From KKD; Lanre Amu refuses to apologize to ARDC for speaking out against corruption

Lanre: 

 

 Indeed,” practicing Law while Black” (without official permission) apparently in Illinois is prohibited, however, the penalties associated therewith are our dirty little secrets.   Indeed, everyone knows that we all are supposed to keep quiet concerning Cook County, Illinois approved corruption.   

 

If the media were to expose your disciplinary proceeding in an election year the overt racism that you were subjected it might cause a few people who share a dark hue to their skin to not vote for the corrupt POLITICAL ELITE.    Your example of honoring your oath might even breed a quest for the Court to rid itself of corruption!    

 

Indeed, the overt racism that you were subjected might even tarnish certain favored members of the political elite.    It was very difficult for Mr. Larkin (and by extension the Illinois Supreme Court) to explain how a disciplinary proceeding can (or could) be brought against you  pursuant to Rule 8.3 for reporting to the IARDC and law enforcement the fact that a Circuit Court judge was a member of the Board of Directors of the defendant and her brother an attorney for the defendant.    The refusual of the Judge to recuse herself was also difficult to reconcile with the concept of an honest and impartial judiciary.

 

It took great courage for Mr. Larkin to file a verified pleading claiming that facts everyone knew to be true were falsehoods uttered by you.  As the judge did not deny the allegation Larkin had to go out on a limb.     Larkin’s task became even more courageous when CRAINS CHICAGO BUSINESS independently exposed the very same facts you alleged in its publication!      Indeed, if the averment concerning Judge **** had been made by a lawyer with a lighter hue to his skin the organized bar and civil rights organizations might have demanded Larkin’s disbarment and removal from the public sector for his breach of the public trust.

 

How could in Illinois a public official claim under oath facts to be true that everyone knew were not true?    Why were you singled out?    The reason is obvious to me, especially when one of your supporters – an Icon of the Selma March and the Civil Rights movement, was also singled out for humiliation by the 18 USCA 371 co-conspirators.   (It should be noted that only one person was denied entry into the kangaroo hearing involving Attorney JoAnne Denison — Diane Nash!  –  As the hearing was open to the public and there was ample seating space for her the only conclusion was racism!    It is interesting to note that the charge has not been denied!     The fact that Ms. Nash did not even receive the disingenuous apology that is usually afforded to persons who the ‘SWAMP’ has denied equal protection of law speaks volumes!

 

I wish that official misconduct directed toward you ended at the matter, and at this late day, having gotten away with a vicious assault on the Illinois and Federal Constitution, the miscreants would just fade into the sunset and consider themselves lucky.        I heard that the IARDC (Mr. Larkin) and the Illinois Supreme Court have made a demand that you make a statement acknowledging the untrue and misleading statements made against you by Larkin were true as a condition of reinstatement of your law license.  I also heard that you refused to join in the ‘cover up!’  

 

 To me this demand upon you is just another act of overt racism and a penalty for representing your clients by demanding a fair hearing and a level playing field.     Every day that this travesty continues is another assault on America’s core values.     (I’ve sent a copy of this e-mail to the White House.    The President has promised to make America Great again and to drain the swamp.     In my opinion the racism you suffered is such a stain on America’s reputation and quest for an honest judiciary that every American (including the President) must speak out loudly and unequivocally [1].   

 

The assault on America’s core values and your personal rights, privileges and liberties is very disturbing, equally disturbing is the fact that the silence is deafening!    Where are all civil rights organizations?    Where is law enforcement?     Where is the 2nd oldest profession?     Where are all the political people who claim to be advocates for justice and civil rights?   Where is the hue and cry [2]?

 

  Naturally, we cannot expect that the IARDC, or some law enforcement or civil rights organization et al will feel obligated to do an HONEST INVESTIGATION of the overt racism that you are suffering and have suffered.    As you aware, Honest INVESTIGATIONS in Illinois that expose corruption in the judicial branch of Illinois government are in the words of Mr. Larkin (published in the disciplinary proceedings involving Attorney JoAnne Denison) are the functional equivalent of “yelling fire in a crowded theater.”     (Ms. Denison publishes a blog MARYGSYKES and therein she published evidence of judicial corruption.   In seeking an emergency suspension of Ms. Denison’s law license, Mr. Larkin equated her blog to “yelling fire in a crowded theater”    The Illinois Supreme Court apparently agreed and issued an interim suspension of Ms. Denison’s law license followed by a 3-year suspension.           

 

 

I apologize for my long-winded diatribe – the fact that independently Crain’s Chicago Business made the very same averment that you made, and the corrupt JUDICIAL ELITE could not be bothered to do an independent and honest investigation, infuriates me.      The hypocrisy just cannot be reconciled or shoved under the rug.    

 

Ken Ditkowsky


[1] I usually suggest that the reader view the averments with suspicion and do an independent investigation to determine the truth or falsity thereof.     As a major business publication CRAINS CHICAGO BUSINESS made the very same allegations I do not feel that such a suggestion is not necessary — BUT, here again I invite LAW ENFORCEMENT to do an independent investigation and find out if Judge **** was indeed the member of the Board of Directors of the defendant (a defendant in her courtroom), if her brother was a member of the law firm representing the defendant, and if Judge ***** even denied the allegation.

[2] The fact that Mr. Larkin, the administrator of the Illinois attorney disciplinary Commission (IARDC) would seek an interim suspension of your law license was obscene.   The fact that the Illinois Supreme Court would grant it, labelling your compliance with Rule 8.3 and a possible 18 USCA 4 mandatory reporting obligation as a danger to the public smacks of the worst type of corruption.   When it appears that the very same individuals and State entities did not find that attorney Seth Gillman was a danger to public (until it was disclosed that he was co-operating with the USA in the Medicare/health care Fraud cases) just adds fuel.

Ken Ditkowsky
From Joanne;
Rest assured that none of myself, Ken or Lane are going to betray any of you and recant and say we are sorry about reporting corruption to the authorities and publishing it on this blog.  If it means no license, so be it.  We have far better morals and ethics than what is going on at the ARDC and the Illinois Supreme Court.  If we do not stand up against this Fraud on the Court and protect the public, then who will?
Joanne
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From EB: Good news: Assisted Decision Making law in Mich. makes it easier to avoid gship


Dolores, 87, sits in her apartment in Northwest Washington on June 22, 2018, discussing how it feel to no longer have a guardian. (Theresa Vargas/The Washington Post)

ColumnistJune 27 at 7:00 AM

The 87-year-old wore a silk dress she had sewn herself. The bright blue fabric featuring yellow, turquoise and lavender flowers pulled at the eyes, and against it, the pale pink stones of her necklace seemed a conservative choice. But that’s not why she wore it.

With a smile, she explained that she had picked the beads less for the statement they made than for the promise they held.

“They’re supposed to help you get a boyfriend,” she said, laughing.

When the woman tells people she is not far from 90, they show genuine surprise. She has not yet let her hair turn white and she speaks with a well-earned wit. She also takes care of most of her needs by herself, getting dressed on her own, taking the right amount of medications as needed and making appointments that she gets to herself by using public transportation. She recently enrolled in a college class after deciding she wants to learn Italian.

Each of these details matters, because it speaks not only to her personality but also to her capabilities. Despite all that, she was deemed an “incapacitated individual” — unable to make choices for herself. But that changed this month.

The octogenarian is the first senior citizen in the District to convince a court to terminate a guardianship placed on her in favor of “supported decision-making.” She and her attorneys successfully argued that with help from people in her life, she could make her own decisions and did not need a court-appointed guardian to do that for her.


Jenny Hatch and her attorney, Jonathan Martinis, celebrate outside the Newport News Circuit Court building on Aug. 2, 2013, after a judge sided with her in her bid to live without guardianship. (Steven Turville/For the Washington Post)

Guardianship is often associated with people who develop or are born with intellectual disabilities. But this case shows why it should matter to everyone. As we age, and the lucky among us will, we all risk losing what we value most: the ability to choose how we live.

Putting legal protections in place will ensure that we have to give that up only when it is absolutely necessary.

“I felt very annoyed by having someone else taking care of everything,” said the woman, who for privacy reasons spoke on the condition that she be identified only by her middle name, Dolores. “I am the boss. I can do whatever I need to do.”

Her case marks the first time that the District’s supported decision-making law, which was passed in May, has been cited in court to help a resident regain independence. Most of us have friends or relatives we turn to for advice. This is the same as that — but more. The D.C. law formalizes those relationships and requires institutions and organizations to recognize the role of people who serve in those supportive positions. The District is only the fourth jurisdiction in the country to pass the law, after Texas, Delaware and Wisconsin. (Virginia and Maryland — are you listening?)


A sign of protest made by Jenny Hatch was once hanging on her bedroom wall at the group home where she was forced to live. (Rich-Joseph Facun/For The Washington Post)

“You’re a pioneer in many ways,” Morgan Whitlatch, the legal director for Quality Trust for Individuals with Disabilities, which handled Dolores’s case, told her recently as we sat in her apartment in Northwest Washington. “You weren’t scared to fight.”

“I had to fight against everybody,” Dolores replied.

In 2015, Dolores was facing possible eviction from a subsidized senior building after falling behind on her rent, according to court documents. Her landlord agreed to work out a payment plan if she was assigned a guardian to help her with her finances, and so she agreed to one.

But once she regained financial stability, she asked her guardian to file a letter with the court saying she no longer needed him. When she realized he failed to do that, she went to the court on her own and wrote a complaint.

She also called AARP, and the organization directed her to Quality Trust.

Years earlier, Quality Trust had handled a case in which the stakes also involved an individual’s independence. A 29-year-old woman with Down syndrome named Margaret “Jenny” Hatch had fought in a Virginia court against a guardianship request by her parents. They wanted her to remain in a group home, supervised and protected. She wanted to move in with friends and continue working at a thrift shop they owned.

When the judge denied her parents’ guardianship request in August 2013, Jenny cried and exclaimed, “Oh my God. I’m so happy to go home today. I deserve it. It’s over. My God, it’s over.”

Her lawyer, Jonathan Martinis, declared, “For anyone who has been told you can’t do something, you can’t make your own decisions, I give you Jenny Hatch — the rock that starts the avalanche.”

Dolores didn’t know it, but she was swept into that avalanche. Her case was handled through the Jenny Hatch Justice Project, which is run through Quality Trust and funded by the DC Bar Foundation to assist low-income District residents.

“For me, this is exciting because this is groundbreaking,” Whitlatch told Dolores that day at her apartment. “I hope this is going to transfer over to how we treat older adults. You being able to have this fight means maybe they won’t have to fight as hard.”

For Dolores, the court’s decision has simply meant she can now do what she has always done: take care of herself.

When she was 5 years old and growing up in South America, she said her parents used to put her on a train with her brothers, who were 4 and 6, and told her to watch them until they arrived at their grandparent’s house three hours away.

Later, when she moved to the United States, she worked for the State Department and then handled bilingual translations for several government agencies, including the Library of Congress and the Labor Department.

Dolores recognizes that she is not able to do everything alone now. But she said that for every problem she encounters, she knows whom to call. She has a person who helps her when she has health insurance issues and one who helps when she has medical questions. Recently, after someone stole her wallet, she knew exactly who could help her get a new Metro card.

“It makes you feel powerful to be in charge of your own life,” she said. “You can have a lot of help everywhere, but you are your own boss.”

Still, she said, she worries about the future, about whether one day she will be told that she can no longer live alone in her apartment.

She knows all too well what many of us, thankfully, have not yet had to learn — the suddenness with which life can change.

From EB: It’s corruption trial season in New York–top govt aides Peroco, Silver and Kaloyeros for contract steering and bid rigging

https://www.nytimes.com/2018/06/18/nyregion/new-york-today-manhattan-federal-court.html

New York Today: It’s Corruption Trial Season in NY

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Alain E. Kaloyeros leaving federal court in 2016.CreditChristian Hansen for The New York Times

Good morning on this toasty Monday.

The weather’s heating up, and so are our courts.

Two major corruption trials are set to begin this week in New York, both featuring defendants who have worked closely with Gov. Andrew M. Cuomo.

“It’s been the season for public corruption trials in the Manhattan federal court,” said the New York Times reporter Benjamin Weiser. He noted that these will be the third and fourth major corruption trials in just six months in the same court.

In March, one of the governor’s former top aides, Joseph Percoco, was found guilty in a corruption trial. And in a widely watched retrial in May, Sheldon Silver, the former State Assembly speaker, was convicted of corruption for the second time. Mr. Silver had long been one of the so-called “three men in a room” in Albany, who were said to control decision-making in the capital. Mr. Cuomo was another.

Here’s what you need to know about the upcoming trials:

One: The trial of Alain E. Kaloyeros, an ex-ally of Mr. Cuomo’s and the former president of the State University’s Polytechnic Institute. At his peak, Mr. Kaloyeros, a flamboyant physicist whom the governor once called “New York’s secret weapon,” had wide sway over the Buffalo Billion, the governor’s signature upstate economic development program.

 

The latest: The government accused Dr. Kaloyeros of bid-rigging — steering state contracts to an upstate firm and developer that had made significant contributions to Mr. Cuomo’s re-election campaign. He has pleaded not guilty.

What’s next: The trial begins today at federal court in Manhattan.

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Dean G. Skelos.CreditAndrew Renneisen for The New York Times

And two: The retrial of Dean G. Skelos, the former Republican majority leader of the New York State Senate, who forfeited his seat in 2015 after being convicted on federal corruption charges. Along with Mr. Cuomo and Mr. Silver, he had been the third of the “three men in a room.”

The latest: Both Mr. Skelos’s and Mr. Silver’s convictions were overturnedin 2017, by appellate panels that cited a Supreme Court decision that narrowed the legal definition of corruption.

 

What’s next: Mr. Skelos’s retrial begins Tuesday in federal court in Manhattan.

From FB: Form I 864 is very important for foreign nationals in divorce court

Sometimes when mothers or fathers lose custody, and were the primary caretaker, they may be an immigrant with a green card who is no longer employable.  However, these persons are not to become public charges, but their sponsor must pay them 125% of the poverty level annually to ensure they do not become public charges.

Read on for more caselaw and information:

From:  http://www.i-864.net/blog/suing-864-december-2016-update

We are publishing an update to our 2012 article, Suing on the I-864, Affidavit of Support. That original article, along with a February 2014 update, is available on our website here. The current article reviews all United States case law concerning enforcement of the I-864, going back to publication of the last article. Together the three articles review every case throughout the United States to consider enforcement of the I-864.

Download the article here: Suing on the I-864 – December 2016 Update

Article text:
This is the third in a series of articles summarizing all available case law regarding enforcement of the Form I-864, Affidavit of Support.[1] The previous articles are freely available for download.[2] As with the last piece, the current one is intended as a “pocket part” update to issues discussed in the original 2012 article.

I-864 beneficiaries have continued their strong track record of successfully enforcing support rights in both state and federal courts. There is no longer any question whatsoever as to whether they have the standing to do so. The issues over which courts now disagree are subsidiary ones. For example, what types of financial benefits – housing subsidies, gifts, and so forth – offset a sponsor’s support obligation?

Most immigration attorneys are uninterested in civil damages litigation, so why read further? Because we represent I-864 sponsors. Indeed, immigration attorneys commonly represent both a U.S. citizen/resident petitioner and an intending immigrant family member. The same attorney may also represent an I-864 joint sponsor in the same matter, though we argue that is unwise.[3] It is one thing to have a vague sense that the I-864 is an enforceable contract. But it is another matter altogether to see I-864 litigation in action. The cases discussed below may prompt some practitioners to double-check their procedures and advisories when working with I-864 sponsors.

Contract Issues
For would-be I-864 plaintiffs, one of the first orders of business is to acquire a copy of the Form I-864 executed by the sponsor. Often, the beneficiary does not possess a copy of the I-864 as filed. That is hardly a surprise. If the foreign national went through consular processing for an immigrant visa, the sponsor – and not the beneficiary – would have filed the I-864 directly with the National Visa Center. And if the foreign national adjusted status, it is often the English-speaking petitioner who takes on the primary logistical role in submitting the application packet.

If the parties were assisted by an attorney, of course, that firm must release the I-864 to the foreign national upon request, as it was drafted on her behalf. The I-864 is submitted in support of the foreign national’s adjustment or visa application, not in support of the underlying I-130 petition. This author recently filed a complaint for unauthorized practice of law in Arizona where a notario – a former Immigration and Customs Enforcement officer, to boot – refused to return an adjustment file to a foreign national. A replevin action could be used to claw back a copy of the form, but this would hardly seem worth the effort.

As noted in prior articles, the executed Form I-864 can be requested through a Freedom of Information Act (FOIA) request. Other practitioners have reported that such requests have returned Forms I-864 that are either fully or partially redacted. That result is arguably consistent with protections of the U.S. sponsor’s personal information under the Privacy Act. In this author’s experience, however, FOIAs submitted by the foreign national typically are returned with an unredacted copy of the I-864. Regardless of whether this is erroneous or not on the part of USCIS, it has proved an expedient means of acquiring the signed contract.

May the beneficiary compel the sponsor to cooperate in a FOIA request to obtain the signed I-864? Surprisingly, at least one case suggests the answer could be no. Echon v. Sackett was not I-864 enforcement litigation, but rather a federal district court action against an employer, alleging violations of anti-trafficking and employment laws.[4] In the course of contentious discovery, the plaintiffs sought copies of Forms I-864 filed by the employer-defendant. Though unartfully presented, it appears the plaintiffs sought an order compelling the defendants to sign a FOIA request for the Forms I-864, after the defendants denied possessing the documents. After noting that Fed. R. Civ. Pro. 34 does not “expressly authorize a court to order a party to sign a release concerning any kind of record,” the Court advised that the plaintiffs should first seek the documents through their own FOIA request, or else via a Rule 45 subpoena.[5]

In this author’s experience, sponsor-defendants have readily agreed to cooperate with a FOIA request to acquire the Form I-864 filed by a sponsor. A plaintiff, of course, may compel production of a document that is within the “possession, custody, or control” of a defendant.[6] Since signing the FOIA request is hardly burdensome, and the document is highly relevant to the claims, opposing litigants generally have not resisted on this issue.

