The Michigan Supreme Court heard oral arguments mid-Month in a very interesting case of first impression involving frozen sperm and Michigan's laws of intestacy.  The certified question before our High Court  is whether frozen sperm equates to "children" under the intestacy statute.

In this case, the procedure is as unusual as the fact pattern.  The case comes to the Supreme Court on a certified question from the United States District Court for the Western District of Michigan.  The case took more than five-years to get to the state court.

The case arose when the Mattisons, a married couple, arranged for Mr. Mattison to bank his frozen sperm in order to preserve it for later impregnation and prior to receiving chemotherapy to treat his cancer.  The couple desired to preserve their ability to have children but were worried that Mr. Mattison's chemotherapy would damage his sperm, complicating their efforts to conceive a child.

After actively preparing his wife to receive his frozen sperm, Mr. Mattison died back in 2001.  Ms. Mattison subsequently was implanted with her deceased husband's frozen sperm, conceived and gave birth to twins.

Ms. Mattison's application on behalf of the twins for survivor benefits was denied by the Social Security Administration.  The SSA took the position that the children did not survive their wage-earner father under the definition of the terms "child" and "survive" in Michigan's probate code; the Estates and Protected Individuals Code.

In listening to oral arguments in the case, it did not appear that the High Court Justices, particularly Justices Robert Young and Stephen Markman, were very receptive to Ms. Mattison's position.  Justice Young exhibited palpable irritation that the certified question, which appears to have no statutory support in EPIC, took so long to make it's way to the Michigan Supreme Court.

Although many other states are considering similar questions, we here at the Law Blogger predict that our Supreme Court will decide in this case that the Mattison twins are not entitled to receive the survivor benefits from their deceased wage-earning father on the basis that they simply did not exist at the time of their father's death.

Toward the end of the very brief oral arguments, one of the Justices asked Ms. Mattison's attorney whether he had considered raising the frozen sperm survivorship issue with the Michigan Legislature.  We agree with Justice Young when, during oral argument, he wondered aloud whether the certification of this particular question was essentially a violation of the constitutional separation of  powers.

Unfortunately for the Mattisons, Courts cannot legislate from the bench.

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We have all heard the term “visitation” before, especially if you have been involved in a child custody dispute or divorce.  The term most often used by family law lawyers and professionals is “parenting time”; referring to the legal right [and obligation] of a parent to spend time with one’s child following a divorce. 

Even grandparents, under limited and specific circumstances, may have a legal right to visit with their grandchildren according to Michigan law.

But what about siblings?  Does a brother or sister have the right to visit their sibling, if for some reason they are no longer living within the same household? 

The short answer is that sibling visitation is not recognized as a legal right in Michigan.   The Child Custody Act does not provide for visitation rights between siblings.  Add adoption into the mix and the result remains the same – but for a more specific reason.  

Earlier this month, the Michigan Court of Appeals grappled with, and attempted to decide

this very issue in Wilson v King; a published thus binding opinion of the intermediate appellate court.

Marquita Wilson, the plaintiff-mother in this case, had three children who were eventually adopted into a new family in 2008 after her parental rights had been terminated.  Ms. Wilson then gave birth to a fourth child; Mac.  

The adoptive parents of Ms. Wilson's three children initially allowed Mac to visit with his siblings.  Sadly, for reasons not stated in the Court of Appeals opinion, the adoptive parents ultimately discontinued these sibling visits.  

Ms. Wilson filed suit on behalf of Mac in Wayne County Family Court.  The family court judge dismissed the claim on the basis that the right to “sibling visitation” does not exist under Michigan Law.  On appeal, Ms. Wilson argued that Michigan law does provide for a cause of action for sibling visitation and that the lower court had erred in dismissing her case.  

The Court of Appeals upheld the trial court’s decision – but did not find one way or the other on whether or not Michigan law provides for a cause of action for sibling visitation.  Instead, the Court focused on the fact that Mac’s older siblings had been adopted.  

Adoption legally severs any ties to the prior, natural family, and creates, in its place, a new adoptive family recognized at law.  This means that, legally speaking, Mac’s older siblings (once they had been adopted) were no longer his legal siblings in the eyes of the law.   

The Court of Appeals held that even if a cause of action regarding sibling visitation existed (which the Court made sure to footnote that they offered “no opinion as to the viability of such a claim”) in Mac’s instance the claim must fail as the three adoptive children were no longer his siblings. 

