Clutch Justice Amicus Brief Library

In re Foley: Mark Edward Tobias Foley v. Barry County 5th Circuit Court

Foley, representing himself, filed a complaint for superintending control in Barry County’s Fifth Circuit Court after orders in his post-divorce custody case repeatedly went to the wrong mailing address, even after the correct address was placed on the record twice, once by a deputy clerk in October 2022 and again by a Friend of the Court referee in June 2023. The Court of Appeals denied relief on August 14, 2026. Foley was arrested on August 17 and arraigned two days later in the underlying enforcement matter. He asked the Michigan Supreme Court for leave to appeal the denial.

The brief argues that Barry County’s answer substitutes a list of possible remedies for an actual test of whether those remedies would work, and cites the court rules surrounding the domestic relations service requirement while skipping the one rule, MCR 3.203, that governs it directly. On adequate remedy, it argues that an available appeal does not automatically bar superintending control when that appeal cannot correct a persistent practice, under In re Hague, and notes that the county’s own cited authority, Rivergate Manor, actually supports supervisory relief for procedural defects. On duty, it argues MCR 3.203 requires mailed service at a party’s last known address, and that correcting an address once does not exempt a court from getting it right afterward. On inferred knowledge, it argues that treating Foley’s eventual awareness of orders as proof of service would make the mailing requirement optional in every case, since any litigant who learns of an order by any means would then be deemed served. On chronology, it argues that Foley’s later arrest and appointed counsel may bear on relief in the enforcement proceeding but do not retroactively establish that service occurred.

The brief also discloses Williams’ own documented experience with the same institutional pattern: a filing that appeared on the Michigan Supreme Court’s docket in a separate case, then disappeared from the Barry County Circuit Court’s own docket the same day she flagged the discrepancy to the Supreme Court, reappearing only after she produced USPS delivery records establishing it had in fact been delivered. The brief is explicit that this history does not ask the Court to resolve the facts of that separate matter, only that the reasoning at issue, that a court’s own failure to serve or record a filing can be excused so long as the litigant eventually learns enough by other means, is not confined to Foley’s case.

The underlying legal question, when an available appeal is adequate and when it is not, reaches beyond one custody case. Reliable court notice is what makes any appeal deadline meaningful. A remedy that exists on paper can still fail in practice if the procedure a litigant is challenging is the same one preventing timely use of it.

People v. Mark Alan Arizola

The trial court originally sentenced Arizola to a minimum term of 240 to 480 months against a scored guideline range of 19 to 76 months, a departure more than three times the top of the guidelines. The Court of Appeals remanded for resentencing, and the trial court departed substantially again on remand. Arizola, represented by the State Appellate Defender Office, is now asking the Court of Appeals to review both the original sentence and the trial court’s compliance with the remand order. The Barry County Prosecutor’s Office filed a “Prosecutor Advisory, No Brief” rather than responding on the merits.

The brief argues the sentence should not be evaluated as an isolated event, and offers four documented institutional facts for the Court to weigh. First, it ties the departure in this case to a broader pattern under the same judge, including multiple upward departures later found unlawful on appeal, two Michigan Supreme Court remands within a three month span in late 2025 and early 2026, and at least one instance where the Court of Appeals restricted the judge’s further involvement in a resentencing. Second, it cites a verified instance in which a motion filed at the 56B District Court was stamped received, never entered on the Register of Actions, and returned with the stamp obscured by correction fluid, a matter still under a pending State Court Administrative Office investigation, arguing this bears on how much independent scrutiny the Court of Appeals should apply to the trial court’s own account of the record. Third, it documents a case in which the prosecution told the Michigan Supreme Court a filing was served on one date while the docket showed it was not actually mailed until nearly a month later, and the incarcerated defendant never received it at either date, later confirmed by an SCAO investigation, arguing the Court should require independent verification that Arizola actually receives notice of further proceedings rather than accepting a certificate of service at face value. Fourth, it documents that the Barry County Board of Commissioners retained outside counsel in May 2023 to respond to a grievance against the Prosecuting Attorney and received further notice at a February 2026 public meeting alleging Brady and Giglio violations connected to the same judge, arguing this establishes the governing body’s actual, longstanding knowledge relevant to whether reassignment is warranted on remand.

The brief does not ask the Court of Appeals to find facts about any case but this one. It offers documented institutional context bearing on a narrower question: if the sentence is again found unlawful, will remand to the same judge, without more, actually secure compliance, or does the record support reassignment and independent verification of service.