis caused by kidney stones. He claimed that the hospital ignored his do not resuscitate order and did so anyways.

Schreiber attempted to use his unfortunate health issues as a ticket out – he claimed that his resuscitations left him dead, albeit briefly, and due to his “death,” he’d already served his life sentence. Any further time in prison was illegal and he should be released immediately! And in case you are wondering, yes, he actually has an attorney listed as his counsel on the appeal to the Iowa Court of Appeals. The state won its motion to dismiss in district court, with the lower court noting that “ ‘[t]he petitioner’s filing of these proceedings in itself confirms the petitioner’s current status as living.’ ”

While Schreiber agreed that he was sentenced to life without parole, this sentence was not “ ‘…Life plus one day.’ ” Like many prisoners, he claimed violations of rights enumerated in the Due Process Clause, and the Fifth and Fourteenth Amendments to the Constitution. Not surprisingly, he had no case law to back up his argument (to be fair, it is rather unique).

The Iowa Court of Appeals didn’t buy what Schreiber was selling, and on November 6, 2019, it opined that the correct reading of the statute required him to “stay in prison for the rest of his natural life, regardless of whether he was resuscitated against his wishes in 2015.” The lower court did not err in dismissing his postconviction-relief (PCR) application. The Court also stated, “Schreiber is either alive, in which case he must remain in prison, or he is dead, in which case this appeal is moot.” Legal opinions are often dry and humorless, but the Court got some zingers in when writing this one. A footnote provides more fodder, stating “[g]iven Schreiber appears to have signed his name on the PCR application and his motion for reconsideration – both filed after his “death” – we find this possibility [of his death] unlikely.”

Most people are grateful for successful resuscitation when they are in a life or death situation, but I guess I shouldn’t expect a murderer to value life. Barring any unlikely victorious appeal, it appears the Court has “pulled the plug” on Schreiber’s dreams of release.

Virginia law finally declared unconstitutional

No matter how much this nation moves forward in an attempt to treat everyone equally, reminders are present that prejudiced laws and beliefs remain. Three Virginia couples recently applied for marriage licenses, and were denied because they refused to check a box defining their individual race.

While the form provided 230 options for an individual’s race, some of the terms used were antiquated and offensive. In September 2019, Virginia’s Attorney General Mark Herring advised citizens that it had been updated, with an option to decline to state your race, avoiding the potential for couples to be denied a marriage license. However, the new form did nothing to invalidate the law requiring race identification.

The couples continued the lawsuit, noting that while the AG’s actions were helpful, they were merely a “Band-Aid” over the larger problem. When Herring was no longer AG, his replacement could void the edict. The bigoted law existed in an attempt to preserve the racist ideology that people must marry within their own race. The lawsuit argued that the race identification requirement stemmed from Virginia’s 1924 Act to Preserve Racial Integrity.

On October 11, 2019, Federal Judge Rossie Alston ruled that the law was unconstitutional and violated the 14th Amendment. Despite the AG’s direction and new form, clerks still had an obligation to uphold the law as long as it was still valid. By ruling the law unconstitutional, this voided any obligation for a clerk or anyone else to follow it. The court noted that while Virginia had great traditions, there remained “stains of past mistakes” which did not align with the Constitution.

It took far too long for this law to be overturned, but any step forward is a positive one.

Macomb man's posts deemed not criminal

Most of us working in the judicial system are used to being publicly flogged via social media by a disgruntled client or losing party. The right to free speech doesn’t include that the speech has to be nice and kind, but there is a fine line as to what’s acceptable and what is threatening.

Macomb resident Jonathan Vanderhagen suffered an unimaginable loss when his two year old son died while in the child’s mother’s care. While no charges were filed against the mother, Vanderhagen had filed for custody prior to the child’s death, alleging improper care and drug use on behalf of the mother. Macomb County Judge Rachel Rancilio was assigned to the case.

