So often, the holiday season is the season of love. Many men muster their courage to "pop the question" during the holidays.

In the Western marital tradition, a man typically requests the hand of his intended in marriage with the conditional gift of an engagement ring. When a woman accepts the proposal, she proudly wears the ring as a sign to all that she intends to wed the ring donor.

What happens, however, when the marriage does not occur? The legal significance of this issue often correlates to the value of the ring. Sadly, some of the doomed couples wind-up in court.

A decision last week from the Virginia Supreme Court reaffirmed the general rule that an engagement ring is a gift conditioned upon the nuptials of the parties. If the wedding is called-off, regardless of fault, the ring donor is entitled to the return of the ring; the donee has an obligation to return the property.

In the Virginia case, the donor broke-off the engagement after a year. The donee, sporting a two carat ring on her finger, worth over $25,000, balked at returning the ring to her fiance. When this lovers' quarrel was not amicably resolved in private, the couple lawyered-up, and the fur started to fly.

The case went all the way to the Virginia Supreme Court, which conducted a brief survey of the law of engagements and correlated property rights. Featuring a cite to a 1985 law review article from the University of Michigan Law School, the decision shines a light, for instructional purposes, on the old "promise to marry" suits from the late 19th Century.

Promise to marry suits enabled the spurned woman [or man] to file a claim for return of property, both given and expected, along with damages for the embarrassment and heartbreak attendant with a broken engagement. Such suits were fodder, as noted by the Virginia High Court, for tabloid exploitation and sensationalism, depending on the fame or infamy of the litigants.

These common law claims were replaced over the last Century with so-called "heartbalm" statutes providing for the  return of property given that was conditioned on nuptials. The Virginia case is consistent with a published decision from the Michigan Court of Appeals, Meyer v Mitnick, that sprang from the Oakland County Circuit Court.

In the Oakland County case from 2001, the engagement ring donor, a well-to-do physician, requested that his intended execute a prenuptial agreement. She refused and the engagement eventually broke off. Like last week's case from Virginia, the physician donor was the one who broke-off the engagement and the woman donee refused to return the ring.

The Michigan Court of Appeals upheld former Oakland County Circuit Judge Fred Mester, holding that where the condition subsequent -the wedding- does not occur, an action for replevin could be brought for the return of the property.

Indeed, it seems only fair to us here at the Law Blogger that, if the nuptials never occur, property given in anticipation of that fact should be returned. That is a fair and reasonable result.

The cases highlighted in this post tell us that it matters not who calls off the wedding.

Post #572

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Once again, the highly controversial national law school rankings have been published by the US News & World Report. Although you have to pay to see them in full, University of Cincinnati Law Professor Paul Caron has published a segment of the rankings; peer reputation vs "overall" rankings.

Some movement was observed at the top of the rankings.  The University of Michigan Law School, for example, fell three spots from 7th to 10th.  Harvard also fell a spot.  To the USN&WR editor: really; what changed at UM and Harvard to merit the drop?  Go figure.

Proving that it never hurts to associate with a huge public university, Michigan State University's "College of Law" [formerly the unaffiliated Detroit College of Law] is now ranked #82 overall.  Not happening in the law school's "stand alone" days.  Not yet 1st tier, but improving.

MSU bested Wayne State, which now sits at #112 overall; that never would have happened in the 1980s.

While my law school alma mater, University of Detroit Mercy, did well in the NCAA men's basketball tournament seeding, in the law school rankings, er...not so much; stuck at #178 in the peer reputation category with an "overall" ranking simply noted as "tier 2" and trending downward from its whopping 169 rank back in 2009.  Guess that means, "second rate".  What's going on over there?

Finally, we would be remiss if we did not at least mention Michigan's other perennial basement dweller in these confounded rankings: the mighty, albeit somewhat narcissistic, Thomas M. Cooley Law School; ranked at #184. 

If you care enough to drill into Cooley's own website, however, you will see that they persist in publishing their own law school ranking which places them second [to Harvard] based on a variety of class-size factors.  And perhaps that is as it should be, with a whopping 3727 Juris Doctor candidates currently enrolled [yes folks, that's Three Thousand Seven Hundred Twenty Seven students; can you say, you are just a number...].  The next highest enrollment is Georgetown University, with 1982 students.

Again, we have to ask, do we really need that many lawyers out there on the street?  Really?

