STATE APPELLATE DEFENDER Lansing Office

101 North Washington, 14th Floor. Lansing, Michigan 48913-0001 Phone: 517.334.6069. Fax: 517.334.6987

James R. Neuhard Director

Detroit (Main) Office

Dawn Van Hoek Chief Deputy Director DetroiVLansing

Jonathan Sacks Deputy Director Detroit

Suite 3300 Penobscot Building 645 Griswold Detroit, Michigan 48226-4281 Phone: 313.256.9833. Fax: 313.965.0372 Client Calls: 313.256.9822

Website: www.sado.org

January 4, 2011

Joseph Edward Jurecki 8661 Cook Street 11ontague,~ 49437

Dear 11r. Jurecki:

Enclosed please find a copy of the Application for Leave to Appeal which I have filed in the Michigan Supreme Court on your behalf.

The notice of hearing date is not the date of an actual hearing. It is just a notice to the prosecutor of their time to respond before the Supreme Court begins review of the application.

Sincerely,

/itC ££<7

RolfE. Berg Assistant Defender

REB.jd

Enclosure

STATE APPELLATE DEFENDER Lansing Office

101 North Washington, 14th Floor. Lansing, Michigan 48913~0001 Phone: 517.334.6069. Fax: 517.334.6987

James R. Neuhard Director

Dawn Van Hoek Chief Deputy Director Detroit/Lansing

Jonathan Sacks Deputy Director Detroit

January 4,2011

Clerk

Michigan Supreme Court 925 West Ottawa, 4th Floor P. O. Box 30052

Lansing, MI 48913

Re: People v Joseph Edward Jurecki Supreme Court No.

Court of Appeals No. 300514 Circuit Court No. 07-54339 FH

Dear Clerk:

Detroit (Main) Office Suite 3300 Penobscot Building 645 Griswold Detroit, Michigan 48226-4281 Phone: 313.256.9833. Fax: 313.965.0372' Client Calls: 313.256.9822

Website: www.sado.org

Enclosed please find the original and seven (7) copies of Notice ofHearing/Certificate of Service and Application for Leave to Appeal for filing in your Court.

Thank you for your cooperation.

RolfE. Berg Assistant Defender

REB.jd

Enclosures

cc: Muskegon County Prosecutor

Court of Appeals Clerk (Grand Rapids) Muskegon County Circuit Court Clerk' Joseph Edward Jurecki

STATE OF MICHIGAN

IN THE SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

Supreme Court No.

-v-

JOSEPH EDWARD JURECKI, Defendant-Appellant.

Court of Appeals No. 300514

Circuit Court No. 07-54339 FH

NOTICE OF HEARING

TO: MUSKEGON COUNTY PROSECUTOR

PLEASE TAKE NOTICE that on January 25,2011, the undersigned will move this Honorable Court to grant the within Application for Leave to Appeal.

STATE APPELLATE DEFENDER OFFICE

/£tC/27

By: ___

ROLF E. BERG (P26758)

Date: January 4, 2011

CERTIFICATE OF SERVICE

Jean M. Downey says that on January 4,2011, she mailed one copy of the following:

NOTICE OF HEARING/CERTIFICATE OF SERVICE and APPLICATION FOR LEAVE TO APPEAL to:

Muskegon County Prosecutor, 5th Floor, County Building 990 Terrace

Muskegon, MI 49442

Clerk, Michigan Court of Appeals 350 Ottawa NW

Grand Rapids, MI 49503

Clerk, Muskegon County Circuit Court County Building

990 Terrace Street

Muskegon,~ 49442

IDEN NO. 24377P-P-PV I RolfE. Berg

STATE OF MICHIGAN

IN THE SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Supreme Court No.

Plaintiff-Appellee,

Court of Appeals No. 300514

-v-

Circuit Court No. 07-54339 FH

JOSEPH EDWARD JURECKl,

Defendant-Appellant.

------------------------~/

MUSKEGON COUNTY PROSECUTOR

Attorney for Plaintiff-Appellee

ROLF E. BERG (P26758)

Attorney for Defendant-Appellant

State Appellate Defender Office

101 North Washington, 14th Floor Lansing, MI 48913

JUDGMENT APPEALED FROM AND RELIEF SOUGHT

Defendant-Appellant Joseph Edward Jurecki applies for leave to appeal the November

15, 2010 order of the Court of Appeals denying leave to appeal his conviction for probation

violation (underlying offense offelony non-support), and asks this Court to reverse his

conviction.

