Professional Documents
Culture Documents
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AMICI CURIAE INDEX
I.
STATEMENT
OF
JURISDICTION ................................................................................................... 1
II.
STATEMENT
OF
QUESTIONS
PRESENTED .............................................................................. 2
III.
INTEREST
OF
THE
AMICI
CURIAE ............................................................................................. 3
IV.
LEGAL
DISCUSSION ........................................................................................................................ 3
V.
CONCLUSION...................................................................................................................................... 8
VI.
EXHIBITS........................................................................................................................................... 9
VII.
VERIFICATION ............................................................................................................................... 9
VIII.
PROOF
OF
SERVICE ..................................................................................................................... 9
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INDEX OF AUTHORITIES
UNITED STATES CONSTITUTION
Article I § 9..…………………………………………………………………………………………page 20
Article IV......…………………………………………………………………………………………page 20
Article IV, Section 4......…………………………………....………………………………………page 31
3rd Amendment…………………………………………….…..….………………………………….page 15
4th Amendment…………………………………………….…..…….……………….………….pages 14,15
6th Amendment…………………………………………….…..…….…………….....….………….pages 29
8th Amendment…………………………………………….…..….…………..………………….page 22,33
14th Amendment…………………………………………….…..….…………..……………...…….page 38
MICHIGAN CONSTITUTION
Article I § 1…......……………………………………………………………………………………page 31
Article I § 11….…………………………………………...…………………………………………page 16
Article I § 12…………………………………………………………………………………………page 20
Article I § 16…………………………………………………………………………………………page 23
Article XI § 11….……………………………………………………………………………………page 24
STATUTES
Federal
H.R. 279, January 17, 1832, 22nd Congress, 1st Session.......................................................page 4
Michigan
MCL 750.165.....................................................................................................................page 1,
COURT RULES
MCR 2.613(C).......................................................................................................................page 39
MCR 6.102(B)………………………………………………….…………………………………….page 13
MCR 6.102(E)………………………………………………….…………………………………….page 16
MCR 6.302.....………………………………………………….…………………………………….page 28
MCR 6.302(A)………………………………………………….…………………………………….page 28
MCR 6.500…………………………………………………….…………………………….…………page 1
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MCR 9.104…………………………………………………….……………………………..………page 30
CASES
Federal
Ex Parte Watkins, 32 U. S. 568 (1833)...................................................................................page 3
Marbury v. Madison (1803)..................................................................................................page 32
United States v. Apfelbaum, 445 U.S. 115, 131 (1980)..........................................................page 5
Michigan
People v. Adams, 262 Mich App 89 (2004)......................................................................page 1,
Port Huron v. Jenkinson, 77 Mich 414 (1889)....................................................................page 1,
Other States
Bernard v. Palo Alto, 699 F. 2d 1023 (CA9 1983)...............................................................page 18
Lively v. Cullinane, 451 F. Supp. 1000 (DC 1978)..............................................................page 18
McGregor v. County of San Bernardino, 888 F. 2d 1276 (CA9 1989)…...…….……………page 18
Prieto Bail Bonds v. The STATE of Texas (1999) 994 S. W. 2d 316....................................page 27
Sanders v. Houston, 543 F. Supp. 694 (SD Tex. 1982)........................................................page 18
Scott v. Gates, Civ. No. 84-8647 (CD Cal. Oct. 3, 1988).....................................................page 18
Stine v. State, 908 S.W. .2d 429, 434 (Tex. Crim. App. 1995)..............................................page 32
OTHER
Code of Professional Responsibility.....................................................................................page 30
Michigan Judicial Institute © 2006–April 2009, Monograph 1, Page 23-24……...……page 13,14
Michigan Judicial Institute © 2006–April 2009, Monograph 1, Page 25……..…....…..page 16-17
Michigan Rules of Professional Conduct.............................................................................page 30
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I. STATEMENT OF JURISDICTION
1
II. STATEMENT OF QUESTIONS PRESENTED
2
III. INTEREST OF THE AMICI CURIAE
1. The issue before the court is one that affects the nature of due process and the tone of
cases before the court for years to come. It is a rare opportunity for the court to correct stare
decisis made in error by standing in the gap for those who cannot defend themselves.
2. For the reasons stated above, all citizens have an interest in this issue. The slippery slope
of criminalizing those who are unable to pay, among many issues presented in this case, is a slow
3. The amici has taken an oath to protect and defend the Constitution against all enemies,
foreign and domestic. It is for this reason that the amici approaches the court with this brief.
i. Introduction
a. The concept of “debtor’s prison” is not a new one. The founding fathers certainly
understood the concept well. Some of the signers of the Declaration of Independence even
experienced debtor’s prison, first hand, for unpaid debts. The writers of the Constitution and
the Bill of Rights specifically allowed the process in certain circumstances by not choosing to
b. However, Congress did see the abuses of debtor’s prison and the toll that it took on
individuals charged with owing a debt. Both criminal and civil penalties imposed on
someone amounted to harsher penalties than anyone faced in other “crimes”. A debtor could
be held in perpetuity, long past his/her initial sentence imposed and could stay imprisoned
until the debt was paid without means to pay that debt, see EX PARTE WATKINS, 32 U. S.