Duration of obligation
It is said that bad facts make bad law. Perhaps the only thing that makes worse law is pro se litigants.[7]

In a poorly guided decision, a federal district court for New Jersey held that I-864 obligations terminate once a foreign national has prevailed in an I-751 waiver petition. In Shah v. Shah, a pro se foreign national prevailed at a jury trial, demonstrating that her sponsor had failed to fulfill his obligation under the Form I-864.[8] The jury, however, appeared to calculate damages based on a cutoff date of when the foreign national won approval of her I-751 petition, which was filed as a waiver without the sponsor’s assistance.

The plaintiff, pro se, moved for a new trial, arguing that the I-751 approval did not terminate the sponsor’s obligations. Without further explanation, the Court stated:

After Plaintiff received a one-year extension from USCIS, her status was set to expire on May 25, 2014. But upon Plaintiff’s petition, USCIS adjusted Plaintiff’s immigration status to that of lawful permanent resident on December 13, 2013. Because Plaintiff’s status adjustment was not based upon Defendant’s Form I-864, her status adjustment terminated Defendant’s obligation to support Plaintiff.[9]

These statements are poorly guided – likely in the literal sense that the litigants gave the Court little sound research on which to base its ruling.

The error is this: an I-751 petition is not an application for “status adjustment.” An I-751 petition, of course, is exactly what it says on its face – a petition to remove the conditions placed on an individual who is already a lawful permanent resident (LPR). That is a distinction with a difference.

Under the plain language of federal regulations conditional residents are LPRs.[10] Unless otherwise specified by law, a conditional resident possesses all “rights, privileges, responsibilities and duties which apply to all other lawful permanent residents.”[11] As the USCIS Policy Manual states in its introductory sentence to conditional residency, conditional residents have “been admitted to the United States as LPRs on a conditional basis for a period of two years.”[12] For a foreign national filing an I-751 petition, LPR status is hers to lose, not to gain.[13]

In other words, once a foreign national has acquired conditional LPR status based on an I-864 filed by her sponsor (or a joint sponsor), she has already acquired LPR status, period. All that is left is to remove the conditions placed on her LPR status, but there is no “other” permanent residency status to which she could “adjust.” When a conditional resident gets an I-751 approved – whether via a joint petition or waiver – she is not transitioning into a new residency status. The pro se plaintiff in Shah was an LPR from the day she first received conditional LPR status, and she maintained that same LPR status through the I-751 petition process. Shah was wrongly decided and will hopefully not mislead other courts.

The sponsor’s obligation under the I-864 terminates when the beneficiary acquires 40 quarters of work under the Social Security Act.[14] But whose work quarters count towards that threshold? In the California case of Gross v. Gross, a pro se plaintiff argued that her husband’s quarters of work did not count towards the 40 quarters.[15] Following the plain text of the Form I-864 and underlying statute, the Court disagreed. The statute specifically provides that in counting quarters of work, the beneficiary shall be credited with “all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased.”[16] The Form I-864 itself, official instructions, and statute all refer to work quarters with which the beneficiary may be “credited” rather than those she has earned.[17] As the Gross Court concludes, it is clear that a beneficiary can be credited with work quarters earned by her spouse. Note, however, that this does not necessarily resolve the issue of whether quarters can be double-stacked. If both the beneficiary and sponsor are working, it is not obvious that two work quarters should be simultaneously counted towards the 40-quarter threshold.[18]

In a published New Jersey case, an appeals court followed the plain language of the Form I-864 to hold that support obligations end upon the death of a sponsor. Fox v. Lincoln Financial Group was primarily a state law case about whether marriage should automatically cause one spouse, by operation of law, to become the beneficiary of the other’s life insurance policy.[19] When a U.S. citizen spouse died, his foreign national spouse sued the life insurance company, and argued that the Affidavit of Support offered a justification for recovering against the policy. The trial and appeals courts rejected that contention, citing the plain language of the Form I-864, stating that the obligation ends upon the death of the sponsor.[20]

It is important to distinguish, however, between termination of the sponsor’s obligation and the viability of claims accrued up to the date of termination. If a sponsor has failed to provide support for a period of one year, for example, and then dies, his estate will remain liable for support arrears up to the date of his death. While the estate is not liable for future support – since the obligation has terminated – the beneficiary does not lose the ability to assert claims that accrued prior to the sponsor’s death.

Under the plain language of the Form I-864, the sponsor’s obligations commence when the beneficiary gains lawful permanent residency based on the sponsor’s affidavit. Of course, if the Affidavit is signed but never filed, then the sponsor never becomes obligated under the contract.[21]

Defenses
Sponsor-defendants typically answer I-864 lawsuits by pleading a kitchen sink’s worth of affirmative defenses.[22] In the author’s experience, these often include defenses that seem hard-pressed to pass even the good faith requirement.[23] The notion, for example, that an I-864 beneficiary “lacks standing” to maintain a suit against a sponsor is simply frivolous. Nonetheless, courts will typically decline to strike even questionable affirmative defenses, at least during early stages of litigation.[24]

Damages
In December 2016 the North Carolina Supreme Court handed down one of the most important I-864 enforcement opinions in years. In Zhu v. Deng the Court held squarely – albeit with little discussion – that the duty to mitigate does not apply in I-864 enforcement cases.[25] The sponsors in Zhu argued that their support obligation should be offset by income that the plaintiff could be earning, were she not voluntarily unemployed. But the state Supreme Court disagreed. Instead, it followed a seminal Seventh Circuit opinion authored by Judge Posner. In Liu v. Mund, Judge Posner opined that the congressional purpose behind the I-864 is to ensure that the sponsored immigrant has actual support when needed.[26] That purpose would be thwarted if courts were to engage in speculation about whether a sponsored immigrant could be working but was electing not to. With little discussion of its own, the Zhu opinion favorably quotes the reasoning in Liu.[27]

Damages in I-864 enforcement litigation are easy to calculate – at least in principle. The plaintiff is entitled to recover 125% of the Federal Poverty Guidelines (FPGs), less any actual income she has received.[28] Courts continue to work through the issue of what financial sources qualify as income for purpose of calculating damages. The resulting decisions are a hodgepodge that employ no consistent standard to define what is and is not income for purposes of I-864 lawsuits.

In Dahhane v. Stanton a federal judge for the District of Minnesota opined on several financial sources, led by the dubious guidance of pro se litigants[29] The Dahhane Court correctly ruled that financial payments from the sponsor to the beneficiary should count against the sponsor’s support obligation, regardless of whether they were designated as support payments under the I-864.[30] Yet in reaching that conclusion, the Court unnecessarily opined that the I-864 regulations in Title 8 C.F.R. do not define income for purposes of calculating damages under the I-864.

Under those regulations income means income as defined “for purposes of the individual’s U.S. Federal income tax liability.”[31] The Court reasoned,

8 C.F.R. § 213a.1 provides definitions for use in determining whether someone is eligible to sponsor an immigrant; the regulation has nothing to do with calculating whether an immigrant has been supported at 125 percent of the federal poverty level.

The Court offers no explanation for why 8 C.F.R. § 213a.1 does not provide the definition of income for purposes of damages calculations. Why go this far? Instead, the Court could simply have held that a financial transfer from sponsor to beneficiary counts towards the sponsor’s support obligation regardless of how it is characterized.

Bizarrely, the Dahhane Court next held that money brought by the beneficiary from his home country qualified as income for purposes of offsetting damages. This result is jarring, as the Court does a 180-degree flip on its rationale applied earlier in the same decision regarding the import of IRS guidelines. The Court noted that the I-864 regulations permit the sponsor to list the beneficiary’s assets for purposes of demonstrating financial sufficiency to qualify as an I-864 sponsor. Thus, the Court reasoned, $3,000 that the beneficiary brought from Morocco counts as income provided to him by the sponsor for purposes of damages calculations.

There are two problems with this. First, the Court had just reasoned that income defined for initial sponsorship purposes is not the same thing as income for purposes of damages calculations. Second, income and assets are of course separate concepts under the I-864. A sponsor need not report his own assets – let alone the assets of the beneficiary – if his income meets the required threshold. In any event, why should reported assets have anything to do with whether a sponsor s fulfilling duty to provide income? The Court gives no reason why the beneficiary’s assets, which might or might not have been reported on the I-864, later qualifies as an income source for a later support period.

The Zhu case from North Carolina reached the opposite and correct approach regarding assets owned by an I-864 beneficiary.[32] The sponsors in Zhu argued that their support obligation should be offset by the beneficiary’s share of monetary wedding gifts. Disagreeing, the opinion states:

Assets do not amount to income, and a judgment, even a monetary one, is not necessarily an asset for purposes of income. [. . .] Notably, plaintiff-husband listed $150, 000.00 under a heading titled “Assets of the principal sponsored immigrant” on his Form I-864A. This fact had no bearing or impact on the government’s requirement that contracts of support were necessary for [the plaintiff-beneficiary] to become a permanent resident, and nor should a judgment against defendant-parents in the amount of $67, 620.

This approach is both clean and correct. The sponsor’s obligation is offset by the beneficiary’s income. But assets are not income under any normal understanding of the terms.

Departing from other federal courts,[33] the Dohhane Court next held that child support payments to the Beneficiary’s children qualified as income for purposes of the I-864 damages calculation.

Finally, the Dohhane Court correctly concluded that federal income tax refunds paid to the Beneficiary do not qualify as income. Since “[a] tax refund is merely the return of the recipient’s money,” it would be unfair to count it twice, “once when it is received and a second time when it is refunded.” Similarly, in Villars v. Villars, the Supreme Court of Alaska held that an Earned Income Tax Credit does not constitute income for purposes of offsetting I-864 support obligations.[34]

Other tribunals have reached the opposite conclusion regarding reliance on IRS guidelines. In Nasir v. Shah, another U.S. District Court held that the immigrant-beneficiary’s unemployment insurance payments qualified as income, following the defendants’ citation to Internal Revenue Service (IRS) guidelines characterizing such payments as taxable income.[35]

Reaching exactly the opposite conclusion from Dohhane, in Toure-Davis v. Davis a federal court for the District of Maryland held that IRS guidelines do define income for purpose of I-864 damage calculations.

In determining whether a sponsor has sufficient income to support a sponsored immigrant at a minimum of 125 percent of the Federal poverty line, Form I-864 utilizes the [IRS] rules. This court therefore will consult the IRS rules regarding whether a property settlement incident to a divorce is treated as income.[36]

Relying on that standard, the Court in Toure-Davis held that a divorce property settlement did not constitute earned income, and therefore did not offset the Sponsor’s I-864 support obligation.

But in the very same memorandum decision, the Toure-Davis Court failed to rely on the IRS guidelines. With virtually no discussion, the Court held that the defendant was entitled to an offset for the value of free housing provided to the plaintiff by an individual. The Court reasoned that the free housing was the equivalent of receiving a housing subsidy, and also that it was given as a “bartered service” in exchange for the plaintiff’s cooking and cleaning.[37] But wait, is couch-surfing now a form of income taxed by the federal government? If the divorce settlement in Toure-Davis was not income – because the IRS guidelines say it was not – why is free housing income, when its value is not taxable as income?

The damages to which an I-864 plaintiff is entitled depends on her FPG household size, and courts have struggled to define that term. In Erler v. Erler the Ninth Circuit has set forth a helpful bright-line rule for determining household size for the purpose of I-864 damages.[38] After separation, the beneficiary moved in with her adult son. Her son was employed, earning income that exceeded 125% of the FPG for a household of two. The evidence showed that the beneficiary’s son used some of his income to pay rent and living expenses for both himself and the beneficiary.

The beneficiary sued for support under the Form I-864. Although the trial court determined that the obligation survived divorce, it held that the sponsor owed no support.[39] The trial court “imputed” the son’s income to the beneficiary. Because his income exceeded 125% FPG for a household of two, the beneficiary was above the required support level and the sponsor owed nothing

First, the Ninth Circuit squarely held that the Form I-864 is an enforceable contract. The Ninth Circuit then went on to the issue of household size. The Court rejected the trial court’s view that the son’s income should be imputed to the beneficiary. As had the trial court, the Ninth Circuit found that the I-864 statute and regulations did not define household size for enforcement purposes. Note the parallel with the IRS guidelines issue discussed above. There, courts disagreed as to whether rules defining income for determining eligibility of a sponsor also defined that term for purposes of damages calculations.

The Ninth Circuit rejected the idea that household size could be measured by the actual “post petition” household.[40] Instead,

…in the event of a separation, the sponsor’s duty of support must be based on a household size that is equivalent to the number of sponsored immigrants living in the household, not on the total number of people living in the household.

In other words, the operative household size is one, plus any other immigrants who were also sponsored by the same Form I-864.

The Court acknowledged that this approach will sometimes seem to give a windfall to the beneficiary. In Erler, for example, the beneficiary had access to some resources from her son, even though she was also entitled to a full support (125% FPG) from Sponsor. But the Court reasoned that a sponsor should have anticipated that he might be liable for the amount of support. Moreover, the court reasoned, it would be unfair to foist the support of the immigrant on – in this case – her son, when in fact it was the sponsor’s duty to provide the support.

Although Erler is helpful in setting a bright line rule, it leaves unanswered questions. At the top of the list: what happens if the beneficiary has a child? Under Erler, because that child is not a sponsored immigrant she will not qualify as a household member. The core purpose of the I-864 is to ensure that a sponsored immigrant has a bare-bones safety net, at the sole expense of the sponsor. The Erler approach will fall short of that goal where a sponsored immigrant has to use her resources to provide for a U.S. citizen child. It appears that the beneficiary’s best strategy in that situation would be to pursue child support in addition to I-864 support.[41]

May a beneficiary recover damages for periods of time when she is outside the United States? At least two courts have answered yes.

In Villars v. Villars a sponsor argued that he was entitled to an offset for any months the beneficiary spent abroad in Ukraine.[42] The Court noted that no language in the statute prevented the beneficiary from recovering support for time spent abroad.[43] The Court then appeared to hold that the beneficiary was not categorically barred from recovering support for time spent abroad. Rather, the Court said that the issue was whether the beneficiary had received support from family members during that period, which amounts would be counted as an offset against the sponsor’s support obligation.[44]

The Villars Court’s view on family assistance is problematic: that a sponsor may receive an offset if a beneficiary’s family pitches in for her wellbeing. The entire congressional purpose of the Affidavit is to mandate that the sponsor serve as the intending immigrant’s financial safety net. If the sponsor refuses to support the beneficiary, presumably she must find resources somewhere to survive. In any conceivable hypothetical – except for an immigrant living off her own vegetable garden – the beneficiary must receive some form of financial resources during the time a sponsor has failed to provide support. If friends, relatives or community groups step in to provide for the beneficiary’s basic needs, why should the sponsor receive a windfall?

Likewise, in Toure-Davis v. Davis the Court held that the I-864 beneficiary was entitled to recover support for a period of time spent in her home country of Ivory Coast.[45] The only question was whether financial sources received during that period of time served to offset the defendant’s support obligation.

I-864 beneficiaries typically seek to recover damages from the date of their separation with the sponsor, who was typically also the spouse. Nothing, however, prevents a plaintiff from recovering for the period of time when she was residing with the sponsor. It is simply that the factual assessment may be more complex, as to what contributions were made to joint household expenses. This issue was noted by a federal judge for the Western District of Wisconsin, who requested a further factual showing on the issue from the parties.[46]

In I-864 enforcement cases, plaintiffs may seek both recovery of support arrears and also an order of specific performance, mandating that the sponsor fulfill his support duty until the terminating conditions described by the contract. Courts have proved willing to enter such orders of specific performance.[47] Since the plaintiff-beneficiary’s entitlement to I-864 support is contingent upon lacking other income, some form of periodic accounting is appropriate to demonstrate to the defendant that support is required. It has been the author’s practice in settlement negotiations to propose that the plaintiff provide monthly accounting to the defendant, certifying any earned income and that she has not become a U.S. citizen or otherwise triggered a terminating condition under the contract.

Both the Form I-864 itself and underlying statute make very clear that a beneficiary may recover attorney fees incurred in successfully enforcing the contract. In Matloob v. Farham, the plaintiff prevailed after a one-day bench trial and sought just under $40,000 in attorney fees.[48] The Court applied a 10% downward reduction on the basis of some duplicative work between the two lead attorneys, and because the Court believed that the 15 hours spent on the relatively short summary judgment brief was excessive. Notably, the Court acknowledged that although the fee award was nearly four times the amount in controversy, the award was appropriate given the undesirability of the case, and the uncertainty as to whether any fee award could be collected.

The defendants in Matloob were pro se and it is unclear how actively they defended the litigation. For example, the fee award motion was not opposed. Defendants in I-864 enforcement actions often plead numerous affirmative defenses, including the fact-intensive defense of fraud. This can lead to extensive discovery that substantially increases litigation expense. Although the fee award in Matloob was approximately four times the damages sought, a substantially higher award can be appropriate when the litigation is actively defended.