This case involves several constitutional challenges to the felony non-support statute,

MCL 750.165. As this Court has granted leave to appeal in three cases to address the same

issues, the Court should hold this case in abeyance pending decision in the three pending cases.

See People v Likine, 790 NW2d 689 (2010); People v Harris, 790 NW2d 689 (2010); People v

Parks, 790 NW2d_ (2010). Alternatively, the Court should either grant leave to appeal and

consolidate this case with the three pending cases or should remand to the trial court for a motion

to withdraw the plea based on the invalidity of the felon non-support statute.

STATE OF MICHIGAN

IN THE SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Supreme Court No.

Plaintiff-Appellee,

Court of Appeals No. 300514

-v-

Circuit Court No. 07-54339 FH

JOSEPH EDWARD JURECKI,

Defendant-Appellant.

_______________________ 1

MUSKEGON COUNTY PROSECUTOR Attorney for Plaintiff-Appellee

ROLF E. BERG (P26758) Attorney for Defendant-Appellant

APPLICATION FOR LEAVE TO APPEAL

STATE APPELLATE DEFENDER OFFICE

BY: ROLF E. BERG (P26758) Assistant Defender

State Appellate Defender Office 101 North Washington

14th Floor

Lansing, MI 48913

TABLE OF CONTENTS

TABLE OF AUTHORITIES : i

STATEMENT OF JURISDICTION iii

STATEMENT OF QUESTIONS PRESENTED iv

STATEMENT OF FACTS 1

1. THE PROVISIONS OF THE INTERTWINED CIVIL AND CRTh1INAL STATUTES IN TIDS CASE ARE INCONSISTENT WITH A CONCLUSION THAT THE LEGISLATURE INTENDED TO CREATE A FELONY WITH NO

DEFENSE OF INABILITY TO PAY. 2

II. THE PROHIBITION OF AN INABILITY-TO-PAY DEFENSE VIOLATES THE MICIDGAN AND FEDERAL DUE PROCESS CLAUSES AS INTERPRETED BY THE MICHIGAN SUPREME COURT IN CITY OF PORT

