I Filed an Amicus Brief in Mark Foley’s Case. Barry County’s Own Answer Gave Me the Argument.

Barry County argued that eventually finding out an order exists is close enough to being served with it. I told the Michigan Supreme Court why that argument is the whole problem.

Why I Filed, and Why Today

I said last week that Clutch Justice was preparing to seek leave to file an amicus brief in Mark Foley’s case. Today I filed it, on the same day Barry County’s own answer landed. That timing turned out to matter. An amicus brief is strongest when it responds to something specific, and Barry County’s answer handed me exactly that: a citation list that skips the governing rule, and a factual inference doing the work that proof of service is supposed to do.

My brief does not ask the Michigan Supreme Court to decide what actually happened in Foley’s case. I was not there, and I am not a party. What I asked the Court to do is look closely at whether the legal reasoning in Barry County’s answer holds up, because if it does, it would apply to every litigant who cannot prove a negative.

The Rule Barry County Didn’t Mention

Barry County’s answer argues Foley had other remedies available, and cites MCR 3.204 through MCR 3.211 as proof. Those rules cover proceedings affecting children and related domestic-relations procedure. What they do not cover is service, because that is MCR 3.203, the rule immediately before the ones the county cited, and the one that actually says how notice and court documents must be served in a case like this. MCR 3.203 incorporates the general service rule, MCR 2.107, and requires that mail go to a party’s last known address.

An answer that cites the rules on either side of the service requirement while never mentioning the requirement itself is not a small omission. My brief says so directly: an answer that defends a mailing practice by citing everything adjacent to the obligation, without citing the obligation, illustrates the same substitution of proximity for compliance that Foley says has become the county’s practice.

“Evidently Had Prior Notice” Is Doing a Lot of Work

The other load-bearing claim in Barry County’s answer is that Foley had already learned enough about the orders at issue, because he filed for court review before his arrest. My brief’s answer is that this reasons backward. Knowing that something happened, eventually, through some means, is not the same as being served the document that was supposed to tell you it happened, on the address the rule requires, at the time the rule requires it. The county’s own answer does not say when any specific order was served, what address was used, or how service was accomplished. It infers compliance from the fact that Foley eventually acted.

That is close to a direct line from my own brief, and it is not a coincidence. My brief was drafted to anticipate that move, because it is close to the only move available to anyone trying to defend a mailing practice this hard to defend: point to whatever the litigant eventually found out, by whatever means, and call it good enough. I wrote that argument down before Barry County’s answer existed. Barry County’s answer made it anyway, almost on schedule. Predicting an argument that only has one available shape is not impressive. It just means I was paying attention to the shape of the problem before the county wrote its answer, not after. Either way, I did not have to imagine Barry County’s next move. I had already written the response to it, and the county did not disappoint.

An Available Appeal Is Not Automatically an Adequate One

Barry County’s central legal argument is simple: Foley could have appealed, so superintending control was never available to him. My brief does not dispute that an available appeal usually forecloses that remedy. It disputes that availability and adequacy are the same question. In re Hague, a case the Michigan Supreme Court decided in 1982, held that an individual appeal does not preclude superintending relief when that appeal cannot realistically correct a persistent practice, in that case a judge’s repeated dismissal of hundreds of cases. In re Credit Acceptance Corp, decided by the Court of Appeals in 2007, likewise treated superintending control as the proper tool for challenging a court’s general practices, not just a single bad ruling.

Neither case hands Foley a win. My brief says so plainly: he still has to establish that a continuing practice exists in his own record, and that ordinary remedies could not adequately correct it. What those cases do is close off the shortcut Barry County’s answer relies on, treating the mere existence of an appellate process as the end of the inquiry rather than the beginning of it.

This Is Not the First Time I’ve Documented This

My brief also puts my own experience on the record. In a separate Michigan Supreme Court matter, correspondence I filed with the Clerk of that Court was recorded on the docket and has remained there without interruption. The Barry County Circuit Court’s docket in the underlying trial court case did not fare the same way. Independent postal delivery confirmation shows filings reaching the circuit court and the prosecutor’s office on specific dates in early July 2026. The circuit court’s docket entries for those filings disappeared the same day I filed the correspondence described above, and did not reappear for roughly a month, until I produced delivery records proving the filings had arrived and raised the disappearance directly with the court. Days after the entries were restored, the circuit court denied the underlying motions, in an order its own docket says was mailed, that a subsequent certified state corrections record shows never reaching the person it was addressed to.

Separately, I have reported under my own byline on a stamped Barry County filing that never reached the public docket after its received stamp was obscured with correction fluid, a matter still under State Court Administrative Office review.

I am not asking the Michigan Supreme Court to resolve either of those matters in Foley’s case. I am telling the Court that the reasoning it is being asked to bless, that eventual knowledge substitutes for service, is not confined to one file. Foley’s own application describes his correct address being placed on the record twice, once in a deputy clerk’s written correction and once when a Friend of the Court referee read it into the record, with mail continuing to the wrong address after each correction, and, per his application, opposing counsel copied on the same correction that the court apparently was too.

What Happens Next

Two separate decisions are now pending. The Court has to decide whether to grant leave to file my brief at all. Independently, it has to decide whether to grant Foley’s application for leave to appeal the Court of Appeals’ denial of superintending control. Neither decision is guided by the other, and neither is guaranteed. A hearing in the underlying circuit court matter remains scheduled for September 16, 2026 at 3:00 p.m., before Judge Vicky Alspaugh, the hearing Foley’s application says could result in his renewed incarceration.

I will report what the Court does with both filings. In the meantime, the brief and the motion are public record, and I am not asking anyone to take my characterization of them on faith.