Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email:

Tuesday, June 19, 2018

Oakland County Embryo Case Heading for Evidentiary Hearing

An interesting case from the Oakland County Family Court poses the question: is a fertilized yet frozen human embryo property or a person?

Oakland County Family Court Judge Lisa Langton has been assigned the task of deciding this question. One couple on her custody docket cannot agree on the disposition of a group of frozen embryos.

The couple, Gloria Karungi and Ron Ejalu, contracted with an in vitro fertilization clinic whereby 10 of the couple's embryos were frozen from their genetic materials. According to the contract, the frozen embryos are characterized as the joint property of the parties; any disputes between the tissue donors and the clinic are to be settled through arbitration; the contract is silent as to disputes between the donors.

Unfortunately, the parties to the embryo contract have a daughter with sickle cell disease and Mom and Dad are no longer a couple. Mother believes that if she has another child with Father's DNA, using a frozen embryo, genetic material from that child may be able to help or cure her daughter.

Father will not agree with Mother's request to implant one of the embryos to beget a second child. So the matter was brought to the family court where Mother sought a legal ruling on the "custody" of the embryos. 

Judge Langton ruled that she only had jurisdiction over the couple's daughter and limited her decisions in the case to custody, parenting time and child support relative to the daughter. In dismissing the embryo dispute, she based her ruling on a case-code selected by the parties when Mother initially filed the entire matter as a child support case.

Mother appealed Judge Langton's ruling to the Michigan Court of Appeals. In her appellate filings, Mother raised all manner of custody arguments relative to the embryos, claiming that the family court had jurisdiction on the basis that a frozen embryo was a "person".

One indication of the unusual nature of the case is that each of the three appellate judges assigned to the panel wrote a separate opinion. The case was remanded back to Judge Langton in a 2-1 vote.

In the lead opinion, Judge Colleen O'Brien -a former Oakland Circuit Court Judge herself- wrote that the lower court should have treated this case as a contract dispute, not a custody matter. In remanding the case back to the family court, however, the Court of Appeals noted that the record was insufficiently developed to determine whether the family court had jurisdiction.

The appellate court mused whether the subsequent conduct of the parties served to amend the contract; it also wondered whether one or both parties waived the arbitration clause of the contract by their filings in the family court; the court further speculated that the family court, and not the civil division, was the proper court to decide this dispute.

Taking issue with the dissenting opinion, Judge Christopher Murray felt compelled to write a concurrence, emphasizing that the majority opinion properly identified and corrected the family court's error: the lower court improperly dismissed the embryo dispute based on the case caption.

Judge Murray points out that in remanding the matter to further develop the record, the majority opinion merely points out that an issue may exist regarding the family court's primary jurisdiction due to the arbitration clause contained within the embryo contract.

In her dissent, Judge Kathleen Jansen adopts a different approach than the majority, noting that the embryo contract technically was between the biological donors and the clinic, not between each other. Nor is Judge Jansen convinced that the arbitration language binds the former couple regarding the embryo dispute as between themselves. This view, of course, provides a green light to the lower court to conduct further proceedings in order to develop a record from which various custody rulings can emanate.

What Judge Jansen found most disturbing was the majority's characterization of the matter as a contract dispute when neither party raised that issue below but rather, couched all of their filings in terms of a custody dispute. Judge Jansen concluded that, "[t]he trial court ... lacked legal authority to consider the disposition of the embryos in the context of a custody case."

Although the Michigan Supreme Court took a pass on this interesting case, Justice Bridget Mary McCormack wrote separately to opine:
....that the trial court should not avoid the question argued by the parties: whether frozen embryos are persons subject to a custody determination. The answer to that question could prove dispositive regarding whether the contracts resolve this dispute. See Harvey v Harvey, 470 Mich 186, 194 (2004) (stating that “parties cannot stipulate to circumvent the authority of the circuit court in determining the custody of children”). And if the trial court concludes that embryos are not subject to a custody determination, it is still bound to make a determination about the proper legal disposition of those embryos, if not under contract law or child custody law. Under Const 1963, art 6, § 1, it has an obligation to exercise the judicial power to decide the dispute before it. See also MCL 600.605 (circuit courts “have original jurisdiction to hear and determine all civil claims and remedies, except where exclusive jurisdiction is given in the constitution or by statute to some other court or where the circuit courts are denied jurisdiction by the constitution or statutes of this state”). 
With the case now remanded to her trial court, Judge Langton will re-consider Mother's motion for summary disposition tomorrow morning. She will decide whether a frozen embryo is a spec of property or a human life.