HURON V JENKINSON 6

A. THE CIVIL PROCEEDINGS FOR DETERMINATION OF SUPPORT

LEVELS DO NOT MAKE THE STATUTE CONSTITUTIONAL 8

B. THE ELIMINATION OF A VOLUNTARY ACTUS REUS

REQUIREMENT RENDERS THE STATUTE UNCONSTITUTIONAL 11

SUMMARY AND RELIEF 15

APPENDIX A

REB * Application for leave to appeal SC 24377.doc*24377 Joseph Edward Jurecki

TABLE OF AUTHORITIES

CASES

Bearden v Georgia, 461 US 660; 103 S Ct 2064; 76 L Ed 2d 221 (1983) 12

Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 LEd 2d 403 (2004) 10

Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009) 2, 4

City of Port Huron v Jenkinson, 77 Mich414; 43 NW 923 (1889) 6, 7, 8

Commonwealth v Mason, 317 SW2d 166 (Ky, 1958) 10, 13

Epp v State, 107 Nev 510; 814 P2d 1011 (1991) 13

In re Baker, 117 Mich App 591; 324 NW2d 91 (1982) 9

Ives v Boone, 101 Fed Apx 274 (CA 10,2004) 10

Lashley v State, 236 Ala 1; 180 So 717 (1938) 13

People v Adams, 262 Mich App 89 (2004) ~ passim

People v Beasley, 238 Mich App 548; 609 NW2d 581 (2000) 7

People v Clabin, 411 Mich 472 (1982) 6

People v Dowdy, 287 Mich App 278 (2010), lv gtd 486 Mich 935 (2010) 7, 10

People v Dowdy, 484 Mich 855 (2009) 7, 10, 11

People v Hill, 269 Mich.App 505 (2006) 2

People v Houstina, 216 Mich App 70 (1996) 2, 6

People v Jackson, 483 Mich 271 (2009) 13, 14

People v Likine, _ Mich App _ (dkt no. 290218, dec'd 4120/10) 6, 15

People v Monaco, 474 Mich 48 (2006) .4, 9

People v New, 427 Mich 482 (1986) 6

People v Parks, 790 NW2d _ (2010) ~ 6, 15

1

People v Pasha, 466 Mich 378 (2002) 2

People v Weatherford, 132 Mich App 165 (1984) 2, 6

People v Whalen, 412 Mich 166 (1981) ; 2

Robinson v Detroit, 462 Mich. 439; 613 NW2d 307 (2000) 2

Smith v Dep't o/Public Health, 428 Mich 540; 410 NW2d 749 (1987) 7, 8

Tobe v City of Santa Ana~ 9 Cal 4th 1069; 892 P2d 1145 (1995) 13

United States v Cohen, 946 F2d 430 (CA 6,1991) 10

United States v Mandycz, 447 F3d 951 (CA 6,2006) 9

Zablocki v Redhail, 434 US 374; 98 S Ct 673; 54 L Ed 2d 618 (1978) 12

CONSTITUTIONS, STATUTES, COURT RULES

MCL 552.601 to 552.650 .3

MCL 552.632 4

MCL 552.633 3

MCL 750.165 passim

MCL 769.1k 13

MCL 780.766(14) 4

MISCELLANEOUS

21 amend Jur 2d, Criminal Law § 132 (2009) 11

23 amend Jur 2d, Desertion and Nonsupport § 41 (2009) 11

ii

STATEMENT OF JURISDICTION

Defendant-Appellant was convicted in the Muskegon County Circuit Court by plea of guilty and was sentenced on October 5, 2009. Defendant-Appellant requested the appointment of appellate counsel on November 16, 2009. The offenses occurred after the effective date of the November, 1994 ballot Proposal B that eliminated the right to file a claim of appeal from pleabased convictions. The Court of Appeals had jurisdiction to consider the Defendant-Appellant's application for leave to appeal as it was filed within 12 months of judgment. MCR 7.203(B); MCR 7.205. The Court of Appeals denied leave to appeal on November 15,2010. This Court has jurisdiction to grant leave to appeal. MCR 7.301(A).

iii

STATEMENT OF QUESTIONS PRESENTED

1. ARE THE PROVISIONS OF THE INTERTWINED CIVIL AND CRIMINAL STATUTES IN THIS CASE INCONSISTENT WITH A CONCLUSION THAT THE LEGISLATURE INTENDED TO CREATE A FELONY WITH NO DEFENSE OF INABILITY TO PAY?

Trial Court answers, "N 0 I! , Defendant-Appellant answers, "Yes", Plaintiff-Appellee answered, IINolI, Court of Appeals answered, "No",

II, DOES THE PROHIBITION OF AN INABILlTY-TO-PAY DEFENSE VIOLATE THE MICHIGAN AND FEDERAL DUE PROCESS CLAUSES AS INTERPRETED BY THE MICHIGAN SUPREME COURT IN CITY OF PORT HURON V JENKINSON?

Trial Court answers, "No", Defendant-Appellant answers, "Yes 11 • Plaintiff-Appellee answered, IINol!. Court of Appeals answered, IINolI,

A. DO THE CIVIL PROCEEDINGS FOR DETERMINATION OF SUPPORT LEVELS NOT MAKE THE STATUTE CONSTITUTIONAL?

, Trial Court answers, "No". , Defendant-Appellant answers, "Yes", Plaintiff-Appellee answered, "No". Court of Appeals answered, "No".

B. DOES THE ELIMINATION OF A VOLUNTARY ACTUS REUS REQUIREMENT RENDER THE STATUTE UNCONSTITUTIONAL?

Trial Court answers, "Noll. Defendant-Appellant answers, "Y es". Plaintiff-Appellee answered, "No". Court of Appeals answered, IINon.

iv

STATEMENT OF FACTS

Defendant-Appellant Joseph Edward Jurecki pled guilty to felony non-support, MCL 750.165, on March 22, 2007, before the Honorable James M. Graves, Jr. in the Muskegon County Circuit Court. On May 29,2007, he was sentenced to a three year term of probation with restitution set at $13, 046. On August 31, 2009, he was found guilty of a probation violation for failure to make restitution payments. On October 5,2009, he was sentenced to an increased term of 5 years probation and 45 days injail.

In pleading guilty to this charge Mr. Jurecki admitted only that he had a deficiency in his support payments to his former wife. (PT 11). He has always contested his ability to pay the level of support ordered. At the probation violation hearing he noted that he had not been employed since 2005. He had filed for social security disability benefits in November 2007, the case had still not been decided. He explained that he paid $240 a month for medical and dental insurance for the kids and also had them half the time. He had major medical bills and was in debt "beyond my wildest dreams." (PV hearing 19-20).

Defendant appealed the denial of his challenge to the level of the support decree claiming that it was based improperly upon his income prior to his suffering a disability and losing his employment. He has now finally gotten his social security disability granted.

Mr. Jurecki appealed to the Court of Appeals seeking leave to address a number of constitutional challenges to the felony non-support statute. The Court of Appeals denied leave to appeal on November 15, 2010, for "lack of merit in the grounds presented." Order, attached.

