Opposition Brief — Gates v. Michigan

} Supreme Court, U.S.

ritn =

MAY 30 1990

Docket No. 89-1688 17 JjogepH F. SPANIOL, JR.

CLERK

IN THE UNITED STATES SUPREM

October Term, 1989

GREGORY GATES,

Petitioner.

Vv

STATE OF MICHIGAN,

Respondent.

OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNIVZED STATES SUPREME COURT

JERROLD SCHROTENBOER (P33223)

Chief Appellate Attorney

Jackson County Prosecutor’s Office

312 South Jackson Street

Jackson, MI 49201

(517) 788-4286

QUESTION PRESENTED FOR REVIEW

WHETHER COLLATERAL ESTOPPEL,

OUTSIDE THE FIFTH AMENDMENT DOUB_E

JEOPARDY CLAUSE, PRECLUDES A

CRIMINAL TRIAL WITH AN INDIVIDUAL

CHARGED WITH SEXUALLY ABUSING HIS

OWN DAUGHTER WHERE A PROBATE COURT

JURY, INSTRUCTED THAT ITS ONLY

CONSIDERATION IS WHETHER OR NOT

THE HOME IS A FIT HOME FOR THE

CRiLe, RETURNED A ="“8O

JURISDICTION" VERDICT.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW. .. . 1

ammue OF CONTENIO. « «+ © © © © © & * 2

TABLE OF AUTHORITIES ....... . 3

CITATION OF THE OPINIONS AND

JUDGMENTS DELIVERED IN THE COURTS

ee ee ee a a ee oe a ne a >

STATEMENT OF THE CASE. . . «© «© « « « 6-13

ARGUMENT . . © «© © © © © © © s © @ ¢ 14-30

RELIEF REQUESTED ... ++... + « -« 30

TABLE OF AUTHORITIES

Ashe v. Swenson, 397 U.S. 436, 90

$.Ct. 1189, 25 L.Ed.2d 469

aaTis = « ee + + * eee el 16,137

Brown v. Ohio, 432 U.S. 161, 97 S.Ct.

wea, Bo toe. 2G i687 (1977). . « 17

Commonwealth v. 707 Main Corp., 371

Mass. 374, 357 N.E.2d 753 (1976) 29

Cromwell v. County of Sac, 94 U.S.

gon, 24 WEG. 195 (1877)... « 21,24

Gregory v. Commonwealth, 610 S.W.2d

wee Gms SOOUP « «s ew we we ow ew 29

Harris v. Washington, 104 U.S. 55, 92

S.Ct. 183, 30 L.Ed.2d 212 (1971) 17

In re Kathryn & Kimberly B., 126

Misc.2d 1085, 484 N.Y.S.2d 788

aS eg we 29

Joiner v. State, 50C >2€ 81 (Ala.

Crim. App. 1986 A ig ae 29

One Lot Emerald Cut S¥énes v.

United State? ses 0.8. 232, B32

S.Ct.489, 34 IAEd.2d 438 (1972) 18,19

People v. Fagan, 66 N.Y.2d 815, 98

N.Y.S.2da 335, 489 N.E.2d 222

I a Cg ew 29

People v. Gates, 434 Mich. 146, 452

N.W.2d 627 (1990). 20,23,24

26,27,28

Santcsky v. Kramer, 455 U.S. 745,

102 S.Ct. 1388, 71 L.Ed.2d 599

Re gg te gf ee 20

Sealfon v. United States, 332 U.S.

$75, 66 $.Ct. 237, 92 LEG. 180

CON gg greta «eee ene tel 21,24

Simpson v. Florida, 403 U.S. 384, 91

S.Ct. 1801, 29 L.Ed.2d 549 (1971) 17

Standifer v. United States, 447 U.S.

