For those of you that have a local county "Friend of the Court" (foc) involved in your cases, you know they are tyrannical and exceed authority in much the same fashion as the close knit DHS/CPS agencies. They intervened in a Motion I filed in a custody case and stated in their brief they have "special standing above the parties" in the Domestic Relations cases. This is just the type of language that is being used to place a child's rights (judicial discretion) above constitutional parental rights. The FOC in Michigan has been known to be involved in some DHS/CPS cases in Michigan.
Their oppositional brief is located here where they attempt to block my setting aside of an Order to Show Cause:
I have responded with a legal brief demonstrating that they are exceeding authority and are acting as a Master in Chancery, and not following their statutes and court rules and also stepping on constitutional rights. This could be occurring in some DHS cases as well. Nonetheless, my brief is located below and is being heard in Kent County Courthouse (180 Ottawa St, Grand Rapids, MI 49503) this Friday at 8:30am in the morning in the courtroom of Judge G. Patrick Hillary.
I would encourage you to review the briefs and/or attend the hearing this Friday. It is good to see how they handle Pro Se litigants before having to appear for yourself. This gives you the opportunity to know what to expect.
Tuesday, January 3. 2006 Holland files responsive brief to FOC brief Holland files a response against the Kent County Friend of the Court brief (where they allege they have special standing above the parties). It is believed that the Kent County Friend of the Court is exceeding its statutory authority, among other things, by issuing ex parte Order to Show Causes where the statutes simply do not authorize it. The circuit court is no longer a fact finder, but an assembly line, rubber-stamping its employee's paperwork blindly... The entire response is attached.
STATE OF MICHIGAN
IN THE 17th CIRCUIT COURT FOR KENT COUNTY
180 Ottawa Avenue, N.W., Grand Rapids, MI 49503 (616) 632-5480
Plaintiff, Case No. 03-09173-DC
Hon. G. Patrick Hillary
LARY HOLLAND DEFENDANT’S
Defendant, RESPONSE TO FOC
BRIEF IN OPPOSITION
Kent County Friend of the Court
Lary Holland (Pro Se)
5180 Cedar Lake Rd. Oscoda, MI 48750 (989) 747-0079
Peter P. Walsh (P28040) Daniel J. Fojtik(P38995) NAPIERALSKI & WALSH, P.C. Attorney for Intervener Attorneys for Plaintiff 82 Ionia Ave. NW 4790 Cascade Road S.E. Grand Rapids , MI 49503 Grand Rapids, MI 49546 (616) 632-6792 (616) 942-1111
DEFENDANT’S RESPONSE TO FOC BRIEF IN OPPOSITION
Intervener, by and through their attorney, Daniel J. Fojtik filed a pleading entitled “Brief in Opposition to Defendant’s Motions” in response to Defendant moving to set aside an Order to Show Cause among other things issued in the above captioned matter. Interesting enough after this author has scoured the entire Michigan Court Rules, Support and Parenting Time Enforcement Act, Friend of the Court Act, and additional documentation he did not find even an allusion that Intervener indeed has adequate standing to oppose a party’s Motion beyond a simple recommendation. It is now, however, necessary to respond to the myriad of misleading statements and false legal arguments presented by the Intervener’s counsel.
Attorney for Intervener summarizes Defendant’s previous filing as “boiling down to his assertion that the affidavit of MCR 3.606 applies to motions for order to show cause filed by the Friend of the Court.” The summarization by Intervener’s counsel is erroneous and very misleading to this court and this responsive memorandum should clear this issue up. It is true that Defendant has indeed indicated that an Affidavit was not attached to Intervener’s EX PARTE Petition for Order to Show Cause (see Defendant’s Exhibit A) which is undisputable, however Defendant would not rely only on that lone issue to substantiate the setting aside of the Order to Show Cause that was blindly granted by this court.
The Intervener refers to MCL 552.644(1) in their oppositional brief. MCL 552.644(1) states: “If the Friend of the Court determines that a procedure for resolving a parenting time dispute authorized in section 41 other than a civil contempt proceeding is unsuccessful in resolving a parenting time dispute, the office of the Friend of the Court shall commence a civil contempt proceeding to resolve a dispute concerning parenting time with a minor child by filing a petition for an order to show cause why either parent who has violated a parenting time order should not be held in contempt.”
Note that the beginning of MCL 552.644(1) begins with the conditional word “If” where it would be appropriate that the statutory condition(s) need to be fulfilled before any action may be taken by either the Friend of the Court or the Circuit Court. In this specific case, a Petition was submitted Ex Parte by John R. Cole, which is not authorized by the statute, 552.644(1), or the Michigan Court Rule, MCR 3.208(B)(1) or adequately pled to comply with MCR 3.207(B) regarding Ex Parte Petitions and Orders.
Nowhere in either MCL 552.644(1) or MCR 3.208(B)(1) does it state the Respondent loses the right to respond to a Petition before the extraordinary and unilateral relief is granted without opportunity to be heard and without Judicial review. MCR 3.208(B)(1) or MCL 552.644(1) certainly does not suspend any of the most basic civil procedure rules regarding judicial review, ex parte communications, ex parte orders, due process, notice requirements, or anything in the previous or subsequent chapters of the Michigan Court Rules. See MCR 3.201; MCR 3.207(B).
To put it simply, Intervener’s counsel is portraying the Friend of the Court as exercising its own judicial discretion that denies the respondent any chance to refute an actual unsupported allegation made by the Friend of the Court just by an adverse party complaining directly to the Intervener. The interpretation offered by Intervener’s counsel only gives opportunity for a respondent to justify an already predetermined misconduct allegedly committed. The interpretation offered by Intervener is absurd and denies respondent the right to properly challenge if the misconduct occurred in the first place.