1

I. THE PROVISIONS OF THE INTERTWINED CIVIL AND CRIMINAL STATUTES IN TIDS CASE ARE INCONSISTENT WITH A CONCLUSION THAT THE LEGISLATURE INTENDED TO CREATE A FELONY WITH NO DEFENSE OF INABILITY TO PAY.

ST ANDARD OF REVIEW: Issues interpreting statutes, court rules and constitutional provisions are issues of law which this court reviews de novo. People v Houstina, 216 Mich App 70 (1996).

PRESERVATION OF ISSUE: Defendant's plea did not waive this challenge to the validity of the statute under which he was prosecuted. People v Whalen, 412 Mich 166 (1981). While no motion to withdraw the plea was filed in this case, such a motion would have been futile if made prior to any decision of the Michigan appellate courts declaring the felony non-support statute unconstitutional. See People v Weatherford, 132 Mich App 165, 170 (1984) (waiving requirement of plea withdrawal motion where request would have been futile).

In People v Adams, 262 Mich App 89, 100 (2004), the Court of Appeals interpreted the

felony non-support statute, MCL 750.165, to preclude a defense of inability to pay. This

interpretation was based upon a reading of the statute in isolation, rather than an interpretation of

the Legislative intent as demonstrated by other closely related statutory provisions.

When construing statutory language, which we review de novo, this Court must ascertain

and give effect to the Legislature's intent. People v Pasha, 466 Mich. 378, 382 (2002); People v

Hill, 269 Mich.App 505, 514 (2006). "Because the Legislature is presumed to understand the

meaning of the language it enacts into law, statutory analysis must begin with the wording of the

statute itself." Robinson v Detroit, 462 Mich. 439, 459; 613 NW2d 307 (2000); see also Pasha,

466 Mich at 382; 645 NW2d 275 ("The first step in that determination is to review the language

of the statute itself.") (internal quotation omitted).

However, in Bush v Shabahang, 484 Mich 156,167-168; 772 NW2d 272 (2009), this

Court emphasized that the analysis must also consider the language of other relevant statutes in

ascertaining the legislative intent.

2

A statute must be read in conjunction with other relevant statutes to ensure that the legislative intent is correctly ascertained. The statute must be interpreted in a manner that ensures that it works in harmony with the entire statutory scheme. Moreover; courts must pay particular attention to statutory amendments; because a change in statutory language is presumed to reflect either a legislative change in the meaning of the statue itself or a desire to clarify the correct interpretation of the original statute. Finally, an analysis of a statute's legislative history is an important tool in ascertaining legislative intent. [Footnotes omitted.]

The meaning of the felony non-support statute; MeL 750.165; cannot be determined by

reading the statute in isolation. Indeed, the statute fails to define any offense without the

incorporation of orders entered pursuant to the support and parenting time enforcement act, MeL

552.60lto 552.650.1

Sec. 165. (1) lithe court orders an individual to pay support for the individual's former or current spouse, or for a child of the individual, and the individual does not pay the support in the amount or at the time stated in the order, the individual is guilty of a felony punishable by imprisonment for not more than 4 years or by a· fine of not more than $2,000.00, or both. MeL 750.165(1).

The Support and Parenting Time Enforcement Act (hereafter SPTEA) also contains contempt

provisions to enforce the same support statutes. But this statute makes explicit that a person with

a support arrearage cannot be jailed absent a finding that "the payer has the capacity to payout of

currently available resources some or all of the amount due." MeL 552.633.

Other provisions of the present felony statute make it apparent that the intent was also to

enforce the support statutes rather than an intent to punish willful violations rather than

violations of those who cannot pay. First the unique bail provisions copy the provisions of the

civil contempt provisions of the SPTEA in a manner which reflects the civil interest in forcing

payment rather than the criminal interest in holding only those who are dangerous or unlikely to

This incorporation is implicit the reference to "court orders ... to pay support" in the definition of the offense in MeL 750.165(1) and explicit in the enforcement provisions. MeL 750.165(3).

3

appear for further proceedings. Specifically the provisions of both condition release on the

posting of a bond to assure payment of the support arrearage. Compare MeL 750.165(3) and

MeL 552.632.

