A Constitutional Commitment to Access to Literacy: Bridging the Chasm Between Negative and Positive Rights

EVAN CAMINKER

Michigan Law dean emeritus Evan Caminker discusses a decision by the U.S. Court of Appeals for the Sixth Circuit, in which that court held that the Fourteenth Amendment’s Due Process Clause secures schoolchildren a fundamental right to a “basic minimum education” that “can plausibly impart literacy.” Caminker—one of the co-counsel for the plaintiffs in that case—explains why the decision is so remarkable and why the supposed dichotomy between positive and negative rights is not as stark as canonically claimed.

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Robinson v. Planned Parenthood Southeast Inc.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 20-11401

Opinion Date: April 23, 2020

Judge: Jordan

Areas of Law: Civil Rights, Constitutional Law, Family Law, Government & Administrative Law, Health Law

The Eleventh Circuit denied a motion for a stay of a preliminary injunction that enjoins certain applications of a public health order issued in response to the COVID-19 pandemic in Alabama. The public health order, published on March 27, 2020, mandated the postponement of all dental, medical, or surgical procedures. Plaintiffs, abortion providers in Alabama, sought a temporary restraining order (TRO) preventing enforcement of the public health order as applied to pre-viability abortions. After the district court issued a TRO, the state filed a motion to dissolve the TRO and included clarifications. The district court subsequently adopted the state's clarifications and issued an April 3rd order, staying the TRO in part. The state later changed its interpretation again. Based on the evidence presented at the preliminary injunction hearing, the district court determined that the medical restrictions, as read pursuant to the state's earlier interpretation, violate the Fourteenth Amendment. The court held that the state has not made a strong showing that it is likely to succeed on the merits of its appeal or that it will be irreparably injured absent a stay. In this case, because of the state's shifting interpretations of the March 27th and April 3rd orders, the district court had ample authority to issue a preliminary injunction to preserve the status quo and prevent the state from reverting to its initial and more restrictive interpretations. The district court considered Jacobson v. Commonwealth of Massachusetts and Smith v. Avino, but read them together with cases holding that the Fourteenth Amendment generally protects a woman's right to terminate her pregnancy. Applying both the Jacobson framework and the Casey undue-burden test together, the district court concluded that the April 3rd order imposed a plain, palpable invasion of rights, yet had no real or substantial relation to the state's goals. The court held that the district court was permitted to reach this conclusion and to issue a status quo preliminary injunction to ensure that the state did not deviate from the Alabama State Health Officer's interpretation of the April 3rd order at the preliminary injunction hearing.

C.G. v. Alaska, Dept. Health & Social Serv.

Court: Alaska Supreme Court

Docket: S-17254

Opinion Date: April 24, 2020

Judge: Daniel E. Winfree

Areas of Law: Civil Procedure, Family Law

An Alaskan superior court terminated a mother’s and father’s parental rights based on a finding that they caused mental injury to their child. Relevant to this finding, the child in need of aid (CINA) statutes provided that a court may find a child in need of aid due to parental conduct or conditions causing the child “mental injury”; they also provideed that a “mental injury” exists when there was “a serious injury to the child as evidenced by an observable and substantial impairment in the child’s ability to function in a developmentally appropriate manner and the existence of that impairment is supported by the opinion of a qualified expert witness.” The primary issue before the Alaska Supreme Court in this case was one of evidence rule and statutory interpretation in the context of a judge-tried CINA matter: did the statutorily required expert witness have to be offered and affirmatively accepted as a qualified expert witness by the superior court? The Supreme Court concluded the answer was “yes”; that it would review a claim of error in this regard despite a lack of objection in the superior court; and that it would conclude any such error is harmless only if - considering the parent was not necessarily on notice to make an on-record challenge to the expert’s qualifications - the Supreme Court could conclude the putative expert clearly was qualified to render the specific testimony required by statute.

In re Aubrey T.