Vanderhagen used Facebook as his platform to express criticism of the court system, including the judge and Friend of the Court, and his child’s mother. Rancilio was advised of some of the posts, which admittedly were not polite, and she in turn notified the police. Vanderhagen was charged with the misdemeanor crime of malicious use of telecommunications services. He posted bond and a no contact order between himself and the judge was put in place.

Vanderhagen continued to malign the court on his Facebook page, and when he appeared for court on the misdemeanor, a district court judge found him in violation of the no contact order, and raised his bond to $500,000. He also required a mental health exam while Vanderhagen was held in jail. Vanderhagen had no criminal record, but he could not afford to post the increased bond.

Finally, on September 19, 2019, a jury found Vanderhagen not guilty of the crime, and he was released from jail, where he had been held for two months. After a three day trial, it was reported that the jury came back less than 27 minutes after commencing deliberations. The post that appeared to have raised the most concern was one where Vanderhagen was holding a shovel with the initials “RR” and “MD” on it, stating he would dig up “ ‘all the skeleton’s in this court’s closet.’ ” It is easy to take this post a step further and believe it is a threat insinuating a burial of the judge, but Vanderhagen insisted it was literally what he had posted – he was digging up dirt on the judge assigned to his case. His rationale behind the posts was to warn others about the court system by telling his personal story.

Based on what has been shared about the posts, I think the outcome was justified in this case. Being in a quasi-judicial role myself, I would caution others who have a similar bad taste in their mouth to think before they publish grievances, as intentions can be misconstrued. Fight your case in a court of law, not the court of public opinion.

Pregnant woman unjustly sentenced

The Michigan Court of Appeals recently reversed the Grand Traverse Circuit Court’s sentencing of Samantha Hughes in a July 9, 2019 ruling.  Samantha was no stranger to legal trouble, and in the summer of 2018, she pled guilty to use of methamphetamine and tampering with an electronic monitoring device (yeah, she cut off her tether).  She managed to strike a deal with the prosecution, but later violated the terms of her probation. 

 At her November and December 2018 hearings, her lawyer advised the court that Samantha was pregnant, and revealed her due date of July 2019.  At her sentencing, the court discussed what it apparently considered a legal quagmire on the record, noting Samantha’s history of  methamphetamine and cocaine use, and the fact that she was pregnant.  The court was concerned that if Samantha was not incarcerated at the time of the baby’s birth, she could expose the unborn child to drugs, causing a myriad of harm. 

Despite Samantha’s statement that she would “never jeopardize my children or baby due to any drugs,” and the fact that her previous two pregnancies were void of substance abuse, the judge pressed on.  The court commented that fetal alcohol syndrome and drug use while pregnant left those children with a life-long disability, and this was not a risk the judge would take.   Samantha was sentenced for no less than 13 months and no more than 24 months, with the court crediting her 143 days for time served.  Most notably, the court opined, “[t]hat will get her out probably a month after she delivers the child, that sounds just about right to me, and that will give us a healthy baby hopefully, and not just us but give [defendant] and her family a healthy baby to work with and for all society, so that’s what we’re doing.”

Samantha appealed her original denial of the delayed application, and the Michigan Supreme Court remanded the case to the Court of Appeals.  Her argument was simple:  but for her pregnancy, her sentencing would have been different.  The lower court could not have been more clear as to why Samantha received the jail time to which she was sentenced. 

The Court of Appeals held that the trial court’s “reasoning behind defendant’s sentence is constitutionally inappropriate, prejudicial, and exemplifies extreme bias.”  Discrimination based on a woman’s pregnancy is discrimination based on sex, and the sentence could not stand.  Samantha’s sentence was vacated and she was granted bond and immediate release.  Her resentencing occurred in front of a new judge, who sentenced her to time served, and reduced fines to assist the new mother.

Unfortunately, the Court of Appeals ruling came days after she had given birth behind bars, but symbolically on her due date of July 9.