| Issue 2, Spring/Summer 1998 | WEB ADDRESS: www.law.umich.edu/mplp |
Contents:
Calendar of Events
Legislative Highlights
1998 Training Agenda
Technology
Housing
Public Benefits
Family Law
Notice to Public Benefits Attorneys
MPLP-Clinic and MPLP-East have recently encountered some cases in which public assistance
was denied to immigrant victims of domestic violence based on their immigration status.
The Clinic case involved a client from Iran who sought SMP.
This client has an approved petition for residency based on the battered immigrant
provisions of the Violence Against Women Act. Based on this status, she is defined by the
federal government as a “qualified alien” and, therefore, eligible for benefits.
However, the FIA has denied her application, arguing that Michigan is not required to
provide benefits to this class of immigrants. We are trying to determine if this
interpretation of the law is confined to Washtenaw County or is prevalent in other
counties.
If you have (or know of) a client who is a victim of domestic violence and has been denied
public assistance based on her immigration status (any status other than undocumented),
please call, write, or e-mail: Anne Schroth, Clinical Assistant Professor, MPLP-Clinic,
611 Church Street, Suite 4A, Ann Arbor, MI 48104, (734) 998-6100, ext. 26.
Groupwise: schroth@mplp.law.umich.edu.
Thanks!
JUNE 8, Farmworker Training
JUNE 9, Family Task Force Meeting
JUNE 12, Public Benefits Task Force Meeting
JUNE 16, Housing Task Force Meeting
JUNE 22, LSSEM Staff Meeting
JULY 7, Technology Task Force Meeting
JULY 15, Program Visit, LSNM
AUGUST 3-8, TAST, Ann Arbor
SEPTEMBER 15, Consumer Task Force Mtg.
SEPTEMBER 15, Family Task Force PPO Roundtable
OCTOBER 26-30 ROADSHOW, Lansing
For details on any of the above events, see our website (address above) or contact Beth
Colaner-Kenney at (734)998-6100, ext. 27 or on GroupWise: bcolaner
PROGRAM VISITS
MPLP-recently visited the Wayne County Neighborhood Legal Services Program in Detroit and
will be at LSNM on July 14-15.
If your office would like a visit from MPLP to find out more about how we can support
your work, have your Managing Attorney or Director contact Steve Gray at (734) 998-6100 x
25.
GroupWise (GW) Email Project Update
Internet Email has Arrived—We now have our Michigan GW email system connected to the
internet. This means that you can send and receive internet email right from your GW email
box. To send a message simply put “I:” before the email address. For example to
send internet email to Ted Nugent the To: line would look like this:
“I:75162.2032@compuserve.com”. If the Nuge wanted to email you back he would
send it to “your_user_id@mplp.law.umich.edu”. Insert your GW user ID in place of
your_user_id in the example. It’s that simple. See the MPLP website at
http://www.law.umich.edu/mplp/email.htm for more detailed instructions.
New Offices Added to GW System—The Howell and Oak Park offices of Oakland Livingston Legal Aid have recently been added to the GW email system. Send them a welcome email. If you can’t find them in your GW address book notify your office CRP.
Michigan Legal Assistance Network Planned
The LSAM-MSBF Computer Committee and the CRP Taskforce have approved a proposal to establish MLAN.NET (Michigan Legal Assistance Network). With the financial backing of the MSBF MLAN.NET will provide free website space for all Michigan legal services programs. Where the MPLP website is focused on support of legal services staff, MLAN.NET will serve clients and the community. It will be a centralized place on the WWW for clients and the community to find information on Michigan legal services programs and legal education materials. For more information on the progress of MLAN.NET check out the MPLP website at http://www.law.umich.edu/mplp/mlansupport.html.
On-line Brief Bank Open for Business
(www.law.umich.edu/mplp)
With the help of the State Appellate Defender’s Office (SADO) the MPLP on-line brief bank is opening it’s cyber doors. You access the brief bank from the MPLP site at http://www.law.umich.edu/mplp/bbank.htm. The brief bank is password protected so you’ll need a user name and password to access the documents. To get the user name and password email Beth Colaner Kenney at bcolaner@mplp.law.umich.edu. The brief bank is intended for the use of legal services programs and related pro bono attorneys. Please do not give the password to others.
