Township Officials Apologize

It’s not often that government officials apologize for mistakes, but we saw an example this week when Meridian Township officials apologized for mishandling a complaint of sexual assault in 2004. The township, which lies adjacent to East Lansing, is governed by Manager Frank Walsh and a board of trustees, all of whom met yesterday along with Township Police Chief Dave Hall for a news conference to apologize publicly to Brianne Randall-Gay, who filed a complaint with Meridian Township police in 2004 after being molested by Dr. Larry Nassar during a medical exam.

Manager Walsh and Police Chief Hall described the errors their police department made in 2004. After Ms. Randall-Gay, age 17 at the time, filed her complaint, she was asked to submit to a rape kit procedure, which she did (although one wonders how a rape kit would provide any evidence to her claims of digital penetration and touching her breasts). Township Police Detective Andrew McCready then interviewed Dr. Nassar, who persuaded McCready, by the use of medical reports and a power point presentation, that Nassar’s treatment was medically viable. So the detective dismissed the complaint, telling Ms. Randall-Gay that the police could not force Nassar to follow medical protocols such as wearing gloves and having an adult present when he performed this “medical procedure.” Nassar, of course, went on to molest scores of other girls before he was arrested in 2016.

Meridian Township’s apology is notable for several reasons. They were the ones who initiated the phonecall to Ms. Randall-Gay. She said it was a phonecall she had “waited 14 years for.” The Township could have chosen not to go public with its apology; the manager said they had not received any legal advice on whether or how to do this public apology, but felt it was the right thing to do.

They followed up their words with actions: the Township paid to fly Ms. Randall-Gay from her home in Seattle so she could attend Nassar’s sentencing hearing in Lansing last month and give a victim impact statement. Apparently Manager Walsh attended portions of that hearing and talked with Ms. Randall-Gay outside the courtroom. And yesterday they announced several other planned actions: they have invited Ms. Randall-Gay to help them develop a program to help children understand criminal sexual conduct and how to report it; they are reviewing all other sexual abuse complaints from the last twenty years to see if other cases should have gone forward; they will provide extra training for their police officers regarding sexual assault; and the police chief will now sign off on all sexual assault cases.

A cynic might say the Township is initiating all these actions to stave off a lawsuit. But it doesn’t sound like any other entity initiated an apology with a Nassar victim, a fact which deepened the victims’ wounds. A sincere, well-timed apology can indeed prevent a lawsuit—and can do much more besides.

 

Michigan Court of Appeals Publishes Case on Enforceability of Mediated Agreement

The Michigan Court of Appeals has issued just its second published opinion on the enforceability of mediation agreements, and it’s another divorce case, Rettig v Rettig, Case No. 338614 (January 23, 2018). (The previous case was Vittiglio v Vittiglio, 297 Mich App 391; 824 NW2d 591 (2012).)  The narrow issue in Rettig concerns whether a trial court must make findings on the record regarding the best interests of the child(ren) and the established custodial environment, after the parties have already reached an agreement through mediation. (It does not.) So this case applies only to the minority of cases where a divorce involving minor children is mediated.

One question is why this case was one of the ten-percent of Court of Appeals cases selected for publication. Many thanks to my colleague Lee Hornberger for pointing out that it could be because Rettig overrules the holding in Vial v Flowers, Case No. 332549 (September 22, 2016), where the Court of Appeals ruled that the trial court had not “adequately examined” whether the mediated custody arrangement was in the best interests of the child. In Rettig, in contrast, the Court of Appeals rejected as “nonsensical” the father’s argument that the trial court was required to make a finding regarding “best interest” factors “in the context of an agreement between the parties.” The Rettig court seems much more willing to let the mediated agreement regarding custody stand without investigation by the trial court.

Interestingly, Judge Jane Markey was on the three-judge panels that decided both the Rettig case as well as Vial v Flowers.

Since it’s going to be published, becoming state-wide precedent, it’s worth considering other aspects of Rettig.

The court first wrestled with whether the “memorandum” that issued from the parties’ mediation was an enforceable agreement. It’s not clear why this was even an issue, since the memorandum apparently included various written terms and was signed by both parties. Why didn’t the Court simply refer to it as an “agreement”? The court said the husband “likened” their mediation agreement “to a mediation settlement, where MCR 3.216(H)(7) and MCR 2.507(G) would require certain procedures to be followed.” The only requirements of MCR 3.216(H)(7) are that “the terms of the settlement must be reduced to writing, signed by the parties.” The Court’s description of the Rettig memorandum meets this definition, so it’s unclear why the Court had to go to great lengths – noting that the agreement was “scrutinized” in a hearing – to declare it a valid agreement.

Rettig reiterates a point the Court has made in the past, that a party may not be relieved from a valid mediated agreement simply because that party has changed their mind. Consistent with other challenges to mediated agreements, the Court noted that the husband “had in fact agreed to the memorandum” but now appeared to have “simply regretted making it,” a condition to which the Court is unsympathetic.

