MI: Action on Constitutionality of Felony Non-Payment of Child Support

   The Michigan Supreme Court yesterday granted leave to appeal the conviction of felony non-support and the defense of inability to pay.  Previously case law held that the inability to pay was not a defense. 
   Also, it is interesting to note that Justice Young was the lone dissenting opinion.
   Here is the Court's order:

Order
November 30, 2010
141513
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v SC: 141513
COA: 297182
Muskegon CC: 08-056761-FH
SCOTT BENNETT HARRIS,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the
June 4, 2010 order of
the Court of Appeals is considered, and it is GRANTED. The parties
shall address:
(1) whether the rule of People v
Adams, 262 Mich App 89 (2004) — holding that
inability to pay is not a defense to the crime of felony
non-support under MCL 750.165
— is an incorrect reading of the statute or unconstitutional, see
Port Huron v Jenkinson,
77 Mich 414 (1889); (2) whether the trial court abused its
discretion when it denied the
defendant’s post-sentencing motion to withdraw his plea; and (3)
whether the trial court
erred when it adopted the child support arrearage amount that had
been determined by
family court as the restitution to be imposed in this criminal
case, or whether the
defendant waived that issue.
We further ORDER that this case be argued and submitted to the
Court together
with the cases of People v Likine
(Docket No. 141154) and People v Parks
(Docket No.
141181) at such future session of the Court as the cases are ready
for submission. Each
side will have 30 minutes for oral argument.
The Criminal Defense Attorneys of Michigan and the Prosecuting
Attorneys
Association of Michigan are invited to file briefs amicus curiae.
Other persons or groups
interested in the determination of the issues presented in this
case may move the Court
for permission to file briefs amicus curiae.
YOUNG, J.
(dissenting).

Brian Downs 616.874.8662

Cases heard before the MSC court proceed in a very orderly manner. The
briefs will be available online and oral argument will be scheduled
perhaps a month in advance through this web page:

http://courts.michigan.gov/supremecourt/Clerk/msc_orals.htm

Posted by: "Dan" dandiebolt@yahoo.com   dandiebolt  Wed Dec 1, 2010 12:30 pm (PST)

I would be interested in working on an amicus brief project for this case either in terms or shopping around for lead attorney, legal research, writing the brief, aggregating or  submitting the brief etc.

Here is the case history:

http://coa.courts.mi.gov/resources/asp/viewdocket.asp?casenumber=141513&inqtype=sdoc&yr=0&yr=0&SubmitBtn=Search

We would need someone to gather up copies of the trial and appellate court documents for background. The trial court is in Muskegon and the record has probably been sent to Lansing already.

I think the MSC is looking in part at Port Huron v Jenkinson case which their order references which was recently raised in an amicus brief before the same court in this case:

http://courts.michigan.gov/supremecourt/clerk/11-10/140603/140603-Amicus-Doe.pdf

It is well-established that "[n]o legislative or municipal body has the power to impose the duty of performing an act upon any person which it is impossible for him to perform, and then make his non-performance of such duty a crime." Port Huron v Jenkinson, 77 Mich 414 (1889)

So if the trial court disallowed the defense of inability to pay and the MSC agreed Jenkinson applied that there might be a remand to allow the defense of inability to pay to be heard. The error below would have been that the court refused to allow a defense but since there is probably nothing in the record supporting the defense this remand would be with out any consideration to the strength of the evidence supporting the inability to pay defense.