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The Old Lion's Autobiography

He walked away from the University of Michigan Law School after his first year, declaring formal education a "waste of time".  At the height of his game in the mid-1920s, he was the first trial lawyer in America to weave his client's interests through the available media, and thus into our societal fabric.

Darrow is perhaps best remembered for defending the teen-aged murderers in the Chicago case known as Leopold and Loeb.  The accused boys, wealthy pampered law students, received life prison sentences, narrowly avoiding a death sentence. 

And of course, Darrow successfully defended teacher John T. Scopes, accused of teaching evolution in a Tenessee public school.  His opposing counsel, prosecutor William Jennings Bryant, arrogantly took the witness stand in defense of a literal interpretation of the Bible.  Darrow is considered to have disgraced Bryant during his cross examination.

The Old Lion, as he was known, was one of the left's radical champions.  He played a significant role in the development of the American Civil Liberties Union.  He was well-suited for his time.

A new biography of Darrow by Andrew Kersten [University of Wisconsin, Green Bay], American Iconoclast, has revived interest in the lawyer and his momentus cases.   As the "go-to" trial lawyer of his day, Darrow made numerous enemies on both the left and the right.  Salon takes note of Darrow's eventual tendency to go where the biggest fees were paid.

Local connection:  In early September 1925, Dr. Ossian Sweet moved into a home with his family on Garland in Detroit; a neighborhood then known as "Black Bottom".  Often, black families that moved on streets with white families would get attacked.  In October 1925, a white lynch mob was thwarted by Dr. Ossian and some members of his family, resulting in the death of one of the assailants.

Now charged with murder, Dr. Ossian reached out through the NAACP to hire Darrow.  Judge Frank Murphy presided over the trial, during which Darrow gave a closing argument that lasted over seven hours.  Ossian was acquitted.

Assessing Darrow's colorful career, in all its hues, provides an opportunity to compare the outrages of his day to the many modern problems that continue to plague our nation. 

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University of Michigan Law Quad

As a young attorney back in the early-1990s, I worked for a Detroit law firm and moonlighted as an adjunct professor at the University of Detroit Mercy. The adjunct instructor gig was made possible by my willingness to teach federally mandated law courses to female prisoners at the Scott Correctional Facility in Plymouth, MI.  One of their chief complaints: sexual assaults by the guards.

The abuse was so common at Scott Correctional, the inmates initiated a lawsuit back in 1996 that eventually resulted in a $15 million jury verdict in the Washtenaw County Circuit Court.  It took until 2008 for the inmates to get their verdict and their vindication.

Earlier this week, UM Law graduate David Mills, a Cleveland, Ohio solo practitioner who's office is his kitchen table and who's mother is his paralegal, had a jury verdict reinstated by the SCOTUS in a prison guard assault case.  Mills filed a suit in federal court on behalf of Michelle Ortiz alleging that she was sexually assaulted during her one-year sentence in an Ohio penitentiary.  Ortiz alleged that she promptly reported the assault and was rewarded with a second assault the very next evening, followed by a stint in solitary confinement.

Mills' suit was a "section 1983" civil rights case which alleged that a state actor, the prison's case manager, failed to take steps sufficient to protect Ortiz's safety.  The jury awarded Ortiz $625,000, but that verdict was reversed on appeal by a panel of the Sixth Circuit Court of Appeals.

Ortiz was granted certiorari by SCOTUS to determine the procedural issue of whether a defendant that loses a motion for summary judgment, brought early in the case, can appeal a trial court's dispositive decision after a jury verdict on the merits of the case.  Luckily for Attorney Mills, the federal circuit courts of appeal are divided on this issue.

SCOTUS has now ruled that a litigant cannot wait until after a trial to appeal such a dispositive decision; the appeal must be taken interlocatory (in the middle of the case) in order for the issue to be properly preserved.

From time to time, this blog takes note of some of the problems and peculiarities arising from keeping millions of citizens incarcerated.  Obviously, in our free society, you are not free to break the law.  If you do, a stint in prison can be the result.  In the prison business, however, there are cases of clear-cut abuse.  Paying your debt to society should not equate to torture at the hands of the state.

In Ortiz, the prison guard eventually became the prisoner.  Just as Michiganders did in the Scott Correctional case, Ohioans can pick-up the tab for the incarcerated, and for the abuser's wrongful deeds.

