Constitutional Litigation in State and Federal Courts
State Court Tennessee: The Kate Hopkins Case
In October 2007 Thorne became consulting counsel in a Tennessee state family court case, Docket No. V-07-031, styled Jeremy P. Hopkins, Plaintiff and Counter-Defendant v. Elisabeth M. Hopkins, Defendant and Counter-Plaintiff, In the Circuit Court of Bradley County, Tennessee, 10th Judicial District.
The case is known as “the Kate Hopkins case” because it revolves around a now four-year-old little girl, Kate Hopkins. Kate’s child custody case began in January 2007, just after Kate turned one, when her parents decided to divorce. The Kate Hopkins case was selected to be a Constitutional “test” case that could change the way all child custody decisions in Tennessee are made. The case presented a Constitutional challenge to the State of Tennessee’s child custody statutory scheme in general, and specifically, whether certain child custody procedures routinely used by judges in Bradley County courts violate the U.S. and Tennessee Constitutions.
One of the procedures under attack was a “standard 80 day rule” created by the judges of the 10th Judicial District as a Local Rule. The Local Rule operated automatically without notice or hearing as soon as a divorce case was filed, so that one parent was only allowed 80 days a year with their child, while the other parent was allowed 285 days a year with their child.
The Constitutional challenges were based upon the imperative for “peer parenting” found in the equal protection clause of the 14th Amendment of the U.S. Constitution. Additional grounds for challenging the procedures were the Association Clause of the 1st Amendment of the U.S. Constitution, the Due Process Clause of the U.S. Constitution, and the Privacy, Due Process, and Equal Protection Clauses of the Tennessee Constitution.
Kate’s Daddy argued that the United States and Tennessee Constitutions require the State to give each of Kate’s two fit parents equal protection of the custody laws. Instead of the equal dignity, equal opportunity to parent, and equal respect, to which each of Kate’s parents is entitled, the “standard 80 day rule” discriminates against one parent in violation of the constitutional right to equal protection of the laws.
By automatically discriminating against one parent without any hearing, the “standard 80 day rule” violates the constitutional right to due process. And by taking a fit parent’s fundamental rights without any basis in fact, the “standard 80 day rule” violates the constitutional right to privacy and the constitutional right to freedom of association.
The constitutional issues in the Kate Hopkins case are of vital importance to all Tennessee parents and children, and of significance to all Americans. The trial judge ruled on the merits that each parent was entitled to equal time with Kate, and so decided there was no need to address the Constitutional issues.
The Kate Hopkins case was finally resolved in March 2010 and appeal of the trial court judgment was terminated when the case was settled during appellate mediation. So ends a case after more than three years in court with more than 50 hearings before five different judges and a 13 day bench trial beginning in May 2009.
Supreme Court of the United States: The Roberts Case
On 19 May 2008 Thorne and co-counsel filed in the Supreme Court of the United States a Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit in case number 07-1052, styled David A. Roberts, Petitioner, v. Maine Department of Health and Human Services, et al, Respondents.
In an effort to put a stop to the repeated, systematic, and wrongful deprivation of Robert’s civil rights by Maine DHS, et al, acting under color of law, on 1 July 2004, Mr. Roberts filed his Complaint for damages and injunctive relief under 42 U.S.C. § 1983 in federal District Court in Baltimore, Maryland. Over the next four years, without the Defendants ever filing a written answer to the Complaint, it was dismissed by the trial judge, appealed to the Fourth Circuit, who reversed the dismissal and sent the case back to the trial court, dismissed a second time by the trial judge, appealed a second time to the Fourth Circuit, who allowed the dismissal to stand, and then appealed to the Supreme Court of the United States.
On 6 October 2008 the Supreme Court of the United States denied Mr. Roberts’ pending Petition, and allowed the second dismissal on procedural grounds by the trial judge to stand. Consequently, the merits of Mr. Roberts’ § 1983 action will never be addressed by the federal trial court, the federal appeals court, or the Supreme Court of the United States. So ends a case that has spanned 20 years in state courts and over 4 years in federal courts.
State Court Ohio: The Tock Case
On 11 April 2007 Thorne was accepted as an expert witness on Constitutional law in an Ohio state family court and presented testimony in support of a facial Constitutional challenge to the State of Ohio’s child custody statutory scheme in Case No. 02DR3-1126, styled Frances Tock v. Christopher Tock, Franklin County Court of Common Pleas Domestic Division, Columbus, Ohio. The challenge was based upon the Constitutional imperative for peer parenting found in the equal protection clause of the 14th Amendment of the U.S. Constitution.