10, 100 S.Ct. 1990, 64 L.Ed.2d

er SE alee eae ers 29

State v. Alvey, 67 Haw. 49, 678 P.2d 5

Caeees 6 «6s “oo 6 * 0: ees 29

State v. Dupard, 93 Wash.2d 268, 609

Peoa@ Bea (1960). 6 «+ «© « 6 @ 8 29

State v. Walker, 159 Ariz. 506, 768

Boe Gee (2000). « « + « we 29

Turner v. Arkansas, 407 U.S. 366,

92 S.Ct. 2096, 32 L.Ed.2d 798

[aes «+ «© © es tw 6b ee 8 Oe 17

Michigan Court Rules 5.972. ... . 25

CITATION OF THE OPINIONS AND JUDGMENTS

DELIVERED IN THE COURTS BELOW

People v. Gates, 434 Mich. 146, 452

N.W.2d 627 (1990)

People v. Gates, 168 Mich.App. 384,

423 N.W.2d 668 (1988)

People v. Gates, Jackson County

Circuit Court Number 86-41238-FH,

released 12/3/86.

STATEMENT OF THE CASE

Pursuant to Rule 24.2, respondent

accepts petitioner’s statement of the case

except for the following additions.

Petitioner and his wife, Deborah Lynn

Gates, were married on November 21, 1981.

(Probate Court Adjudication Hearing

Transcript [{PATr], p. 339). Their daughter,

Nicole Gates, was born on March 29, 1982.

(PATE, Pp. 61). The couple, however,

separated on December 27, 1984. (PATr, p.

63). They became legally separated in

February 1985, when the Jackson County

Circuit Court having jurisdiction over their

divorce awarded the couple joint custody of

Nicole. (PATr, pp. 108-109). From then

until February 13, 1986, petitioner had

physical custody over Nicole every weekend.

(PATr, p. 62). During most cf this time,

petitioner lived with his parents in

Michigan Center, Michigan, just East of

Jackson. (PATr, p. 336).

After the Michigan Department of Social

Services filed the petition against

petitioner alleging abuse and neglect

(having sexually abused Nicole), Nicole

lived with her mother. (PATr, p. 109).

Petitioner’s visitation also ceased. (PATr,

p. 109).

At the preliminary examination held in

the criminal case on May 27, 1986, Nicole

testified that, more than once, while she

was staying at petitioner’s parents’ home in

Michigan Center, petitioner had touched her

on her vagina in such a way as to make it

hurt. (Preliminary Examination Transcript

(PETr], pp. 42-44). Petitioner told Nicole

not to tell her mother because she would

therefore not let him see her again. (PETr,

p. 46).

In binding the case over to the Jackson

County circuit court for trial, Michigan’s

Twelfth District Court Judge Robert Crary,

Jr., stated: "I do think that something

happened that caused her to be upset and

caused her father to indicate that it might

keep her from seeing him again, which

indicates, I’m afraid, a sexual contact to

the touching which occurred at this time."

(PETr, pp. 77-78).

At the probate court Adjudication

Hearing, Nicole reiterated her preliminary

examination testimony that she had gone to

sleep and had woken up when petitioner had

touched her on her vagina. (PATr, pp.

40-41). She once again testified that

petitioner told her not to tell anyone.

(PATr, pp. 42-43). She testified that

petitioner had touched her about five times

in all. (PATr, p. 42).

Catholic Social Services Therapist

Karen Marie Dupage testified that, in her

expert opinion, Nicole had been sexually

molested. (PATr, pp. 189-194). She had

noticed a very marked mood change in Nicole.

(PATr, p. 218). Nicole’s mother also

noticed a personality change. (PATr, pp.

64-65).