Court: California Courts of Appeal

Docket: B296810(Second Appellate District)

Opinion Date: April 24, 2020

Judge: Laurie D. Zelon

Areas of Law: Family Law, Juvenile Law

Anthony and Taylor, the parents of Aubrey, born in 2011, had an on-again-off-again relationship. At the time of the birth, Taylor was staying with Aubrey’s maternal great-grandparents. Anthony was present at Aubrey’s birth but was not named on the birth certificate. Weeks later, Taylor and Aubrey moved in with Anthony; when Aubrey was six months old, they got married. According to Taylor, Anthony was often absent because he had a serious alcohol and drug abuse problem and sometimes committed acts of domestic violence against Taylor. When Aubrey was three years old, Anthony and Taylor separated. Taylor and Aubrey moved in with Aubrey's great-grandparents. Taylor obtained a temporary restraining order against Anthony that precluded contact with her or Aubrey. After the TRO was lifted, Taylor allowed Anthony to have visits with Aubrey outside the great-grandparents’ home. In November 2015, after learning that Taylor was missing, Anthony filed a petition for the dissolution of the marriage and sought custody of Aubrey. The juvenile court terminated Anthony’s paternal rights under Family Code section 7822 and declared Aubrey free for adoption by her great-grandparents. The court of appeal reversed. The evidence did not support a finding that Anthony’s efforts to have contact with Aubrey were mere token communications that did not overcome the statutory presumption of abandonment; there was no substantial evidence that Anthony intended to abandon Aubrey during the relevant period.

In re G.C.

Court: California Courts of Appeal

Docket: E072514(Fourth Appellate District)

Opinion Date: April 24, 2020

Judge: Miller

Areas of Law: Family Law, Government & Administrative Law

Defendants-appellants A.C. (Father) and K.C. (Mother) were the parents of G.I., G.A. and J.C. Father, with Mother joining, appealed the juvenile court’s dispositional order removing G.I., J.C., and G.A. (collectively, the children) from Father’s and Mother’s (collectively, Parents) custody. In 2019, plaintiff-respondent San Bernardino County Children and Family Services (CFS) received an immediate response referral alleging general neglect of the children by Mother. It was reported that the home was filthy, the floors were covered in feces and urine, a majority of the food in the refrigerator was expired, the food in the cabinets had mold, and the home smelled of marijuana. When a social worker arrived at the home, Mother had already been taken into custody, and she was having suicidal disclosures. Law enforcement was at the home with the children because Father was deployed and no one was available to care for the children. Following a hearing, the juvenile court found true: (1) Mother failed to provide adequate care and shelter for the children because the home was found to be filthy, creating a hazard due to dirty clothing, trash, feces and lack of provisions, which placed the children at substantial risk of serious physical harm; (2) Mother had an untreated substance abuse issue that prevented her from being able to adequately parent the children, and marijuana was within reach of the children; (3) Mother had been diagnosed with ADHD, anxiety, depression and other mental health issues, Mother had failed to take medication since it was stolen, and if her mental health issues were left untreated, she placed the children at risk of serious physical harm; (4) and Father failed to protect the children from Mother’s behavior, and he knew or should have known the dangers to which they were exposed while under her care. An allegation that Father was deployed and unable to make appropriate arrangements for the children was found not true. After review of the juvenile court record, the Court of Appeal was satisfied substantial evidence was presented to support removal of the children from the parents' custody.

In re M.R.

Court: California Courts of Appeal

Docket: F079971(Fifth Appellate District)

Opinion Date: April 29, 2020

Judge: Charles S. Poochigian

Areas of Law: Family Law

The Court of Appeal affirmed dispositional orders designating the children dependents of the court. The court held that, although the "follow all recommendations" language in the case plan failed to satisfy Welfare and Institutions Code section 1650.1, subdivision (g)(2), the inclusion of the broad language in the case plan was harmless. Furthermore, the court found no Indian Child Welfare Act violation. In this case, mother's claim that she "may have Indian ancestry" was insufficient to trigger the Act's notice requirements, and the agency did not satisfy its duty of inquiry.

