Why the Biden Administration Was Right Earlier This Week to Change Course in the Obamacare Challenge Pending Before the Court

VIKRAM DAVID AMAR

Illinois Law Dean Vikram David Amar comments on an unusual move by the U.S. Solicitor General’s office, sending a letter to the U.S. Supreme Court amending the position of the federal government in a case currently pending before the Court challenging the Affordable Care Act. Dean Amar explains why the arrival of a new administration should generally not trigger such position reversals, but he argues that the unusual circumstances—specifically the “exceptional implausibility” of the government’s prior filings—may justify the government’s action in this instance.

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Cook v. Wiebe

Court: Idaho Supreme Court - Civil

Docket: 46732

Opinion Date: February 10, 2021

Judge: Roger S. Burdick

Areas of Law: Civil Procedure, Family Law, Legal Ethics

Holly Cook appealed an administrative order entered by an Administrative District Judge (“ADJ”) declaring her to be a vexatious litigant pursuant to Idaho Court Administrative Rule 59. The order prohibited Cook from filing any new litigation pro se in Idaho without first obtaining leave of the court where the litigation was proposed to be filed. Ms. Cook petitioned for a divorce from her husband (“Mr. Cook”) in 2015. During the lengthy and contentious divorce proceedings, Ms. Cook had assistance of counsel for portions of the proceedings, but represented herself pro se when she did not. Some aspects of the divorce proceedings were appealed to the district court. Mr. Cook filed a moved that Ms. Cook declared a vexatious litigant. Neither party requested a hearing on Mr. Cook’s motion. The district judge presiding over the appeal referred the matter to the ADJ. The ADJ found that Ms. Cook largely failed to appear at dates set in scheduling orders that she (with and without counsel) agreed to. She failed at obtaining continuances, at having the trial judge disqualified, and to move the court for reconsideration of many intermediate decisions. She attempted to collaterally attack the default judgment of divorce, and at some point, was held in contempt for failing to respond to court orders during the divorce proceedings. Separate from the divorce proceedings, the ADJ noted Ms. Cook had filed nine pro se civil protection orders, all of which had been dismissed in favor of the parties from whom she sought protection. The Idaho Supreme Court determined the ADJ abused its discretion in declaring Ms. Cook a vexatious litigant; the ADJ did not review the merits and reason for dismissal in the nine civil protection actions, causing the ADJ to conclude incorrectly the final determinations were adverse to her. Furthermore, with respect to the divorce proceedings, the Court determined the ADJ abused its discretion by failing to make factual findings that Ms. Cook repeatedly attempted to relitigate issues already finally decided by the magistrate court. The Supreme Court concluded the ADJ did not make sufficient findings to support the conclusion that Ms. Cook’s filings were frivolous, unmeritorious, or filed with the intent to cause unnecessary delay. Accordingly, the Court reversed the prefiling order and remanded to allow the ADJ the opportunity to reconsider this matter.

Battise v. Aucoin

Court: Supreme Court of Mississippi

Citation: 2019-IA-01775-SCT

Opinion Date: February 11, 2021

Judge: Beam

Areas of Law: Civil Procedure, Family Law, Legal Ethics

Linda Battise was the mother of Joseph Aucoin, deceased. Joseph and Sheila Aucoin were married and had two daughters. After Joseph’s death, Sheila began restricting Linda’s visitation with the children because Linda was not abiding by Sheila’s parental decisions. Through counsel, Linda petitioned for grandparent visitation. The chancellor encouraged the parties to confer because Sheila made some statements showing that they could come to a visitation agreement without court involvement. Linda and Sheila reached an agreement; however, the chancellor declined to sign the agreed order. The chancellor advised Sheila to retain an attorney because she did not believe that Sheila fully understood the implications of the agreement. Furthermore, the chancellor told Sheila that she was entitled to attorney’s fees. Shiela hired an attorney, and filed a motion to dismiss or stay proceedings until fees were paid in advance. The chancellor denied Linda’s motion to recuse, and ordered Linda to pay $3,500 to Sheila for attorney’s fees within thirty days or else she could not proceed with her case. Linda appealed, arguing that: (1) the chancellor erred by requiring her to prepay attorney’s fees to Sheila before Linda’s case could be heard; (2) the chancellor erred by not entering a final judgment; and (3) the chancellor erred by not recusing. After review, the Mississippi Supreme Court affirmed the chancellor's denial of the motion to recuse. The Court reversed the prepayment order, and remanded for further proceedings on the merits.

In re C.L.H.

Court: North Carolina Supreme Court

Docket: 213A20

Opinion Date: February 5, 2021

Judge: Earls

Areas of Law: Family Law

The Supreme Court reversed in part and vacated and remanded in part the trial court's order terminating Respondent's parental rights to his child, holding that this case was, in large part, controlled by In re K.N., 837 S.E.2d 861 (N.C. 2020), necessitating reversal in part and vacatur in part. Petitioner, the child's mother, filed a motion to terminate Respondent's parental rights. The trial court determined that grounds existed to terminate Respondent's parental rights pursuant to N.C. Gen. Stat. 7B-1111(a)(1), (4), and (6) and that it was in the child's best interests that Petitioner's parental rights be terminated. The Supreme Court reversed the portions of the trial court's order concluding that Respondent's parental rights were subject to termination under sections 7B-1111(a)(1) and (6) and vacated the portions of the order adjudicating grounds for termination under section 7B-1111(a)(4), holding that the trial court erred by concluding that grounds existed pursuant to sections 7B-1111(a)(1) and (6) and that the court's findings of fact were insufficient to support termination based on section 7B-1111(a)(4).