The penalty provisions for this statute are also inconsistent with a legislative intent to

preclude a defense of inability to pay. While the penalty for felony non support includes a

potential 4 years in prison, the criminal provisions for the ultimate enforcement of the unpaid

support arrearage rests with the provisions for its collection as restitution. But there are no

special provisions for collection of restitution for this offense. Significantly the applicable

general rules prohibit incarceration of those failing to pay restitution on probation or parole if

they have no reasonable ability to pay. MeL 780.766(14):

(14) Notwithstanding any other provision of this section, a defendant shall not be imprisoned, jailed, or incarcerated for a violation of probation or parole or otherwise for failure to pay restitution as ordered under this section unless the court or parole board determines that the defendant has the resources to pay the ordered restitution and has not made a good faith effort to do so.

It is irrational to interpret the felony non support statute to permit a person unable to pay

support to be subjectto a 4 year prison sentence, while, at the same time, a person on probation

for that same offense cannot even be jailed for failure to pay if they are unable to do so.

When read in light of the decision in People v Monaco, 474 Mich 48 (2006), the statutory

scheme as interpreted in Adams, supra, fails still more dramatically to reflect a harmonious

statutory scheme as required by Bush v Shabahang, supra. The Monaco case holds that each

failure to pay the full amount due on time constitutes a separate felony. Thus a probationer

unable to pay restitution on the arrearage cannot be jailed for violation of probation. But they

can be charged with a new felony and sent to prison for 4 years with no inability to pay defense.

4

Similarly a provision of the SPTEA is that a person who is incarcerated is entitled to have payment obligations suspended unless incarcerated for failure to pay support. Thus anyone jailed for violation for failure to pay support cannot have their monthly support obligation reduced. As their lack of employment provides no defense of an inability to pay, in most cases they will be subject to another felony conviction for each month they are incarcerated.

Consequently the interpretation of this statute to permit no defense of inability to pay is not only harsh and poor public policy, it is also inconsistent with the intent of the Legislature when these closely related statutes are read as a whole.

5

II. THE PROHIBITION OF AN INABILITY - TO-PAY DEFENSE VIOLATES THE MICHIGAN AND FEDERAL DUE PROCESS CLAUSES AS INTERPRETED BY THE MICHIGAN SUPREME COURT IN CITY OF PORT HURON V JENKINSON.

STANDARD OF REVIEW: Issues interpreting statutes, court rules and constitutional provisions are issues of law which this court reviews de novo. People v Houstina, 216 Mich App 70 (1996).

PRESERVATION OF ISSUE: A defendant's plea does not waive a challenge to the constitutionality of the statutory offense. People v Clabin, 411 Mich 472 (1982); People v New, 427 Mich 482 (1986). \VIrile no motion to withdraw the plea was filed in this case, such a motion would have been futile if made prior to any decision of the Michigan appellate courts declaring the felony non-support statute unconstitutional. See People v Weatherford, 132 Mich App 165, 170 (1984) (waiving requirement of plea withdrawal motion where request would have been futile).

The interpretation of the felony non support statute in People v Adams, 262 Mich App 89,

100 (2004), is unconstitutional, as well a flawed interpretation of the legislative intent as argued

in Issue I, supra. The more recent case of People v Likine, followed the Adams case with the

same flawed reasoning. People v Likine, _ Mich App _ (dkt no. 290218, dec'd 4/20/10), lv

gtd 790 NW2d 689 (2010). As this Court has granted leave to appeal in Likine, it should

similarly grant leave to appeal in this case or should at least hold the case in abeyance pending

the decision in Likine. See also, People v Harris. 790 NW2d 689 (2010); People v Parks. 790

NW2d _ (2010).

The Michigan Supreme Court held in City of Port Huron v Jenkinson, 77 Mich 414, 419;

43 NW 923 (1889), that "[n]o legislative or municipal body has the power to impose the duty of

performing an act upon any person which it is impossible for him to perform. and then make his

non-performance of such duty a crime, for which he may be punished by both fine and

imprisonment." Any such imposition is unconstitutional under the Michigan Constitution. What

the State ignores is that both this Court and the state legislature are bound by the Michigan

6

Constitution, as authoritatively construed by this Court, and neither can create or interpret a

statute in an unconstitutional manner. As this Court stated in Smith v Dep 't of Public Health,

428 Mich 540,640-41; 410 NW2d 749 (1987):

In light of the preeminence of the constitution, statutes which conflict with it must fall .... The idea that our Legislature would indirectly seek to 'approve' acts by the state which violate the state constitution by cloaking such behavior with statutory immunity is too far-fetched to infer from the language of [the statute]. We would not ascribe such a result to our Legislature.

