Can children conceived after father's death inherit under state?s intestacy law? Supreme Court to consider issue of first impression in oral arguments this week

Are children conceived after their father's death - via in vitro fertilization using his frozen sperm - his "children" for purposes of Michigan's intestacy law? That is a question that the Michigan Supreme Court will consider when it hears oral arguments in In re Certified Question (Mattison v Commissioner of Social Security) this week.

The issue is one of first impression in Michigan.

The case comes to the Supreme Court as a certified question from the U.S. District Court for the Western District of Michigan; the federal court is considering a woman's challenge to the Social Security Administration's denial of her application for children's survivors' benefits. The SSA maintains that the posthumously conceived children did not "survive" the woman's husband, who died in Michigan, as defined by Michigan's Estates and Protected Individuals Code and so cannot inherit intestate from him or receive Social Security survivor's benefits.

Under the Social Security Act, an applicant for child's benefits must demonstrate that he or she is the "child" of the deceased wage earner; the act provides that, in determining whether the applicant is the deceased's child, the Commissioner of Social Security "shall apply" the intestacy law of the state where the deceased lived at the time of death. The U.S. Supreme Court recently ruled that the question whether posthumously conceived children qualify for Social Security benefits must be determined using state intestacy law.

The court will also hear arguments in a challenge to the Michigan Department of Human Services' 2011 change in policy that limits family cash assistance to 60 months. The policy would also eliminate a hardship exemption that previously allowed some recipients to continue receiving cash assistance past the lifetime limit. The plaintiffs in Smith v DHS Director, who receive cash assistance under the hardship exemption, challenge the DHS policy, arguing in part that the DHS director had no authority to revoke what the plaintiffs contend is an entitlement under the state's Social Welfare Act.

The court will hear oral arguments in eight other cases, including Price v High Pointe Oil Company, in which a Dewitt woman sought damages for emotional distress and mental anguish against a fuel oil delivery service that mistakenly pumped nearly 400 gallons of oil into her home's basement, forcing the home's destruction. The seven other cases involve age discrimination, criminal law, eminent domain, governmental immunity, no-fault insurance, paternity, and Whistleblowers' Protection Act issues.

The court will hear oral arguments in its courtroom on the sixth floor of the Michigan Hall of Justice on Wednesday and Thursday, Nov. 14 and 15, starting at 9:30 a.m. each day. The court's oral arguments are open to the public.

As a public service, the court provides summaries of the cases it will hear at http://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Oral-Arguments/Pages/default.aspx.

These brief accounts following may not reflect the way that some or all of the court's seven justices view the cases. The attorneys may also disagree about the facts, issues, procedural history, and significance of these cases. For further details about the cases, please contact the attorneys.

Wednesday, November 14

Morning Session

ADMIRE v AUTO-OWNERS INSURANCE COMPANY

(case no. 142842)

Attorneys for plaintiff Kenneth Admire: George T. Sinas, Stephen H. Sinas

Attorney for defendant Auto-Owners Insurance Company: Kimberlee A. Hillock

Attorney for amicus curiae Michigan Catastrophic Claims Association: Jill M. Wheaton

Attorney for amicus curiae Michigan Insurance Coalition and Insurance Institute of Michigan: Lori McAllister

Attorney for amicus curiae Coalition Protecting Auto No-Fault: Joanne Geha Swanson

Attorney for amicus curiae Auto Club Insurance Association concurrence in Michigan Catastrophic Claims Association: James G. Gross

Trial Court: Ingham County Circuit Court

Background: At issue is whether the defendant insurance company is obligated to pay for a new van plus the cost of modifying the van to accommodate the injured plaintiff's needs. The insurer argues that it is obligated to pay for the modifications only.

CHARTER TOWNSHIP OF LYON v McDONALD'S USA, L.L.C., et al.

(case no. 143342)

Attorneys for plaintiff Charter Township of Lyon: Nancy Vayda Dembinski , Matthew C. Quinn

Attorney for intervening defendant Milford Road East Development Associates, L.L.C.: Robert M. Carson

Attorney for amicus curiae Michigan Chamber Litigation Center: Clifford W. Taylor

Attorney for amicus curiae Michigan Townships Association and Michigan Municipal League Legal Defense Fund: John K. Lohrstorfer

Trial Court: Oakland County Circuit Court

Background: To extend water and sewer service to another property, Lyon Township exercised eminent domain over water and sewage lines located under a unit in the defendant's development. The defendant's development, Lyon Towne Center, shares owners, utilities, a strategic development plan, and infrastructure with another development, Lyon Crossing. The defendant owner claims that the township's taking on Lyon Towne Center property harmed Lyon Crossing's market advantage - and that the owner is entitled to damages.

HALL, et al. v STARK REAGAN P.C., et al.

(case nos. 143909, 143911)

Attorneys for plaintiffs Patrick C. Hall and Ava Ortner: Kathleen L. Bogas, Robert W. Palmer

Attorney for defendants Stark Reagan, P.C., Peter L. Arvant, Kenneth M. Boyer, William D. Girardot, Christopher E. LeVasseur, R. Keith Stark, and Michael H. Whiting: Thomas G. Kienbaum

Attorney for defendants Joseph A. Ahern and Jeffrey J. Fleury: Joseph A. Ahern

Trial Court: Oakland County Circuit Court

Background: Two attorneys are suing their former law firm for alleged violations of the state's Civil Rights Act, claiming that the firm forced them out because of their age. The firm and other defendants maintain that the plaintiffs have to submit their claims to binding arbitration, rather than pursue them in court, under an agreement that all members of the law firm signed.

