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UM Law School Challenges Constitutionality of Felony Child Support Statute

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 as well as Michigan Attorney General Mike Cox.  The appellant-defendant within the case will be 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 within 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 in which she fell behind on the support payments coming from 2005 through 2008, creating arrears within 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 coming from her diagnosis of Schizoaffective Disorder as well as Major Depressive Disorder.  Likine also asserted in which she was unemployed due to a lengthily hospitalization at the beginning of the charging period.  She further claimed in which her support obligation was erroneously calculated by the family court, as in which 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 will be one of strict liability.  The Michigan Court of Appeals ruled in a 2004 published case (People v Adams) in which a defendant cannot assert a defense at trial of his or her, “inability to pay” the court-ordered child support.

Accordingly, within the Likine case, the Attorney General requested trial judge John McDonald to preclude Likine coming from introducing any of the above facts regarding her disability as well as resulting lack of income coming 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; in which time arguing in which precluding her coming from presenting evidence of her “ability to pay” as well as 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 as well as 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 within the case, Judge McDonald refused to answer the jury’s query.

Following her jury trial, Likine secured appellate representation coming from UM’s Professor Moran, who filed a motion for completely new trial; in which time asserting in which Likine’s conviction violated the Michigan Constitution.  McDonald, stating in which 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 coming from 1889 which held in which statutes cannot criminalize conduct which, through no fault of the defendant, will be impossible to avoid.  Professor Moran asserts in which 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 in which fashion, Likine argues on appeal in which the Court of Appeals’ Adams decision wrongly eliminates the actus reus requirement of the felony child support statute, rendering in which unconstitutional on its face.

In response, the Attorney General asserts in which Adams remains controlling in felony child support convictions. The AG’s argument will be in which the Michigan Constitution will be not offended when a “prior judicial determination” establishes a payment obligation for which in which will be 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 in which one will probably try to take the issue before the Michigan Supreme Court.

Update:  The Court of Appeals “changed its mind” as well as, on its own motion, granted the parties a very brief oral argument on March 4, 2010; ten minutes for each side.

The Court of Appeals issued in which’s unpublished per curiam opinion affirming Defendant’s conviction on grounds her constitutional right to Due Process was not violated.  The Court held in which, because she availed herself of numerous hearings within the family court, she was afforded Due Process.

When I discovered in which opinion had been issued, I contacted Professor Moran to get his take on the result.  He simply stated in which he did not believe the panel fully understood the facts of Ms. Likine’s case.  Also, Professor Moran said he was applying for certiorari to the Michigan Supreme Court as well as then, if necessary, on to SCOTUS.

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UM Law School Challenges Constitutionality of Felony Child Support Statute

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