The brief bank was jump-started by the Legal Aid of Western Michigan with an initial
donation of over 200 briefs and other documents. However, this is only a start. WE NEED
YOUR BRIEFS! Keep your pants on but please send us your legal briefs, memorandums or
other documents with legal research in them. Submissions can range from a US Supreme Court
brief to a written argument submitted to a lowly FIA ALJ. If you have a law student do a
memo that has some original legal research in it send it in. Unpublished Circuit Court
Opinion–send it in. Don’t assume something is too obscure, let us worry about
weeding out the irrelevant submissions. Send your submissions to Beth Colaner Kenney
at MPLP-East. She prefers submissions in a word processing file attached to an email
message (she can handle any version). However, she has a scanner to handle documents for
which you don’t have the word processing file. We’ll do a training on using the
brief bank at the Roadshow in October; hopefully we’ll have lots of your submissions
by then. — by Steve Gray
CHILDREN'S SSI
Michigan Update
Since the Social Security Administration’s (SSA) February 18, 1998 mailing of
supplemental notices to families who had not appealed the termination of their
children’s SSI benefits, many advocates and state hotline coordinators have been
discouraged at the low request rate nationwide for legal advice and representation. The
low request rate may mean that many families failed to take advantage of the extended
appeals deadline. However, because SSA has noted that both appeals and benefit
continuation rates have increased in March 1998, it also may mean that many families
appealed directly with SSA and bypassed children’s SSI advocate hotlines. These
families still need to be informed that legal advice and representation is available.
In Michigan, the low response rate may be attributable to the large number of cases in
which benefits have been continued. As of March 28, 1998, Michigan ranked fourth, behind
only New York, Pennsylvania, and California, among the fifty states in numbers of
children’s SSI cases in which benefits were continued. The 7086 cases continued
out of the initial 12,838 redetermined reflects the good work of advocates across the
state who initially won cases for their clients. The numbers of cases continued may still
increase since some cases have yet to be reconsidered, and many families may still take
advantage of the good cause provision to file late appeals. Also, in cases involving
mental disabilities, particularly mental retardation, SSA has said that it will not
complete redeterminations until later this summer.
If a client approaches you concerning a loss of children’s SSI benefits, direct them
to call the statewide hotline for more information and a referral to a legal services
provider or pro bono attorney: (800) 288-5923. Legal services program attorneys should
only refer clients to the hotline if their program cannot represent them.
New Ruling on Limitations in Cognition and Speech
Because its new regulations otherwise would disadvantage children with separate
cognitive and speech impairments, SSA has recently issued a Ruling to clarify its policy
on children’s claims involving limitations in cognition and communication. The
Ruling, SSR 98-1p provides that children who have ‘marked’ limitations in both
cognitive functioning and speech have an impairment or combination of impairments
medically equal to Listing 2.09 (organic loss of speech), and gives guidance for
determining when a child has a ‘marked’ or ‘extreme’ limitation in
each of these areas. The guidance includes: a) discussion of the use of
Listings 112.05D and 112.05F with cognitive or speech impairments that are separate from
mental retardation; b) discussion of rating limitations in cognition and speech; and c)
guidelines for evaluating the severity of speech impairments.
Program Circular on Dedicated Savings Accounts
Since the enactment of the 1996 welfare law, which required large past-due
children’s SSI benefits to be paid into dedicated savings accounts to be used only
for statutorily specified expenditures, many representative payees have encountered claims
representatives who have inappropriately denied their requests to spend funds from
dedicated savings accounts. To provide guidance to those claims representatives, SSA has
recently issued SSI Program Circular No. 98-054-OPBP, which lists the basic rules
governing dedicated savings accounts, reminds the claims representatives that SSA plays a
supportive role to representative payees in their efforts to provide the best care for the
disabled child, and provides examples of permissible expenditures. In addition, it
states that a denial of a proposed expenditure will be an “initial
determination” that can be appealed. Other highlights of the circular include:
1) a statement that payees are not required to obtain prior approval but are
encouraged to do so;
2) a statement that housing and food are permissible expenditures in emergency
situations where the child’s health could be affected;
3) a non-inclusive list of “other” items that could be related to
the child’s impairment such as household furnishings and appliances; housing
renovations; special foods, equipment, and clothes; attorneys’ fees.