DL v. CL

Court: Supreme Court of Hawaii

Docket: SCWC-18-0000536

Opinion Date: April 29, 2020

Judge: Sabrina S. McKenna

Areas of Law: Family Law

In Father's third appeal in a divorce proceeding the Supreme Court reversed the judgment of the intermediate court of appeals (ICA) except to the extent it affirmed the family court's order denying Father's motion for relief from judgment, holding that the ICA erred in determining that the family court's orders orders denying Father's motion to amend and motion for new trial were void and that both motions were untimely. After the family court entered a divorce decree Father submitted to the family court a Hawai'i Family Court Rules (HFCR) Rule 52(b) motion to amend, a HFCR Rule 59 motion for new trial, and a HFCR Rule 60(a) motion for relief from judgment. The family court denied Father's motion to amend and motion for new trial. The ICA determined that the family court's orders denying Father's motion to amend and motion for new trial were void and that both motions were untimely. The Supreme Court reversed, holding (1) the ICA erred in holding that the motions to amend and for new trial were untimely; (2) the family court had jurisdiction to enter the orders; and (3) the family court did not abuse its discretion in denying Father's motion to amend and motion for new trial.

In re Child of Jillian T.

Court: Maine Supreme Judicial Court

Citation: 2020 ME 54

Opinion Date: April 28, 2020

Judge: Ellen A. Gorman

Areas of Law: Family Law

The Supreme Judicial Court vacated in part the judgment of the district court finding that Mother presents jeopardy to her child pursuant to Me. Rev. Stat. 22, 4035, holding that the court miscalculated the date on which the child was considered to have entered foster care. In the jeopardy order, the court found that the child entered foster care on July 4, 2019, a finding to which Mother disagreed. Mother appealed, challenging the date the child was considered to have entered foster care. The Supreme Judicial Court vacated the portion of the jeopardy order containing that finding, holding that September 2, 2019 is the date on which the child was considered to have entered foster care within the meaning of Me. Rev. Stat. 22, 4038-B(1)(B), 4041(1-A), 4052(2-A)(A)(1).

Foster v. Foster

Court: Michigan Supreme Court

Docket: 157705

Opinion Date: April 29, 2020

Judge: Brian K. Zahra

Areas of Law: Civil Procedure, Family Law

Deborah Foster sought to enforce a consent judgment of divorce (the consent judgment) between herself and ex-husband Ray Foster. The consent judgment provided that Ray would pay Deborah 50% of his military disposable retired pay accrued during the marriage or, if he waived a portion of his military retirement benefits in order to receive military disability benefits, he would continue to pay Deborah an amount equal to what she would have received had Ray not elected to receive such supplemental disability benefits. Because Ray was injured during combat, he was eligible for combat-related special compensation (CRSC), and Ray applied for CRSC around the time of his retirement. Deborah filed for divorce in November 2007, and the consent judgment was entered in December 2008. Deborah was receiving slightly more than $800 per month under the consent judgment until February 2010. When Ray began receiving CRSC, his disposable retirement benefit amount had been reduced, and Deborah's monthly payment was reduced to a little more than $200 per month. Ray failed to pay Deborah the difference between the reduced amount of retirement pay she was receiving and the amount that she had received shortly after entry of the consent judgment. Ray was ultimately held in contempt of court; he appealed to the Court of Appeals, arguing that the trial court erred by not finding Deborah's attempts to enforce the consent judgment preempted by federal law. The Court of Appeals concluded there was no preemption and affirmed the trial court’s contempt order. Defendant sought leave to appeal to the Michigan Supreme Court. The Supreme Court vacated the Court of Appeals' judgment and remanded the case for reconsideration in light of Howell v. Howell, 137 S Ct 1400 (2017). On remand, the Court of Appeals again affirmed the trial court’s finding of contempt, concluding that Howell did not overrule the Court of Appeals’ decision in Megee v. Carmine, 290 Mich App 551 (2010). Ray appealed again. The Supreme Court found federal law indeed preempted state law, such that the consent judgment was unenforceable to the extent it required Ray to reimburse Deborah for the reduction in the amount payable to her due to his election to receive CRSC. "Although the Court of Appeals indicated its agreement with plaintiff’s assertion that defendant was engaging in an improper collateral attack against the consent judgment, the panel did not discuss the effect of federal preemption on the trial court’s subject-matter jurisdiction or defendant’s ability to challenge the terms of the consent judgment outside of direct appeal." The matter was remanded for the Court of Appeals to address the effect of the Supreme Court's holding on Ray's ability to challenge the terms of the consent judgment.

