[Congressional Record Volume 142, Number 129 (Wednesday, September 18, 1996)]
[Extensions of Remarks]
[Pages E1644-E1645]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




OPPOSING THE INCLUSION OF H.R. 1855, THE ELIZABETH MORGAN BILL, IN H.R. 
       3675, THE DEPARTMENT OF TRANSPORTATION APPROPRIATIONS BILL

                                 ______
                                 

                       HON. ELEANOR HOLMES NORTON

                      of the district of columbia

                    in the house of representatives

                     Wednesday, September 18, 1996

  Ms. NORTON. Mr. Speaker, I want to associate myself with the remarks 
of Members who have opposed on constitutional law and international 
treaty grounds the attachment to the Transportation appropriations bill 
of H.R. 1855, a bill which strips the District of Columbia courts of 
jurisdiction over the child custody case Morgan versus Foretich. In 
addition, I must oppose the bill on home rule grounds.
  This matter now comes on the floor encased in a conference report 
which cannot be amended. The Chair of the full Government Reform 
Committee and the Chair of the D.C. Subcommittee have obtained a waiver 
of the relevant point of order. They have thus cleared the way for a 
matter that I believe to be deeply unconstitutional and that badly 
transgresses all principles of self-government to come to the floor.
  In 1987, Elizabeth Morgan was held in jail for 2 years because she 
would not reveal the whereabouts of a child she said she believed had 
been sexually abused. In substantially less time than she had served, 
release of such a person is usually allowed or required. I was not a 
Member of Congress at that time. Apparently, largely because of the 
length of the incarceration, an act of Congress freed Ms. Morgan. No 
one is incarcerated; nor does the present matter have anything else in 
common with that situation, as is clear from remarks of Members from 
both parties, the majority of whom have spoken against this 
unprecedented trespass into the unique and exclusive realm of the 
judiciary.
  I believe that what has transpired here today, in any case, is a 
complete nullity that guarantees the continuation of an inflammatory 
domestic dispute that has made a mockery of the legal concept of the 
best interests of the child. The constitutional doubt surrounding this 
matter is so large that it does not merit unworthy precedent set in the 
House today.
  The adoption of this bill also puts the Congress on a collision 
course with international law. The New Zealand court that has 
jurisdiction over the child holds the child's passport and has ruled 
that she may not leave New Zealand. David Howman, a barrister, the 
guardian appointed by the family court in New Zealand, has written the 
counsel to the D.C. Subcommittee that, ``I am directed by His Honour 
Judge Mahony that the enclosed statement is to be made available to you 
for the purpose of * * * fully and properly informing the Congressional 
Subcommittee dealing with bill H.R. 1855 of the position relating to 
Hillary/Ellen.'' The court says:

       The Court has held [the child's] passport since 1990 when 
     the question of her care and residence first came before the 
     Court. There is also a condition on the custody order issued 
     in 1990 that she not be taken from New Zealand without order 
     of the Court. If and when it is appropriate for an 
     application to be made to this Court for removal of that 
     condition or return of the passport the application will be 
     considered at that time.

  Thus, if the Congress of the United States permits the child to 
return through H.R. 1855, it is almost certainly in violation of the 
Hague Convention as it relates to child custody.
  The insult to the District, its residents, and its independent 
judiciary is no less serious. The home rule trespass is all the more 
serious because of the absolute and unfailing necessity for an 
independent judiciary at every level of Government. No principle of the 
Constitution was considered more fundamental by the framers. Imagine 
the chill this bill sends to the sitting judiciary in the Nation's 
capital. Now, not only the city council and the executive agencies of 
the District, but also the judiciary is fair game for imposition of a 
Member's views regarding his pet issues. No member would even think of 
attempting to intrude into the legitimate and exclusive jurisdiction of 
the courts in any other jurisdiction of the United States or the 
territories.
  I am attaching the letter of the court appointed guardian and the 
statements of the New Zealand family court. I am also attaching a Legal 
Times article detailing further my position on this matter.


                                      David Howman, Barrister,

                                      Wellington, New Zealand,

                                               September 18, 1996.
     Mr. Howard A. Denis,
     Counsel, House of Representatives, Committee on Government 
         Reform and Oversight, Washington, DC.
       Dear Mr. Denis: I was appointed by the Family Court in New 
     Zealand to assist that Court in proceedings involving 
     Hillary/Ellen Morgan. Principal Family Court Judge P.D. 
     Mahony made that appointment late last year.
       Subsequently the Family Court conducted a hearing to 
     consider matters relating to the child. I have been asked to 
     communicate with you on behalf of the Court as a result of 
     the Court's decision. This communication is for the purpose 
     of fully and properly informing the Congressional Sub-
     committee dealing with Bill H.R. 1855 of the position 
     relating to Hillary/Ellen. I am directed by His Honour Judge 
     Mahony that the enclosed statement is to be made available to 
     you for that purpose.
       Please could you write to confirm receipt and to confirm 
     that the statement will be made available to your 
     Congressional Sub-committee accordingly.
           Yours sincerely
                                                     David Howman,
     Barrister.
                                                                    ____