In addition to the instructions

mentioned in petitioner’s petition, the

probate court also instructed the jury as

follows:

It is not necessary that each and

every fact alleged in the petition

be proven before you can find that

the Court has jurisdiction of

Nicole Gates. It is necessary,

however, that sufficient facts be

proven so that in your judgment

you can find by a preponderance of

the evidence that the home or

environment of Nicole Gates was an

unfit place for her to be by

reason of neglect, cruelty,

criminality, or depravity on the

part of her father.

zx &k &

I do instruct you that this is a

child protection case. It is not

a criminal case. Therefore, the

issue before you is not that of

gulit sr innocence but the issue

is whether Nicole Gates comes

within the jurisdiction of the

Juvenile Division of the Jackson

County Probate Court. You should

not consider this proceeding to be

in any way involved with the

Criminal law so far as your

deliberations are concerned.

=. =}

Now, there are only two possible

verdicts in this kind of a case

and I will give you a verdict form

that gives you the two possible

verdicts. You would either check

the box on the top or the box on

the bottom. The box on the top

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says that the Court has

jurisdiction of Nicole Gates. The

box on the bottom says that the

Court does not have jurisdiction

of Nicole Gates, and you would

check either one of those two

boxes after you have reached a

verdict. (PATr, pp. 431-432, 434,

436).

After the jury returned its no

jurisdiction verdict, respondent, Guardian

Ad Litem, and Nicole’s mother’s lawyer filed

a motion for a judgment notwithstanding the

verdict. On July 28, 1986, Jackson County

Probate Court Judge Frederick oO. Sill

granted it. In making his ruling, he found

that both Nicole Gates and Dupage had given

reliable testimony. On the other hand,

petitioner had not. Therefore, the only

credible testimony presented was presented

by respondent. (July 28, 1986, Probate

Motion Hearing Transcript[28 Tr], pp.

-ll-

10-11). Hence, because the jury’s verdict

was against the great weight of the

evidence, Judge Sill entered an order

granting a new trial. (28 Tr, p. 12).

This decision, however, was reversed by

Jackson County Circuit Court Judge Gordon

Britten on October 6, 1986. Petitioner had

appealed to the Jackson Countly Circuit Court

asking for leave to appeal and for a

reversal. (Jackson County Circuit Court

file number 86-42250-AV). In granting the

application for leave to appeal and

reversing Judge Sill’s order granting the

judgment notwithstanding the verdict, Judge

Britten ruled that such a procedure

denigrated petitioner’s right to a trial by

jury on the abuse and neglect petition.

(September 26, 1986, Circuit Court Motion

Hearing Transcript [26 MTr], pp. 12-13). He

also found that, because the jury had no

Jurisdiction, Judge Sill did not have

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jurisdiction to order the relief he had

ordered. (26 MTr, p. 13).

-13-

ARGUMENT

BECAUSE COLLATERAL ESTOPPEL

OUTSIDE THE FIFTH AMENDMENT DOUBLE

JEOPARDY CLAUSE IS NOT A FEDERAL

CONSTITUTIONAL DOCTRINE,

PETITIONER’S CONSTITUTIONAL RIGHTS

WERE NOT VIOLATED ESPECIALLY SINCE

(1) GIVEN THE PROBATE COURT JURY’S

INSTRUCTIONS, A FINDING THAT

PETITIONER HAD NOT SEXUALLY ABUSED

HIS DAUGHTER WAS NOT ESSENTIAL TO

THE JUDGMENT AND (2) APPLYING

COLLATERAL ESTOPPEL WOULD INCREASE

CHILD MOLESTATION.

For three reasons, respondent asks this

Court not to grant this petition for a writ

of certiorari. First, petitioner is not

presenting a federal constitutional claim to

this Court. Because petitioner has never

been criminally tried for this offense,

double jeopardy does not bar trial. This

Court has never ruled that the common law

-14-

doctrine of collateral estoppel, outside the

Fifth Amendment Double Jeopardy Clause, is

guaranteed by the United States

Constitution. Second, the Michigan Supreme

Court correctly ruled, given the jury

instructions, that any finding that

petitioner had not sexually abused his

daughter was not essential to the judgment.