Young v. Air Masters Mechanical Inc.

Court: Supreme Court of Mississippi

Citation: 2018-CT-00401-SCT

Opinion Date: April 30, 2020

Judge: Griffis

Areas of Law: Civil Procedure, Family Law, Government & Administrative Law, Labor & Employment Law, Trusts & Estates

Daniel Tewksbury and Bobbie Young were previously married and were the parents of two minor children, Lane and Emma. They divorced in May 2006, and Daniel was ordered to pay child support. Daniel stopped making child-support payments in 2008. Bobbie later married Gerald Young, Jr. Gerald filed a petition to adopt Lane and Emma. In the adoption, Daniel’s parental rights were terminated. As of the termination of his parental rights, Daniel owed Bobbie $34,759 for child support. On April 5, 2015, Daniel died in an automobile accident. The accident occurred while Daniel was in the course and scope of his employment with Air Masters Mechanical, Inc. Bobbie then filed a petition with the Workers’ Compensation Commission on behalf of Lane and Emma, claiming that the children were entitled to Daniel’s workers’ compensation death-benefit proceeds and sought the payment of the $34,759 in outstanding child support. The Workers’ Compensation Commission Administrative Judge (AJ) determined that the child-support lien of $34,759 was valid and payable under Section 71-3-129. Air Masters and Associated General Contractors filed a petition for review with the Commission. The Commission concluded that Lane and Emma were not entitled to Daniel’s death benefits because they were not his statutory dependents under Mississippi Code Section 71-3-25 (Supp. 2019). The Commission reversed the AJ’s order and dismissed Bobbie’s petition. On appeal, a divided Court of Appeals reversed the Commission’s decision, concluding the child-support lien was valid. The Mississippi Supreme Court reversed, finding Section 71-3-129 did not authorize a lien on death benefits payable directly to the deceased employee’s statutory dependents. Accordingly, the child-support lien did not apply to Daniel’s death benefits. Further, because Daniel had no statutory dependents, there were simply no benefits to which the lien can attach in this case. As a result, the Commission properly dismissed the claim. The judgment of the Court of Appeals was reversed. The judgment of the Mississippi Workers’ Compensation Commission was reinstated and affirmed.

Lopez v. Texas

Court: Texas Court of Criminal Appeals

Dockets: PD-1382-18, PD-1265-18, PD-0013-19, PD-0014-19, PD-0015-19

Opinion Date: April 29, 2020

Judge: Keel

Areas of Law: Constitutional Law, Criminal Law, Family Law

The Texas Court of Criminal Appeals granted review in these cases to clarify whether the State had to prove the commission of bigamy in order to enhance punishment of sexual assault. Penal Code section 22.011(f) enhanced sexual assault to a first-degree felony if the victim was a person whom the actor was prohibited from marrying or purporting to marry, or with whom the actor was prohibited from living under the appearance of being married. The appellants in these cases (consolidated for review) were convicted or sexual assault and enhanced under Section 22.011(f). Each was married to someone other than his victim at the time of the sexual assault, but none committed bigamy with his victim. On appeal they challenged the sufficiency of the evidence to prove the enhancements because the State did not prove bigamy. After review, the Court held that the State did not have to prove commission of bigamy to trigger the enhancement under Section 22.011(f).