Even if the Court of Appeals had considered the state constitutional question in Adams,

which it did not, it certainly would have recognized that it does not have the authority to

overrule or to ignore the Michigan Supreme Court's binding interpretation of the Michigan

Constitution. People v Beasley, 238 Mich App 548, 556; 609 NW2d 581 (2000) ("[T]his Court

is bound by Michigan Supreme Court precedent.").

The fact that the Jenkinson case was not an interpretation of the felony non-support

statute is irrelevant. The Michigan Supreme Court did not qualify its holding that criminalizing

the failure to perform a duty that is impossible for a person to perform is unconstitutional. After

the Adams decision, several justices of the Michigan Supreme Court relied on Jenkinson for the

proposition that "[a] person cannot be criminally liable for failing to do an act that he or she is

incapable of performing," without qualification. People v Dowdy, 484 Mich 855, 855-856 (2009) (Kelly, Cf, concurring); see also id: at 865 n22 (Hathaway, J, dissentingj ' Tellingly, the

Court in Jenkinson did not hold that the sections of the statute would be constitutional if the city

had provided a process by which a resident could seek to mitigate the costs of building a

sidewalk. In fact, if such procedures would have saved the statute in question, the Court would

2 The Court has since granted leave to appeal in Dowdy. People v Dowdy, 287 Mich App

278 (2010), lv gtd 486 Mich 935 (2010).

7

likely have interpreted the statute to include such procedures. Smith, supra at 640 ("A basic rule

of constitutional interpretation is that 'wherever possible an interpretation [of a statute] that does

not create constitutional invalidity is preferred to one that does. "').

Notice would not have cured the constitutional defect either. While the Jenkinson court

addressed the improper notice in the statute, it plainly stated that the lack of notice, which was "a

defect ... sufficient to dispose of the case ifno other infirmity appeared," was a separate issue

from the invalidity of the statute for imposing a duty upon a person that was impossible to

perform. Jenkinson, supra at 419. The lack of notice made the "complaint and warrant ...

defective" while the statute was invalid on its own because the duty it imposed was "obnoxious

to our constitution and laws ... [and was] a disgrace to the legislation of the state" - two distinct

holdings. ld. at 419-20. The prosecution misreads Jenkinson and therefore improperly attempts

to distinguish Jenkinson on the facts.

A. THE CIVIL PROCEEDINGS FOR DETERMINATION OF SUPPORT LEVELS DO NOT MAKE THE STATUTE CONSTITUTIONAL.

In People v Adams, 262 Mich App 89, 99 (2004), the court attempted to justify the

ramifications of its decision by suggesting that a defendant was adequately protected by the

ability to contest support payments which could not reasonably be paid. But this fails to

recognize the fundamentally different issue being decided by in Family Court. There is no

decision being made that a person will in fact be able to reasonably make the ordered payment

every month. The amount is often set based upon a presumed ability to get ajob and pay the

amount over time. The limits onjailing for contempt recognize that persons will sometimes be

unable to pay for a period and yet should not be subject to jail for that reason. Similarly the

8

provision previously referenced precluding suspension of payments while in jail for failure to pay support does not envision a felony conviction for each month in jail.

The availability of a civil court modification hearing does not change the fact that MCL 750.165, as interpreted, unconstitutionally criminalizes the failure to pay child support even when it is impossible for a person to pay. In the present case Mr. Jurecki has consistently sought to modify his support judgments and has appealed the denial of these motions without success. But even when granted modification of child support payments, a defendant remains criminally liable for any payments missed before the modification order. People v Monaco,

. supra. The availability of a modification hearing, therefore, does not remove criminal liability imposed in violation of due process.

Lack of procedural due process in Family Court

Family Court proceedings, such as child support modification hearings, lack the due process requirements of criminal cases, including the right to counsel and the right to have a jury determine whether there is proof beyond a reasonable doubt. See United States v Mandycz, 447 F3d 951,962 (CA 6,2006) ("Criminal cases offer many due process protections - e.g., jury trial, indictment, beyond-a-reasonable-doubt burden of proof, right to counsel- that civil proceedings, including denaturalization proceedings, do not."); cf In re Baker, 117 Mich App 591, 594-95; 324 NW2d 91 (1982) (discussing the differences between civil and criminal due process with regard to commitment proceedings) (citing Addington v Texas, 441 US 418; 99 S Ct 1804; 60 L Ed 2d 323 (l979)~. In her Family Court proceedings, Defendant was not able to confront the witnesses against her, to cross-examine or hear their testimony against her; he did not have the right to effective assistance of counsel and did not have the right to a competency determination. Nor did he have the right in civil court to have a jury of her peers determine whether he was able

9

to pay the child support assessments. See Blakely v Washington, 542 US 296, 313; 124 S Ct 2531; 159 LEd 2d 403 (2004) ("[E]very defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.").

