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.

People v. Scott Michael Lupu

On January 30, 2026, the Michigan Supreme Court returned Lupu’s case to the Court of Appeals for consideration as on leave granted of the upward-departure issues identified as Issues I-IV and the presentence-investigation-report issues identified as Issues VII-IX. That order directs merits review; it does not itself establish that the sentence was unlawful. The proposed amicus brief focuses on those remanded questions: whether the sentencing explanation satisfies Michigan’s proportionality standard and whether disputed information in the presentence investigation report, or PSIR, requires findings and correction.

The brief argues that advisory sentencing guidelines still require meaningful consideration. Under People v. Lockridge, People v. Steanhouse, and People v. Dixon-Bey, a departure requires an individualized explanation connecting the circumstances of the offense and offender to the sentence selected. A judge’s general disagreement with sentencing policy cannot substitute for that analysis.

It also distinguishes a probation officer’s recommended disposition from the scored guidelines range and the right to accurate sentencing information. A court may reject a recommendation, but it must resolve material accuracy challenges under the governing rules. The brief draws on Williams’ February 2023 reporting that Schipper’s practice was “rendering PSIRs useless entirely in Barry County,” arguing that the investigation must serve a meaningful role rather than become paperwork disconnected from the sentencing decision. The reported figures from People v. Williams, a 90-day PSIR recommendation, a 12-20-month guidelines range, and an original 10-20-year sentence, are identified as context from a separate case, not as facts about Lupu’s sentence.

On effective relief, the brief cites the January 10, 2025 unpublished decision in People v. Velasquez, where the Court of Appeals found a renewed departure disproportionate after an earlier remand and ordered resentencing before a different judge. A copy of that opinion accompanies the brief. It supplies concrete procedural history concerning the same judge; the published authorities supply the governing legal standards.

The brief addresses Clutch Justice’s reporting on Judicial Tenure Commission proceedings while distinguishing a reported investigation from staff review of a separate request and from any disciplinary finding. Williams also states that, after four years writing about Schipper’s courtroom, she does not believe he is fit to serve. That is expressly her assessment as a journalist and observer. The relief requested in Lupu’s appeal remains case-specific: resentencing if reversible sentencing error is established, correction of the PSIR where required, and consideration of reassignment under the governing factors.

A sentencing report must provide reliable information, and a departure must have reasons an appellate court can meaningfully review. Where earlier appellate correction has failed in another documented proceeding before the same judge, the remedy question deserves careful examination. The brief asks whether relief supported by Lupu’s own record will actually correct the identified error and secure compliance with sentencing law.

In re Cammenga: Michael P. Cammenga v. Barry County Circuit Court

Cammenga’s original action for superintending control in the Court of Appeals alleges that more than a dozen motions filed since 2025 in his Barry County divorce case remain unresolved or lack a written disposition. He alleges Court Services told him on April 30, 2026 that no ruling would issue without an in-person hearing, despite a December 2025 spinal cord stimulator implantation, a request for adjournment or remote participation, and an outstanding civil failure-to-appear warrant carrying a cash-only bond exceeding $280,000. He also alleges he sought administrative assistance from Chief Judge Doherty on May 22, 2026 without a response before filing this action. Defendants’ September 15, 2026 response acknowledges a missed answer deadline and a pending fee-waiver review request, but does not itself answer the complaint.

The brief argues the Court should separate genuinely unresolved motions from ones already decided, defective, or never properly presented, and require any proven refusal to identify the specific motion, the responsible action, and a concrete compliance step. On the underlying duty, it argues a clear legal duty under In re Credit Acceptance Corp requires identifying which particular obligation went unperformed, distinguishing filing, service, briefing, ruling, and order-entry as separate steps that can each fail independently. On the appearance condition, it argues an outstanding warrant does not by itself make an in-person appearance requirement unlawful, but that a categorical practice withholding all otherwise-ready motions pending physical appearance is different from an individualized scheduling decision for one hearing. On adequate remedy, it argues Cammenga must show why an available appeal or a Judicial Tenure Commission complaint would not work, citing a Court of Appeals decision that rejected a similar delay complaint for failing to make that showing, while distinguishing a truly categorical practice from an ordinary disputed scheduling choice. On relief, it asks for a motion-by-motion accounting tied to the chief judge’s administrative supervisory authority over caseload management, rather than a ruling on the merits of any motion itself.

The brief also draws on Williams’ own reporting and personal experience: a 56B District Court filing she reported was stamped received, then returned with the stamp obscured by correction fluid and no docket entry, in a case before the same Chief Judge Doherty; a Barry County Board of Commissioners meeting where a different litigant, Jeffrey Snowden, raised similar records-access and retaliation concerns; and her own June 2023 request for court records that Barry County denied despite her offer to pay applicable fees. The brief is explicit that none of this establishes what happened in Cammenga’s case specifically, only that it supports requiring a verifiable, motion-by-motion accounting rather than assuming the described steps occurred.

It also addresses Barry County’s September 15 response point by point: a missed answer deadline does not decide the merits, a pending fee-waiver request triggers its own automatic-stay analysis under MCR 2.002, a late-filed extension motion needs its own good-cause showing, and a docket exceeding a thousand entries describes volume, not the disposition of any particular motion.

This is the third Clutch Justice amicus filing naming the same two Barry County judges: Foley’s application and Cammenga’s original action both name Judge Alspaugh and Chief Judge Doherty over the same kind of complaint, an unresolved filing that never received a documented disposition. The brief cites Foley’s case directly for that reason. Whether that reflects two isolated disputes or a recurring administrative failure is exactly the kind of question a motion-by-motion accounting, rather than another round of general assurances, could actually answer.