If the sponsor prevails, may he recover attorney fees? In Yaguil v. Lee, brought in the Eastern District of California, the sponsor won dismissal on the grounds of res judicata.[49] The sponsor argued that under a California statute, the attorney fee provision in the Form I-864 and underlying statute should be construed as authorizing an award for the prevailing party, not just the beneficiary. The Court disagreed. It reasoned that the lawsuit was grounded in a federal cause of action authorized by the statute underlying the Form I-864. For that reason, federal rather than California law governed the claim, and the California fee statute simply did not apply. Next, the Court reasoned that the federal statute could not be construed to authorize a prevailing party fee award, as the plain language provides for an award to only the beneficiary, not the prevailing party.[50]

Procedural Issues
The lengthy timeline of litigation presents a vexing challenge for I-864 beneficiaries. Plaintiffs eligible to recover under the Affidavit will, by definition, be impoverished and without financial resources. How can the beneficiary meet her basic needs while litigation is pending? At least one I-864 plaintiff has succeeded in obtaining a preliminary injunction, enjoining the sponsor to comply with the support obligation pendente lite.[51] Financial loss by itself does not normally meet the irreparable harm standard required by most rules governing preliminary injunction. But a California trial court agreed with an I-864 plaintiff that a damages award, by itself, would not “adequately compensate” her, presumably due to the harm she would suffer while being left without means to meet her most basic needs.[52]

As mentioned, I-864 plaintiffs have few resources. For that reason, courts readily permit I-864 plaintiffs to proceed in forma pauperis (IFP).[53] Attorneys sometime mistakenly believe that a plaintiff may not proceed IFP if she is represented by counsel, but in most jurisdictions there is no such rule. Indeed, the author has successfully recovered attorney fees for submitting IFP petitions on behalf of I-864 plaintiffs.

Federal Court
Under the bankruptcy code “domestic support obligations” (DSOs) are exempt from discharge.[54] As mentioned in prior articles, the only bankruptcy cases to consider the issue have held that support under the Form I-864 is a non-dischargeable DSO.[55] Another bankruptcy judge has reached the same conclusion, where a state family court support order was predicated at least partially on the Form I-864.[56]

Federal courts have continued to exercise caution when I-864 enforcement actions are pursued in parallel with state court dissolution proceedings.[57] In one case in the Southern District of New York, for example, a pro se I-864 beneficiary filed a district court action while her dissolution was still proceeding.[58] The Court stayed the federal action under the Colorado River abstention doctrine,[59] and refused to lift the stay where it appeared that the state court was “aware of the Form I-864 issue and was considering it in the divorce proceedings.”

State Court
[Reserved]

Maintenance (“Alimony”) Orders
May a beneficiary use spousal maintenance as a vehicle to enforce the Affidavit of Support? The answer varies from state to state.[60] In Matter of Khan, this author represented a Washington respondent on appeal from a divorce trial.[61] The respondent argued that the trial court had abused its discretion by acknowledging the enforceability of the Affidavit of Support but ordering only short-term spousal maintenance. The Court of Appeals disagreed, holding that the Form I-864 obligation did not fall within any of the statutory bases for ordering spousal support.[62] Instead, the Court acknowledged that the Affidavit was enforceable and instructed that the beneficiary could maintain a “separate action” to enforce her rights.[63]

The approach taken by the Khan Court is frustrating because of the tremendous inefficiency it imposes on the parties and judicial system. In Khan, the trial court partially incorporated the I-864 obligation into a maintenance order, and the sponsor acknowledged to the Court of appeals that he was obligated under the Affidavit.[64] The divorce proceeding could have been used to define the obligation and send the parties on their way. Instead, the beneficiary was forced to bring a separate lawsuit, which resulted in a $104,000 judgment against the Sponsor. The Sponsor was ordered to pay approximately $60,000 in attorney fees to the beneficiary, and presumably paid his own counsel a substantial sum.

In a Kansas case, a sponsor argued that spousal maintenance should be capped at the level provided for in the Affidavit of Support. In Matter of Dickson the Court rejected that proposition, reasoning that the Affidavit of Support and maintenance statute serve different purposes:

The obligation undertaken by signing an 1-864 affidavit is to ensure that the immigrant will not become a public charge. A Kansas court awards maintenance, on the other hand, to provide for the future support of the divorced spouse, and the amount of maintenance is based on the needs of one of the parties and the ability of the other party to pay.[65]

Indeed, this author is at a loss as as to what language in the Form I-864 or federal statute could be construed to imply a ceiling to spousal maintenance.

Issue Preclusion, Claim Preclusion
Procedural doctrines prohibit the litigation both of matters that have already been actually litigated and that could have been litigated. Courts have continued to allow beneficiaries to proceed with enforcement cases when the Affidavit of Support was raised – but claims not fully adjudicated – in a preceding divorce case. In Du v. McCarthy, a beneficiary attempted to raise the Form I-864 during a divorce trial, but was barred from offering testimony as the matter had not properly been brought before the court.[66] A magistrate judge for the Northern District of West Virginia held that because the matter had not been correctly raised in the divorce proceeding, there was no final judgment on the matter and the beneficiary was not barred from bringing her subsequent enforcement action.

By contrast, in Yaguil v. Lee a court for the Eastern District of California dismissed a complaint on res judicata grounds.[67] The beneficiary disputed only whether her federal complaint presented claims that were identical to those she previously raised in divorce proceedings. In the divorce case, the Beneficiary had presented the Form I-864 at a settlement conference, and asserted without evidence that the matter had later been “dropped.” From the order in Yaguil it is fully unclear what came of the beneficiary’s efforts to raise the Affidavit of Support in the divorce proceedings. Regardless, Yaguil imposes a harsh result where a beneficiary may have raised the Affidavit in an ineffective manner in the preceding divorce case. It is unclear whether the beneficiary in Yaguil made a full-throated presentation of her rights before the family law court, or simply decided to enforce them in a different forum.

So should the beneficiary play it safe by simply not mentioning the Affidavit in divorce proceedings? Not so fast. The doctrine of claim preclusion can bar litigation of claims that could have been raised in an earlier proceeding. Courts remain split about the proper forum to enforce I-864 rights, some holding that they may be enforced via spousal maintenance.[68] If a beneficiary fails to raise the Affidavit in a divorce case, the sponsor could later argue that she should have resolved the matter there.

When counsel becomes involved in matters early enough, one option is to file the Form I-864 claim while the divorce case is still pending. If done this way, the Form I-864 case should be brought in state court, as a federal court would likely abstain from the matter while the divorce case is pending.[69] It would seem difficult for the sponsor to argue that the beneficiary should have used a divorce proceeding to enforce the Affidavit if she had already brought a separate contract action to do so.

Unresolved issues
Prenuptial agreements
In Erler v. Erler – discussed above – the Ninth Circuit weighed in on whether a prenuptial agreement may waive support under the Form I-864.[70] The Ninth Circuit affirmed the trial court’s view that “neither a divorce nor a premarital agreement may terminate an obligation of support.”[71] This statement is important, since courts have disagreed about whether or not a sponsor and beneficiary can contractually agree to waive enforcement of the Form I-864. The Ninth Circuit now joins a majority of courts in holding that a premarital agreement cannot waive a beneficiary’s rights under the Form I-864.[72] The waiver issue received no analysis from the Ninth Circuit, and there would appear to be a question about whether the Court’s statement is dicta. But in any event, Erler is another in a line of cases that at least strongly weigh in favor of the view that I-864 enforcement cannot be waived.

Taken at face value, Erler stands for an even more extreme proposition: no I-864 beneficiary could ever enter into an enforceable settlement agreement of her claims against a sponsor. The trial court in Erler rested its decision, in part, on the view that a beneficiary could not waive support rights, since the sponsor’s contract is with the federal government, not the beneficiary.[73] In the experience of this author, many claims against I-864 sponsor are resolved either prior to filing a lawsuit, or at least in pre-trial stages of litigation. A typical move is for beneficiary is to release the sponsor from all future claims for support, either in exchange for a lump-sum payment or structured payments over a specified period of time. For such a settlement to function, the beneficiary must possess the legal authority to release the sponsor from support claims. In Erler the Ninth Circuit seems to say, “only five events can terminate the I-864 support duty, and premarital agreements are not one of them.” Well, neither are settlement agreements. The Court, of course, was not presented with the enforceability of a litigation settlement agreement. Yet the decision leaves some added uncertainty on this issue.

In Maryland, a federal district court reached the same conclusion as in Erler, holding that I-864 support rights cannot be waived. In Toure-Davis v. Davis, the sponsor signed a nuptial waiver before signing the Affidavit of Support.[74] The Court held that by subsequently signing the Form I-864 the sponsor modified the nuptial contract. Moreover – as with Erler – Toure-Davis takes the view that I-864 rights are categorically non-waiveable:

In consideration for allowing Defendant’s immigrant wife to seek an adjustment of her status to a legal permanent resident, Defendant pledged to the U.S. Government, as the sponsor, that he will ensure his sponsored immigrant wife is provided for to maintain her income, at a minimum, of 125 percent of the Federal Poverty Guidelines. Defendant voluntarily, knowingly and willingly signed the Form I-864. Defendant therefore cannot absolve himself of his contractual obligation with the U.S. Government by Plaintiff purportedly waiving any right to alimony or support via the ante-nuptial agreement.[75]

As noted in a previous article, official commentary accompanying the Form I-864 regulations specifically stated that support obligations may be waived by a nuptial agreement.[76] The Toure-Davis Court pushed aside that commentary on the basis that it “does not constitute law.”[77]

Interpreting the I-864
Is a lawsuit to enforce the Form I-864 “just” a contact action, or does it also sound in federal law? This issue continues to be a source of confusion. In a federal enforcement case in the District of Minnesota, for example, a pro se plaintiff moved to strike the defendants’ jury demand, arguing that the underlying federal statute does not create a right to trial by jury.[78] Rejecting that argument, the magistrate judge stated clearly that the causes of action were exclusively contractual in nature:

The federal statute, 8 U.S.C. § 1183a, is not the basis for the cause of action, but expressly states that an affidavit must be executed by a sponsor and provides authorization for enforcement of a Form I-864 agreement as a contract. Breach of contract is a claim at law to which the Seventh Amendment right to a jury trial attaches.[79]

The court declined to rule on the motion to strike the jury demand, however, before seeing what claims and affirmative defenses survived discovery and summary judgment.

Conclusion
Litigation continues to deliver consistent and positive results for I-864 beneficiaries. For immigrants who lack access to public benefits, and those with limited job qualifications, support under the I-864 can provide a crucial lifeline. No one gets rich from the Form I-864. But the support mandated by the contract can help an LPR survive while transitioning from poverty to self-sufficiency.

[1] See Greg McLawsen, Suing on the I-864 Affidavit of Support, 17 Bender’s Immigr. Bull. 1943 (Dec. 15, 2012) (hereinafter McLawsen (2012)); Greg McLawsen, Suing on the I-864 Affidavit of Support: March 2014 Update, 19 Bender’s Immig. Bull. 1943 343 (Apr. 1, 2014) (hereinafter McLawsen (2014)). See also Greg McLawsen, The I-864, Affidavit of Support; An Intro to the Immigration Form you Must Learn to Love/Hate, Vol. 48. No. 4 ABA Fam. L. Quarterly (Winter 2015). In this article, as with its predecessors, the female and male pronouns are used when referring to I-864 beneficiary’s and sponsors, respectively. This approach is taken if view of the fact that I-864 plaintiffs tend to be female.

[2] Visit http://www.i-864.net à Resources.

[3] Greg McLawsen and Gustavo Cueva, The Rules Have Changed: Stop Drafting I-864s for Joint Sponsors, 20 Bender’s Immigr. Bull. 1287 (Nov. 15, 2015). Colleagues sometimes mistakenly assume that joint sponsors are never sued for I-864 enforcement. That view is inaccurate. Indeed, the author recently settled such a case.

[4] 14-cv-03420-PAB-NYW (D. Col. May 2, 2016) (discovery order).

[5] Id. (citing EEOC v. Thorman & Wright Corp., 243 F.R.D. 426, 428 (D. Kan. 2007); Bouchard v. Whetstone, No. 09-CV-01884-REB-BNB, 2010 WL 1435484, at *1 (D. Colo. Apr. 9, 2010)).

[6] Fed. R. Civ. Pro. 34 (emphasis added).

[7] See, e.g., Encarnacao v. Beryozkina, No. 16-cv-02522-MEJ (N.D. Cal., June 27, 2016) (order) (issuing summons in I-864 matter after having previously having dismissed the Complaint where it “failed to provide enough facts for the Court to determine whether he could state a cognizable claim for relief”); Du v. McCarty, No. 2:14-CV-100 (N.D. W. Vir. Apr. 16, 2015) (order adopting report and recommendations) (denying pro se Sponsor’s motion to dismiss based on allegation that Form I-864 signature was not his, since such a matter is for the jury).

[8] No. 12-4648 (RBK/KMW) (N. N.J., Oct. 30, 2015).

[9] Id. (emphasis added, internal citation omitted).

[10] 8 C.F.R. § 216.1 (“A conditional permanent resident is an alien who has been lawfully admitted for permanent residence within the meaning of section 101(a)(20) of the Act. . .”).

[11] Id.

[12] USCIS Policy Manual Vol. 12, Part G, Chapter 5(A), available at http://1.usa.gov/1IArtlI (last visited Dec. 28, 2015) (emphasis added). See also 8 CFR § 235.11(c) (The lawful permanent resident alien status of a conditional resident automatically terminates if the conditional basis of such status is not removed by the Service through approval of a Form I-751, Petition to Remove the Conditions on Residence. . .”) (emphasis added).

[13] A conditional resident maintains status as an LPR unless: (1) she fails to timely file her petition for unconditional status; (2) such a petition is denied; or (3) her status is affirmatively terminated by the government. 8 USC §§ 1186a(c)(2)(A) (lack of timely petition), 1186a(c)(3)(C) (petition denied), 1186a(b)(1) (affirmative termination).

[14] Clients and even immigration attorneys sometimes believe that I-864 obligations end after 10 years. That is incorrect. The obligations are terminated after the beneficiary may be credited with 40 quarters of work under the Social Security Act. That threshold could be met in ten years, but not necessarily.

[15] E060475 (Cal. App., 4th Dist., 2nd Div. Aug. 6, 2015).

[16] Id. (citing INA § 213A(a)(3)(A)).

[17] See id.

[18] Cf. Davis v. Davis, No. WD-11-006 (Ohio Ct. App. May 11, 2012), available at http://www.sconet.state.oh.us/rod/docs/pdf/6/2012/2012-ohio-2088.pdf (last visited Nov. 15, 2016) (Singer, J. dissenting) (arguing that double-stacking should not be applied).

[19] 109 A.3d 221 (2015).

[20] Id. at 223, 227-28.

[21] F.B. v. M.M.R., 120 A.3d 1062 (Pa. Super. 2015).

[22] Commonly asserted defenses include (in no particular order): estoppel, statute of frauds, duress, fraud (typically fraud in the inducement), unconscionability, waiver, res judicata, unclean hands, and “equity.”

[23] See Fed. R. Civ. Pro. 11.

[24] See, e.g., Dahhane v. Stanton, 15-1229 (MJD/JJK) (D. Minn. Aug. 4, 2015) (report and recommendation) (refusing to strike affirmative defenses).

[25] No. COA16-53 (N.C. Dec. 6, 2016)

[26] 686 F.3d 418, 422 (7th Cir. 2012).

[27] Id. (“[W]e can’t see much benefit to imposing a duty to mitigate on a sponsored immigrant.”).

[28] See McLawsen (2012) supra note 1 at Section I.C.

[29] No. 15-CV-1229 (PJS/BRT) (D. Minn., Aug. 12, 2016) (Order on plaintiff’s objection to magistrate’s report and recommendations).

[30] Id. (“[Beneficiary] argues that, if [Sponsor] had given him a gift of $1 million in 2003, he could still sue her for failing to support him at 125 percent of the federal poverty level during that year”).

[31] 8 C.F.R. § 213a.1.

[32] No. COA16-53 (N.C. Dec. 6, 2016).

[33] Younis v. Farooqi, 597 F. Supp. 2d 552, 555 (D. Md. Feb. 10, 2009) (“child support is a financial obligation to one’s non-custodial child, not a monetary benefit to the other parent”).

[34] 336 P.3d 701, 712 (Ala. 2014).

[35] No. 2:10-cv-01003, 2013 WL 3085208 at *3 (S.D. Ohio June 18, 2013) (citing http://www.irs.gov/taxtopics/tc418.html).

[36] No. WGC-13-916 (D. Md. March 4, 2014) (memo. op.).

[37] Id. (citing Shumye v. Felleke, 555 F.Supp.2d 1020, 1026 (N.D. Cal. 2008) for the proposition that housing subsidies offset I-864 damages).

[38] No. 14-15362 (9th Cir. June 8, 2016). See also Toure-Davis v. Davis, WGC-13-916 (D. Md. March 4, 2015) (memo. op.) (holding that U.S. citizen children of the I-864 beneficiary did not count as household members for purposes of damages calculation).

[39] See Erler v. Erler, CV-12-02793-CRB, 2013 WL 6139721 (N.D. Cal. Nov. 21, 2013).

[40] That is, the number of individuals actually residing at the dwelling.

[41] See Toure-Davis v. Davis, WGC-13-916 (D. Md. March 4, 2015) (memo. op.) (“The minor children [of the I-864 beneficiary] are U.S. citizens; they are not sponsored immigrant children. The obligation of support imposed by Form I-864 is not legally enforceable by the minor children against their father Charles G. Davis. The issue of child support is a matter of interest to the State of Maryland.”).

[42] 336 P.3d 701, 712 (Ala. 2014). See also Toure-Davis v. Davis, No. WGC-13-916 (D. Md. March 28, 2014) (memo. op.) (“It is not readily apparent to the court whether Defendant provided financial support during Plaintiff’s absence from the United States between the summer of 2009 and December 14, 2010. The parties should discuss whether Plaintiff is or is not entitled to financial support during this period.”).

[43] Id.

[44] Id.

[45] No. WGC-13-916 (D. Md. March 4, 2015) (memo. op.).

[46] Santana v. Hatch, 15-cv-89-wmc (W.D. Wis. Apr. 29, 2016) (opinion and order).