If you encounter clients having problems involving dedicated savings accounts and/or for a
copy of Program Circular No 98-054-OPBP, please contact W. David Koeninger at MPLP-East.
VA Health-Care Enrollment Facts
Many veterans have recently voiced their concerns about losing their eligibility for
Veterans Administration health-care benefits through a newly established enrollment system
for health-care services effective October 1, 1998. Fortunately, the veterans’
concerns are unfounded. Although the VA will require veterans to be enrolled to
receive treatment beginning October 1, 1998, veterans will not lose their eligibility if
they do not apply. They must enroll before receiving any treatment but can enroll at
the time of requesting treatment.
The following veterans do not have to be enrolled: those with a service-connected
disability of 50% or more; those who have been discharged from military service within the
past year for a compensable disability that the military determined was incurred or
aggravated in the line of duty, and which has not yet been rated by the VA; or those who
are currently seeking care for a service-connected disability. In addition, the VA
will register automatically veterans who have received any health-care services since
October 1996. Those veterans who are neither exempt from enrollment nor
automatically enrolled may apply for enrollment at any VA medical facility. The VA
will notify veterans by mail once their application has been accepted or denied and will
place the accepted applicants into one of seven enrollment priority groups depending on
service connected disabilities, other disabilities, or income.
More information is available on the internet at (http://www.va.gov).
If you have any questions or comments about this public benefits report, or about
any public benefits issue, please contact W. David Koeninger at MPLP-East.
Anatomy of a Custody Case Training
Delphia Simpson would like to thank everyone who contributed to the success of the recent
custody training. The Anatomy of the Custody Case Training began as a request from Paul
Sher, a task force member from Legal Services of Southeastern Michigan-Jackson Office. He
was interested in a trial skills and substantive custody training. The evaluations were
positive and we received constructive suggestions for improving the training. Once again
thanks to everyone who participated. If you were unable to attend the custody training but
would like copies of the materials, please contact Beth Colaner-Kenney. If you have other
suggestions on training topics, please contact Delphia Simpson.
PPO Roundtable
The PPO roundtable is tackling a number of issues. One of the Roundtable’s projects
is to increase the educational level of the judges, referees and court staff in the area
of domestic violence. In particular the Roundtable is concerned that the court personnel
lacks the knowledge of how domestic violence effects the poor. The Roundtable requested
that this summer MPLP conduct research on the types of domestic violence training that is
currently available to judges, referees and court staff. The Roundtable hopes to one day
soon see mandatory domestic violence training for all court personnel throughout the
state.
The PPO Roundtable is also looking into the trend in other states of including a temporary
custody provision in a protection order. Currently, in Michigan, only a few counties have
PPO forms that allow a judge to grant physical possession of a minor child to a petitioner
who does not already have a custody order. The PPO Roundtable has found this to be a
rather hot topic and recognized the need to have an expanded discussion on the issue. The
Roundtable is planning to bring this issue to the full task force at the meeting on June
9, 1998.
The next PPO Roundtable is September 15, 1998, following the Family Law Task Force meeting
scheduled for the same day. (News Flash—we have heard the call—Pizza will be
provided instead of the usual deli tray!).
Legislative Update
Several bills have been introduced in the Michigan House and Senate concerning Personal
Protection Orders. These bill are House Bills 5657–5667 and Senate Bill 74, 866 and
874. The Bills were reviewed by our PPO Roundtable at the last two meetings. The consensus
was that these were positive bills for our clients. The House Bill is expected to pass, as
well as Senate Bills 866 and 874. Senate Bill 74 has already passed and is awaiting the
Governor’s signature. Below is a short summary of the pending legislation.
HB 5657
This bill would waive filing fees for all motions to modify or terminate a PPO. The bill
would also bar the respondent from having access to information regarding the address and
telephone numbers of the petitioner and the parties minor children. HB 5657 would require
the clerk of the court to notify the Concealed Weapon Licensing Board if a PPO is issued
that prohibits the respondent from purchasing or possessing a firearm. In addition if the
respondent is a law enforcement officer the clerk would be required to notify the
respondent’s employer.
HB 5657 would allow the police to serve notice of a PPO while responding to any type of call. The police or clerk of the court also could, at any time, serve a copy of the PPO on the respondent or orally advise the respondent of the PPO. Proof of such oral notice would have to be filed with the court that issues the order.