In re J.E.B., II

Court: North Carolina Supreme Court

Docket: 99A20

Opinion Date: February 5, 2021

Judge: Earls

Areas of Law: Family Law

The Supreme Court affirmed the order of the trial court terminating Mother's parental rights in her child, holding that N.C. Gen. Stat. 7B-1101.1(d) was not violated in this case. Section 7B-1101.1(d) establishes the right of a parent to appointed counsel and, in some circumstances, to a guardian ad litem (GAL) in a termination of parental rights proceeding. The statute further provides that counsel shall not be appointed to serve as the GAL and the GAL shall not act as the parent's attorney. On appeal, Mother argued that she was denied a fundamentally fair termination proceeding because her GAL examined some witnesses and presented legal arguments on her behalf, in violation of section 7B-1101.1(d). The Supreme Court disagreed, holding that because Mother was afforded both an attorney and a GAL the statute was not violated when counsel acted as Mother's attorney and the GAL assisted counsel in the presentation of the case to ensure that Mother was effectively represented.

In re S.F.D.

Court: North Carolina Supreme Court

Docket: 80A20

Opinion Date: February 5, 2021

Judge: Barringer

Areas of Law: Family Law

The Supreme Court affirmed the order of the trial court terminating the parental rights of Father to his daughter, holding that the issues identified by counsel in Father's appeal were meritless. The trial court entered an order concluding that grounds existed to terminate Father's parental rights based on neglect, willfully leaving his child in foster care for more than twelve months without showing reasonable progress, and attempted murder of another child residing in the home. The trial court further determined that it was in the child's best interests to terminate Father's parental rights. On appeal, the Supreme Court reviewed issues identified by counsel in a no-merit brief in light of the entire record and concluded that the trial court properly found that grounds existed pursuant to N.C. Gen. Stat. 7B-1111(a)(1) to terminate Father's parental rights and that termination was in the best interests of the child.

In re S.R.F.

Court: North Carolina Supreme Court

Docket: 214A20

Opinion Date: February 5, 2021

Judge: Morgan

Areas of Law: Family Law

The Supreme Court affirmed the judgment of the trial court terminating the parental rights of Mother to her daughter, holding that the trial court properly adjudicated the existence of grounds to terminate Mother's parental rights based on her neglect of the child. After a hearing, the trial court adjudicated the existence of two statutory grounds for terminating Mother's parental rights: Mother's neglect of the child and Mother's willful failure to make reasonable progress to correct the conditions leading to the child's removal from the home. The court then concluded that it was in the child's best interests to terminate Mother's parental rights. The Supreme Court affirmed, holding that, although Mother identified some harmless inaccuracies in the trial court's adjudicatory findings of fact, the court's remaining findings of fact supported its conclusions of law that grounds existed to terminate Mother's parental rights for her neglect of the child under N.C. Gen. Stat. 7B-1111(a)(1).

In re Mattie L.

Court: Tennessee Supreme Court

Docket: W2018-02287-SC-R11-PT

Opinion Date: February 5, 2021

Judge: Lee

Areas of Law: Family Law

In this parental termination case, the Supreme Court reversed the judgment of the trial court terminating Father's parental rights, holding that the trial court misapplied the missing witness rule and in applying the doctrine of unclean hands to Father and that the evidence of abandonment was not clear and convincing. The trial court terminated Father's parental rights based on a finding of abandonment by willful failure to support, willful failure to make reasonable or consistent support payments, and willful failure to visit and further found that termination was in the child's best interests. In reaching its conclusions, the trial court applied the missing witness rule and the doctrine of unclean hands. The court of appeals reversed, concluding, among other things, that the trial court erred by applying the missing witness rule in a non-jury trial. The Supreme Court affirmed the court of appeals' judgment with the exception of its holding on the missing witness rule, holding (1) while the missing witness rule may apply in a non-jury trial, the trial court misapplied the rule in this case; (2) the trial court erred in applying the doctrine of unclean hands to Father; and (3) there was not clear and convincing evidence that Father abandoned the child.

Baron v. McGinty

Court: Vermont Supreme Court

Citation: 2021 VT 6

Opinion Date: February 5, 2021

Judge: Carroll

Areas of Law: Family Law

Ian Baron appealed a Vermont magistrate decision declining to register and exercise jurisdiction over his petition to modify a Virginia child-support order. Baron argued that because the requirements of 15B V.S.A. sections 1602 and 1611 were met, the magistrate was required to register and exercise jurisdiction over his petition to modify. To this, the Vermont Supreme Court agreed, and remanded for further proceedings on whether the Virginia child-support order should have been modified.

Brown v. Brown

Court: Wyoming Supreme Court

Citation: 2021 WY 26

Opinion Date: February 11, 2021

Judge: Kautz

Areas of Law: Family Law

The Supreme Court affirmed the order of the district court modifying Father's child support obligation to Mother, holding that the court did not err by modifying Father's child support obligation without requiring Mother to prove a material change in circumstances in addition to a twenty percent change in the support amount. Father commenced this action in 2019 seeking modification of child custody, visitation, and support. The parties reached an agreement on all matters in Father's petition except child support, which proceeded to trial. Applying the child support guidelines, the district court found Father's presumptive support obligation would change by more than twenty percent from the amount previously ordered in 2016, establishing a change in circumstances to justify a modification under Wyo. Stat. Ann. 20-2-311(a). The Supreme Court affirmed, holding that the heightened requirement for modification of a child support order was inapplicable and that Mother's showing of a twenty percent change in support justified the district's modification of Father's child support obligation.