[47] See, e.g., id.

[48] No. WDQ-11-1943 (D. M.D. Oct. 1, 2014). See also Toure-Davis v. Davis, No. WGC-13-916 (D. Md. March 4, 2014) (memo. op.) (awarding $32, 854.30 in fees).

[49] No. 2:14-cv-00110 JAM-DAD (N.D. Cal. Aug. 12, 2014) (order denying defendant’s motion for attorney fees).

[50] Id. (“If Congress intended to allow defendants to recover attorney’s fees pursuant to § 1183a(c), either under a dual standard or an evenhanded approach, this Court would have expected it to include a prevailing party provision”).

[51] Gross v. Gross, E057575 (Cal. App., 4th Dist., 2nd Div. Dec. 4, 2014).

[52] Id.

[53] See, e.g., Santana v. Hatch, 15-cv-089-wmc (W.D. Wis. Apr. 1, 2015) (opinion and order granting request to proceed in forma pauperis).

[54] See 11 U.S.C. § 101(14A) (defining domestic support obligations).

[55] Cf. McLawsen (2014), supra note 1, at text accompanying note 37. See Matter of Ortiz, No. 6:11-bk-07092-KSJ, 2012 Bankr. LEXIS 5324 (Bankr. M.D. Fla. Oct. 31, 2012) (granting summary judgment to beneficiary); Hrachova v. Cook, 473 B.R. 468 (Bankr. M.D. Fla. 2012).

[56] In re Williams, 15-10056-BAH (BK D. N.H. Jan. 7, 2016).

[57] For an earlier discussion of the doctrines of Younger and Colorado River absention, see Pavlenco v. Pearsall, No. 13-CV-1953 (JS)(AKT), 2013 WL 6198299 (E.D.N.Y. Nov. 27, 2013) (memo. order).

[58] Levin v. Barone, No. 14-cv-00673 (AJN) (S.D. N.Y. Jan. 28, 2016) (order).

[59] Cf. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).

[60] Cf. McLawsen (2012), supra note 1, § II.B.1.

[61] 332 P.3d 1016 (Wash. 2014).

[62] Id. at 1018.

[63] Id. at 1020.

[64] Id. at 1018 (“[The parties] both agree that [Sponsor] owes an ongoing support obligation under I-864”).

[65] 337 P.3d 72 (Kan.App. 2014) (internal citation and quotation omitted).

[66] No. 2:14-cv-100 (N.D. W. Vir. March 26, 2015) (report and recommendations). See Du v. McCarty, No. 2:14-CV-100 (N.D. W. Vir. Apr. 16, 2015) (order adopting report and recommendations).

[67] No. 2:14-cv-00110-JAM-DAD (E.D. Cal. Apr. 10, 2014) (order granting defendant’s motion to dismiss).

[68] Cf. McLawsen (2012) supra note 1 at Section II.B.2.

[69] Cf. Pavlenco v. Pearsall, No. 13-CV-1953 (JS)(AKT), 2013 WL 6198299 (E.D.N.Y. Nov. 27, 2013) (memo. order) (discussing applications of Younger and Colorado River abstention).

[70] No. 14-15362 (9th Cir. June 8, 2016).

[71] Erler, No. 14-15362.

[72] Cf. McLawsen (2014) supra note 1 at Section III.A.

[73] CV-12-02793-CRB, 2013 WL 6139721, at *2 (N.D. Cal. Nov. 21, 2013) (order denying plaintiff’s motion for summary judgment and giving parties notice regarding possible summary judgment for defendant).

[74] No. WGC-13-916 (D. Md. March 28, 2014) (memo. op.).

[75] Emphasis added.

[76] McLawsen (2012) supra note 1, at text accompanying note 141 (citing Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35732 (June 21, 2006)).

[77] Toure-Davis, end note 5.

[78] Dahhane v. Stanton, 15-1229 (MJD/JJK) (D. Minn. Aug. 4, 2015) (report and recommendation).

[79] Id.

From DSS: Request to sign petition to free Virginia Jean Wahab from an abusive guardianship

A note from AAAPG founder, Dr Sam Sugar:

I urge all readers who are outraged by this abuse to sign the change.org petition, Release Jean Wahab- an American senior citizen imprisoned for no crime.

Guardians from Hell

The completely legal, utterly grotesque system for undermining the rights of the elderly
June 21, 2018 • 2:00 PM

At 92-years-old, Virginia “Jean” Wahab hadn’t lost any of the vitality and health she maintained throughout her life. She raised two daughters as a single mom and made a home for them in the Detroit, Michigan suburb of Oak Park. Wahab worked on her feet and didn’t retire from her job at a local family restaurant until she was 88.

Fiercely independent, Wahab was quite happy living at home after retirement. She had a healthy social life. She did her own grocery shopping and chores. She so rarely needed to pay a visit to a hospital that her health insurance was barely touched.

Her eldest daughter Mimi Brun converted to Judaism at the age of 18. She went on to become a prolific Jewish artist, who sold her work all over the world. In 2010, she began to establish art schools for children under 12 in France and then Chicago. Although Brun was estranged from her younger sister, she and her mother were extremely close. Wahab was Catholic, but Brun noted that she had the fastidious nature of a Jewish mother.

Wahab’s legal affairs were in order including a durable power of attorney she had signed in January, 2016 which named Brun as a patient advocate (the handler of her medical needs) as well as giving her daughter charge of her financial affairs should she ever become incapacitated. Wahab’s home was also registered in Brun’s name in a quit claim deed signed by Wahab on December 29, 2014.

The two talked on the phone every day. Brun particularly relished visits with her mother during which she would gift her a piece of art. Wahab was an eager collector of Brun’s work.

That was two years ago. Everything has changed since then.

In 2016, after a fall at her home, Wahab was diagnosed with a slight cognitive problem but otherwise deemed healthy. Wahab’s doctor recommended that Brun find her a short-term rehab facility.

On a national level, the sheer power that has been extended by Probate Courts over wards and family members raises the question as to what the point is of making any kind of will when it can be rendered meaningless.

“I looked for a Jewish one,” Brun said. “They were all full. I found Lourdes because it had a five-star reputation.”

On February 23, that year, with the approval of her HMO, Wahab was admitted for short-term rehabilitation at Lourdes Senior Community in Waterford, Michigan—a nonprofit elder care facility founded by Dominican nuns in 1948. According to the organization’s 2016 I-990s, Lourdes listed end of year assets of $22,096,166.00. Expenses totaled $14,476,851.00

Brun said she made her mother’s meals and went to each of her physical and occupational therapy sessions.

“The insurance granted her up to 120 days,” Brun remembered. “She was excelling like a champ but the therapist at Lourdes started telling me she suspected Mom should not live alone. Mom and I decided that I was going to go back to France and Chicago, put my businesses on hold, rent out my homes and move my work and studio to Mom’s. It was what she had dreamed about—to spend the end of her life living with me.”

Brun left for France, placing her aunt and sister in charge of caring for Wahab while she was in rehab.

“I called Lourdes every day,” Brun said. “Then the insurance cut off.”

Brun asserted that she spoke to Lourdes social worker Sara Van Acker and pledged that she would enter into a payment plan. Shortly thereafter, however, she received an email from a Lourdes administrator which stated “Your payment plan with Sara Van Acker was not approved by me. I cannot receive partial payment nor be patient for your payment plan time frame.”

On June 6, Lourdes filed a petition for guardianship on the grounds of a $31,416.65 past-due bill. Brun said that the petition notice was sent to an address that was not hers. The petition shows that the address used to serve Brun belongs to an apartment complex in Harper Woods Michigan—one hour’s drive from Lourdes and 30 minutes from Oak Park. On the address, no apartment number is listed. It is also not the address listed on the Power of Attorney paperwork Brun says she provided to Lourdes.

Brun rushed back to Michigan. On the morning of June 29, 2016, she attended a hearing presided over by Oakland County Probate Judge Linda Hallmark, one of four judges serving there. Hallmark vacated Wahab’s power of attorney and appointed a local attorney Jon Munger as Wahab’s guardian. According to Brun, neither she nor her mother ever requested Munger’s services.

Also appointed by the court was a man named Matthew Jason Brown, another local lawyer. Brown was named as Wahab’s guardian ad litem (GAL)—a person entrusted with investigating what course of action is in the best interest of a person unable to care for themselves. The June 29 hearing was also attended by two representatives from Lourdes: Van Acker and Lisa Hibbert from the organization’s accounts receivable department.

According to court transcripts from that morning, Van Acker stated that she had filed the petition for guardianship because “there’s a concern about the nursing home being paid.”

This is not a story drawn from a dystopian fantasy. It is happening today all over America, where Probate Courts employ an exponentially growing network of professional, for-profit guardians.

Brown wanted to know if an application for Medicare benefits for Wahab had been made.

“Not to my knowledge,” Van Acker replied.

“Are you familiar with [Wahab’s] medical condition?” Brown wondered, to which Van Acker answered “slightly.”

When Brown asked Brun if she had any objection to the petition, Brun replied “I am contesting this hearing because I was not served. I’ve had no time to get a lawyer.”

“Well, you’re here Ma’am,” Hallmark replied, “and it’s a guardianship so there is some urgency about it, so we’re going to proceed.”

When Brun protested that she had been appointed as Wahab’s guardian through a power of attorney, Hallmark quickly rebuked her.

“That’s different than an appointment by the court,” Hallmark said. “Has any court appointed you guardian?”

“No, but I haven’t applied for it yet,” Brun replied. “I’d like to petition for it, but I need time.”

Hallmark did not respond to this request.

In delivering his report to the court, Brown went on to state that he had visited Wahab at Lourdes only two days earlier. During that visit, he said, he “explained to Wahab her rights and gave her a copy of [the petition].”

“She didn’t have any objection to the appointment of a public administrator at that time,” he added. “But I would note that she was not oriented to date, time, and place.”

Brown also stated that he “went over [Wahab’s] medical condition with Ms. Van Acker and she went over with me sheets that said she was suffering from dementia, unspecified lack of coordination, osteoarthritis, two…type two diabetes, muscle weakness and hypertension.”

Transcripts from that day indicate that Hallmark never asked for medical reports to prove Brown’s assertions.

Brun told Hallmark that she had witnesses who would speak on her and Wahab’s behalf. Those witnesses, however, were never called.

“My Mom needs love,” Brun went on to tell Hallmark. “No one loves my Mom more than me. When I asked my mom ‘what’s your greatest desire?’ she said ‘I want to go home. I want to go home with you.’”

“I want to take her home,” Brun begged Hallmark.

“I’m going to grant the petition,” Hallmark said. “I would like to appoint Mr. Munger [as guardian]. If he thinks that an independent medical or some other action is required that’s fine. I’m also going to appoint [Munger] as special fiduciary to make sure we have the Medicaid application on track. I’ll revoke the power of attorney today. If it’s appropriate that [Brun] should serve, if you want to get counsel and bring the matter in, we’ll consider that.”

“She hasn’t lost any of her rights…” Hallmark added, speaking of Wahab. “She has a guardian and it’s Mr. Munger…”

Brun made one last desperate plea. “Is there a reason why?”

“Yes,” Hallmark replied. “Because she’s in need of a guardian and I’m appointing Mr. Munger. That’s why.”

Hallmark never mentioned the grounds by which she was revoking the power of attorney.

The court adjourned.

Brun’s fight to have her mom released from Lourdes would eventually result in Hallmark issuing an injunction restraining her from entering Lourdes premises, denial of her visitation rights (even when chaperoned by a nun and a locally renowned, retired judge) and a bench warrant from Hallmark’s court for Brun’s arrest.

Two days after Munger had been assigned, Brun received an email from his office which stated “It will be necessary to close [Wahab’s] bank accounts and locate all assets in order to apply for Medicaid. I understand that there is at least one account at ****** Bank with both of your names on it. It would be more efficient if you cooperate with the closing of the account(s). I will need proof of closure for the Medicaid application. I will then open a guardianship account at ******** for your mother, pay her bills, and apply for Medicaid.”

Even though Wahab was originally admitted for a short-term rehab at Lourdes, on July 1, 2016, according to his own accounting, Munger completed a long-term medical assistance application that entitled Lourdes to three months of retroactive disbursement, faxing the application to Michigan State’s Department of Human Services. Five days later, Munger completed and mailed another admissions packet to Lourdes for Wahab.

A July 17, 2016 affidavit, signed by Wahab and filed in court, read “I want to go home with my daughter Mimi.”

On August 15, 2016 Brun’s then-attorney sent a letter to Lourdes CEO Sr. Maureen Comer stating “Ms. Brun has not and has never been opposed to negotiating the payment of the outstanding bill. Ms. Brun has made arrangements to take Ms. Wahab home and Ms. Wahab has even signed an affidavit stating she wants to return home.”

Two days later, Brun, her attorney and Lourdes received an email from Munger which stated that he was clarifying “for both Lourdes and for yourself, that I am not authorizing either Mimi Brun or yourself to discuss, negotiate or otherwise become involved in any potential discharge plan nor payment.”

Munger also went on to say “there have already been repeated complaints about your client’s behavior while at Lourdes facility. I have not yet taken full steps to curtail your client’s visitation, but we may need to revisit that issue.”

In a subsequent series of emails Brun’s then-attorney called Munger’s actions “highly inappropriate. You are needlessly dragging on this litigation so you can keep billing and billing.”

Munger replied “You and your client will cease any communication with Lourdes administration or management.  Your failure to abide by this requirement will simply force me to place the matter before Judge Hallmark, where I will ask that both you and your client be sanctioned for this grossly unprofessional, abusive and threatening behavior.  I simply will not allow either of you to interfere with Virginia’s care.”

On August 18, 2016, Munger billed Wahab $245 for his drafting “of a petition to limit visitation.”

An email that day from Munger to Brun’s attorney stated that it was “due to your attempts to pay Lourdes.” It makes no mention of any complaints about Brun’s behavior.

Because he was Wahab’s guardian, Munger was legally permitted to bill his ward for any work on her behalf. A 2017 statement of other fees and services billed to Wahab by Munger and Associates shows that in little over a three-month span, Munger billed Wahab a total of $6,097.00 in fees and services.

Brun filed an emergency petition to have Wahab released from Lourdes. In an October 5 hearing in Hallmark’s courtroom, Munger was represented by attorney Joseph Ehrlich.

Munger billed Wahab $450 to “attend hearing on court motions and “[a] conference with judicial staff attorney.”

Following the hearing, Ehrlich secured an order from Hallmark compelling Brun to pay $25,000 to Lourdes and gave her 25 days to come up with the cash.

Brun told me that, because it did not include the provision for her mother to be released, she refused to pay it.

A subsequent motion Brun filed to vacate the order stated that “upon review of the transcript of this hearing, at no point did Brun ever agree to pay $25,000 to Lourdes. It does not comport with the settlement placed on record.”

Lourdes retained attorney Mary Lyneis to represent them.

A November 2016 letter from Lyneis to Brun accused her of violating “Court Orders entered into the Probate Court.”

While it did not mention which of those orders Brun was supposed to have violated, it went on to accuse her of “Threatening conduct toward the staff at Lourdes. In addition, you upset your mother with unfounded allegations the staff at Lourdes. As a result, you are hereby notified that you are no longer permitted on the premises. Should you attempt to enter the premises, appropriate law enforcement will be contacted.”

The letter offered no evidence of any court order sanctioning a decision to bar Brun from the premises.

In a February 2, 2017 email, Lyneis told Brun “We want to be paid. You cannot expect to show up to see your mother when you have not paid for the privilege and you have disappeared since November.”

A subsequent email from Munger to Brun stated “If you want to visit your mother and or even remain in contact with her, you would be better served by complying with the existing court order than by continuing to harass everyone trying to see your mother.  In particular, pay the $25,000.”

Concerned about being able to pay her legal fees, Brun sold her and her mother’s home to Michigan banker Bradley Silverstein on the proviso that he draft a lease for her and Wahab to live there. A lease with that condition was drafted on February 28, 2017.

Two days later on March 1, 2017, Ehrlich, Lyneis, and Munger appeared before Hallmark and asked for a series of ex parte orders against Brun.

Ex parte orders are issued without the presence of or even notification of the parties it affects. Since due process is Constitutionally guaranteed, these orders are supposed to be temporary while allowing ample room for them to be contested.

Brun was not present at the hearing when the ex parte orders were issued. At the time, with the support of her doctor and with his medical order in the court file, she had requested a two-month medical leave from the court.

Hallmark also issued a permanent injunction against Brun restraining her from entering Lourdes premises, and a bench warrant for arrest alleging that her refusal to pay the $25,000.00 was in contempt of court.Regardless, Munger and Ehrlich requested that the house be transferred back to Wahab’s name “and then [to] permit Jon Munger to sell the house in order to pay for her care, so that [Wahab] would then qualify for needs-based benefits.” The court issued this order on June 28, 2016.

Brun told me that, in the months that followed, Munger attempted to force his way into the house. On August 8, 2017, she filed a police report, complaining that Munger had attempted to enter the house on three separate occasions.

When Brun replied that she had never received such an order, Munger wrote “A hearing was held on June 21 in front of Judge Linda Hallmark, and you received notice of that. I have every legal right to enter your mother’s home, and I have done so.”A June 30 email from Munger to Brun read “As you are aware, Judge Hallmark entered an order in the eviction case requiring you to vacate your mother’s home by Wednesday, June 28th 2017.  I went to the home with several others on the following day, June 29th, and it was apparent that no one was residing in the home.  Accordingly, we had the locks changed and the home secured. Upon our entry into the home, it was apparent that you had left a great deal of valuable personal property behind, including artwork.  We deem this to be abandoned property under the law.  For the time being, we are holding that personal property and artwork as security for repayment of the $25,000 you were ordered to pay on October 5.”

