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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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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