Post #617

Labels: , , , ,

Tuesday, March 20, 2018

Assault Rifles and the Right to Bear Arms

Given the regularity of mass shootings in the U.S., with their attendant state law reactions banning certain assault-style weapons, someday soon there will be a petition for certiorari granted by the SCOTUS to take yet another look at one of our bedrock individual liberties. The last time the high-court considered the merits of a Second Amendment right to bear arms case was back in 2010.

SCOTUS set the legal agenda relative to the right to bear arms in its 2008 District of Columbia v Heller decision. In that case and in McDonald v City of Chicago, Justice Antonin Scalia struck local ordinances banning handguns.

These cases, however, left open the question of what standard should be imposed in reviewing the constitutionality of state hand gun laws. The so-called intermediate standard requires that a state hand gun law be "substantially related to an important government interest". A lesser standard merely requires that gun laws be reasonable and bear a rationale basis to the state's interest in their regulation.

Second Amendment advocates prefer the "strict scrutiny" standard of review. This standard presumes the state law is invalid unless the state satisfied a burden to demonstrate a "compelling state interest" to justify the policy on which the gun law is based.

Over the decades, three principles of jurisprudence have emerged relative to the Second Amendment. First, there is no such right to unlimited gun ownership. In his Heller opinion, Justice Scalia stated that not all weapons are protected under the Second Amendment such as "weapons that are most useful in military service—M–16 rifles and the like."

Second, courts addressing gun law cases in the modern era of monthly, if not weekly, mass shootings, will draw from the principled regulations laid out in the Heller case. These principles include: a general ban on assault or military grade weapons; required child protection devices such as trigger locks; banning classes of individuals such as convicted felons and the mentally ill from gun ownership; and universal registration requirements.

As has been demonstrated by past decades of mass shootings, however, nearly every one of these laws, both federal and state, are broken by a  murderous shooter. With shocking ease, the mentally ill person, the terrorist, or the felon, wind-up at a gathering of many many innocent people, gun in hand, ready to deal-out death to everyone in range.

Third, with the absence of a clear ruling by the SCOTUS adopting a specific standard to review state gun laws lower appellate courts will have continued influence in shaping this area of law.

In this regard, we take note of a recent en banc decision coming from the 4th Circuit Court of Appeals. In the wake of the Sandy Hook tragedy, where first graders were shot to death, Maryland passed a comprehensive package of laws totally banning assault rifles. In the decision upholding this package of tough gun laws, the 4th Circuit took a significant step in establishing precedent and providing a gun control guidepost for the other circuit courts of appeal across the nation.

Kolbe v Hogan was decided by the entire 4th Circuit bench and holds that state gun laws are reviewed under the [more lenient] "intermediate scrutiny" standard. This means that the state gun law is more likely to withstand the so-called "intermediate" scrutiny. The first three-judge panel of the 4th Circuit -the panel originally assigned to decide the case- struck the Maryland law by utilizing the "strict scrutiny" standard.

Gun advocates will curse the decision. Consider, for example, this well-thought-out Op Ed piece from the Washington Post's Voloch Conspiracy. Of interest to Second Amendment proponents, this piece draws a technical distinction between military weapons and assault-style automatic weapons like the long-infamous AR-15.

America must await another Second Amendment case for SCOTUS to finally weigh-in on the proper standard under which state gun laws should be reviewed. Interestingly, last month the SCOTUS declined to hear the Kolby case.

Will tougher gun laws prevent mass shootings? Unfortunately, we here at the Law Blogger say, probably not. But it's a start.

We base our pessimistic view on the ease with which anyone can acquire an automatic weapon, both seller and purchaser violating laws without a thought. Youtube has featured several recent individuals demonstrating how easy it is to purchase an assault weapon and plenty of ammunition to go along with it.