Brun has filed criminal police reports for larceny home invasion and theft against Munger with the Oak Park Police. The police took no subsequent action.

On August 30, Munger billed Wahab $245 for “a hearing to set aside deed” and $119 for calls to the real estate agent and the locksmith.

Brun said she was not present at any such hearing.

Brun’s attorney Phillip Strehle would later tell Hallmark “In October ’16 [Munger] filed a forwarding address card with the post office which has Mimi’s name on top and Munger’s address on it. So, he already knew, as of October ’16, that whatever mail he sent to the house, she would never get, because he sent it to himself. Mr. Ehrlich told me out in the hall that the order of August 30 was entered because it was uncontested. There’s a reason why it was uncontested; because Ms. Brun was not properly served.”

Brun finally got a break in October 2017 when attorney Lisa Orlando became Wahab’s new Guardian ad Litem.

In two reports Orlando submitted to Hallmark in 2018, she wrote “I visited [Wahab] at Lourdes Senior Community first on November 16, 2017 and then again more recently, on February 28, 2018, at which time I again served her a copy of the petition, notice of hearing and the order appointing a Guardian ad Litem. I don’t believe that Virginia was able to understand the information being presented, however she did clearly say that she did not want to go to court. I then asked her if she wanted Mimi to be her guardian and she said ‘of course!’”

“In the opinion of this GAL, it is Virginia Wahab a 94-year-old woman, who is paying the price of these ongoing legal disputes and suffering harm by not being able to see her daughter for more than 17 months,” Orlando added. “To isolate and prohibit an aging Mother from seeing her daughter is heartbreaking to this GAL. Mimi Brun has priority under the statute and is Virginia’s choice to be her Guardian.”

An affidavit signed by Wahab’s sister Sr. Helen Essa reads “Mimi is a devoted daughter and attended to every detail of her mother’s care not ever putting her own needs first. I know how desperate my sister is to go home with Mimi and have Mimi care for her. I pray, as we all do, that my sister will not die in a nursing home.”

In concluding her report, Orlando cited Michigan statutes.

“Under MCL 700.5313(3)(b), [Brun] has priority over a professional guardian,” she wrote. “’If suitable and willing to serve as guardian, the court shall appoint, an adult child of the legally incapacitated individual.’” Under MCL 700.5313(2)(b), [Brun] is Virginia’s choice to serve as her guardian. I discovered no clear and convincing evidence why the Petition should not be granted.”

Yet, Munger still remains as the sole guardian for Wahab who is still at Lourdes. Despite her best hopes, Brun has yet to see her and bring her home

The question remains as to why the Oakland County Probate Court effectively became a debt collector for a nursing facility and why the now 95-year-old Wahab is still held there despite her own Guardian ad Litem opinion that Brun replace Munger as guardian and family members’ pleas to Hallmark that Wahab be allowed to go home with her daughter.

On May 25, 2018 Hallmark vacated the order to pay $25,000.00. Hallmark also found Brun not guilty of contempt of court.

Brun does not believe the petitions she filed in October to have Munger removed as guardian will even be heard until July.

“I have been offering to pay Lourdes the money to let my mother go but Munger refuses to accept my working with the facility,” she said. “I promised Mom that her last chapter would be her best. But I think my mom will die before Munger ever lets her go.”

Strehle, who has been Brun’s attorney since October, 2017, told me that he felt the entire case against Brun was “bizarre.”

“The transcript of June 29, 2016 does not comply with the statute or the court rules,” he said. “There’s not a single bit of evidence to support even the creation of a guardianship; not one iota of evidence.”

He added that for a nursing home to present a petition for guardianship based on a past-due bill is something “I’ve never seen in all my years of doing probate. Ever.”

In the [June 29, 2016] transcript, the guardian ad litem [Brown] is the one that’s asking the questions,” he added. “Not Munger. Not an attorney for Lourdes. That’s even more bizarre. Usually, the person asking the questions is the petitioner not the guardian at litem. The court grated it because of an overdue bill. That’s not a basis for getting even a limited guardianship.”

Strehle also addressed the March 1, 2017 subsequent bench warrant and injunction issued against Brun.

“In my view, the bench warrant against Mimi was entered improperly because of the $25,000 provision which the court recently vacated,” he said in an interview with me. “In her petition Lyneis was seeking a restraining order against Mimi. A restraining order lapses on its own in 14 days. That’s not what she got. The court granted her a broad injunction. Lyneis had a huge burden of proof to get the restraining order. After that, she was supposed to notify us of a hearing within 14 days. She didn’t do that. It was based on no evidence whatsoever.”

“After all this time, I still have not seen any evidence to support [Munger’s] guardianship,” he concluded. “I have emails from Lourdes saying ‘we don’t want [Wahab] here.’”

“Twice on the record now in open court Ehrlich has said he wants to get the house to pay fees,” [referring to both his and Munger’s legal fees]. “I don’t see how that’s a basis for keeping this poor woman in this location, isolated, with no visitation. I’ve never seen it before in 31 years of doing this.”

I reached out to both Lourdes CEO Sr. Maureen Comer and Lyneis. In a series of email responses, Lyneis requested my “credentials” in the form of a “CV”. When I refused to provide her with a resume, Lyneis declined to confirm or deny any of the emails or statements on court transcripts made by her or Lourdes staff members. She also refused to answer a long list of questions pertaining to everything from Wahab’s initial medical diagnosis to why a petition for guardianship was filed over a past-due bill.

I also reached out to Hallmark via email and telephone and was told by a staff member in her office that, since she had not responded to my email, it was an indication that she had no comment.

An Oakland County Probate Court Administrator later replied, “In the interest of fairness to those involved, it is this court’s policy not to comment on pending litigation.”

Wahab’s first GAL, Brown, however, did respond. “As I stated in my report, Ms. Wahab consented to the guardianship,” he wrote. “I also felt, after interviewing Ms. Wahab, that she needed a guardian to be appointed. The information regarding the medicals was given to me by the nursing home regarding Ms. Wahab’s medical condition and are consistent with my report and testimony.”

This is not a story drawn from a dystopian fantasy. It is happening today all over America, where Probate Courts employ an exponentially growing network of professional, for-profit guardians.

I talked at length to six other families—in Michigan, Arizona, New York and Illinois respectively about their experiences with predatory guardians; some are court appointed professionals, others are family members granted leave by Probate Courts to cut their siblings out of a ward’s life.

The tapestry of each story was as complicated as it was heartbreaking. Each narrator pulled on the memory of each thread of that tapestry and found tears, despair, rage and frustration behind it.

Dr. Sam J. Sugar, MD is the founder of Americans Against Abusive Probate Guardianship (AAAPG) and the author of the May 2018 book Guardianships and The Elderly: The Perfect Crime.

“In 2003 in Florida, there were 23 professional guardians,” he said. “Today, there are 670.”

According to Sugar, these guardians are sometimes no more than high-school graduates with little or no experience and are often untrained, uncertified and unlicensed. Yet they can make $85-per-hour-per-ward-per-day. An income potential of $100,000-per-year can be earned simply by opening the daily mail belonging to half-a-dozen wards.

“The stated occupation of one of the most prominent guardians in the State of Florida is ‘dog walker’,” Sugar said. “But she has control over the lives of elderly people and multi-million or billion-dollar estates.”

Speaking generally, and without addressing Munger or any other guardian, Sugar described what he said was a common pattern.

The first thing the guardian does, within the first 30 days, is to collect every nickel the ward owns. It’s called ‘marshaling the assets’,” he explained. “Then they seize recurring revenue streams. If you’ve ever worked, been in the armed services or had a pension, you represent a tremendous amount of income because the guardian now controls your Medicare or Medicaid. They seize and divert social security payments or veteran’s benefits and change beneficiaries on life insurance policies.”

Sugar added that the power guardians are given concerning a ward’s home or estate can result in “Strawman Sales.”

In a Strawman Sale, a guardian will appraise a home for a low amount for which he will secure court approval to sell. After ransacking it and taking whatever is of value, the guardian will then use a colleague, friend or associate to purchase the home at the court-approved rate. The court will then be sold at its full value allowing the guardian to keep profits never reported to the court.

(from Joanne) a strawman sale is where the sale is fixed to a friend or relative for a low ball price typically half or less of the home’s value.  This is done by ruining the home by letting water run, cutting heating pipes (Teichert), letting the building freeze and water pipes break (Teichert), sealing the house so mold forms throughout (Wyman) and other dastardly ways to make it a home no one wants.  The grass will grow a foot tall, trash will accumulate in the front yard and back yard, etc.  Once the house is sold to a friend (often the attorneys involved have spouses that deal regularly in probate homes for big bucks), the house is cleaned, fixed up and flipped for either another fake sale or it will be sold for full value. The practice is common and there is no court oversight on these crimes.  A typical guardianship can often involve a string of felonies against one ward and his or her family. (Wyman, Sykes, Teihert, etc.)

“There are an endless number of ways for a guardian who is a layer to profit particularly from one ward,” he said.

Meanwhile, the family members who fight in Probate Courts to have their loved ones restored to them are systematically drained both emotionally and financially; punished for daring to oppose a system which is completely out of control and has all but been left unchecked, except by those few who have run afoul of it and fought back through ceaseless activism.

*     *     *

For eight years, Sugar has made it a life mission to raise awareness about guardianship abuse.

The son of two survivors of Auschwitz and Bergen-Belsen, who met in a Swedish refugee camp after liberation, Sugar arrived in the United States with his parents in 1949 and settled in Chicago. After a successful practice in internal medicine and a directorship of medical services at a North Chicago hospital, Sugar retired with his wife to Florida proud to leave the work of continuing the family legacy to their four children and eleven grandchildren.

Prior to eight years ago, Sugar was like many Americans. He was, he said, unaware of a nationwide industry that, in his opinion, was created around hijacking seniors and plundering every last item of value from them.

Sugar’s own family became involved in a legal matter involving guardianship—one he still cannot discuss today because, like the family courts who dispense judgment on the future of minors, those charged with rendering decisions on the elderly routinely issue the same non-disclosure gag orders which, under the auspices of privacy, also serve to shield court employees from accountability from the media or from legislators.

One thing Sugar can talk about was the effect the case had on him.

“It seemed to me that this was a system unbelievable for it to be occurring in the United States,” he said. “It was so off the charts, so unexpected and cruel that I decided to get educated. I had thought we were the only ones but, very quickly, I ran into people who had the exact same thing happen to them.”

“I wish I had never heard the term ‘guardianship’,” Sugar wrote in his book. “Our entire American legal system hinges on the faith and trust of the American citizen. Our country’s three foundational documents take great pains to enumerate and guarantee the unique ideals that countless Americans have been willing to die for. Our tacit understanding of government is that, if we abide by the laws of our land, our sacred rights will be guaranteed. In guardianship, however, everything is different. Innocent individuals can be stripped of their rights by probate courts. In fact, most wards have even fewer rights than do convicted serial murderers.”

“Who would believe such a thing?” Sugar wondered aloud, in an interview with me.

Brun and Wahab do. They have been living it. And they’re not the only ones.

In October, 2017 WXYZ television in Lansing, Michigan launched an investigation into the Oakland County Probate Court and its court appointed guardians Barbara Andruccioli and Thomas Brennan Frasier whom a family member accused of neglecting and financially exploiting her parents Lorrie and Sandy Kapp.

Andruccioli and Brennan have yet to respond to these allegations.

The Oakland County Probate Court judge in the case, Daniel A. O’Brien, issued an ex parte order denying WXYZ the ability to show the Kapp’s faces.

Andruccioli was subsequently fired as a public administrator and has become part of a still ongoing criminal investigation by both the Oakland County Prosecutor’s Office and the Sherriff’s office yet she still remains conservator and guardian for cases at the Oakland County Probate Court.

According to court documents from the Michigan Court of Appeals, in 2011, Hallmark appointed Munger as guardian to Angela M. Robinson who had been declared legally incapacitated. In 2012, her parents Remo and Marie Marzella petitioned Hallmark to remove Munger as guardian and transfer her to their care. They claimed Munger “had not investigated Angela’s best interests or made proper decisions regarding her future care.”

Following an evidentiary hearing, Hallmark denied the petition.

“I am not going to remove Mr. Munger at this point,” she said. “I don’t find that Mr. Munger did anything wrong.”

In a subsequent 2014 lawsuit, the Marzellas accused Munger of committing legal malpractice. Among the complaint’s allegations, Munger “failed to investigate and ascertain Angela’s best interests with respect to her living arrangements, advocated for Angela to live in an institution instead of with her family” and “failed to foster Angela’s family relationships and family involvement in her care and life.”

“Angela and her special needs trust were subsequently shorted and she and her family suffered economic and non-economic damages,” the complaint added.

Munger claimed that, because Hallmark had already ruled he “did nothing wrong” during the petition for his removal, the Marzellas were barred by “collateral estoppel” (preventing an issue from being relitigated.)

In 2016, the Michigan Court of Appeals found that “no discovery was even conducted before [the evidentiary] hearing. Simply stated, the probate court’s decision not to remove Munger as Angela’s guardian was not tantamount to a finding that Munger did not commit legal malpractice or breach fiduciary duties owed to Angela.”

It concluded that the Marzellas “never had a full and fair opportunity to litigate the issues underlying their claims.”

The same court dealt with the 2007 case of Brenda Cupp—who suffered head injuries after a car accident. According to court documents, her sister Dana Browning had been appointed as guardian. After Cupp’s attorney contested the case, Munger was appointed co-guardian and co-conservator of Cupp’s special needs trust.

Five weeks later, Munger petitioned the probate court for Browning’s removal as co-conservator “on the basis that she acted erratically during Cupp’s independent medical examination [IME] and Munger heard second-hand that Browning intended that the money in Cupp’s estate would not be used to pay legal fees.”

The petition was granted.

In 2010, the Michigan Court of Appeals ruled “the IME incident was not sufficient good cause to remove Browning from her co-conservatorship position a mere five weeks after her appointment” and that “the probate court abused its discretion in finding that good cause existed to remove Browning as co-conservator.”

In 2002, Joseph Ehrlich, was sanctioned over $113,000 by a Michigan Court for “pursuing frivolous litigation” in a case disputing the estate of John J. Fannon, Jr.

Ehrlich appealed in 2005 and, in denying that appeal, the court stated that “The record reflects that, when they joined the case, Ehrlich and his firm continued to file pleadings and documents that lacked factual and legal support. The record clearly reflects that Ehrlich failed to make reasonable inquiry into the factual and legal merit of the claims he asserted on behalf of plaintiff when he knew or should have known that they lacked such support.”

On his website, Munger claims to be an Oakland County Public Administrator although an email from State Public Administrator Michael Moody reads “Mr. Munger’s appointment as an Oakland County Public Administrator was terminated on October 6, 2017.” Munger is also not among the Oakland County Probate Court’s list of Public Administrators.

According to Sugar, Public Administrators serve as professional guardians for a Probate Court. He added that professional guardians who also function as attorneys can bill the ward for legal fees.

Between June 29, 2016 and September 19, 2017 Munger’s statement of fees and services billed for his guardianship of Wahab totaled $12,282.

I reached out to Munger by email and telephone and was told by his office secretary that he had no comment.

I reached out to Ehrlich via email and telephone. His office secretary responded that Ehrlich had never received the email. When I asked to speak to him in person, she concluded the conversation.

Abuse of the elderly by Probate Courts, attorneys and professional, for-profit, guardians across the United States is not a new issue However it is one that has yet to gain significant traction with the general public or legislators on a State or Federal level despite investigations conducted by both local and national media outlets which reveal activities that take exploitation to unprecedented and sickening heights.

As early as 1987, the Associated Press was raising the alarm about this issue, in a story headlined “Guardians of the Elderly.” The report described a process that “uproots people, literally ‘unpersons’ them [and] declares them legally dead.” A Las Vegas television station KTNV reporter Darcy Spears conducted an exhaustive investigation in 2015 during which one alleged victim of professional guardian April Parks described the horrors he and his wife suffered as akin to “Nazi Germany.”

Spears has been relentless in her pursuit of those allegedly engaged in guardianship abuse.

Similarly, an October 2017 New Yorker article by Rachel Aviv meticulously detailed a litany of Parks’ alleged crimes, particularly against Rudy and Rennie North. According to the story, Parks forced them from their home and into a senior living facility while she drained them of every cent they owned. Although Parks had operated with the continual support of a Las Vegas probate judge, once the media got wind of her activities, that support quickly vanished. Parks was eventually charged with several felonies. She is currently awaiting trial.

On June 3, 2018 HBO comedian John Oliver addressed the guardianship issue.

Yet, many of those organizations who advocate for the elderly against guardianship abuse still face a continual challenge in raising awareness about the nationwide scope of the problem.

*     *     *

Sugar and the AAAPG fight to shed light on the issue. With a nationwide network of chapters but limited resources and a shoestring budget, today the AAAPG advocates for over 1,200 multigenerational families from attacks waged and sanctioned by their own states and a legal system in which the Constitution or any of its amendments are utterly meaningless.

“Our mantra is ‘educate, advocate, legislate’,” Sugar said. “That’s in response to the [unofficial] mantra of for-profit guardians—which is ‘litigate, isolate, medicate, take the estate’.”

Often, Sugar says he fields calls from five or six families-per-day who are victims of that mantra.

“The elderly themselves don’t call because their phones have been taken away,” he explained. “They aren’t given access to anything and are placed in every type of senior warehousing. For people with lots of money, the guardians have an incentive to find the cheapest place possible. Why waste money for potential fees on feeding or clothing the ward? They are given huge doses of… drugs for no corrective medical reason but to stop them crying or screaming. When the family protests, the judge retaliates by issuing an isolation order. The family cannot see their parents for the rest of their lives under threat of arrest.”

