Here is the order.
An important day for Michigan Indian people. Congrats to Bill Brooks and the rest of the American Indian Law Standing Committee.
Michigan Supreme Court
Michigan Supreme Court Hearing on Proposed Michigan Court Rules Involving ICWA
This Wednesday at 9:30 AM, the Michigan Supreme Court will consider changes to the Michigan Court Rule that will “incorporate specific provisions of the Indian Child Welfare Act into the relevant rules that relate to adoptions, guardianships, child protective proceedings, and juvenile status offenses.” The proposed changes are here.
Comments on the proposed changes are here:
* Supplemental Comments (01/25/10)
Honorable Dorene S. Allen, Midland County Probate Court (01/12/10)
Freep Op/Ed on Michigan Supreme Court
From the DFP via How Appealing:
Restoring judicial restraint
Running roughshod over GOP precedents would only diminish court’s moral authority
In the decade between 1998 and 2008, a Republican Michigan Supreme Court majority installed by Gov. John Engler dramatically recast the rules by which criminal and civil litigants are obliged to play.
The impact of their decisions was felt in virtually every sphere of state law, from consumer rights and employer-employee relations to environmental regulation and landlord-tenant disputes. The chief beneficiaries were the same interests — insurance companies, health care providers and other large corporations — whose campaign donations bankrolled the GOP justices’ ascendancy.
By 2006, according to an analysis by the Michigan Law Weekly, the Engler Court (under a succession of GOP chief justices) had reversed 61 state Supreme Court precedents in just five years — more than three times the 18 overturned by its Democratic-controlled predecessor court in the same period of time.
In a blistering dissent in Rowland v. Washtenaw County Road Commission — a 2007 case in which the Republican majority reversed two more 30-year-old precedents that had made it easier for injured motorists and pedestrians to sue a negligent municipality — Democratic Justice Marilyn Kelly said the GOP’s disdain for precedent was destroying “the certainty and stability of the law” and undermining respect for the court.
“What has changed … to compel a complete reversal in this law?” Kelly asked. “There is but one answer, the makeup of the court.”
What’s good for the goose?
Now, as the state Supreme Court begins a new term, there’s new chief justice at the helm — none other than Kelly herself. The 2008 election, in which Democratic challenger Diane Hathaway unexpectedly defeated the sitting chief justice, Engler-appointee Cliff Taylor, has given Democrats a tenuous working majority on the state’s highest court — although it hinges, for at least the next 14 months, on the mercurial Justice Elizabeth Weaver, a dissident Republican who feuded bitterly with Taylor and joined with Democratic justices Hathaway and Michael Cavanagh to assure Kelly’s election as chief justice. Continue reading
Michigan Court Improvement Program Publishes ICWA Resource Guide for Mich. Judges and Practitioners
From the CIP website:
- Indian Child Welfare Act (ICWA) Committee
Child Welfare Services staff liaisons: Angel Sorrells, Maribeth Preston, and Bayo Callender
The Court Improvement Program created a special workgroup which met four times from September, 2008, to May, 2009, and authored an ICWA Court Resource Guide. The guide, published in September of 2009, contains best practice tips for courts on how to implement the ICWA. The workgroup consisted of representatives from circuit and probate court judges associations, probate registers, court administrators, the Department of Human Services, prosecutors, and the federally recognized tribes in Michigan.
Lee Opinion from the Michigan Supreme Court
The Michigan Supreme Court upheld the lower court terminating the parental rights of Cheryl Lee, stating that there had been sufficient active efforts. However, the Court did explicitly state that the AFSA does not supersede or relieve the State from providing active efforts.
Unfortunately, the Court also held that:
In this case, however, the fundamental disagreement is not about the nature
of the required services, but about the timing of those services. Indeed, respondent acknowledges that the DHS and the tribe provided active efforts in the past, but argues that 25 USC 1912(d) requires current active efforts, which the DHS failed to provide because it did not offer services in connection with the termination of her parental rights to JL. We decline to read the word “current” into 25 USC 1912(d). This statutory language does not impose a strict temporal component for the “active efforts” requirement.
and:
Similarly, we decline to hold that active efforts must always have been provided in relation to the child who is the subject of the current termination proceeding. Again, the question is whether the efforts made and the services provided in connection with the parent’s other children are relevant to the parent’s current situation and abilities so that they permit a current assessment of parental fitness as it pertains to the child who is the subject of the current proceeding. The evidence must satisfy the court “beyond a reasonable doubt” that the parent’s continued custody of that child “is likely to result in serious emotional or physical damage to the child,” as required by 25 USC 1912(f).
In re Lee Oral Argument
The Michigan Supreme Court heard the oral argument today in the In re Lee case, which we’ve referenced before. The case involves both the issue of active efforts and the beyond a reasonable doubt standard required by the Indian Child Welfare Act. Specifically the Court asked whether active efforts have to be recent and for each individual Indian child and whether the beyond a reasonable doubt standard required contemporaneous evidence of the emotional or physical harm to the child if he remains with his parent. Both the American Indian Law Section and the Children’s Law Section of the Michigan bar filed amicus briefs in the case.
New Chief Justice of Michigan Supreme Court
From How Appealing:
“Newly Democratic Michigan Supreme Court elects Kelly as chief justice”: Dawson Bell of The Detroit Free Press has an interesting news update that begins, “A sharply divided Michigan Supreme Court voted to elect Marilyn Kelly, a 12-year veteran of the court, chief justice today, ending ten years of Republican leadership on the court.”
Michigan Supreme Court Grants Leave to Appeal in In re Lee
This is an ICWA case involving the meaning of “active efforts” under Michigan law. The petitioner is the Michigan Dept. of Human Services, and tribe involved is the Sault Tribe. The docket number is 137653. Here are the opinions from the Michigan Court of Appeals:
in-re-lee-partial-concurrence-dissent
From the order granting leave to appeal:
On order of the Court, the application for leave to appeal the October 16, 2008 judgment of the Court of Appeals is considered, and it is GRANTED. The parties shall include among the issues to be briefed (1) whether the term “active efforts” in 25 USC 1912(d) requires a showing that there have been recent rehabilitative efforts designed to prevent the breakup of that particular Indian family; and (2) whether the “beyond a reasonable doubt” standard of 25 USC 1912(f) requires contemporaneous evidence that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child before parental rights may be terminated.
Diane Hathaway Pulls Off Upset
From the DFP:
Diane Hathaway sprung a stunning upset Tuesday of Clifford Taylor, the conservative chief justice of the Michigan Supreme Court who was the target of a scathing advertising campaign from Democrats.
Hathaway, a Wayne County Circuit Court judge nominated by the Democrats, is the first challenger to unseat an incumbent justice since 1984.
The loss is a devastating blow to the Michigan Republican Party, which was braced for a bad night elsewhere on the ticket but badly wanted to re-elect Taylor, who has been a critical member of the conservative majority that has ruled the court the last decade.
An Orgy of Negativity in Michigan Supreme Court Race
From Law.com (thanks to Mike McBride again!):
Michigan’s Supreme Court race has turned into the nation’s nastiest judicial campaign, according to a nonpartisan organization that monitors judicial races.
Bert Brandenburg, executive director of the Justice at Stake Campaign, said recent and numerous television ads in the race between Republican Chief Justice Cliff Taylor and his Democratic challenger, longtime trial judge Diane Hathaway, have created an “orgy of negativity.”
The ads have depicted Taylor as asleep on the bench and a “good soldier” of big business, and Hathaway as a goldbricking, terrorist sympathizer who gives light sentences to sexual predators, according to Brandenburg.
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