A decade ago, Australia passed laws that struck at the root of their gun violence epidemic; the government confiscated assault rifles and banned their manufacture and importation. Going after the source of the gun problem -the manufacturers- in this country will ignite a massive legal battle on the level of slavery, abortion, civil rights, and marital equality. We're a long way off from that here in America.

Over here at the Law Blogger, we'll be searching for that case. And while we search, and monitor and wait for the right case to come along, we'll be hoping that none of us come across a deranged killer with a locked and loaded assault rifle like so many of our children do.

Post #616

Labels: , , , , , , , ,

Monday, February 19, 2018

Custody Ruling Impacts Transgender Teen

transgender child custody
Ohio Judge Sylvia Hendon
Interesting custody cases involving transgender-minded teenagers are emerging from family courts around the country. Many of these cases pit the minor children against their parents, and bring grandparents into play.

On Friday, an Ohio family court ruling modified custody of a transgender-hopeful teenager, terminating his parents' rights and awarding custody to his maternal grandparents. Hamilton County Juvenile Court Judge Sylvia Hendon was moved by the high school student's desire to begin hormone therapy; the first step to transforming from the male to female gender.

In this case, known as In re: JNS, the teenager disagreed with his parents about whether he could begin hormone therapy. Eventually, things became so bad at his home over the past year, the teenager reached out via email to a crisis hotline and was admitted to the Cincinnati Children's Hospital. 

From there, the teenager provided details of his home life and mental condition to doctors. The hospital refused to return the teenager to his parents and the matter was referred to the family court.

Over the past two years, the teenager's parents struggled with their son's deep depression. When they sought treatment from Children's Hospital, they were shocked by a diagnosis of acute gender diaspora [strongly identifying with the opposite of one's biological gender]. 

A juvenile abuse and neglect case opened last February and several "best interests" hearings were conducted to determine where the boy should live until he emancipated into adulthood. Placement was an issue because the boy's parents objected to case plans stating that Children's Hospital "would like" to begin hormone therapy consistent with the diagnosis of gender diaspora.

Eventually, and according to the family court judge, inexplicably, the hormone therapy case plan was withdrawn after the abuse and neglect charges were dropped. From there, the boy was interviewed by the judge and a 4-day trial was conducted in January on the maternal grandparents' petition for custody.

During trial, proofs went in detailing the boy's struggle with severe depression; about acute gender diaspora; about the role of the Children's Hospital Transgender Program; and the methods of treatment such as psychotherapy, hormone therapy, and surgical intervention. Judge Hendon expressed concern in her opinion and order that the director of the hospital's Transgender Program testified that 100% of all the patients seen were considered appropriate for continued transgender therapy. 

Therefore, the order changing custody to the maternal grandparents -who purportedly support the 17-year old's transgender ideation- entered last Friday; the order contained a few conditions. First, the teenager will undergo a psychiatric evaluation by a professional not associated with the hospital's transgender program; and the boy's parents were awarded reasonable visitation and were "encouraged to work toward a reintegration of the child into the extended family."

In papers filed with the family court, the boy stated that he fears returning to his parent's home. He claimed his parents are in denial of his gender diaspora and have attempted to reprogram their son by reading passages from scripture for up to six hours at a time.

Judge Hendon carefully articulated her rationale for changing custody:
The parents acknowledged the child expressed suicidal intent if forced to return to their home. It is unfortunate that this case required resolution by the Court as the family would have been best served if this could have been settled within the family after all parties had ample exposure to the reality of the fact that the child truly may be gender nonconforming and has a legitimate right to pursue life with a different gender identity than the one assigned at birth.
The judge's opinion and order also called for legislation to provide a framework for courts to assess a juvenile's request to explore gender therapy. 

We here at the Law Blogger agree with Judge Hendon that many similar cases are "out there". Yet we are perhaps somewhat naively surprised that children have such acute sexual preference awareness and gender nonconformity alienation at such an early age.

Kids these days; they're growing-up fast, that's for sure.