Sometimes, a family isn’t even involved. A state’s Adult Protective Services agency may be called. Sometimes, it’s a neighbor suspecting neglect or a dangerous living environment. In other cases, it is a doctor or bank teller who believe a relative is committing physical abuse or, ironically, financial theft.

Just as when a state’s Child Protective Services agency begins an investigation, once a court steps in, entire families find themselves thrown into a hellish system which, in every way imaginable, is designed to work against them while systematically bleeding them of the resources needed to keep fighting for their loved ones.

“Perhaps the most easily understood precedent to elder abuse trafficking is family discord,” Sugar said. “Any member of the family who is under the mistaken notion that, if they simply submit their grievances to an attorney, the attorney will give them control. But the system of guardianship is all about diverting power and money away from its rightful owners. The fundamental flaw to all these courts is that they are equity courts whether probate, divorce, family or bankruptcy. That means no juries, no rules of evidence or civil procedure. It’s one person [on the bench] and their impression of the information and so-called evidence that is put before them.”

Throughout a half-decade-long of discoveries, Sugar found that guardianship abuse has disproportionately affected Jewish families, particularly those with money.

He puts that down to a mixture of wealth and family dysfunction.

“There is a sense or entitlement with downstream heirs that is very strong,” he said. “They are very prone to litigate their family problems.”

There are also a number of cases involving Holocaust survivors.

Al Katz barely escaped numerous Nazi camps, including Dachau, only to become the ward of guardians in Florida at the age of 89, as court documents show.

“My father came to the United States in 1946,” his daughter, Dr. Beverly Newman, told me.

“His mommy, daddy, little brother, older sister, her husband and their one-month-old baby had all been murdered. He was a walking skeleton with no money, no job and didn’t know the English language. He felt very alone.”

Nevertheless, Newman remembered that her father never lost a wonderful sense of humor while he lived by the motto “Never forget, never forgive and never be bitter.”

It was at a Purim ball in Indianapolis that Katz met Sophia Passo.

“He was stricken with love,” Newman laughed. “He asked her over and over again to marry him. She just would not do it.”

Katz started to work in bakery and then a packing house where he was injured twice. It was when Sophia was visiting him in the hospital that she relented.

He and Sophia were married in 1947. Katz began a successful insurance career. The couple had two children, Newman and her younger brother, and were inseparable for over thirty years until Sophia passed away in 1977.

The devastation Katz felt remained with him the rest of his life.

After retirement, Newman said that her father became a snowbird, spending winters in Florida.

In 2009, concerned for his health, one of Katz’s doctors contacted a public guardian.

That individual was M. Ashley Butler who worked in the Office of Public Guardian for three Florida counties since 2006 together with a partner, Jo Eisch, under the business name Aging Safely, Inc.

Newman maintained that the first she heard about it was when she was told by Katz’s Indianapolis attorney that “there are people poking around about putting your father into guardianship. That was August of 2009.

Newman added that hospital records she obtained from the time include numerous orders made by the guardians not to inform her of any medical decisions or procedures.

“On Rosh Hashanah, September 18, [Butler and Eisch] filed papers to put my dad into Emergency Temporary Guardianship,” Newman said, adding that neither guardian had ever met her father. “They didn’t even know him. I have the transcripts of the hearing. The judge knew that I had not been contacted and went ahead and approved it anyway. Things then moved very quickly.”

A 2011 Florida Supreme Court complaint filed by Newman and her husband noted that Bradenton attorney Ernie Lisch was appointed by the court to act as Al’s counsel.

“Despite many irregularities at the hearing, Lisch took no steps to advocate for or protect the rights of his client,” the complaint reads. Lisch contested these allegations, and the Florida Appellate Court ruled in his favor.

Newman discovered that Katz had been placed in Casa Mora Nursing Home in Bradenton.

In 2015, the Bradenton Herald reported that the facility was one of three on a Florida watch list “due to prior problems or deficiencies.”

The Herald noted, among those deficiencies, “A 58-year-old Casa Mora resident and the resident’s representative had requested in a resuscitate order that the resident receive CPR if she was ever found unresponsive. This procedure was not followed when she fell unresponsive. She was pronounced deceased after not receiving CPR.”

According to the article, these deficiencies have since been corrected.

Casa Mora is no longer on the state’s watch list.

Newman and her husband Larry immediately drove from their home in Indianapolis down to Florida.

She asserted that, shortly before they arrived on September 20, Butler utilized the Florida Baker Act—which allows for involuntary commitment—in order to place Katz in Manatee Memorial Hospital.

“They said that he had taken his walker and bumped it into someone at the nursing home,” Newman said. “But my Dad was barely able to use a walker. He was in very poor physical condition and not a danger to anyone else. They never told him anything. Not what was going on, nothing. We arrived while daddy was in the Manatee Hospital emergency room. It was horrifying. My dad just wanted to go home. A psychiatrist chosen by Butler and Eisch made a No-Contact order. The hospital kept my daddy in an underground unit, like a dungeon. There were armed guards and these huge electronic doors. A nurse told us he was pacing the halls like a caged animal. It was traumatizing.”

She added that Katz was there for three weeks.

Newman remembered Katz calling Butler and Eisch “Nazis” to their faces.

Meanwhile, like the family members in Michigan, Newman launched a fight to have Butler’s guardianship removed and her father returned to her care, as court documents show.

Opposed by Lisch, the case was heard on October 26, 28, and 30, 2009 in Florida’s Twelfth Judicial Circuit Court.

“In the intervening three weeks, Katz was repeatedly hospitalized and near death,” the 2011 complaint noted.

“Guardianship in Florida is a very lucrative industry,” Newman said. “People who go into guardianship lose every cent they ever had. Their families are wrecked.”

She stated that the guardians even took control over her father’s Holocaust Survivor Compensation checks as part of their oversight of her father’s assets.

I attempted to track down Butler. The telephone numbers for Aging Safely have been disconnected. Email addresses for Butler have been shut down. The last I-990 tax return filed by the organization in 2014 listed bet assets of $1,767.00.

As of publication, Eisch had not returned phone calls or email requests for comment.

In Newman’s case, Florida Circuit Court Judge Paul E. Logan (now retired) restricted visits to her father to only three hours-per-day. “He said I could never tell my daddy that I was fighting in court to get him home or that he was under guardianship,” Newman asserted. “If I did, I would lose visitation completely. Daddy was crying and saying, ‘Take me home!’ ‘Why do you have to leave me?’ ‘Why can’t I go home with you?’ and I was prohibited by court order from telling him the truth.”

On November 23, 2009 Newman won her petition for guardianship of her father but not his property.

“I didn’t care,” she said. “I just wanted to get daddy out of the nursing home and hospitals and give him a real life. It was such a relief that I couldn’t stop crying.”

However, by then, Katz was extremely ill and in the hospital.

“I spent Thanksgiving that year with my daddy and in the hospital,” Newman said. “In some ways, that as the best and worst Thanksgiving of my life. At least I could shower him with love and attention.”

By the time Newman and her husband got Katz home, it was Hannukah.

“He was finally smiling,” she said. “By New Year’s Eve, he was able to eat and talk. We took him to a restaurant that he liked. We got him all dressed up. He wanted us to take pictures of us celebrating New Year’s Eve. It was a happy time.”

Their time was all too short. Katz passed away on July 11, 2010.

“He had no catheters or feeding tubes in him,” Newman said. “He was just as normal as you could be at 90-years-old.”

In January that same year, Lisch filed a petition for $24,354.15 in attorney’s fees and expenses.

“For doing essentially nothing,” Newman asserted.

She opposed it and took the case all the way to Florida’s and then the United States Supreme Court, the latter of which declined to hear the case. Ultimately, Lisch prevailed in his original petition.

Even nine-years after her father’s death, Newman said she is still subjected to verbal abuse and numerous accusations from those with a vested interest in a system against which she has actively taken a stand. Meanwhile, she continues to fight in Indianapolis to settle her father’s estate and to remove liens on Katz’s properties.

In 2006, in the case of Marshall v. Marshall, the USSC determined that issues dealing with Probate Courts are “reserved to state probate courts” and “also precludes federal courts from disposing of property that is in the custody of a state probate court.”

In memory of her father, the Newmans founded the Al Katz Center for Holocaust Survivors and Jewish Learning in Bradenton.

“We serve many hundreds of persons every year through advocacy and programming open to the entire community,” the Center’s website reads, “and we are life-sustaining and life-saving to elders in peril and trauma.”

On the opposite side of the country, the probate and guardianship system created another activist and family advocate out of an individual who found herself opposing those who have successfully exploited it.

Terry Williams is the founder of Citizen4Justice.com which seeks to expose predatory guardians operating in the Las Vegas area and across the country. In February of 2003, after she found herself tied up in a guardianship case, Williams began to research other cases in Las Vegas probate courts, where she noted one particularly prominent name: Jared E. Shafer.

Shafer was appointed to an unexpired term as Clark County Public Administrator/Public Guardian in 1979.According to a 2005 document filed by the Nevada Commission on Ethics, he was elected as the Clark County Public Administrator in 1982 and spent the next 20 years in the role.

Prior to leaving office in 2002, Shafer was active as a private fiduciary and started a business Professional Fiduciary Services, Inc., and, in 2003 “publicly established himself as a private consultant/fiduciary in estate, trust, and guardianship matters. Most of Mr. Shafer’s business as a private fiduciary comes from the court and attorneys he worked with during his tenure as a public official.”

A 2017 article in the Las Vegas Review Journal called Shafer “the county’s most prominent private guardian.”

“[Shafer] is considered an insider in the Las Vegas legal community,” the Review Journal added, “where his contacts with judges, politicians and prominent business leaders go back decades. Despite repeated accusations of financial irregularities, ethical lapses and at least one FBI investigation, he has never been accused of a crime.” I reached out to Shafer’s business Professional Fiduciary Services via telephone. No response was received as of time of publication.

According to KTNV in July 2017 a 28-year-old sufferer of cerebral palsy named Jason Hanson filed a lawsuit against Shafer, the current public administrator and attorneys (three of whom served on the Nevada Supreme Court’s 2016 Guardianship Reform Commission) for racketeering, fraud, negligence, and unjust enrichment. The lawsuit is ongoing.

William’s numerous attempts to secure justice for Shafer’s alleged victims through the Las Vegas Police Department were fruitless. She said that she is “waiting for the feds.”

The Bradenton police department wouldn’t help Newman. Brun said that the police in her case were similarly unable to act, unless it was to prevent her from entering Lourdes to see her mother.

The AAAPG has collected over 600 and growing fully-documented, self-reported cases of guardianship abuse which contain enough groundwork for the FBI or Department of Justice to investigate with barely the lift of a finger—if they were interested.

“They aren’t,” Sugar said. “They say it is a civil matter and that we should talk to a lawyer.”

While people like Williams, Newman, and Sugar say that their aim is to expose and fight guardianship abuse nationwide, there is an organization that advocates for those working in the profession.

The National Guardianship Association (NGA) was formed during a national conference in Chicago in 1988—one year after the AP’s article was released.

In the 30 years that followed, the NGA’s membership increased to over 1,000.

Sally Hurme is an attorney and member of the NGAs Board of Directors. She said that, while she is not and has never been a guardian, she has been involved in developing guardianship policy for decades.

“NGA does not have any mechanism by which to do anything other than to keep developing standards of practice and educating individuals who want to provide excellence in guardianship,” she said.

According to the NGA’s website, those standards of practice have increased from the original seven to their present number of 25. In 1997, the NGA voted to create an entirely separate entity,  the Center for Guardianship Certification (CGC) on whose board Hurme has also served.

It states its vision as one in which “every professional guardian will obtain and maintain CGC certification.”

“The CGC is the only national certifying body for guardians,” Hurme said. “Any guardian; professional, family, public or volunteer is welcome and encouraged to become certified.”

Among the five pillars Hurme listed as necessary to obtain certification is an examination.

To become a Nationally Certified Guardian (NCG), the $375 exam is scored on core competencies including professional practices, knowledge of person under guardianship, application of surrogate decision making, medical decision making and personal and financial management.

The competencies listed in the $525 examination to be certified as a National Master Guardian (NMG) are basically the same with the addition of “professional practices of a master guardian” and knowledge of the guardianship planning process.

Hurme stated that, at present, there are approximately 1,500 certified guardians.

“There is an agreement to a disciplinary process which receives grievances, determines whether there is probable cause to go forward with a professional review board,” she stated.

Ironically, according to Hurme, the professional review board is one in which “due process” is afforded to a certified guardian while a determination is made as to whether or not they have violated standards of practice.

“The professional review board has a range of sanctions from a letter of concern, to suspension, dismissal to decertification,” Hurme said. “The one problem with the CGC process is that we can only hear grievances if the individual is certified. If we receive a complaint about a guardian that is not certified, our hands are tied. There’s nothing the CHC can do.”

The CGC’s list of disciplined guardians posted on its website numbers 12 and includes April Parks alongside guardians from Oregon, Texas, Utah, Nevada, New Hampshire, New Mexico, Ohio, Oregon and Michigan.

The CGC lists 12 States that ask for mandatory CGC certification for its guardians or have their own State-specific licensing requirements. In the case of California, it’s a combination of the two. Michigan is not among them. Since 2016, Florida has employed The Office of Public and Professional Guardians (OPPG) to regulate “more than 550 professional guardians statewide, which includes investigating and, if deemed appropriate, the discipline of guardians in violation of the law.

“NGA and many of the other organizations such as those that are members of the National Guardianship Network are continually striving to make guardianship work better for those individuals who will need it,” Hurme said.

As an example of those efforts, Hurme noted the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA). The over 150-page document was drafted, over the course of two years, by a committee consisting of multiple stakeholders including representatives from the American Bar Association (ABA) and was approved and recommended for enactment in all US States at a July, 2017 meeting of the National Conference of Commissioners of Uniform State Laws.

Hurme stated that members of the NGA, herself included acted as technical advisors to the commission “in making sure that the new model; law addresses many of the issues that are floating around in guardianship; perhaps that there are too many guardianships and that there needs to be more emphasis in limiting the authority of the guardian, better recognition of the due process rights of the individual and a more person-centered focus of the individual in the hearing process that limits the authority of the guardian.”

American Association of Retired Persons (AARP) Senior Legislative Representative Diana Noel was part of the drafting committee.

“I felt as if it was a very thorough process that was very public,” she said. “There were a lot of people in the room. One of the things that is very important; that the drafting committee really wanted to come across, which is why the name is so long, is to recognize that guardianship was a system that was really not including the individual that it was about. One of the things the act did was to update terminology. Instead of using the term ‘ward’, it’s ‘individual’ so that the focus is on the individual and so that they have a say in their care.”

A Uniform Law Commission document encouraging States to adopt the UGCPOAA, declares that, under the act, “Each guardianship and conservatorship will have an individualized plan that considers the person’s preferences and values. Courts will monitor guardians and conservators to ensure compliance and approve updates to the plan in response to changing circumstances.”

It adds that “Without a court order, a guardian under UGCOPAA may not restrict a person under guardianship from receiving visits or communications from family and friends for more than seven days, or from anyone for more than sixty day” and that the act “prohibits courts from issuing guardianship or conservatorship orders when a less-restrictive alternative is available.”

These provisions and others in the UGCOPAA could have protected Brun and her mother had the act been adopted in Michigan.

It hasn’t.

As of the time of publication only Maine has adopted it. The New Mexico State Legislature introduced it this year and opened it up for public comment.

Hurme pledged that the NGA would direct its advocacy efforts to assisting States in understanding the importance of what she called “a forward-thinking law.”

Sugar is dubious.

“States put a lot of effort into creating their own legislative agendas and their own statutes,” he said. “The restrictions are very stringent and might make it very difficult to continue guardianship as we know it in the United States.”

Noel is more optimistic.

“This isn’t a partisan issue,” she asserted. “This isn’t a caregiving and an aging issue. I don’t want you to think that, because States haven’t adopted it, that means that they are not looking at it. They may be looking at it. These things take time. They look at their current laws, they see what’s working and what’s not working and how things like the Uniform Act could help fix what’s not working or enhance what is.”

As to whether the CGC’s certification exam is working, Sugar called it a “relatively meaningless paper tiger that is not a rational way to monitor people simply based on paying a fee and taking some courses.”

“I’m not speaking against [the CGC] per se but it seems like a joke because, when there are problems, they seem to be so slow to act,” Williams agreed. “I have a problem with that and when they would try to smooth things over by claiming that these are isolated incidents. There’s too many people with the same scenario for that to be the case.”

“While predatory behavior does not happen in a majority of guardianships, our statistics based on State Court information, our own interviews and surveys indicate that 14 percent of all guardianships involve criminal activity,” Sugar said. “That is a large number of cases that we know about. We don’t know about any others because there are no statistics. If the National Guardianship Association were really interested in the welfare of wards it would work with us to develop reliable and meaningful data and statistics, so the subject can be studied appropriately.”

Noel says she has spent seven years fighting to stem these abuses.

“As long as I’ve been here, I’ve been working on this issue,” she said. “States have been working on and updating their statutes because they are pretty outdated. They’ve been around for a very long time. It’s a very complicated system. What we’re doing and what states are doing is making sure that policy and practice meet and complement each other.”

The AAAPG has had some success with Florida lawmakers which led to the unanimous passage of legislation aimed to curb guardianship abuses and the 2016 expansion of the state’s OPPG.

Federally, legislators have taken a similar interest. The Elder Abuse and Prevention Act passed by the senate and signed into law by President Trump in 2017, charged the Department of Justice with establishing “best practices for data collection on elder abuse” and “in coordination with the Elder Justice Coordinating Council, [to] provide information, training, and technical assistance to help states and local governments investigate, prosecute, prevent, and mitigate the impact of elder abuse, exploitation, and neglect.”

“We have a real long history in combatting abuse and exploitation and ensuring that State laws address and prevent abuse by a guardian or a neighbor or whoever,” Noel said. “We’ve really been engaged in working not just with State legislators but State courts.”