Kent County Friend of the Court exceeds its statutory powers by using Ex Parte Petitions to declare guilt or misconduct, and the Kent County Circuit Court has abrogated its duty of judicial scrutiny by blindly rubber-stamping its employees’ documents.
The Circuit Court is no longer acting as a fact finder in the eyes of the Friend of the Court, but an assembly-line, where sometimes an actual signature of a Judge is not even acquired but rather printed on a created FOC clearly demonstrated by other Orders of the Court that are printed out without the signature of a Judge but “given full force and effect of an Order.” In Re Contempt of Auto Club Insurance Association 243 Mich App 697; 624 NW2d 443 (2000) “When exercising its civil contempt power, a court acts as the fact finder, determines whether there was contempt under a preponderance of the evidence, and imposes sanctions. If the contemptuous behavior occurred in the presence of the court, in that all facts necessary to a finding of contempt are within the personal knowledge of the judge, it is direct contempt and no separate hearing is necessary, but if the contemptuous conduct occurred outside of the court’s direct view, the court must conduct a hearing to determine if the contempt actually occurred. The hearing must follow the procedures established by court rule and must afford due process.
The procedure in the above case clearly lays out that there needs to exist two hearings for alleged contempt outside the presence of the court, nothing in the Intervener’s current argument proves that the Circuit Court should not follow the standard rules of civil procedure, but leaves the subject open for the court to assume.
In the current situation, the Friend of the Court is submitting Ex Parte communications to the Circuit Court Judge, a determination is made by the Friend of the Court; an Order is then blindly signed by the Circuit Court Judge, and all without the knowledge of the respondent. The Intervener’s counsel sounds like the Department of Homeland Security under the Bush Administration..
In this case, the blind rubber-stamping of a Friend of the Court Petition on an Ex Parte basis denies Respondent due process, which is a constitutionally protected right at both the Federal and State Constitution levels. Additionally the Friend of the Court in exercising its own discretion without the scrutiny of a Judge is essentially acting quite similarly to an “office of master in chancery” which is prohibited by the Mich Const 1963 Art 6. Sec 5.. Notwithstanding the fact that the Friend of the Court is not even an attorney is concerning on its own, the Intervener is indeed acting as a Master in Chancery, and an unqualified one at that.
Intervener states “The Court should also not read more into MCR 3.208(B)(1) than what is there” after making arguments about statutory intent, insinuating that statutory interpretation is the same as court rule interpretation. Court Rule interpretation and Statutory Intent are separate matters. The construction of the court rules is governed by MCR 1.105. Further MCR 1.104 governs “any practice set forth in any statute, if not in conflict of any of these rules are effective until superseded by rules adopted by the Supreme Court.” Rule making is an exclusive role of the Judiciary. See Mich Const 1963, Art 6 Sec 5. Further MCR 3.201(C) states “Except as otherwise provided in this subchapter, practice and procedure in domestic relations actions is governed by other applicable provisions of the Michigan Court Rules.” Indeed nothing in MCR 3.208(B)(1) or MCL 552.644(1) states that the rules for Ex Parte Petitions, Petitions, or Ex Parte Orders are suspended, and again does not authorize the use of Ex Parte communications in the first place because there is no true immediate need as defined by MCR 3.207(B)(1) for such extraordinary relief.
Intervener’s counsel forgot to mention that in Intervener’s Ex Parte Petition he failed to allege irreparable injury, loss, or damage that would result from the delay required to effect notice or that notice itself will precipitate adverse action before an order can be issued as required by MRC 3.207(B)(1) as well as the other requirements throughout the Michigan Court Rules for Motions, justifying indeed a sanction against Intervener.
Intervener’s counsel also improperly insinuates that the Friend of the Court has “authority to Petition for Immediate Arrest” without the use of affidavits and other constitutionally protected mechanisms because they are not explicitly listed within Chapter 3.200. This is the most profound statement yet by Intervener’s counsel, which can only be construed as a threat by Intervener’s counsel (see Bill of Rights.
The Intervener’s counsel has also attempted to make an argument regarding “opting out” of the Friend of the Court services which is not properly before this court at this time. Intervener also is referring to some beliefs about Defendant’s intentions regarding conflict of interest arguments that are not properly before this court. The only thing worth mention is there a distinction between filing a “Motion to Suspend Automatic Enforcement” pursuant to MCR 3.209(A) and “opting out” pursuant to MCLA 552.505a. Again, where a procedure is laid out in the Michigan Court Rules, it trumps a procedure laid out in a Statute, but nonetheless the two procedures are different. The statute only pertains to a Motion “filed under this subsection” see MCL 552.505(a)(2). If there was a Motion filed pursuant to the Friend of the Court Act regarding opting-out Intervener’s argument may have some relevance, but to date a Motion has been only filed pursuant to MCR 3.209(A) and is not the subject of the current matter.
The fact that the Friend of the Court is not an attorney emphasizes a greater need for judicial scrutiny to protect parties involved in civil domestic relations matters, especially after the statements made by Intervener’s counsel and his attempt to justify the use of Ex Parte communications and other questionable tactics above. A question remains if MCL 600.916 is violated by the Friend of the Court practicing law as part of his job without the assistance of a licensed attorney, since there is no exception for such activity in the Unauthorized Practice of Law statute. Other issues remain as to the operations of this Court that need to be addressed outside this forum.
As clearly demonstrated above, the Friend of the Court is employing practices that are depriving parties of due process and improperly interpreting the Statutes and Court Rules to expand their own powers. Defendant has indeed shown a need to set aside the Order to Show Cause and the Defendant’s Motion before the court should be granted in its entirety.
5180 Cedar Lake Rd.
Oscoda, MI 48750
January 2, 2005