The opinion says that the parties participated in “facilitated mediation.” Since the Court Rule defines “mediation” as a process in which a neutral third party “facilitates” communication, MCR 3.216(A)(2), it’s redundant to describe the process as “facilitated” mediation. Michigan continues to struggle with terminology regarding mediation, and the Court of Appeals is not helping.

One hopes that, before it’s officially published, the editors correct the typo in the second-to-last paragraph, “… whether the trial court must more stringently find by clear and convincing evidence that changing any established custodial environment is in the child’s best interest.”

Asking for an Apology

Every one of the victim impact statements from the women abused by Larry Nassar is powerful. But one especially grabbed my attention, that of Emily Morales, who spoke yesterday. At one point during her statement at the podium in the courtroom, she turned to face Larry Nassar, and said she believed in forgiveness – “we are all human beings, we all make mistakes.” But, she said, she needed for Nassar to look at her and apologize to her “right here, for all the hurt you caused.”

Just barely audible is a voice that says, “I’m sorry.” She responds with a tearful thank-you.

Emily Morales is apparently only 18, but she understands the power of the confession/forgiveness dynamic. She knows that she needs to forgive him in order to move on with her own life. She knows that forgiveness is tough even if the offender apologizes, but way tougher without it. So she had the courage to ask her offender, right then and there, for his apology. And Larry Nassar had the good sense to say he was sorry. Many victims would not have been satisfied with those two words, but Ms. Morales was. May this step contribute to her healing–and to Nassar’s as well.

 

Unbelievable

Two cases played out in U.S. courtrooms this week that can best be summed up in the word “evil.” One is the sentencing hearing for sports doctor Larry Nassar, where dozens of women are describing the impact of his sexual abuse on their lives. The other is the arraignment of a couple who have been torturing their children in secret for decades. In both of these cases, adults abused minors for years, without anyone stopping them. We shake our heads and think it’s “unbelievable” that this could have gone on undetected for so long. But in both cases, there were clues that all was not right, and people ignored the clues as “unbelievable.” It was unthinkable that a revered expert who helped Olympic athletes could be molesting his patients. It was unthinkable that parents could be starving their own children, chaining them to their beds.

It reminds us that evil can be beyond our capacity to imagine. It reminds us that white, middle-class, suburban Americans are capable of perpetrating enormous wrongs on other human beings, for years, while outwardly displaying some normal behavior. It reminds us that evil can remain hidden for years.

The lesson to take from this is not to suspect our health care professionals and quiet neighbors of mischief. Another case in the news this week reminds us that at the other extreme are people who allege evil activity where none exists – the man who called 911 to report a horrific crime that had never occurred. Ironically, in that case, authorities did take the “call for help” seriously, with the result that police killed a man they thought was a murderer, who turned out to be completely innocent.

The fact is that we humans are not always able to recognize evil, let alone stop it. The only one who can overcome evil is Jesus Christ, and he instructed us to pray that we be delivered from it. St. Paul encouraged us to “overcome evil with good.” First we have to believe it’s there.

Trying to Add a Provision that Wasn’t in the Mediated Agreement

The parties to a divorce, both represented by attorneys, reached an agreement in mediation and placed it orally on the record, stating that it was “final and binding.” While subsequently drafting the judgment of divorce, Husband’s attorney requested a clause that the parties had agreed to during the mediation. Wife’s attorney initially consented, then refused. The trial court was affirmed by the Court of Appeals: once a “final” agreement is reached, additional terms cannot be added to the judgment unless there is “definitive evidence” that both sides agree. (See Amante v Amante, No. 331542, Court of Appeals unpublished case, June 20, 2017)

In effect, the Wife’s attorney was permitted to change his mind — and/or the Husband’s attorney was punished for neglecting to include the provision in the mediated agreement. There seems to be no dispute that the parties agreed on this point during the mediation, and confirmed it in an email exchange between the attorneys afterwards. The disputed term concerned spousal support. In mediation, both attorneys agreed that spousal support would not be awarded because there was not much disparity in income between the spouses, but their “final” mediation agreement did not mention spousal support either way. Wife’s attorney affirmed in a subsequent email exchange with Husband’s attorney that “spousal support is forever barred,” and even submitted to Husband’s attorney a proposed judgment that included that assertion. But, prior to entry of the judgment, Wife’s attorney emailed Husband’s attorney that the provision barring spousal support was not authorized by his client, and was his unilateral mistake. Husband’s attorney tried several arguments to persuade the court that the statement should be included in the divorce judgment, to no avail.

One wonders whether the mediator raised the question of spousal support with the parties as they were drafting their agreement — “You agreed that there won’t be spousal support here; do you want your agreement to say anything about that?” That question might have triggered a discussion that would have either (1) reminded Husband’s attorney to include the assertion in their agreement, or (2) elicited the misunderstanding between the Wife and her attorney. Either way, it might have avoided all the subsequent litigation.

 

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