                         Morgan Versus Foretich

       1. The New Zealand Family Court recently considered an 
     application concerning the child Hillary Foretich/Ellen 
     Morgan in relation to Bill HR 1588. The Court had received 
     this application in July 1995 for Ellen to give evidence live 
     by video-link to the Congressional sub-committee from 
     Christchurch, New Zealand. That application was declined in 
     the interim and subsequently dismissed. There is no current 
     or further application before the Court concerning Ellen and 
     Bill HR 1588.
       2. Whether or not that Bill is passed is not an issue for 
     this Court and it is not the business of the Court to express 
     any view about it.
       3. The Court has made no ruling concerning Ellen's return 
     to the United States.
       The Court has held her passport since 1990 when the 
     question of her care and residence first came before the 
     Court. There is also a condition on the custody order issued 
     in 1990 that she not be taken from New Zealand without order 
     of the Court. If and when it is appropriate for an 
     application to be made to this Court for removal of that 
     condition or return of the passport the application will be 
     considered at that time.
       4. In all issues affecting children in relation to their 
     care, the overriding duty of the New Zealand Family Court is 
     to treat the welfare of the child as the first and paramount 
     consideration. A primary consideration in this case is the 
     protection of privacy of the child. Proceedings before the 
     New Zealand Family Court are held in private and there are 
     statutory restrictions on reporting of cases heard by the 
     Court, again directed at protecting the privacy of children.
       It is the wish of this Court that those who have an 
     official interest in relation to one or other aspect of 
     Ellen's case, exercise care and restraint in order to 
     preserve her privacy.

                 [From the Legal Times, Mar. 14, 1996]

   Custody Saga's Latest Twist--Bid to Aid Morgan Hits Home-Rule Snag

                          (By Jonathan Groner)

       Over the last 11 years, the Elizabeth Morgan custody case 
     has touched on everything from feminism and fathers' rights 
     to the reach of courts' contempt powers. Now, thanks to D.C. 
     Delegate Eleanor Holmes Norton, there's a new, and unlikely 
     wrinkle: D.C. home rule.
       In January, four U.S. representatives--including three from 
     the D.C. suburbs--introduced legislation seeking to quash the 
     D.C. courts' jurisdiction over Morgan's protracted battle 
     with her ex-husband for custody of their daughter. The bill 
     would allow Morgan and her daughter Hilary, 13, to return to 
     the United States from New Zealand, secure from any orders of 
     the D.C. Superior Court.
       But Delegate Norton's objections have begun to stall the 
     bill, which had earlier seemed to be on the fast track to 
     approval in both houses of Congress.
       ``I looked deeply at the bill,'' Norton says, alluding to 
     what she views as its unqualified assault on the independence 
     of the District's local courts. ``There is far more trouble 
     in it than I had thought. What I learned is absolutely 
     startling.''
       The legislation is intended to help Morgan, 48, who spent 
     25 months in D.C. jail in the 1980s on contempt charges in 
     the highly publicized case. Asserting that her ex-husband 
     Eric Foretich, 53, had sexually abused the girl, she refused 
     to permit his visitations and sent the child out of the 
     country. Foretich denies the charges.
       Morgan, who was then a D.C. plastic surgeon was released in 
     1989 by an act of Congress and in 1990 joined Hilary in New 
     Zealand.
       Elizabeth Morgan and her daughter, who now prefers to be 
     called Ellen, have both declared recently that they would 
     like to return to the United States and be reunited with the 
     rest of their family.

[[Page E1645]]

       Elizabeth Morgan's second husband, Paul Michel, is a judge 
     here on the U.S. Court of Appeals for the Federal Circuit, 
     and her father, William, 85, also lives in the area; he is 
     hospitalized at present, suffering from heart disease. Her 
     mother, Antonia Morgan, 81, lives with Elizabeth and Hilary 
     in Auckland.
       Moreover, Elizabeth Morgan, suffering from ulcerative 
     colitis, recently underwent emergency removal of her colon 
     and reportedly would like to benefit from U.S. medical care.
       The Morgans' desire to return home drew the attention of 
     Reps. Thomas Davis III (R-Va.), Frank Wolf (R-Va.), Constance 
     Morella (R-Md.), and Susan Molinari (R-N.Y.), who are 
     pressing the legislation.
       Until recently, little vocal opposition had emerged to the 
     bill. But Norton, who says she supported Morgan's release 
     from jail and doesn't express a view on the truth of the 
     sexual-abuse allegations, has recently begun to oppose the 
     measure publicly and has moved to slow the bill's progress.