While we recognize the psychological importance of eliminating contact with biological parents in order to facilitate growth in the new adoptive family, this ruling strikes us as similar in spirit to the old paternity act that denied a biological father standing to seek any parenting time with his child whatsoever.

The ruling seems to foster the notion of wiping-out all traces of the adopted child's  biological family.  Many adopted children, as they mature, seek out traces of their biological families.  Some of these children, as they mature into adulthood, obsess over their lost families and seek therapy to deal with the loss.

At base, however, there is really no-way in cases like this to allow sibling visitation, without also focusing on the biological parents.  Our adoption laws currently do not provide for the maintenance of two families; just one: the adoptive family.

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Long-term marriage has been an endangered species for some time in our society.  Couples in the United States divorce at the rate of approximately one million times each year.

Divorce is Hell for both men and women.  Even in our post-modern society, however, women still seem to get the brunt of the pain.

According to a recent study published by the University of Michigan, approximately 115,000 women nationwide lose their health insurance coverage as a direct result of the divorce process.  Of these, some 65,000 never re-gain coverage.

The study was conducted by Bridget Lavelle, a UM sociology doctoral candidate.  Ms. Lavelle examined literature and data from survey respondents who divorced between the years 1996 and 2007.  The December issue of the Journal of Health and Social Behavior will feature the study.

Lavelle postulates that women's loss of health insurance benefits is not just a temporary disruption resulting from the divorce process.  Rather, she concludes that the loss of health insurance coverage for women is a long-term problem that compounds the economic losses of divorced women.

What's worse is that mid-income women have the greatest risk of loss of coverage because they do not qualify for Medicaid or other safety-net coverage options available to lower income divorcees.

We here at the Law Blogger wonder what effect Obamacare and the Affordable Care Act will have on this equation next year when everyone must carry insurance by mandate of federal law.

When facing a divorce, if you are at risk of losing your health insurance coverage, consider demanding some form of short-term alimony payments sufficient to cover the 3-year period of COBRA available from your spouse's employer.  Or, in the alternative, shop for comparable affordable health insurance.

The short-term alimony approach will at least cover women during the initial transition from marriage when, as posited by Ms. Lavelle, they are most at risk to lose health insurance coverage, and suffer even greater economic hardships as a result.

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Supreme Court Justice Brian Zahra

If you are a Justice on your state Supreme Court, and were up for re-election, then last Tuesday was a good day for you, except if you work in Ohio.  Here in Michigan, the two incumbent Justices, our friend Brian Zahra, and his colleague, Stephen Markman, were re-elected in a hard-fought race.

The High Court election results mean that the conservative 4-Justice majority in Michigan stays intact for now.  The newcomer to the Michigan Supreme Court is UM Law Professor Bridget Mary McCormack, a Democratic nominee.  Professor McCormack replaces retiring Justice Marilyn Kelly; a long-serving Justice and a Judge's jurist if there ever was one.

The November 2012 election featured tight High Court races in other states around the country.  In Iowa, Justice David Wiggins was the only survivor of a 4-Justice block that decided a case recognizing same-sex marriage back in 2009.  His three High Court colleagues were defeated in the 2010 election.

Meanwhile, in Florida, the local Republican party targeted three justices as "too liberal" and "too extreme" to be worthy of their High Court.  The effort failed, however, as all three liberal Justices retained their seats.

In Michigan, as in most states, our jurists are "elected".  Many, if not most, of our jurists, however, take their seats on the bench through a gubernatorial appointment, then get elected after finishing out the term to which they were appointed.  The advantage is being able to run as a sitting judge or justice.

Justice Zahra is a good example.  He was initially appointed to the Wayne Circuit bench by former Governor  Engler, then elevated to the Court of Appeals by Engler.  After Governor Snyder was elected, one of the first things he did was to elevate Zahra to our High Court.

While the judicial ballot is "non-partisan", this past election confirms an age-old trend in judicial elections; you cannot remove politics from the courtroom.

Postscript:  Here is an editorial from the NYT referencing the huge sums spent on Michigan's High Court election.

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This past August, I was fortunate to have some business in the Greater Los Angeles area.  I was amazed at how many medical marijuana shops were open for business along Hollywood Blvd. and Sunset.  Even though California's big outright legalization initiative failed in 2010 [the medical pot lobby crushed it], marijuana is all-but-legal in Cali.