“You know how much difference it’s all made?” Sugar asked. “Zero. You can have all the laws you want but, if they aren’t enforced, they mean less than nothing. There isn’t any data. There’s nothing to collect.”

Wondering about the laws in a State like Michigan and how far they extended in the protection of wards and their families from predatory guardians and the probate courts which employ them, I reached out to probate attorneys across the State.

Nathan R. Piwowarski is a highly respected lawyer and share-holder at the firm of McCurdy Wotila & Porteous, PC in Cadillac. He has been practicing trust, estate and elder law for ten years.

Ronald Dixon has practiced law since 1975 and served as a hearing panelist for Michigan’s Attorney Discipline Committee for approximately 25 years.

Neither Dixon nor Piwowarski were asked to comment on or given the details about any case pending or decided in Michigan Probate Courts.

“The problem is that when a person needs a guardian or conservator, frequently the family members are not worked with by the court or by the guardian appointed,” Dixon said. “The families are concerned, always, about the living conditions for the ward.”

He added that a conflict between a conservator and the family can be easily avoided with a durable power of attorney that specifically names a family member and an alternative as guardian and conservator “and none other.”

However, if judges arbitrarily strike down a durable power of attorney in favor of a court-appointed guardian, Dixon noted that “they should not do that. They should follow the family wishes. If that happens, it should be immediately appealed.”

Note from Joanne:  this is generally done on the spot, without due process, notice, petition, and discovery.  I have rarely seen it done in a proper manner.   Again, the problem is lack of knowledge of rights to the public and no oversight.

He added that a judge needs to demonstrate sufficient grounds as to why a power of attorney listing a family member can be discarded.

“The record should be complete,” he said. “Showing the reasons why this person is not qualified or cannot maintain their position.”

Piwowarski noted that the issue “can get a little bit complicated” depending on whether the power of attorney is generic and related to financial transactions or whether it concerns healthcare and placement issues (a patient advocate designation.)

“In the case of the latter, unless the court specifically invalidates that document and removes the patient advocate, it remains in place,” he said. “The law presumes that the patient advocate would continue serving. That document should stay around unless there was some problem with it like there were not an adequate number of witnesses when it was signed. There are also situations where there is a valid document, but the patient advocate is not doing their job or honoring the person’s preferences.”

In terms of the Constitutional rights a participant in Michigan’s Probate Courts can expect, Piwowarski cited Michigan Compiled Law (MCL) 700.5304 (4) through (6) which addresses the rights of the individual who is allegedly incapacitated.

“They include the right to a jury trial [or] a closed hearing, if they request it, the right to be present at a hearing, the right to obtain an independent medical examination,” Piwowarski said. “There are other procedural rights and protections that are supposed to be afforded the individual who is the subject of a guardianship petition. For example, they’re entitled to personal notice in advance of the hearing. The minimum personal notice requirement is seven days. They are supposed to be given a visit by the Guardian ad Litem who is then supposed to report back to the court, in a timely manner, about whether that individual desires to contest any aspect of the petition or exercise any procedural rights such as the right to request something less intrusive than a full guardianship.”

Note from Joanne; all of this rarely happens, the ward should be served by the sheriff to invoke due process, The court appointed attorneys and GALs often lie thoughout the process (Sykes, Teichert, etc. or are a part of the lies) and all conversations involving a waiver of rights should be recorded, the family should be given notice and the right to be present.

According to Piwowarski, different rights are afforded to those who have an interest in the subject’s welfare.

“There are certain rights that they just don’t have,” he said. “They can’t demand a jury trial. But if there is a durable power of attorney, all of those individuals are entitled to notice and entitled to participate in the proceeding.”

“In terms of who should be serving as a guardian, the nominated patient advocate is right near the top of the list,” he added. “So, the court should be looking to the patient advocate before almost anyone else. The way the statute should work and the way that it’s written is that the court can only intervene in a person’s affairs if that person is legally incapacitated and if there’s an actual need for the court to intervene. The court should evaluate, on the record, why a patient advocate is inadequate. There are express provisions in the Estates and Protected Individuals Code that tell the petitioner and the judge that they have to identify why the court has to actually intervene alternatives short of guardianship can’t be used.”

The question of how much power a professional guardian in Michigan has Piwowarski noted both a statutory and political dynamic.

“In terms of the statue, a guardian has the right to set appropriate access and limit access for a protected individual,” he acknowledged. “That said, the guardian is specifically required by statute to do everything they can to have as full of a life and as high of a level of function as possible. In terms of financial transactions, the court can issue protective orders to remediate situations where a vulnerable person made a property transfer when they didn’t understand it or were under inappropriate influence. A conservator is not able to do something like that without a court order and there should be pretty significant showing before a court would reverse a transaction like that.”

“In my experience the court is typically appreciative of the willingness of a public fiduciary [guardian] to serve,” Piwowarski added. “There is such a need right now for a variety of reasons; families are smaller and more spread out. The public fiduciaries typically are overworked so I can certainly see a situation where a court adopts an overly deferential attitude because of the role that they serve in keeping the local legal system functioning.”

“Oakland County is the wealthiest county in Michigan bar none,” Dixon said. “Frequently estates are incredibly large. Public administrators can err on the side of greediness for him or herself. Frequently, because the judge trusts them to carry out their tasks properly and in good order and rely on them for accurate information.”

Sugar described the Michigan statutes as “platitudes reflecting the rarely achieved aspirational goals of what should be a transparent system of protection for the vulnerable.”

On a national level, the sheer power that has been extended by Probate Courts over wards and family members raises the question as to what the point is of making any kind of will when it can be rendered meaningless.

Sugar’s book offers some preventative measures that include advance directives (power of attorney documents in financial and health matters) specifically forbidding the appointment of a professional guardian.

“Then you have to hope a judge reads it,” he added. “They often don’t.”

Williass also recommends establishing a durable power of attorney and an advance healthcare directive along with an estate plan.

“Make it with someone that you trust implicitly, who can take over for you in the event of a crisis or a health situation or something that may affects your ability to represent yourself,” she said. “But I would caution against full disclosure of the extent of your wealth to anyone other than the person you nominate.”

Ultimately, Sugar believes his campaign of raising awareness could at least begin to decrease the number of professional guardianships.

“If there must be guardianships, they must be moral, just and in the hands of family members—and not court predators,” he said.

Note from Joanne:

I have not read Dr.Sugar’s book so I cannot comment on it or recommend it.  I am still hoping to receive a copy.  If you have one, please send it along.  Thanks

From FB: 13 year old charged with juvenile deliquency over recording the school principal!

While this article gets a number of things wrong (juveniles can only be charged with juvenile deliquency NOT with any actual crime), this article does show several issues 1) no one really understands the Illinois Eavesdropping Act of 2014; 2) Adults in charge of children who don’t want to be held accountable may get an overzealous prosecutor to use it to quell 1st Amendment rights of children in the US and 3)  it’s a near impossible battle to charge anyone with using a cell phone to record an event, they’re so prevalent, we may as just forget that one.  But, if the principal didn’t want to be recorded, he should have just walked away and emailed the student and the student’s parents.

In reality, the principal is a public servant and as such, he should expect to be recorded. Most principals get paid handsomely for a 9 to 5 or 8 or 4 job, so I don’t have much sympathy.

in any case, here is one article on the event:

https://www.illinoispolicy.org/illinois-13-year-old-charged-with-eavesdropping-felony-for-recording-meeting-with-principal/

Austin Berg

Director of Content Strategy

Austin Berg

JUNE 21, 2018

Illinois 13-year-old charged with eavesdropping felony for recording meeting with principal

Illinois’ eavesdropping law is one of the nation’s most severe, but leaves ample room for ambiguity.

Paul Boron is 13 years old.

And he’s facing a felony eavesdropping charge that could change the course of the rest of his life.

His story stands as another chapter of controversy surrounding an eavesdropping law some experts have criticized as ripe for abuse and misapplication.

On Feb. 16, 2018, Boron was called to the principal’s office at Manteno Middle School after failing to attend a number of detentions. Before meeting Principal David Conrad and Assistant Principal Nathan Short, he began recording audio on his cellphone.

Boron said he argued with Conrad and Short for approximately 10 minutes in the reception area of the school secretary’s office, with the door open to the hallway. When Boron told Conrad and Short he was recording, Conrad allegedly told Boron he was committing a felony and promptly ended the conversation.

Manteno Middle School Paul Boron

Two months later, in April, Boron was charged with one count of eavesdropping – a class 4 felony in Illinois.

“If I do go to court and get wrongfully convicted, my whole life is ruined,” said Boron, who lives with his mother and four siblings in Manteno, Illinois, an hour southwest of Chicago. “I think they’re going too far.”

In his petition to bring the charge, Kankakee County Assistant State’s Attorney Mark Laws wrote that Boron on Feb. 16 “used a cellphone to surreptitiously record a private conversation between the minor and school officials without consent of all parties.” Members of the Manteno Community Unit School District No. 5 board, Conrad and Short have not responded to requests for comment on the incident.

“We cannot comment on a pending matter, and we are not authorized to release confidential student information to the press,” district Superintendent Lisa Harrod wrote in an email.

Boron’s mother, Leah McNally, was shocked when she learned about the charge against her son.

“It blew my mind that they would take it that far … I want to see him be able to be happy and live up to his full potential in life, especially with the disability he has,” she said. Her son is legally blind in his right eye.

Paul Boron Leah McNally

The Manteno district handbook outlines that students are not allowed to record interactions with other students at school. It also notes that a video monitoring system may be in use in public areas of school buildings. But it does not detail when it is appropriate for students to record teachers or administrators.

Illinois’ eavesdropping law is similarly gray on the matter, which has led to a number of contentious legal battles and attempts at reform in recent years.

‘We know it when we see it’

For years, Illinois has been home to one of the nation’s most severe and controversial eavesdropping laws.

Christopher Drew, an artist arrested for selling artwork on a Chicago sidewalk in 2009, was charged with a felony for recording the incident. In 2010, Bridgeport resident Michael Allison was charged with a felony for recording his own court hearing after the court did not provide a court reporter. The same year, Chicagoan Tiawanda Moore was charged with a felony for recording conversations with Chicago Police Department investigators regarding her sexual misconduct complaint against an officer.

These cases arose because the law established Illinois as an “all-party consent” state, where, essentially, recording any conversation unless all parties consented was a felony offense. Federal law and a majority of states allow for one-party consent.

In March 2014, the Illinois Supreme Court struck down Illinois’ eavesdropping law, holding that it “criminalize[d] a wide range of innocent conduct” and violated residents’ First Amendment rights.

But during lame-duck legislative session in December 2014, the Illinois General Assembly passed and Gov. Pat Quinn signed a new eavesdropping law. In the wake of the Supreme Court ruling, lawmakers included changes aimed at allowing residents to record interactions with police, for example, but kept intact the “all-party consent” provisions and introduced a difficult-to-gauge standard for when a person must get consent for recording.

Specifically, the new law made it a felony to surreptitiously record any “private conversation,” defined as “oral communication between [two] or more persons” where at least one person has a “reasonable expectation” of privacy.

Boron’s case raises a number of questions critics pointed out in the debate surrounding the 2014 law. Namely, when does someone have a “reasonable” expectation of privacy? And is it fair to expect Illinoisans to know where to draw that line in their everyday lives?

One of the eavesdropping law’s sponsors, former state Rep. Elaine Nekritz, responded to criticisms of the law’s clarity with an especially vague remark. How does one tell when there is a reasonable expectation of privacy when recording police officers, for example? “We’ll know it when we see it,” she told the Chicago Reader.

That’s not likely to serve as any comfort to a 13-year-old facing criminal charges.

“In a public school setting, what kind of reasonable expectation of privacy can there be for a principal interacting with the public?” asked Wayne Giampietro, former president of the Illinois-based First Amendment Lawyers Association.

manteno middle school

Quincy lawyer Saleem Mamdani, who prepared a presentation for an Illinois State Bar Association seminar regarding Illinois’ eavesdropping law, also expressed disbelief.

“With authority figures, if you are engaging in official action, how are you expecting that to be private?” he said. “You are relying on the fact that you had this conversation in imposing current or future discipline.”

Mamdani believes Illinois’ eavesdropping law could be ripe for challenge in the courts, especially given the ubiquity of recording devices on smartphones and devices such as Amazon Alexa and Google Home.

Beyond arguments about expectations of privacy, a sexual misconduct scandal that recently came to light in Chicago shows why lawmakers might seek to empower students to record interactions with the adults who run their schools.

Permanent record

For Terri Miller, president of the nonprofit Stop Educator Sexual Abuse, Misconduct and Exploitation, students’ ability to record interactions with authority figures can be crucial in exposing wrongdoing.

“What child is going to come forward and try the same thing?” she said when notified of Boron’s case. “It will have a deterrent effect on children to report, to speak up when something is wrong.”

Indeed, Boron’s eavesdropping charge comes amid intense criticism of administrators in the state’s largest school district for their handling of misconduct. A June investigation by the Chicago Tribune revealed gross shortcomings in Chicago Public Schools’ handling of sexual abuse allegations from students across the city.

Chicago Board of Education President Frank Clark is moving to transfer an investigation into the abuse allegations to the CPS inspector general’s office from the city law department, which has been criticized for harboring conflicts of interest as it’s also tasked with defending the district should an abused student file a lawsuit.

Manteno Middle School

Looking forward

Boron isn’t quite sure what he wants to be when he grows up. He’s interested in serving in the military, but his vision impairment limits his opportunities there. And if he’s exposed to the juvenile justice system his opportunities could narrow further.

“It would be heart-wrenching,” McNally said of the possibility that her son is found guilty.

“He didn’t do anything wrong, and for him to be snatched from his family, the emotional impact that’s going to have … it’s just going to follow him throughout his years.”

Given the zeal with which Illinois prosecutors have enforced the state’s eavesdropping law, reform from the Statehouse may be Boron’s best hope.

From Joanne;

 

Obviously when Boron grows up he needs to be a lawyer.

If you get a chance, fax or email the principal and tell him he’s wrong and to drop the charges.  What he did was utterly shameful.

 

From FB: Fundamental Rights of Parents and the US Supreme Court

https://hslda.org/content/docs/nche/000000/00000075.asp

Decisions of the United States Supreme Court Upholding Parental Rights as “Fundamental”

by Christopher J. Klicka, Esq.

The Supreme Court of the United States has traditionally and continuously upheld the principle that parents have the fundamental right to direct the education and upbringing of their children. A review of cases taking up the issue shows that the Supreme Court has unwaveringly given parental rights the highest respect and protection possible. What follows are some of the examples of the Court’s past protection of parental rights.

In Meyer v. Nebraska,1 the Court invalidated a state law which prohibited foreign language instruction for school children because the law did not “promote” education but rather “arbitrarily and unreasonably” interfered with “the natural duty of the parent to give his children education suitable to their station in life…” 2 The court chastened the legislature for attempting “materially to interfere� with the power of parents to control the education of their own.” 3 This decision clearly affirmed that the Constitution protects the preferences of the parent in education over those of the State. In the same decision, the Supreme Court also recognized that the right of the parents to delegate their authority to a teacher in order to instruct their children was protected within the liberty of the Fourteenth Amendment. 4

Furthermore, the Court emphasized, “The Fourteenth Amendment guarantees the right of the individual … to establish a home and bring up children, to worship God according to his own conscience.”5

In 1925, the Supreme Court decided the Pierce v. Society of Sisters6 case, thereby supporting Meyer’s recognition of the parents’ right to direct the religious upbringing of their children and to control the process of their education. In Pierce, the Supreme Court struck down an Oregon compulsory education law which, in effect, required attendance of all children between ages eight and sixteen at public schools. The Court declared,

Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children.7 [emphasis supplied]

 

In addition to upholding the right of parents to direct the upbringing and the education of their children, Piercealso asserts the parents’ fundamental right to keep their children free from government standardization.

The fundamental theory of liberty upon which all governments in this Union repose excluded any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right and the high duty, to recognize and prepare him for additional obligations.8 [emphasis supplied]

The Supreme Court uses strong language in asserting that children are not “the mere creature of the State.” The holding in Pierce, therefore, preserves diversity of process of education by forbidding the State to standardize the education of children through forcing them to only accept instruction from public schools.

In Farrington v. Tokushige, the Court again upheld parental liberty by striking down legislation which the Court admitted would have destroyed most, if not all private schools. 9 The Court noted that the parent has the right to direct the education of his own child without unreasonable restrictions.10 In support of this assertion the Court explained,

The capacity to impart instruction to others is given by the Almighty for beneficent purposes and its use may not be forbidden or interfered with by government — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety. 11

 

The parents’ right to instruct their children clearly takes precedence over the state’s regulatory interest unless the public safety is endangered.

Similarly, in Prince v. Massachusetts,12 the Supreme Court admitted the high responsibility and right of parents to control the upbringing of their children against that of the State.

It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder.13 [emphasis supplied]

 

Twenty-one years later, the Supreme Court, in Griswold v. Connecticut, emphasized that the state cannot interfere with the right of a parent to control his child’s education. 14 The Court stated that the right to educate one’s child as one chooses is guaranteed in the Bill of Rights and applicable to the States by the First and Fourteenth Amendments.15

Forty-eight years after Pierce, the U.S. Supreme Court once again upheld Pierce as “the charter of the rights of parents to direct the upbringing of their children.” 16 In agreement with Pierce, Chief Justice Burger stated in the opinion of Wisconsin v. Yoder in 1972:

This case involves the fundamental interest of parents, as contrasted with that of the state, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring tradition. 17 [emphasis supplied]

This case involved a family of the Amish religion who wanted to be exempt after eighth grade from the public schools to be instructed at home. In its opinion the U.S. Supreme Court further emphasized that:

Thus a state’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children . . . This case involves the fundamental and religious future and education of their children. 18 [emphasis supplied]

Consequently, it is clear the constitutional right of a parent to direct the upbringing and education of his child is firmly entrenched in the U.S. Supreme Court case history. Furthermore, a higher standard of review applies to fundamental rights such as parental liberty than to other rights. When confronted with a conflict between parents’ rights and state regulation, the court must apply the “compelling interest test.” Under this test, the state must prove that its infringement on the parents’ liberty is essential to fulfill a compelling interest and is the least restrictive means of fulfilling this state interest. Simply proving the regulation is reasonable is not sufficient.