The Hon. Elisabeth Gill, trial judge, instructed the parties to file their closing arguments on custody issues in writing. After receiving the written closing arguments of the parties, Judge Gill ordered various transcripts and all of the briefs from the Galluzzo federal court case (described above) in which Thorne served as Mr. Galluzzo’s appellate counsel in the Sixth Circuit. Before Judge Gill issued her decision on the constitutionality of the State of Ohio’s child custody statutory scheme, the parties settled the custody issues with an agreement for a shared custody arrangement. The case concluded with a decree of divorce on 8 January 2008.
State Court Illinois: The Roney Case
In September 2006 Thorne was admitted pro hac vice by an Illinois state family court as attorney of record for Mr. Christopher Roney and presented oral argument of a facial Constitutional challenge to the State of Illinois’s child custody statutory scheme, in Case No. 00-D-700, styled In Re: Marriage of Mary Kay Roney, Petitioner, and Christopher J. Roney, Respondent, in the Circuit Court of the Sixth Judicial Circuit, Champaign County, Illinois.
After the trial court decision against Mr. Roney, Thorne served as co-counsel in Mr. Roney’s appeal to the Illinois Court of Appeals, along with two distinguished Illinois local counsel from Schiller, Du Canto and Fleck, Mr. Don Schiller, Esq. and Ms. Sarane S. Siewerth, Esq. Schiller, Du Canto and Fleck is the largest law firm in the nation focusing exclusively on matrimonial law. With principal offices in Chicago, the firm is nationally recognized for its work in the areas of marriage, divorce, and custody, and as a leader in the field of matrimonial law. For more information about the firm, see their web site. http://www.sdflaw.com/
After the Illinois Court of Appeals decision against Mr. Roney, Thorne withdrew as co-counsel and Mr. Roney filed a pro se appeal in the Supreme Court of Illinois, case number 104684. On 26 September 2007 the Supreme Court of Illinois denied Mr. Roney’s Petition for Leave to Appeal. Because Mr. Roney’s Constitutional challenge was ignored by the state trial court on procedural grounds, the merits of his facial Constitutional challenge to the State of Illinois’ child custody statutory scheme were never addressed by the state trial court, the state appeals court, or the Supreme Court of Illinois.
Federal Court New York: The Walker Case
On 13 September 2005 Thorne presented the oral argument of Stephen J. Walker to the United States Court of Appeals for the Second Circuit in the appeal of a facial Constitutional challenge to the State of New York’s pendente lite child support statutory scheme, Case No. 05-0229, styled Stephen J. Walker, Plaintiff-Appellant, v. State of New York, et al, Defendants-Appellees.
After the Second Circuit decision against Mr. Walker, Thorne prepared and filed several post-judgment motions, and then assisted in the preparation and filing of Mr. Walker’s pro se Application for Writ of Certiorari on 5 September 2006 in the Supreme Court of the United States, Case No. 06-894.
On 5 March 2007 the Supreme Court denied Mr. Walker’s Application for Writ of Certiorari, bringing an end to a case that spanned 15 years in New York state courts and 5 years in federal courts. Because Mr. Walker’s case was dismissed by the federal district court on procedural grounds, the merits of his facial Constitutional challenge to the State of New York’s pendente lite child support statutory scheme were never addressed by the federal trial court, the federal appeals court, or the Supreme Court of the United States.
Federal Court Ohio: The Galluzzo Case
On 26 January 2005 the United States Court of Appeals for the Sixth Circuit appointed Thorne as pro bono counsel for an indigent father in the appeal of a facial Constitutional challenge to the State of Ohio’s child custody statutory scheme, Case No. 04-3527, styled Michael A. Galluzzo v. Teresa Cook f/k/a Teresa Galluzzo.
After the Sixth Circuit decision against Mr. Galluzzo, the Sixth Circuit granted Thorne’s motion to withdraw as counsel of record and Mr. Galluzzo continued his appeal without counsel. Mr. Galluzzo’s pro se Application for Writ of Certiorari was filed on 30 September 2006 in the Supreme Court of the United States, Case No. 06-7267.
On 8 January 2007 the Supreme Court denied Mr. Galluzzo’s Application for Writ of Certiorari. Because Mr. Galluzzo’s case was dismissed by the federal district court on procedural grounds, the merits of his facial Constitutional challenge to the State of Ohio’s statutory child custody scheme were never addressed by the federal trial court, the federal appeals court, or the Supreme Court of the United States.