                        no respect for home rule

       Since the bill would impinge on the jurisdiction of the 
     D.C. courts, the views of the District's only congressional 
     representative are likely to be taken seriously by House 
     leaders. And for Norton, the Morgan case has become both a 
     constitutional and a home rule issue.
       ``The sponsors show no respect for the home rule powers of 
     my jurisdiction,'' says Norton, referring to the idea of a 
     congressional act to remove a case from D.C.'s local courts. 
     ``The bill is two or three lawsuits waiting to happen.''
       Norton cites another objection: that the bill may be 
     unconstitutional because it is ``almost an open-and-shut bill 
     of attainder.'' Bills of attainder, which are legislative 
     measures that punish citizens without the safe-guards of 
     trial and appeal, are banned by the U.S. Constitution.
       Norton says the Morgan measure is a bill of attainder 
     because it would legislatively ``wipe out the rights of 
     another party.'' She was referring to Foretich, a McLean, 
     Va., oral surgeon, who in Norton's view would be denied the 
     benefits of a 1987 order from D.C. Superior Court Judge 
     Herbert Dixon Jr. that awarded him visitation rights.
       Elizabeth Morgan is under a terrible misapprehension if she 
     thinks Congress is going to bring her back,'' Norton adds. 
     ``It is just not going to happen.''
       Norton says that she and several other representatives 
     objected to the bill's being placed on the ``suspension 
     calendar,'' a technique reserved for noncontroversial 
     measures that are approved by the House without debate.
       In deference to these objections, the office of Speaker 
     Newt Gingrich (R-Ga.) removed the bill from the suspension 
     calendar, and it remains pending in the House Government 
     Reform and Oversight Subcommittee on the District of 
     Columbia.


                        PRIVATE AGREEMENT SOUGHT

       Norton says she is about to write an open letter to the 
     members of the House, listing her objections to the bill and 
     declaring that the best way to solve the long-simmering 
     Morgan-Foretich dispute is not through legislation, but by 
     compromise between the parties.
       Foretich has proposed a consent decree under which he would 
     drop his demand for custody or visitation with his daughter 
     as long as Dixon's court retains jurisdiction. Morgan has 
     rejected this overture, terming it a ruse.
       The Morgan case, which in the 1980's became a cause celebre 
     for feminists and their opponents, is now becoming caught up 
     in thorny issues involving D.C. politics and home rule, in 
     which suburban D.C. Republican representatives--Davis 
     represents the district where Morgan grew up--face off 
     against the District's Democratic delegate.
       Also coming to the fore is the obscure constitutional ban 
     on bills of attainder.
       ``The authors of this bill themselves could not have made 
     it more clear that this is a bill of attainder,'' says 
     Jonathan Turley, a professor at George Washington University 
     Law School who recently entered the case as a pro bono lawyer 
     for Foretich. ``They created an extremely damning record. 
     This bill will have a half-life of one day under judicial 
     review.''


                           LAWSUIT THREATENED

       Should the bill pass both houses of Congress and be signed 
     by President Bill Clinton, Turley says, he will immediately 
     file suit in U.S. District Court against it.
       ``Not only is it grossly unfair to the targeted 
     individual,'' Turley says, ``but its potential for future 
     abuse cannot be overstated.''
       Turley contends in court papers that the bill amounts to a 
     legislative punishment of Foretich, even though it does not 
     explicitly brand him a criminal. Turley says the bill implies 
     that Hilary would not find ``safety'' unless Foretich were 
     barred from seeing her, and that ``the denial of a father's 
     right to visitation or custody is punitive.'' Foretich 
     declines comment.
       But Howard Denis, counsel to the D.C. subcommittee, rejects 
     Turley's arguments.
       ``Ultimately, it would be a matter for the courts to 
     decide,'' says Denis. ``But I take the view that it is not a 
     bill of attainder, because it does not impose punishment on 
     any individual.
       ``We have done research showing that the bill will pass 
     constitutional muster,'' Denis adds. ``But it's too soon to 
     talk about the nuts and bolts of it.''
       Morgan's lead attorney, Stephen Sachs of D.C.'s Wilmer, 
     Cutler & Pickering, was traveling and unavailable for 
     comment. Co-counsel Juanita Crowley, also a Wilmer, Cutler 
     partner, did not return calls, nor did Judge Michel, Morgan's 
     husband.
       Morgan's partisans have said that they are not trying to 
     punish Foretich, but to permit Morgan and her daughter to 
     return on humanitarian grounds.
       Judge Dixon's order, said Davis on the House floor, is an 
     ``antiquated'' one that ``does not address the current 
     circumstances of the welfare of a young teenage girl'' who 
     wants to return to the United States and ``pursue her 
     dreams.''
       In a Jan. 25, 1996, letter to Rep. Wolf, Michel described 
     what he saw during a four-week visit to Auckland in December 
     and January: ``Contrary to what some people may assume, the 
     difficulties of life in exile for all three of the women in 
     my New Zealand family grow, not diminish, with each passing 
     year. . . . In addition, Ellen's teenage years are not helped 
     by being deprived of family life with her stepfather.''

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