This week, Mexico, the biggest illegal supplier of pot to the U.S. market, is reportedly taking a very close look at three other Western states seeking to legalize marijuana outright through ballot initiatives on Tuesday: Oregon, Washington and Colorado.  According to The Economist, these initiatives have a very  good chance to pass in Colorado and Washington, while Oregon is considered a "long shot".

A long-standing argument for legalization is that it would put the drug cartels South of the boarder out of business to the extent that America could supply its own stash.  The past three Mexican presidents have all stated publicly that legalization in the U.S. would have the greatest effect on dismantling these vicious criminal gangs.

Marijuana produced by skilled Gringo horticulturalists, the argument goes, is of better quality and is cheaper to produce, than the Mexican import.  Also, it could be taxed like cigarettes to produce much-needed government revenue.

We here at the Law Blogger wonder if it is not indeed time to consider whether a policy change on this issue is due.  The three-decade policy of drug war eradication has been a prolonged costly failure.

Drug trade policy is one thing; federal law is another.  Any significant change in this direction would require that simple marijuana use and possession be removed from the list of federal drug crimes by Congress.  That is going to take some big-time lobbying.

In this regard, a California pot lobby, Americans for Safe Access, has convinced the powerful D.C. Circuit Court of Appeals to take a look at the science of marijuana in its case against the Drug Enforcement Agency.  Appellate oral arguments were heard in mid-October; the panel assigned to decide the case ordered additional briefings from the pot lobbyists and the DEA immediately following arguments.

The opinion, which could have a significant impact on the federal marijuana laws, is expected from the intermediate federal appellate court in a few months, and will be SCOTUS-bound thereafter.  We will continue to keep you advised on this landmark drug case; in the meantime, let's see what happens on Tuesday.

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Davontae Sanford (left) &
Vincent Smothers

A few weeks ago, the New Yorker ran an article titled: Letter from Detroit: The Hit Man's Tale. The piece features a multiple shooting homicide from 2007, to which two different persons have separately confessed: a hit man, and a local kid, apparently trying to acquire some street credibility.

The self-proclaimed hit man is Vincent Smothers, doing 50-100 years at the Michigan Reformatory in Ionia, MI for a series of murders-for-hire to which he confessed, including the multiple shooting deaths of 4 victims on Runyon in Detroit.

His most infamous "hit", other than the Runyon job, was Rose Cobb, the wife of Detroit Police officer David Cobb, who ultimately hung himself in a jail cell.  Smothers confessed to more than a dozen murders, mostly drug dealers, but it was Ms. Cobb's murder that caused his conscience to come clean with law enforcement. Like Cobb, Smothers attempted suicide; unlike Cobb, he was unsuccessful.

The kid, Davontae Sanford, was sentenced to 37-90 years on 4-counts of second-degree murder for the same Runyon shootings.  Sanford was initially represented by the Frank Murphy Hall of Justice legend, Robert Slamenka, following his confession to the Runyon murders.

As defense attorneys, we here at the Law Blogger are still amazed why folks tender confessions to [serious] things that they did not do.  But when it comes to juveniles, they are often manipulated by their interrogators.

Well, in this case, the apparent consequence of Sanford's confession to the Runyon murders was that the DPD ignored the hit man's detailed confession to the same dirty deeds.  They had their man on the Runyon murders [Sanford], and "that-was-that."

According to Sanford's trial transcript, Wayne Circuit Judge Brian Sullivan pushed both sides to produce a plea agreement.  Sanford's plea, in hindsight, may have been rationale given Judge Sullivan's comments at his sentencing that, had he not pled, Sanford would have been sentenced to "the bullet", i.e. life in prison.

His appeal is currently pending with the Michigan Court of Appeals; an amicus brief has been filed by UM Law's Innocence Project, led by Law Professor David Moran.

For her part, Sanford's mother claims her son was pressured to tender the murder pleas by Slameka, his initial court-appointed attorney.  For his part, Smothers, the hit man, wishes Sanford well, thinks it is time for Sanford to go home, and personally longs for the day that, "I run across whoever will kill me."

Post Script:  Nearly a year since this post, the Court of Appeals has ruled that Smothers can testify at Sanford's trial court remand hearing.

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