It is firmly established that the findings of a civil case cannot be imported to establish guilt in a criminal trial. See, e.g., United States v Cohen, 946 F2d 430, 437 (CA 6, 1991) (holding that a judge's jury instructions in a criminal case that "merely distinguished the burden of proof in a civil case from that in a criminal case" did not sufficiently prevent "the improper inference that the civil judgment established defendant's guilt in the criminal action"). Additionally, "[t]he differences in proof standards [between civil and criminal cases] preclude application of the collateral estoppel doctrine." lves v Boone, 101 Fed Apx 274,291 (CA 10, 2004). In the context of criminal nonsupport, basing "absolute criminal liability solely upon noncompliance with the tenus of ... a civil judgment ... violates[] due process." Commonwealth v Mason, 317 SW2d 166,167-68 (Ky, 1958) (citing o 'Harrah, 262 SW2d at 388). Thus there is no support for a claim that the Family Court's findings are sufficient bases to establish criminal liability under MCL 750.165. The prosecution cites no such authority because all authority holds otherwise.

In Dowdy, supra, the justices were in disagreement over whether the defendant was able to comply with the Sex Offenders Registration Act (SORA). Those justices who believed that it was impossible for the defendant to comply with the duty imposed under SORA believed that the charges against the defendant should be dismissed. See Dowdy, supra, at 855-856 (Kelly, Cl, concurring); id. at 865 n 22 (Hathaway, J, dissenting). The other justices believed that the defendant was properly charged based on their reasoning that the "defendant ... made absolutely no effort to comply [with SORA]," in contrast with a defendant who is simply unable to comply.

10

Id. at 856 (Young, J, concurring). Notably, unlike Defendant, the defendants in Westman and

Brown failed to attempt modification, and while Justice Young may find that both Westman and

Brown would therefore be properly subject to criminal liability, Defendant who sought

modification but was denied could not be held criminally liable without a showing that he was

able to comply. The mere existence of the modification hearing cannot therefore render MCL

750.165 constitutional.

B. THE ELIMINATION OF A VOLUNTARY ACTUS REUS REQUIREMENT RENDERS THE STATUTE UNCONSTITUTIONAL.

Strict liability cannot eliminate the necessity of a voluntary act or omission to

establish criminal liability. Strict liability statutes only remove the requirement of a "culpable

mental state," or mens rea. 21 Am Jur 2d Criminal Law §132 (2009). Creating a strict liability

statute cannot criminalize an involuntary omission, a duty for which it is impossible for a

person to perform; rather, "the act or omission must be deliberate and voluntary in order to

violate even a strict liability provision." Id. Even in the case of nonpayment of child support, a

parent "is not criminally liable for child nonsupport in cases where, through no fault of his or her

own, such a person lacks the ability or means to support the child." 23 Am Jur 2d, Desertion and

Nonsupport § 41 (2009).

Recognizing that a voluntary act or omission is necessary to establish criminal liability,

the State ineffectually attempts to characterize Defendant's inability to pay due to insufficient

funds as a voluntary act. The prosecution's attempt to equate a person who fails to make a child

support payment that he or he cannot pay, that is, a person who involuntarily fails to perform a

legal duty, with a person who knowingly drives with faulty brakes, that is, a person who

voluntarily takes affirmative action, is bizarre and insupportable. The State does not and

11

cannot propose any way in which Defendant, who already sought modification and was denied; could possibly have avoided criminal liability other than to have come up with the money somehow. The State once again impermissibly relies on the findings of the Family Court to assume that coming up with the money was possible, as discussed in Section ICC) supra. Knowledge of an obligation, which is a mens rea element, is not the same as the possibility of compliance, the voluntary act or omission. It is the State, not the Defendant, that confuses the concepts of mens rea and actus reus.

The State again engages in circular reasoning, arguing that the elimination of the ability to pay requirement by MeL 750.165 is constitutional because "[t]he operative language" of the statute removes the requirement, even though the constitutionality of that very interpretation of the statue is what is in question. As discussed in Section ICB), supra, the Legislature does not determine what is constitutional. Nor is it the prosecution's place to decide who has the ability to pay beyond a reasonable doubt. That is for the jury or judge to decide in the course of the criminal proceeding.