Below are excerpts from over a dozen United States Supreme Court cases where, primarily in dicta, the Court has declared parental rights to be fundamental rights which require a higher standard of review (i.e. the “compelling interest test”).

1. Paris Adult Theater v. Slaton, 413 US 49, 65 (1973) 

In this case, the Court includes the right of parents to rear children among rights “deemed fundamental.”

Our prior decisions recognizing a right to privacy guaranteed by the 14th Amendment included only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty . . . This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and child rearing . . . cf . . . Pierce v. Society of Sisters; Meyer v. Nebraska . . . nothing, however, in this Court’s decisions intimates that there is any fundamental privacy right implicit in the concept of ordered liberty to watch obscene movies and places of public accommodation. [emphasis supplied]

2. Carey v. Population Services International, 431 US 678, 684-686 (1977) 

Once again, the Court includes the right of parents in the area of “child rearing and education” to be a liberty interest protected by the Fourteenth Amendment, requiring an application of the “compelling interest test.”

Although the Constitution does not explicitly mention any right of privacy, the Court has recognized that one aspect of the liberty protected by the Due Process Clause of the 14th Amendment is a “right of personal privacy or a guarantee of certain areas or zones of privacy . . . This right of personal privacy includes the interest and independence in making certain kinds of important decisions . . . While the outer limits of this aspect of privacy have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions relating to marriage . . . family relationships, Prince v. Massachusetts, 321 US 158 (1944); and child rearing and educationPierce v. Society of Sisters, 268 US 510 (1925); Meyer v. Nebraska, 262 US 390 (1923).’ [emphasis supplied]

 

The Court continued by explaining that these rights are not absolute and,

certain state interests . . . may at some point become sufficiently compelling to sustain regulation of the factors that govern the abortion decision . . . Compelling is, of course, the key word; where decisions as fundamental as whether to bear or beget a child is involved, regulations imposing a burden on it may be justified only by a compelling state interest, and must be narrowly drawn to express only those interests. [emphasis supplied]

 

3. Maher v. Roe, 432 US 464, 476-479 (1977)

We conclude that the Connecticut regulation does not impinge on the fundamental right recognized in Roe …
There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy …

This distinction is implicit in two cases cited in Roe in support of the pregnant woman’s right under the 14th Amendment. In Meyer v. Nebraska. . . the Court held that the teacher’s right thus to teach and the right of parents to engage in so to instruct their children were within the liberty of the 14th Amendment . . . In Pierce v. Society of Sisters . . . the Court relied on Meyer . . . reasoning that the 14th Amendment’s concept of liberty excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The Court held that the law unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of the children under their control …

Both cases invalidated substantial restrictions of constitutionally protected liberty interests: in Meyer, the parent’s right to have his child taught a particular foreign language; in Pierce, the parent’s right to choose private rather than public school education. But neither case denied to a state the policy choice of encouraging the preferred course of action … Pierce casts no shadow over a state’s power to favor public education by funding it — a policy choice pursued in some States for more than a century … Indeed in Norwood v. Harrison, 413 US 455, 462, (1973), we explicitly rejected the argument that Pierce established a “right of private or parochial schools to share with the public schools in state largesse,” noting that “It is one thing to say that a state may not prohibit the maintenance of private schools and quite another to say that such schools must as a matter of equal protection receive state aid” … We think it abundantly clear that a state is not required to show a compelling interest for its policy choice to favor a normal childbirth anymore than a state must so justify its election to fund public, but not private education. [emphasis supplied]

Although the Maher decision unquestionably recognizes parents’ rights as fundamental rights, the Court has clearly indicated that private schools do not have a fundamental right to state aid, nor must a state satisfy the compelling interest test if it chooses not to give private schools state aid. The Parental Rights and Responsibilities Act simply reaffirms the right of parents to choose private education as fundamental, but it does not make the right to receive public funds a fundamental right. The PRRA, therefore, does not in any way promote or strengthen the concept of educational vouchers.

4. Parham v. J.R., 442 US 584, 602-606 (1979).

This case involves parent’s rights to make medical decisions regarding their children’s mental health. The lower Court had ruled that Georgia’s statutory scheme of allowing children to be subject to treatment in the state’s mental health facilities violated the Constitution because it did not adequately protect children’s due process rights. The Supreme Court reversed this decision upholding the legal presumption that parents act in their children’s best interest. The Court ruled:

Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.” Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925) … [other citations omitted] . . . The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries 447; 2 J. Kent, Commentaries on American Law 190.
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents “may at times be acting against the interests of their children” … creates a basis for caution, but it is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child’s best interest … The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” [emphasis supplied]

Parental rights are clearly upheld in this decision recognizing the rights of parents to make health decisions for their children. The Court continues by explaining the balancing that must take place:

Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized (See Wisconsin v. Yoder; Prince v. Massachusetts). Moreover, the Court recently declared unconstitutional a state statute that granted parents an absolute veto over a minor child’s decisions to have an abortion, Planned Parenthood of Central Missouri v. Danforth, 428 US 52 (1976), Appellees urged that these precedents limiting the traditional rights of parents, if viewed in the context of a liberty interest of the child and the likelihood of parental abuse, require us to hold that parent’s decision to have a child admitted to a mental hospital must be subjected to an exacting constitutional scrutiny,including a formal, adversary, pre-admission hearing.
Appellees’ argument, however, sweeps too broadly. Simply because the decision of a parent is not agreeable to a child, or because it involves risks does not automatically transfer power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgements concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgements … we cannot assume that the result in Meyer v. Nebraska, supra, and Pierce v. Society of Sisters, supra, would have been different if the children there had announced a preference to learn only English or preference to go to a public, rather that a church school. The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parent’s authority to decide what is best for the child (See generally Goldstein, Medical Case for the Child at Risk: on State Supervention of Parental Autonomy, 86 Yale LJ 645, 664-668 (1977); Bennett, Allocation of Child Medical Care Decision — Making Authority: A Suggested Interest Analyses, 62 Va LR ev 285, 308 (1976). Neither state officials nor federal Courts are equipped to review such parental decisions. [emphasis supplied]

Therefore, it is clear that the Court is recognizing parents as having the right to make judgments concerning their children who are not able to make sound decisions, includingtheir need for medical care. A parent’s authority to decide what is best for the child in the areas of medical treatment cannot be diminished simply because a child disagrees. A parent’s right must be protected and not simply transferred to some state agency.

5. Santosky v. Kramer, 455 US 745, 753 (1982)

This case involved the Appellate Division of the New York Supreme Court affirming the application of the preponderance of the evidence standard as proper and constitutional in ruling that the parent’s rights are permanently terminated. The U.S. Supreme Court, however, vacated the lower Court decision, holding that due process as required under the 14th Amendment in this case required proof by clear and convincing evidence rather than merely a preponderance of the evidence.

The Court, in reaching their decision, made it clear that parents’ rights as outlined in Pierce and Meyer are fundamental and specially protected under the Fourteenth Amendment. The Court began by quoting another Supreme Court case:

In Lassiter [Lassiter v. Department of Social Services, 452 US 18, 37 (1981)], it was “not disputed that state intervention to terminate the relationship between a parent and a child must be accomplished by procedures meeting the requisites of the Due Process Clause”. . . The absence of dispute reflected this Court’s historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the 14th Amendment … Pierce v. Society of Sisters … Meyer v. Nebraska.
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the state … When the state moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. [emphasis supplied]

6. City of Akron v. Akron Center for Reproductive Health Inc., 462 US 416, 461 (1983)

This case includes, in a long list of protected liberties and fundamental rights, the parental rights guaranteed under Pierce and Meyer. The Court indicated a compelling interest test must be applied.

Central among these protected liberties is an individual’s freedom of personal choice in matters of marriage and family life … Roe … Griswold … Pierce v. Society of Sisters … Meyer v. Nebraska … But restrictive state regulation of the right to choose abortion as with other fundamental rights subject to searching judicial examination, must be supported by a compelling state interest.[emphasis supplied]

7. Lehr v. Robertson, 463 US 248, 257-258 (1983)

In this case, the U.S. Supreme Court upheld a decision against a natural father’s rights under the Due Process and Equal Protection Clauses since he did not have any significant custodial, personal, or financial relationship with the child. The natural father was challenging an adoption. The Supreme Court stated:

In some cases, however, this Court has held that the federal constitution supersedes state law and provides even greater protection for certain formal family relationships. In those cases … the Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed. Thus, the liberty of parents to control the education of their children that was vindicated in Meyer v. Nebraska … and Pierce v. Society of Sisters … was described as a “right coupled with the high duty to recognize and prepare the child for additional obligations” … The linkage between parental duty and parental right was stressed again in Prince v. Massachusetts … The Court declared it a cardinal principle “that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” In these cases, the Court has found that the relationship of love and duty in a recognized family unit is an interest in liberty entitled to Constitutional protection … “State intervention to terminate such a relationship … must be accomplished by procedures meeting the requisites of the Due Process Clause” Santosky v. Kramer… [emphasis supplied]

It is clear by the above case that parental rights are to be treated as fundamental and cannot be taken away without meeting the constitutional requirement of due process.

8. Thornburgh v. American College of Obstetricians and Gynecologists, 476 US 747 (1986)

The U.S. Supreme Court declared, “Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government … Griswold v. Connecticut … Pierce v. Society of Sisters … Meyer v. Nebraska.”

By citing Pierce, the Court included parental liberty in that protected sphere.

9. Board of Directors of Rotary International v. Rotary Club of Duarte, 481 US 537 (1987)

In this case, a Californian civil rights statute was held not to violate the First Amendment by requiring an all male non-profit club to admit women to membership. The Court concluded that parents’ rights in child rearing and education are included as fundamental elements of liberty protected by the Bill of Rights.

The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights … the intimate relationships to which we have accorded Constitutional protection include marriage … the begetting and bearing of children, child rearing and education. Pierce v. Society of Sisters … [emphasis supplied]

10. Michael H. v. Gerald, 491 U.S. 110 (1989)

In a paternity suit, the U.S. Supreme Court ruled:

It is an established part of our constitution jurisprudence that the term liberty in the Due Process Clause extends beyond freedom from physical restraint. See, e.g. Pierce v. Society of Sisters … Meyer v. Nebraska … In an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the interest denominated as a “liberty” be “fundamental” (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society.As we have put it, the Due Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be ranked as fundamental” Snyder v. Massachusetts, 291 US 97, 105 (1934). [emphasis supplied]

The Court explicitly included the parental rights under Pierce and Meyer as “fundamental” and interests “traditionally protected by our society.”

11. Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)

One of the more recent decisions which upholds the right of parents is Employment Division of Oregon v. Smith, which involved two Indians who were fired from a private drug rehabilitation organization because they ingested “peyote,” a hallucinogenic drug as part of their religious beliefs. When they sought unemployment compensation, they were denied because they were discharged for “misconduct.”

The Indians appealed to the Oregon Court of Appeals who reversed on the grounds that they had the right to freely exercise their religious beliefs by taking drugs. Of course, as expected, the U.S. Supreme Court reversed the case and found that the First Amendment did not protect drug use. So what does the case have to do with parental rights?

After the Court ruled against the Indians, it then analyzed the application of the Free Exercise Clause generally. The Court wrongly decided to throw out the Free Exercise Clause as a defense to any “neutral” law that might violate an individual’s religious convictions. In the process of destroying religious freedom, the Court went out of its way to say that the parents’ rights to control the education of their children is still a fundamental right. The Court declared that the “compelling interest test” is still applicable, not to the Free Exercise Clause alone:

[B]ut the Free Exercise Clause in conjunction with other constitutional protections such as … the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S.205 (1972) invalidating compulsory-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school.19 [emphasis supplied]

In other words, under this precedent, parents’ rights to control the education of their children is considered a “constitutionally protected right” which requires the application of the compelling interest test. The Court in Smith quoted its previous case of Wisconsin v. Yoder:

Yoder said that “The Court’s holding in Pierce stands as a charter for the rights of parents to direct the religious upbringing of their children. And when the interests of parenthood are combined with a free exercise claim … more than merely a reasonable relationship to some purpose within the competency of the State is required to sustain the validity of the State’s requirement under the First Amendment.” 406 U.S., at 233.20 [emphasis supplied]

 

Instead of merely showing that a regulation conflicting with parents’ rights is reasonable, the state must, therefore, reach the higher standard of the “compelling interest test,” which requires the state to prove its regulation to be the least restrictive means.

12. Hodgson v. Minnesota, 497 U.S. 417 (1990)

In Hodgson the Court found that parental rights not only are protected under the First and Fourteenth Amendments as fundamental and more important than property rights, but that they are “deemed essential.”

The family has a privacy interest in the upbringing and education of children and the intimacies of the marital relationship which is protected by the Constitution against undue state interference. See Wisconsin v Yoder, 7 406 US 205 …
The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Parham, 442 US, at 603, [other citations omitted]. We have long held that there exists a “private realm of family life which the state cannot enter.” Prince v Massachusetts …

A natural parent who has demonstrated sufficient commitment to his or her children is thereafter entitled to raise the children free from undue state interference. As Justice White explained in his opinion of the Court in Stanley v Illinois, 405 US 645 (1972) [other cites omitted]:

“The court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v Nebraska, … ‘basic civil rights of man,’ Skinner v Oklahoma, 316 US 535, 541 (1942), and ‘[r]ights far more precious … than property rights,’ May v Anderson, 345 US 528, 533 (1953) … The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v Nebraska, supra.” [emphasis supplied]

The Court leaves no room for doubt as to the importance and protection of the rights of parents.

13. H.L. v. Matheson, 450 US 398, 410 (1991)

In this case, the Supreme Court recognized the parents’ right to know about their child seeking an abortion. The Court stated:

In addition, constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.
Ginsberg v. New York, 390 US 629 (1968) … We have recognized on numerous occasions that the relationship between the parent and the child is Constitutionally protected (Wisconsin v. Yoder, Stanley v. Illinois, Meyer v. Nebraska) … “It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom includes preparation for obligations the state can neither supply, nor hinder.” [Quoting Prince v. Massachusetts, 321 US 158, 166, (1944)]. See also Parham v. J.R.; Pierce v. Society of Sisters … We have recognized that parents have an important “guiding role” to play in the upbringing of their children, Bellotti II, 443 US 633-639 … which presumptively includes counseling them on important decisions.

 

This Court clearly upholds the parent’s right to know in the area of minor children making medical decisions.

14. Vernonia School District 47J v. Acton, 132 L.Ed.2d 564, 115 S.Ct. 2386 (1995)

In Vernonia the Court strengthened parental rights by approaching the issue from a different point of view. They reasoned that children do not have many of the rights accorded citizens, and in lack thereof, parents and guardians possess and exercise those rights and authorities in the child’s best interest:

Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination—including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians. See Am Jur 2d, Parent and Child § 10 (1987).

 

15. Troxel v. Granville, 530 U.S. 57 (2000)

In this case the United States Supreme Court issued a landmark opinion on parental liberty. The case involved a Washington State statute which provided that a “court may order visitation rights for any person when visitation may serve the best interests of the child, whether or not there has been any change of circumstances.” Wash. Rev. Code � 26.10.160(3). The U.S. Supreme Court ruled that the Washington statute “unconstitutionally interferes with the fundamental right of parents to rear their children.” The Court went on to examine its treatment of parental rights in previous cases:

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children�Wisconsin v. Yoder, 406 U.S. 205, 232, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982) (discussing “the fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. [emphasis supplied]

 

This case clearly upholds parental rights. In essence, this decision means that the government may not infringe parents’ right to direct the education and upbringing of their children unless it can show that it is using the least restrictive means to achieve a compelling governmental interest.

Conclusion

The U.S. Supreme Court has consistently protected parental rights, including it among those rights deemed fundamental. As a fundamental right, parental liberty is to be protected by the highest standard of review: the compelling interest test.

As can be seen from the cases described above, parental rights have reached their highest level of protection in over 75 years. The Court decisively confirmed these rights in the recent case of Troxel v. Granville, which should serve to maintain and protect parental rights for many years to come.

Copyright 2003 Home School Legal Defense Association. Reprint permission granted.


 

Footnotes

1. 262 U.S. 390 (1923).

2. Id., at 402.

3. Id., at 401. Also see Bartles v. Iowa, 262 U.S. 404 (1923) where the Court reached a similar conclusion.

4. Meyer, 262 U.S. 390 at 400.

5. Id., at 403.

6. Pierce, 268 U.S. 510 (1925)

7. Ibid at 534.

8. Pierce, 268 U.S. 510 at 535.

9. Farrington v. Tokushige, 273 U.S. 284 (1927) at 298.

10. Id., at 298.

11. Farrington v. Tokushige, (9 cir.) 11 F.2d 710 at 713 (1926), quoting Harlan, J., in Berea College v. Kentucky 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81.

12. Prince v. Massachussetts, 321 U.S. 158 (1944).

13. Ibid at 166.

14. Griswold v. Connecticut, 381 U.S. 479, (1965) at 486.

15. Ibid.

16. Yoder, 406 U.S. 205 at 233.

17. Ibid at 232. Burger further admonishes, “and when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.” (Yoder, at 233).

18. Id., at 214.

19. Id., 881.

20. Id., 881, ftn. 1.