HB 5658
This Bill expands the provisions that allows a police officer to make a warrantless arrest
and details the criminal contempt procedure for violation of a PPO. A police officer could
make an warrantless arrest if the officer making the arrest received positive information
that another peace officer had reasonable cause to believe that the violation of the PPO
occurred.
HB 5659
Simply establishes authority for the state police to serve a PPO on a respondent.
HB 5660
Provides immunity for health care providers who report wounds or injuries inflicted by
violence
and would also specify that any physician-patient or health professional privilege created
or recognized by law would not apply to the reporting requirements and would not provide a
defense for failure to provide information regarding a violent injury.
HB 5661
This bill would create a domestic violence advocate position within the family law
division. The advocate would assist victims of domestic violence, but they could not
represent them in court.
HB 5662
The bill would clarify that domestic violence occurs when the victim and the defendant are
members of the same household regardless of who owns or leases the property.
HB 5663
Parole orders that contain restrictions that are intended to protect one or more named
persons would have to be entered into the Corrections Management Information System.
HB 5664
This bill would amend the Domestic Violence Prevention and Treatment Act to revise the
definition of domestic violence. The bill defines domestic violence as causing or
attempting to cause physical or mental harm; placing in fear of physical or mental harm;
using force, threat of force or duress to cause or attempt to cause engagement in
involuntary sexual activity; engaging in activity that would cause a reasonable person to
feel terrorized, frightened, intimidated, harassed or molested.
HB 5665
This Bill would establish and set penalties for the crime of third degree home invasion. A
person would be guilty of third degree home invasion if he or she broke into a dwelling or
entered a dwelling without permission with the intent to commit a misdemeanor assault or
spousal or domestic assault in that dwelling.
HB 5666
This Bill narrows the circumstances under which a person who was arrested for a
misdemeanor could be released on his or her own recognizance or on an interim bond set by
a peace officer. A person who was arrested for misdemeanor assault, spousal or domestic
assault with or without a warrant would have to be held until he or she could be arraigned
or a judge or magistrate could set an interim bond.
HB 5667
This bill would amend the Code of Criminal Procedure to include the same restrictions on
probation orders as would be required on personal protection orders. The bill would allow
the court to prohibit a probationer from purchasing or possessing a firearm, or to subject
a probationer to any conditions reasonably necessary to protect one or more named persons.
SB 74
Prohibits insurers from rating or refusing insurance coverage to victims of domestic
assault and allows insurers to refuse to issue a policy if the beneficiary is the abuser.
SB 866 and 874
Senate bill 866 applies to stalking PPOs and Senate bill 874 applies to domestic violence
PPOs. The bill would provide that a court could not issue a personal protection order if
the respondent is the minor child of the petitioner or the petitioner is the minor child
of the respondent. In addition, if the respondent was under the age of 17 then the PPO
would state that violation of the PPO would subject the minor to the dispositional
alternatives listed in Section 18 of the juvenile code. The PPO must be also be served
upon the minor respondent’s parent or guardian.
A Few Recent Cases
Many offices have recently reported that their Family Court has been modifying custody
orders without holding an evidentiary hearing. Below you will find several unpublished
cases from the Court of Appeals. In conjunction with the main cases on point, you may find
these recent cases helpful when arguing this issue. (If you would like copies of these or
other cases, contact Delphia Simpson.)
Ioannatos v Powers ( March 1998)
The trial court made a de novo review of the referee’s custody recommendation, as well as denied plaintiff’s request for a de novo custody hearing. The Court of Appeals held this was error that required reversal of the court’s custody award to defendant and remand for a full de novo hearing. The Court stated “regardless of the amount of evidence presented at the referee hearing, the defendant was entitled to a de novo hearing in accordance with MCL 552.507(5).”
Eppstein v Soderstrom ( February 1998)
Where the trial court failed to give defendant a de novo hearing following a referee’s decision and the plaintiff received custody of the parties children was an error and the case was remanded for a full hearing. The Court stated, “According to the terms of the that statute {MCL 552. 507(5)} , a trial court is required to conduct a de novo hearing, not a de novo review, on any matter that was the subject of a referee hearing upon proper request of a party. . . .The trial court may not simply adopt the findings of the friend of the court or the hearing referee, but must proceed as if no prior determination has been made and arrive at an independent decision.”