The only issue presented to the probate

court jury was whether or not Nicole’s home

was a fit home for her. By the time the

trial was held, Nicole was living with her

mother, not with petitioner. in tact,

petitioner’s visitation had ceased.

Accordingly, the jury could have rationally

found no jurisdiction even if it had

believed that petitioner had sexually abused

Nicole. Third, finding collateral estoppel

will increase child molestation in Michigan.

The Michigan courtrules require an

adjudication hearing within 42 days of the

petition if the child is taken out of the

-15-

home. Because 42 days is not long enough in

which to hold a criminal trial, if

collateral estoppel applies, at least some

Michigan prosecutors will (as happened

between the Michigan Court of Appeals’

decision and Michigan Supreme Court’s

decision in this case) prevent the Michigan

Department of Social Services from filing a

petition taking the child out of the home.

Hence, if in fact abuse has occurred, it

will continue.

First, petitioner has not validly

invoked this Court’s jurisdiction. He is

not presenting this Court with a federal

constitutional claim. This Court has never

ruled that the entire collateral estoppel

doctrine is guaranteed by the United States

Constitution. Every time this Court has

applied collateral estoppel, it has done so

in the context of the Fifth Amendment Double

Jeopardy Clause. In Ashe v. Swenson, 397

U.S. 436, 90 $.Ct. 1189, 25 L.Ed.2d 469

-16-

(1970), Simpson v. Florida, 403 U.S. 384, 91

S.Ct. 1801, 29 L.Ed.2d 549 (1971), Harris v.

Washington, 104 U.S. 55, 92 S.Ct. 183, 30

L.Ed.2d 212 (1971), and Turner v. Arkansas,

407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2da 798

(1977), the criminal defendant had first

actually been acquitted. In the present

case, on the other hand, petitioner has

never been acquitted of anything. Instead,

a probate court jury, in a civil proceeding,

returned a verdict of no jurisdiction over

his daughter. The Double Jeopardy Clause is

not implicated. Accordingly, petitioner is

not alleging a Federal Constitutional

violation.1

lRespondent’s point is graphically

illustrated in Brown v. Ohio, 432 U.S. 161,

noe we, wer €.Ct. 2213, §3 bt. 86.26 i287

(1977), where this Court characterized its

ruling in Ashe, supra: "the Court [in Ashe]

held that principles of collateral estoppel

embodied in the Double Jeopardy Clause

barred prosecutions of the accused for

robbing the other victims."

-i17-

In fact, this Court has specifically

stated that the Double Jeopardy Clause does

not apply unless both proceedings are

criminal. In One Lot Emerald Cut Stones v.

United States, 409 U.S. 232, 93 S.Ct. 489,

34 L.Ed.2d 438 (1972), the criminal

defendant was first acquitted of the

Criminal charges against him. He then

claimed that the subsequent forfeiture

action was barred by the Double Jeopardy

Clause. This Court unanimously disagreed

stating:

If for no other reason, the

forfeiture is not barred by the

Double Jeopardy Clause of the

Fifth Amendment because it

involves neither two criminal

trials nor two criminal

punishments. "Congress may impose

both the criminal and civil

sanctions in respect to the same

act or omission; for the Double

-18-

Jeopardy Clause prohibits merely

punishing twice, or attempting to

punish criminally the same

offense."

xk k

Congress could and did order both

civil and criminal sanctions,

clearly distinguishing then.

There is no reason for frustrating

that design. Id. at 235-237.

The same is true in the present case.

Michigan’s abuse and neglect proceedings are

not criminal in nature. Instead, they are

civil. Michigan’s Legisieture nae

specifically provided for both remedies

against child abuse. Not only may the State

criminally prosecute someone who has

sexually molested a child, but the State may

also civilly take jurisdiction over the

child in juvenile court and attempt to

prevent future child abuse.

-19-

In fact, in Santosky v. Kramer, 455

U.S. 745, 764, 102 S.Ct. 1388, 71 L.Ed.2d

599 (1982), this Court ruled that a person

has no double jeopardy defense against

repeated State efforts to terminate his

parental rights. The same would apply to

the actual adjudication hearing itself.