Labels: , , , , ,

Friday, January 26, 2018

Judges and the Media

Judge Rosemarie Aquilina
This post addresses the intersection between the judicial branch and the fourth estate. As lawyers practicing in the trenches of the courtrooms in Michigan, we here at the Law Blogger appreciate judges that eschew the media rather than bask in the glow of its camera lights.

That's why we were taken back by Judge Rosemarie Aquilina's recent commentary from the bench at the conclusion of Larry Nassar's epochal sentencing hearing. Judges must be impartial and Judge Aquilina probably crossed the line between impartial jurist and victim's advocate in the Nassar case.

The Ingham County Circuit Judge told Nassar that she was "honored and privileged" to sentence him; that she "signed his death warrant"; and that if our Constitution did not proscribe "cruel and unusual punishment", she would allow "people to do to him what he did to others." She also referred to Nassar's legion of victims as "sister survivors", many of whom were allowed to speak during the sentencing hearing, without being listed as complaining witnesses in the charging instrument.

Um, we don't have the death penalty here in Michigan judge. And, could you please stop handing-out appellate issues as if they were candy.

Judge Aquilina succumbed to a classic courtroom sketch. An evil villain is convicted of heinous crimes and the sentencing judge chooses colorful words and phrases designed to fit into media sound-bites.

Although a very human way to react to a horrible situation, the principle of judicial impartiality is bedrock and must be sacrosanct regardless of the media attention surrounding a particular case.

We can already smell the political possibilities flowing from this case: Judge Aquilina for Michigan Supreme Court? Somewhere along the line, Judge Aquilina assured the media that this criminal proceeding was not about her. "The lady doth protest too much", we think over here at the Law Blogger.

We love to hear from our readers on these high-profile cases that point to the heart and soul of our justice system. Do you think the judge crossed the line with her comments in this case?


Labels: , , ,

Friday, January 5, 2018

Recreational and Medical Marijuana: The Empire Strikes Back

For the past 10-years, the marijuana legalization process has gained traction in the United States and other Western countries. Canada and California went legal last week; 8 states have legalized recreational use of marijuana; another 20 states have legalized medical marijuana.

Yesterday, however, the other shoe fell in Washington D.C., with the United States Attorney General reversing USDOJ policy and instructing United States Attorneys to begin prosecuting marijuana violations of the Controlled Substance Act. Attorney General Jeff Sessions' policy statement rescinds the Obama-era Cole memo; a memo that included a series of enforcement directives designed to leave policing marijuana dispensaries to the individual states.

AG Sessions' personal animus against pot is well known. He has gone on record saying that marijuana users are "not good people".

Sessions' pronouncement sends a fledgling billion dollar industry into an era of uncertainty. For the past decade, banks, insurance companies and capital investors took baby-steps into the massive marijuana industry; an industry that, until the past decade, operated solely within the Wild West of the black market.

This policy shift will chill the macro moves of the major industry players. The combined markets of California and Washington, both recreational use states, were expected to eclipse the revenue of the alcohol industry. That's some big money folks.

And because it's such big money, you can bet some of the money will be spent to deploy lobbyists in a full-court-press on Congress to, once-and-for-all, remove marijuana from Schedule 1 of the Controlled Substance Act. We here at the Law Blogger are not holding our breath, as this has been tried before, and the efforts, of both lobbyists and litigants, have failed.

Unfortunately for the marijuana industry, Congress' attitude toward marijuana seems influenced by the hubris of a failed 30-year "war on drugs" that involves a series of mutual prohibition treaties with many of our trading partners to the South. This attitude does not take into account that the ganja smuggler is a thing of the past; today high-quality pot is produced in a 2x2 closet with a grow lamp and some TLC.

Seriously, it is now time to end marijuana prohibition. Marijuana should be removed from Schedule 1 and placed into its own category; a category most-closely related to alcohol. Yes there are problems, health and otherwise, that arise from chronic marijuana use.

Prohibition, however, is not the answer. Regulate the weed; tax the revenue generated from weed; just stop the prohibition of the weed.

Post Script: Some U.S. Attorneys have made ominous statements promising aggressive prosecution for pot distributors, Massachusetts, while others, Colorado, have said they will not prosecute federal marijuana cases.

Post #613

Labels: , , , , ,