Bucher v Bucher (February 1998)
The parties in this case had stipulated in their original custody order that if the minor child ever chose to reside with the noncustodial parent, the child could do so after the current school year. The child decision would be given “great weight” and the parties would be “reasonable in giving or withholding their consent to a change of custody.” At the hearing to modify custody the trial court did not determine whether there was an established custodial environment, nor did the court conduct an evidentiary hearing. The trial court relied solely upon the child’s stated preference when it modified custody. The Court of Appeals held that although the parties stipulated that the child’s preference would carry great weight, the parties can not stipulate to change the law, which requires a showing of clear and convincing evidence that the change of custodial environment is in the child’s best interest. The stipulation “cannot limit the court’s consideration of the other [best interest] factors.”
State Report
Two Recent Appellate Decisions- 1-1
In a typical year, there are maybe 6 reported Michigan court decisions addressing issues
directly relevant to Legal Services housing law practice. In a span of just over a week in
April and May, two decisions significant for housing advocacy were released—Wilson v.
Taylor (457 Mich 232), a favorable Supreme Court decision about the limitations of land
contract forfeiture judgments, and Ann Arbor Tenants Union v. Ann Arbor YMCA (not yet
reported; for a copy, check the ICLE webpage or contact Jim Schaafsma at MPLP), an
unfavorable Court of Appeals ruling that a YMCA residential housing program did not have
the “essential characteristics of a landlord-tenant relationship.”
In Wilson v. Taylor, a land contract forfeiture case, the Supreme Court, by a 4-3 vote, held that in a summary proceedings forfeiture action, “the amount specified in the judgment is the only monetary payment that needs to be made to preclude the issuance of a writ of restitution.” In reaching this decision, the Court invalidated as contrary to MCLA 600.5741 the “further orders” section of the district court consent judgment which specified that “all monies paid during redemption period shall first be applied to keep payments current and then to the outstanding judgment amount.”
A little background about this factually complicated case may be helpful. The sellers, Wilson and Rappleye, 2 lawyers, prepared the judgment; the Taylors were unrepresented until after a writ was issued. The redemption amount on this October 27, 1992 judgment was $2,000; on February 5, 1993, the Taylors paid $350, bringing the total of payments since entry of judgment to $2150. At a writ hearing on February 9, the Taylors agreed to pay off all arrears ($1450) within 9 days. When they did not, the district court issued a writ ex parte.
The Supreme Court decision reversed an unpublished Court of Appeals opinion which concluded that the further orders language was an improper clog on the equity of redemption, but nonetheless, failure to make current monthly payments was a separate material breach under MCLA 600.5744(6), justifying issuance of the writ of restitution. Correcting the Court of Appeals’ statutory interpretation, Justice Cavanagh noted that the statutory provision distinguishes between monetary and other material breaches, the latter of which the Court of Appeals found had occurred. Consequently, the majority opinion concluded that “other material breaches” do not include the failure to make monetary payments, and also, that to allow issuance of a writ upon a failure to pay some amount other than what the judgment properly specified would permit writs to be issued for amounts that were never subject to proof before a court.
Responding to the concern raised by the dissent and the lower courts that its decision will produce a “litigation treadmill,” the Court pointed out that land contract sellers can elect other remedies available to them, most notably, circuit court foreclosure.
In his dissent, Justice Taylor argued that issuance of a writ was proper because the Taylors had not paid the redemption amount within the 90 day statutory period, and that the majority decision suggested a departure from the rule of strict enforcement of the statutory redemption deadline articulated in Flynn v. Korneffel, 451 Mich 186(1996) ; Justice Taylor also claimed that Wilson was entitled to enforcement of the consent judgment because it was voluntarily entered into and not illegal under the Summary Proceedings Act.
The majority opinion stated that it had benefitted from the two amici briefs filed in support of the Taylors’ position. The Real Property Section of the State Bar filed one brief; several legal services organizations, including Legal Services Association of Michigan, Legal Services of Southeastern Michigan, and Michigan. Legal Services submitted another, of which Jerrold Schrotenboer was the primary author.