United States Supreme Court Precedent

The United States Supreme Court has held state statutes unconstitutional, even in noncriminal contexts, when they prohibit defendants from presenting evidence of their inability to comply with the duty imposed by the State. In both Zablocki v Redhail, 434 US 374; 98 S Ct 673; 54 LEd 2d 618 (1978), and Bearden v Georgia, 461 US 660; 103 set 2064; 76 L Ed 2d 221 (1983); the Court invalidated statutes that imposed crimina1liability on people "for failing to do that which they cannot do." Zablocki, supra at 387; id. at 400 (Powell, J, concurring) ("[T]he vice inheres, not in the collection concept, but in the failure to make provision for those without the means to comply with child-support obligations." (emphasis added)); Bearden,

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supra at 673 ("[Imposing criminal liability when] through no fault of his own, [defendant] cannot pay the fine ... is contrary to the fundamental fairness required by the Fourteenth Amendment. ").

Several state court decisions have similarly recognized that the Due Process Clause of the Fourteenth Amendment requires state statutes to allow defendants to show they are unable to comply with the duty imposed. See, e.g., Mason, supra, at 168 (holding that the Due Process Clause required that the "defense of inability to pay must also be considered to be considered available" under the Kentucky nonsupport statute); Epp v State, 107Nev 510,514; 814 P2d 1011 (1991); Lashley v State, 236 Ala 1, 4; 180 So 717 (1938); Tobe v City a/Santa Ana, 9 Cal 4th 1069, 1087; 892 P2d 1145 (1995). The State again fails to address the holdings in any of the Supreme Court or state court decisions cited above, instead focusing on the one state court decision that was overturned by Adams, a case whose application is under constitutional scrutiny in the present case.

Lastly, in its recent decision in People v Jackson, 483 Mich 271 (2009), this Court further delineated when courts must assess a defendant's ability to pay. Jackson involved the assessment of attorney's fees on criminal defendants under MCL 769.1k, which the Court noted, was "not limited by reference to a defendant's ability to pay." Jackson, supra, at 283. The Court held that the Due Process Clause did not, as the defendant tried to argue, require an ability to pay assessment before the imposition of a fee, but noted that "[the ability-to-pay] assessment is ... required at the time payment is required, i.e., when the imposition is enforced." Id at 291 (emphasis added). The Court further held that "once enforcement of the fee imposition has begun, and a defendant has made a timely objection based on his claimed inability to pay, the trial courts should evaluate the defendant's ability to pay." Id at 292 (emphasis added). It

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does not matter whether the statute itself requires the assessment. Id. at 291. Rather, the assessment is required by due process. The Family Court's issuance of a child support order imposes a fee on the defendant. When the State chooses to charge a defendant like Defendant under MCL 750.165, it begins an enforcement action. Under Jackson and the Due Process Clause, therefore, Defendant "must ... be given an opportunity to contest the enforcement on the basis ofindigency." ld. at 292.

In this case Mr. Jurecki faced a charge of felony non-support at a time when the law clearly denied him any defense ofindigency for failure to pay. He had contested family courts ruling that his ability to pay should be based upon his earnings as a corrections officer prior to his service related disability which precluded his ability to earn such wages. He was able appeal that ruling only because his mother chose to hire an attorney to do so. He then was told that this demonstrated his voluntary failure to pay restitution as he could have used his mother's money for this purpose. The legitimacy of his claim of an inability to work due to his disability has just now been confirmed by his grant of social security disability payments.

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SUMMARY AND RELIEF

WHEREFORE, Defendant-Appellant asks that this Honorable Court grant this

application and vacate his plea; or, in the alternative, hold the case in abeyance pending the

Supreme Court's resolution in the Likine, Harris and Parks cases; or grant such other relief as

the Court deems appropriate.

Respectfully submitted,

STATE APPELLATE DEFENDER OFFICE

/f}; D _6"-7

BY:

---------------------------------

RolfE. Berg (P26758) Assistant Defender

101 North Washington 14th Floor

Lansing, MI 48913 (517) 334-6069

Dated: January 4,2011

15

Court of Appeals, State of Michigan

ORDER

People ofM! v Joseph Edward Jurecki

Henry William Saad Presiding Judge

Docket No. 300514

Deborah A. Servitto

LC No. 07-054339 PH

Elizabeth L. Gleicher Judges

The Court orders that the delayed application for leave to appeal is DENIED for lack of merit in the grounds presented.

presiillnl/f!::l

~~

L..,._. .~.~._:_.:J

StrJ~LJ .A.rr~f.:!:atf! Defender l;iri:,;"q O;'t:ce

A true copy entered and certified by Sandra Schultz Mengel, Chief Clerk, on

Date

NOV 1 5 2010

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