The use of dormant memories in the Blackmon case has prompted links to Elizabeth Morgan controversy, below is a prior column on the issue. There are some significant differences however, particularly given the intervention of Congress into the family dispute.
HEADLINE: Legislating values for one family at a time
BYLINE: Jonathan Turley
This month, a remarkable event will occur on the floor of the House of Representatives. Congressional members will ask their colleagues to intervene in an individual family’s custody dispute pending in a local family court. If this sounds odd to you, it is. Congress has never taken such an action in its history, and a host of legal academics and civil liberties groups have risen to oppose what they consider to be a frightening assertion of congressional power.
The subject of H.R. 1855 is the ongoing dispute over the future of Hilary Foretich. The custody fight between Dr. Elizabeth Morgan and Dr. Eric Foretich has been an obsession with the media and the public for over a decade.
The custody fight became national news due to the extraordinary charges made in the case. During the custody battle, Dr. Morgan accused her ex-husband and his parents (Hilary’s grandparents) of repeated sexual abuse of the child. Dr. Morgan later accused Dr. Elissa Benedek, the president of the American Psychiatric Association, of abuse after Dr. Benedek attempted to conduct a psychiatric examination under court supervision. Ultimately, when the court rejected the charges against Dr. Foretich, Dr. Morgan then alleged that the abuse was continuing during court-supervised visitations and hid her daughter. Dr. Morgan was held for contempt by the court until Congress enacted special legislation removing the jurisdiction of any D.C. court to continue to do so. Once released by Congress, Dr. Morgan left the country and has lived with her daughter in New Zealand for the last six years.
Last year, congressional allies of Dr. Morgan announced that Dr. Morgan wanted to return to the country. A bill was introduced to again remove the jurisdiction of the court in the case and to block the standing court order in the case. The bill directly endorses the allegations of Dr. Morgan that Dr. Foretich represents a danger to his daughter and that his current parental rights prevent her safe return to the country.
This is obviously disturbing to Dr. Foretich, who has spent more than 10 years successfully fighting these allegations, has taken and passed three lie-detector tests (two administered by police experts), and has bankrupted his estate in protesting the continued accusations by his former wife. Most importantly, the court in this case rejected these claims after considering all the evidence submitted by the parties. Despite this history, Congress is about to enact legislation that would lift the jurisdiction of an entire court system to reverse these rulings and would negate the parental rights of one parent in a family dispute.
Congress has left no question that it is about to (again) remove jurisdiction from an entire court system to assist a single individual. After sponsors defended this bill as an effort to assist women in such circumstances, I located the names and court cases of women around the country with similar cases and submitted them to Congress. If this is not an effort to assist one individual with leverage in Congress, the law can easily be extended to cover these other cases. No member, however, has come forward for these women and sponsors have confined the bill to benefit only Dr. Morgan and penalize her ex-husband.
Individual sponsors have stated that this case is a “personal” cause. Rep. Frank Wolf, Virginia Republican, one of the most powerful politicians in Washington, has made clear he will not heed the opposition of both conservative and liberal legal academics opposing this move. In his effort to reverse the court decision against Dr. Morgan, Mr. Wolf has even placed letters from the Morgan family into the Congressional Record attacking Dr. Foretich (his constituent). Mr. Wolf, however, refused to include material defending Dr. Foretich in the Record to give his response to the accusations. If Mr. Wolf would have Congress act as a court, he should at a minimum guarantee a fair hearing for both sides.
Not to be deterred this week, Mr. Wolf intervened in New Zealand to ask that protective restrictions on media contacts with Hilary be lifted to assist the passage of H.R.1855.For 200 years, Congress has been barred from the enactment of so-called “Bills of Attainder.” The constitutional prohibition to Bills of Attainder is violated when the Congress attempts to punish a particular person or group without the procedural and substantive protection accorded by a trial. H.R. 1855 will be the first such legislation targeting a single party and the first involving a federal intervention into a family custody dispute.
With H.R. 1855, Congress has decided to select one family out of 260 million Americans and, without any judicial proceeding, declare the father to be a danger to his own daughter. This is action is being taken because these congressional sponsors disagree with the conclusions of the court, rejecting Dr. Morgan’s allegations and refusing to terminate her ex-husband’s parental rights. Such an act is unprecedented in this country and a frightening example of congressional excess. Rep. Tom Davis, Virginia Republican, has defended the bill as simply a continuation of his interest in legislating in the area of family values. Mr. Davis, however, misses the constitutional point. While Congress is entitled to legislate in the area of family values, the Constitution exists to ensure that it does not do so one family at a time.
There are 535 members of Congress. Each member has a constituent who would make a tempting subject of special legislation. Why should other members be prevented from taking similar acts in the future? Ironically, in 1988, Dr. Foretich wrote his congressman for assistance in locating his child after Dr. Morgan refused to comply with a court order rejecting her claims of abuse. The congressman refused to assist Dr. Foretich, noting it would be improper since, “as you may already be aware, judicial matters and investigations of this nature are outside of the legal jurisdiction of a member of the House of Representatives.” The congressman was Frank Wolf.
Jonathan Turley, a professor of law at George Washington University, represents Dr. Eric Foretich pro bono in the constitutional challenge of the congressional intervention in this case.LOAD-DATE: March 26, 1996
If Dr. Morgan went to such extremes, she must have had good cause aside from and nothing to do with a vengeful agenda. As you must know, these types of cases are often exasperated by lack of physical evidence for obvious reasons. I know of few if any women who would spend time in prison to protect their child. However, I do know of protetive mothers who have spent more money in legal fees to protect their children than they will ever see in child support for 18-odd-years. I indeed espouse what Congress has attempted to do “in the best interest” of Hilary, and declare that you present all sides of this case rather than promoting your own personal agenda.
This is an excellent post. The case raises issues similar to the Schiavo case, where Congress meddled in the affairs of a single family. There, at least, the matter was left to the courts, which swiftly dismissed the interference. Although Bill of Attander issues were not raised in that litigation, I flagged them in my letter to the Washington Post, written after the law was passed, but before any of the litigation:
Letter to the Editor
Washington Post
March 22, 2005
Congress. The Courts and the Terri Schiavo Case
Supporters of Congress’s Schiavo legislation may be surprised when the federal court issues its ruling. The court could rule that the legislation is a bill of attainder, because it imposes punishment on an identifiable person, Michael Schiavo, with express punitive intent.
The legislation may violate the equal protection clause, because it grants federal review in this case while denying similar review to all other similar litigants.
It may violate separation of powers because it constitutes congressional interference with a judicial order that the Supreme Court has left standing.
It may contravene our federal system, because state courts should be supreme when interpreting their own state law.
Finally, the only federal claim would be denial of due process, but this may fail because any honest court would have to rule that the Florida courts have accorded full procedural and substantive due process in this case.
VINCE TREACY
Washington