Afternoon Session

PETIPREN v JASKOWSKI, et al.

(case nos. 144142-3)

Attorney for plaintiff Thomas J. Petipren: Michael H. Cutler

Attorney for defendant Rodney Jaskowski: G. Gus Morris

Attorney for amicus curiae Michigan Association of Chiefs of Police: Janet A. Napp

Trial Court: Sanilac County Circuit Court

Background: The plaintiff sued the defendant police chief, alleging that the defendant assaulted him without provocation and wrongfully arrested him. Is the police chief absolutely immune from suit, or can the lawsuit proceed on the ground that he was acting as a police officer and not in his executive capacity?

BAZZI v MACAULAY

(case no. 144238)

Attorney for plaintiff Hafez M. Bazzi: Marc N. Drasnin

Attorney for defendant Anne Elizabeth Macaulay: Anne Argiroff

Trial Court: Oakland County Circuit Court

Background: A man brought a paternity action against his former girlfriend, contending that he was the father of her child - but the woman moved to dismiss the lawsuit, based on what appeared, on its face, to be a valid acknowledgment of parentage signed by another man. Does the plaintiff, the alleged biological father, have standing to bring this paternity suit?

PEOPLE v VEILLEUX

(case no. 145142)

Prosecuting attorneys: Jessica R. Cooper, Jeffrey M. Kaelin

Attorney for defendant Brian James Veilleux: John D. Lazar

Trial Court: Oakland County Circuit Court

Background: The defendant, who was sentenced to serve 630 days on seven counts of contempt of court, argues that the sentence was excessive - and that the trial court erred by ordering him to serve his contempt sentence consecutive to his sentence on a drug charge.

Thursday, Nov. 15

Morning Session Only

PRICE v HIGH POINTE OIL COMPANY, INC.

(case no. 143831)

Attorney for plaintiff Beckie Price: Steven A. Hicks

Attorney for defendant High Pointe Oil Company, Inc.: Megan K. Cavanagh

Attorney for amicus curiae Michigan Manufacturers Association: Cynthia M. Filipovich

Attorney for amicus curiae Michigan Association of Realtors: Gregory L. McClelland

Attorney for amicus curiae Michigan Association of Home Builders: Gregory L. McClelland

Trial Court: Clinton County Circuit Court

Background: At issue is whether the plaintiff can seek emotional distress and mental anguish damages caused by the negligent destruction of her home. The parties agree that all economic damages have been covered by the plaintiff's insurer, the defendant, or the defendant's insurer.

WHITMAN v CITY OF BURTON, et al.

(case no. 143475)

Attorney for plaintiff Bruce Whitman: Tom R. Pabst

Attorney for defendants City of Burton and Charles Smiley: Ernest R. Bazzana

Attorney for amicus curiae City of Flint: Peter M. Bade

Attorney for amicus curiae Michigan Association for Justice: Charlotte Croson

Attorney for amicus curiae Michigan Municipal League, Michigan Townships Association and the Public Corporation Law Section of the State Bar of Michigan: Rosalind H. Rochkind

Trial Court: Genesee County Circuit Court

Background: The plaintiff, the former police chief for the city of Burton, sued the city under the Whistleblowers' Protection Act, claiming that, after he complained that the city was violating a local ordinance by not paying for his unused sick and personal time, the city retaliated against him by not renewing his contract.

IN RE CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN (Mattison v Commissioner of Social Security)

(case no. 144385)

Attorney for plaintiff Pamela Mattison, o.b.o. M.M. and M.M.: Victor L. Bland

Attorney for defendant Commissioner of Social Security: Ryan D. Cobb

Background: The plaintiff in this case conceived twins, using her deceased husband's frozen sperm, after his death; she applied for Social Security survivor's benefits for the children, but the Social Security Administration denied her application on the ground that the children could not inherit from her husband under Michigan law. At issue is whether the twins are the "children" of the plaintiff's husband for purposes of Michigan intestacy law.

SMITH, et al. v DEPARTMENT OF HUMAN SERVICES DIRECTOR

(case nos. 145612- 3, 145622-3)

Attorneys for plaintiffs Megan Smith, Nicole Kelly, Roshawnda Williams, and Nicole Johnson: Jacqueline Doig

Attorney for defendant Department of Human Services Director: Kristin M. Heyse

Attorney for amicus curiae Michigan Protection & Advocacy Service, Inc., et al.: Nicole E. Shannon

Trial Court: Genesee County Circuit Court

Background: In October 2011, the Michigan Department of Human Services announced that it would impose a lifetime limit of 60 months on family cash assistance payments, and that it was eliminating a hardship exemption that previously allowed some recipients to continue receiving cash assistance past the lifetime limit. The plaintiffs in this case challenge that policy, arguing in part that the DHS director had no authority to revoke what they argue is an entitlement under the state's Social Welfare Act.

Published: Tue, Nov 13, 2012