Accordingly, because the first

prooceding was only civil, the Double

Jeopardy Clause does not apply. Because

this Court has never extended collateral

estoppel beyond the Fifth Amendment Double

Jeopardy Clause, petitioner is not claiming

that his federal constitutional rights were

violated.2 Respondent asks this Court not

to expand federal jurisdiction over a

doctrine that has never before been declared

constitutionally required. Petitioner asks

2Furthermore, the Michigan Supreme

Court specifically decided not to address

the Fifth Amendment Double Jeopardy Clause

issue. 434 Mich. 154, n 6.

-20-

this Court not to so vastly expand federal

constitutional jurisdiction in this country.

Second, the Michigan Supreme Court

properly followed collateral estoppel

doctrine by ruling that, after considering

the jury instructions as given, under the

facts of the case, any jury decision that

petitioner had not sexually molested his

daughter was not essential to the judgment.

The Michigan Supreme Court correctly

followed this Court’s precedents for its

ruling. In Cromwell v. County of Sac, 94

U.S. 351, 24 L.Ed. 195 (1877), this Court

ruled that a reviewing court must look at

what was actually litigated rather than what

might have been litigated. Then, in Sealfon

v. United States, 332 U.S. 575, 578-579, 68

S.Ct. 237, 92 L.Ed. 180 (1948), this Court

ruled that the reviewing court must look at

the jury instructions:

Thus, the only question in this

case is whether the jury’s verdict

-21-

in the [first] trial was a

determination favorable to

petitioner of the facts essential

to conviction of the substantive

offense. This depends upon the

facts educed at each trial and the

instructions under which the jury

arrived at its verdict at’ the

first trial.

In the present case, the probate court

judge specifically told the jury that

petitioner’s guilt or innocence was not what

it had to decide. (PATr, p. 434). Instead,

the jury was to decide "by a preponderance

of the evidence that the home or environment

of Nicole Gates was an unfit place for her

to be by reason of neglect, cruelty,

criminality or depravity on the part of her

father." (PATr, pp. 431-432). As the

Michigan Supreme Court correctly found,

because Nicole was no longer living with

petitioner (and he did not even have

-22-

visitation anymore), the jury could have

faithfully followed the jury instructions

and yet rationally concluded that the

probate court had no jurisdiction even

though petitioner had sexually molested his

daughter:

The clear import of the [jury]

instruction is that even if the

jury believed that a criminal

violation had occurred, it was not

required to find the child’s home

or environment to be unfit so as

to warrant jurisdiction. In

short, a finding of innocence was

not essential to a verdict of no

jurisdiction; thus, the verdict

did not "necessarily determine the

issue of criminal guilt or

innocence."

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Furthermore, during the course of

the trial the jury learned that

the child’s mother had exclusive

physical custody of the child and

that visitations with her father

had ceased. The jury might have

concluded on that basis alone that

the child did not require the

protection of the probate court.

Thus the jury’s verdict could

rationally have been based on

grounds other than a determination

of defendant’s innocence of the

allegations in the petition. 434

Mich. 159-160.

Petitioner cites to no cases which mandate a

collateral estoppel preclusive effect even

though the jury instructions allowed the

jury to make a cecision on other grounds.

Instead, this Court, in Sealfon and

Cromwell, ruled the opposite. Accordingly,

there is no need for this Court to grant

-24-

this petition for writ of certiorari in this

case.