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The mighty UM Law School has its hands all over the recent constitutional challenge to the felony child support statute.  The case was originally charged by UM Law Alumni and Michigan Attorney General Mike Cox.  The defendant-appellant in the case is represented by the Michigan Innocence Project, run out of the UM Law School by Professor David Moran.

The case, People vs Likine, was the subject of a one-day jury trial in the Oakland County Circuit Court back in November 2008.  Years earlier, Selesa Likine was ordered to pay child support for her three minor children pursuant to her divorce proceedings; also in Oakland County.  The criminal case against Likine charged that she fell behind on the support payments from 2005 through 2008, creating arrears in the amount of nearly fifty thousand dollars.

Ms Likine attempted to assert the defense of an "inability to pay" the support ordered by the family court.  She claimed disability via the Social Security Administration stemming from her diagnosis of Schizoaffective Disorder and Major Depressive Disorder.  Likine also asserted that she was unemployed due to a lengthily hospitalization at the beginning of the charging period.  She further claimed that her support obligation was erroneously calculated by the family court, as it was based on a "phantom" imputed income of $5000 per month; a wage she claims she never earned in her entire life.

The felony child support statute is one of strict liability.  The Michigan Court of Appeals ruled in a 2004 published case (People v Adams) that a defendant cannot assert a defense at trial of his or her, "inability to pay" the court-ordered child support.

Accordingly, in the Likine case, the Attorney General requested trial judge John McDonald to preclude Likine from introducing any of the above facts regarding her disability and resulting lack of income from jury consideration.  The AG's motion was granted based on the Court of Appeals' Adams ruling.

Just prior to the beginning of her criminal trial, Likine's attorney moved for reconsideration of Judge McDonald's evidentiary ruling; this time arguing that precluding her from presenting evidence of her "ability to pay" and of her employment history, violated Likine's constitutional Due Process rights under the 14th Amendment to the United States Constitution.  The motion was again denied.

Not surprisingly, Likine was convicted by the jury of failing to pay court-ordered child support and sentenced to one-year probation.  When the jury was deliberating her case, however, they sent out a note to Judge McDonald asking for information about Ms Likine's employment history.  Due to his earlier rulings in the case, Judge McDonald refused to answer the jury's query.

Following her jury trial, Likine secured appellate representation from UM's Professor Moran, who filed a motion for new trial; this time asserting that Likine's conviction violated the Michigan Constitution.  McDonald, stating that he sometimes disagreed with the Court of Appeals' Adams decision, nevertheless denied the motion.

In her appeal currently pending before the Michigan Court of Appeals, Likine relies on a Michigan Supreme  Court decision from 1889 which held that statutes cannot criminalize conduct which, through no fault of the defendant, is impossible to avoid.  Professor Moran asserts that such a criminal law lacks the requisite, "voluntary actus reus" (bad act).

Along the same lines, Professor Moran raises a claim of violation of federal Due Process under the U.S. Constitution.  In this fashion, Likine argues on appeal that the Court of Appeals' Adams decision wrongly eliminates the actus reus requirement of the felony child support statute, rendering it unconstitutional on its face.

In response, the Attorney General asserts that Adams remains controlling in felony child support convictions. The AG's argument is that the Michigan Constitution is not offended when a "prior judicial determination" establishes a payment obligation for which it is a crime to ignore.  Since Likine's support obligation was established by the family court, she was afforded Due Process.

In a somewhat surprising move given the high-powered counsel on both sides, the Court of Appeals has submitted the case to a 3-judge panel for decision without the benefit of oral argument.  The order to dispose of the case solely on the briefs was issued last week, despite both sides filing timely briefs which requested oral argument.

The losing side on this one will probably try to take the issue before the Michigan Supreme Court.

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According to the Michigan Daily, the on-campus newspaper at the University of Michigan, U.S. Supreme Court Chief Justice John Roberts will speak today at Hill Auditorium as part of the events surrounding the UM Law School's 150-year anniversary; he will also attend the football game tomorrow versus Notre Dame.

In accepting the invite from the Law School, Justice Roberts apparently turned-down a $15,000 honorarium which UM says it never expected him to accept in the first place.  Talk about Ivory Tower politics...

Most of the impressive Law School events are “sold-out”.  Nevertheless, for the 100,000 plus fans expected to attend the classic fall matchup at the Big House, it’s nice to know you’re in supreme company.

Go Blue!