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c. On January 17, 1832, Congress addressed this issue by enacting H.R. 279, A Bill to
Abolish Imprisonment for Debt. This was a measure to end the debate for all time. Issues of
1st. “That it shall not be lawful for any of the Courts of the United States to issue a
capias ad satisfaciendum, or any other process, by which the body may be subject
to arrest or imprisonment, upon any judgment at law or final degree in chancery,
for payment of money founded upon any contract, express or implied, which may
have been entered into, or upon cause of action, which may have accrued after
the fourth day of July next; and upon all such contracts and causes of action after
judgment, imprisonment shall be totally and absolutely abolished.”
d. H.R. 279 goes on to explain that, “no bail or security for the appearance of any
defendant or defendants shall, hereafter, be required upon the service of the original or
mesne (middle) process issuing out of the courts of the United States...” The spirit of the Bill
is clear, no one should be jailed for a debt that they cannot pay.
e. The bill also later describes situations where deceit is present in trying to dodge the debt.
Even in those instances, H.R. 279 allows for compulsory processes and due process to
remain in tact, requiring that an “oath or affirmation “ be presented that shows good faith that
1st. Article I § 21
Imprisonment for debt.
Sec. 21. No person shall be imprisoned for debt arising out of or founded on
contract, express or implied, except in cases of fraud or breach of trust.
g. The issue before the court is not if the law is constitutional, although it should be, or even
if enforcement of that law is constitutional, but rather, are the safeguards provided in
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h. Michigan has adopted the Model Penal code. The model Penal code has made three (3)
i. In United States v. Apfelbaum, 445 U.S. 115, 131 (1980), Judge Renquest stated that, “In
the criminal law, both a culpable mens rea and a criminal actus reus are generally required
j. In the amici’s brief, the application of the principles and the principles of due process will
be applied to the facts of this case and the questions before this honorable court.
1. YES, THE RULE OF PEOPLE V. ADAMS, 262 MICH APP 89 (2004) – HOLDING
a. The rule of People v. Adams, 262 Mich App 89 (2004) does not consider the issues of
mens rea or actus reus, nor does it comply with Article 1 § 9 of the U.S. Constitution nor
1. “No bill of attainder, ex post facto law, or law impairing the obligation of
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b. Once again, the mens rea of a crime is the “guilty mind”. In taking away the plea of
“Inability to Pay” as an affirmative defense, the defendant is left with limited options.
While many pleas might be available, examining the major plea options of “not guilty” or
c. Assuming that the defendant does not have the means to pay the support obligation, in
full or in part, if the defendant chooses to plead “not guilty”, he/she has no defense to
stand on other than to offer up a defense of “inability to pay”. The defendant cannot
prove that he/she has paid the obligation because he/she has not. The defendant is simply
d. A guilty plea is not an honest plea, either, when the defendant does not have the means to
pay. The defendant has not met the element of the mens rea. A plea of guilty would
amount to a perjurous statement. In taking away this affirmative defense, the court has
e. Maxims of law tell us that, “He is clear of blame who knows, but cannot prevent.” Dig.
50, 15, 50 and “In a criminal matter, the act does not make a person guilty unless
intention be guilty also.” Broom, Max. 270, 275; 7 Term. 514; 4 N.Y. 159, 163; 2 Bouv.
f. The actus reus is the “guilty act” that must be shown in order to convict and is generally
held that it is an “overt act”. The Model Penal Code says in § 2.01(1):
i. “A person is not guilty of an offense unless his liability is based on conduct which
capable.”
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g. An omission to perform an act implies that a duty is required to perform the act and that
h. The affirmative defense of “Inability to pay” is stating just that: the defendant does not
have the ability to perform; not even an order from this honorable court, can create
j. MCL 750.165 is not a Bill of Attainder. The amici is not suggesting to this honorable
court that it is. However, when the affirmative defense of “inability to pay” is
k. Through genuine legislative attempts to safe guard spouses and children, the judiciary,
which should be aware of the elements of criminal statutes and the Model Penal Codes
and the intent in law, has essentially attached to this enactment a clause which renders it
indefensible for the indigent. The judiciary has given the executive branch the keys to
l. Those defendants who cannot pay, logic would follow, cannot afford an attorney that
oversees and safeguards every detail of their case to ensure that support obligation
formulas are followed and accurately applied. Even if that were the case, the court can
imagine situations that might exist that make even normal support obligations, that would
otherwise be easy to fulfill, impossible to carry out, from time to time. Instead of latitude
and mercy, the state falls upon that individual with the full weight of the system, ensuring
m. This honorable court has not been asked to deal with the question of “if the defendant
truly cannot pay his obligations”, but rather if this is a viable defense. A myriad of
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“criminal acts” have an affirmative defense. It is unfortunate that some of these events
take place, but the judiciary has provided that, sometimes, a greater harm occurs if there
are not exceptions provided in law, such as self-defense, necessity and insanity. The
court has acknowledged that, from time to time, extraordinary circumstances exist that
renders a defendant’s actions lawful. The court may not condone the act, but recognizes
n. As the law stands today, in combination with stare decisis and legislative enactments, it is
2. YES, THE TRIAL COURT ABUSED ITS DESCRETION WHEN IT DENIED THE
3. YES, THE TRIAL COURT ERRED WHEN IT ADOPTED THE CHILD SUPPORT
V. CONCLUSION
Respectfully Submitted,
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Windham, NH 03087
313-478-8061
marcosagostos@gmail.com
VI. EXHIBITS
All exhibits have been attached to the end of this document and labeled.
A.
VII. VERIFICATION
I, Mark Alan Jackson, do swear and affirm that all statements made herein are true and
Jurat
Signed
and
sworn
before
me
________________________________,
on
this
day,
the
_____
day
of
_________,
2010.
Notary
Signature:
____________________________________
VIII. PROOF OF SERVICE
I certify on this date a copy of this motion was served upon the prosecutor by
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Personal Service: Mail:
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