Third, as the Michigan Supreme Court

correctly found, for policy reasons,

collateral estoppel should not apply in this

situation. The Michigan Supreme Court did

not want to increase child molestation in

this State. Instead, it wanted to reduce

it. Accordingly, as an alternative holding,

it found no collateral estoppel. According

to Michigan Court Rules 5.972, a family has

a right to an abuse and neglect adjudication

hearing with 42 days after the conclusion of

the preliminary hearing if the child has

been detained. Because criminal trials most

likely will not be commenced within 42 days,

to avoid the preclusive facts of a

collateral estoppel rule, the prosecution

(or maybe even the Probate Court Judge or

even the Department of Social Services

itself) may decide to block the probate

court proceedings until after the criminal

-2 5-

trial. Thus, whether there has been abuse

or not, the child will remain in the abusive

parent’s (or parents’) care for that period.

Such a result is certainly not in either the

child’s or society’s best interest. Hence,

the Michigan Supreme Court correctly found

no collateral estoppel.

It ruled:

The disparate purposes of the two

types of proceedings argue

strongly against the application

of collateral estoppel. If we

were to endorse the proposition

that a determination of no

jurisdiction in a child-protective

proceeding operates to

collaterally estop criminal

charges, we would invite the risk

that the proper functions of the

two proceedings would be

compromised. eae

-26-

% & ®

To avoid the effect of collateral

estoppel, if it were to be made

applicable, a prosecutor would be

required to develop criminal

charges indicated by the petition

and bring them to trial before a

determination concerning

jurisdiction could be reached in

the probate proceeding. However,

the burden of proving criminal

charges beyond a reasonable doubt,

added to problems presented by

conflicting procedural and

scheduling requirements of the two

courts, would make it extremely

difficult and often impossible for

the criminal charges to be prought

Se eens am Circuit court in

advance of the jurisdiction

determination in probate court.

-27@

Thus, the petitioner or the

prosecutor would face an

unfortunate choice that is not in

the public interest: whether to

proceed on the petition in probate

court because of concern for the

child, or to delay the probate

proceeding because of concern that

a verdict of nonjurisdiction would

preclude criminal prosecution of

the accused.

We are pursuaded by public policy

considerations that such an

election between criminal and

child-protective proceedings

should not be judicially imposed

through the application of

collateral estoppel. 434 Mich.

162-163.

As it is, the Michigan Supreme Court is

not the only court that has refused to apply

-28-

collateral estoppel doctrines to preclude

criminal prosecution for policy reasons.

Other Courts refusing to apply collateral

estoppel are: Joiner v. State, 500 So. 2d

81 (Ala. Crim. App. 1986); In re Kathryn &

Kimberly B., 126 Misc.2d 1085, 484 N.Y.S.2d

788 (1985), Gregory v. Commonwealth, 610

S.W.2d 598 (Ky 1980); Commonwealth v. 707

Main Corp., 371 Mass. 374, 357 N.E.2d 753

(1976); State v. Alvey, 67 Haw. 49, 678 P.2d

5 (1984); State v Dupard, 92 Wash. 2d 268,

609 P.2d 961 (1980); People v Fagan, 66

N.¥.2@ 815, 498 N.¥.S2d 335, 489 N.E.2d 222

(1985); State v. Walker, 159 Ariz. 506, 768

P.2d 668 (1989).

In fact, this Court itself hes

expressed reservations about applying

collateral estoppel principles too strictly

to preclude criminal prosecutions.

Standifer v. United States, 447 U.S. 10, 100

S.Ct. 1990, 64 L.Ed.2da 689 (1980).

PeteeLener:, on the other hand, has not even

-29-

addressed this point in his petition. He

has completely ignored the Michigan Supreme

Court’s alternative holding. He is asking

this Court to create a new constitutional

right and then mechanically apply it even

though Michigan would accordingly suffer

more child molestation. Respondent asks

this Court not to accept this invitation.

WHEREFORE, respondent asks this Court

to deny this petition for writ of

certiorari.

Respectfully submitted,

lt trad heh ste foe

“JERROLD SCHROTENBOER (P33223)

Chief Appellate Attorney

Jackson County Prosecutor’s Office

312 South Jackson Street

Jackson, MI 49201

(517) 788-4286

Dated: May , 1990

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