In the The Ann Arbor YMCA case, the Court of Appeals found that the Y and the people who live there have the relationship of hotel and guests, not landlord and tenants. As a result, the Coourt concluded that statutes which apply to landlords do not apply to the Y, and the Y therefore does not violate these statutes when it asks a guest to leave, at any time and without any reason, and locks the guest out of the room if the guest does not leave within 24 hours.
Pursuant to a 1995 agreement between the City of Ann Arbor and the Y, the Y agreed to
make at least 80% of its rooms available on a monthly basis at a rate not to exceed 75% of
the fair market value of an efficiency apartment. The Court determined that the agreement
was inadequate to impose landlord status on the Y, finding that the “monthly
basis” language did not obligate the Y to provide rental housing on a month-to- month
basis, but was meant instead to cap the amount of rent chargeable to a guest that stays
for a month.
Based on its assessment of the characteristics of the YMCA’s relationship with its
residents, particularly the absence of exlcusive tenant possession and control, the Court
identified a hotel-guest relationship. It observed that “to hold otherwise would
create an intolerable burden on the YMCA in its efforts to provide inexpensive temporary
lodging for the very people it undertakes to serve, with a likely result being that those
people would, in the end, be without accommodations.” In reaching its decision, the
panel appeared to rely most heavily on the Y written residential contract and decisions
from other states, most notably a New Jersey district court case, but neglected to
consider any policy considerations favoring tenancy, such as changes in the ways single
room occupancy housing is provided.
Although a disappointing and troubling result, fortunately this decision, based on a narrow factual scenario, is much more limited in scope and application than the Wilson v. Taylor opinion. Also, application for leave has been filed in the Supreme Court. Mike Nelson from MPLP-West was involved in preparing that application.
Reminder—The next meeting of the Housing Task Force is scheduled for Tuesday, June 16 at 10 a.m. at the State Bar Building.
Federal Report
Economic Wave Not Lifting the Affordable Housing Ship
A HUD report issued in late April, Rental Housing Assistance - The Crisis Continues,
revealed that, according to 1995 statistics, there are an estimated 5.3 million households
(12.5 million people, of whom 4.5 million are children, 1.5 million elderly, and 1.25
million disabled adults) in the United States with worst case housing needs, an increase
from the 1991 figure of less than 5 million households. Worst case housing need arises
when a household must pay more than 50% of its income towards housing costs, lives in
severely substandard housing, or both. More than 75% of these households have extremely
low income (30% of annual median income and below; in Michigan, 30% of median income for a
family of 4 is about $16,000). About 70% of extremely low income households who don’t
get HUD housing assistance live in worst case housing. In metropolitan Detroit alone,
there are nearly 100,000 households with worst case housing needs; the waiting list in
Detroit for HUD housing assistance is nearly 25,000. During the 90s, the fastest growth in
worst case housing needs has been among working families.
The report also stated that the country’s affordable rental housing supply is continually declining, and reminded that 1996 was the first year in several decades that the number of HUD assisted housing units declined.
This report was released a few days before the enactment of the 1998 Emergency
Supplemental Appropriations Act, which diverted 2.3 billion dollars from the Section 8
tenant based rental assistance reserves to help provide 6.1 billion dollars for military
operations in Bosnia and the Persian Gulf and domestic disaster relief. For more detailed
information about the report, go to HUD’s Web site at www.hud.gov.worscase.html
The Return of the Assignment Program?
More encouragingly, in the longstanding Ferrell v. HUD case, a U.S. District Court judge
in Illinois ordered HUD to reinstate its FHA single family mortgage assignment program or
to administer a comparable foreclosure relief program. More than 20 years ago, the Ferrell
case produced a consent decree which evolved into the assignment program. After many years
of resisting the assignment program, in 1996 HUD convinced Congress to repeal the
statutory authority for the program, and it was eliminated, to be replaced by a much more
limited loss mitigation program. Although, as observed in the National Housing Law
Project’s Housing Law Bulletin (April 1998 issue, p. 67), it is unlikely HUD will
restore the reassignment program or an equivalent, anytime soon, and will seek a stay of
the order that it do so, the district court decision offers a prospect for improved
protection against foreclosure for FHA homeowners.
If you have any questions or comments about this housing report, or about
any housing issue generally, please contact Jim Schaafsma at MPLP-East.