Saturday, May 21, 2016

Could BARBRI or the DOJ Pass the Character and Fitness Requirements for Bar Admission?

Here in the Enchanted Mitten, new lawyers applying for admission to the Bar must demonstrate their character and fitness to practice law.  Many of them have taken the BARBRI prep course for the bar examination, and, presumably, some would like to work for the U.S. Department of Justice.

But, could BARBRI and the DOJ themselves pass the character and fitness requirement?  A couple of recent stories suggest they might have some difficulty.

BARBRI and a few law schools are being sued by another bar exam prep company, LLM Bar Exam LLC,  LLM alleges that by donations and gifts to the law schools and lucrative teaching contracts to the schools' faculty members, BARBRI is attempting to monopolize the bar prep market, with LLM being excluded from law school marketing and facilities.

Even worse than BARBRI's alleged conduct, lawyers from the U.S. Department of Justice were recently found to have misled a federal judge and then to have attempted to cover up their misrepresentations. The judge ordered lawyers representing the DOJ in 26 states to undergo annual ethics training, stating:
In fact, it is hard to imagine a more serious, more calculated plan of unethical conduct. There were over 100,000 instances of conduct contrary to counsel’s representations.
 There is a solution, of course, to all this widespread dishonesty.  Move to Wisconsin, where you can lie to your heart's content and still be admitted to the Bar.

Saturday, November 1, 2014

Eternal Vigilance -- The Battle for the Michigan Supreme Court and the Rule of Law

Once again, we find ourselves on the brink of another Supreme Court election, again featuring a distinct contrast between rule-of-law judges and the so-called "empathy" judges.  On the rule-of-law side, we have Brian Zahra, David Viviano, and James Redford.  The principal empathy candidate is Richard Bernstein.

All elections and races are important, but as the final arbiters of what will and will not be constitutional or enforceable, there is no race more important than the race for Justice of the Michigan Supreme Court.

Bernstein's candidacy is summed up well here.

To underscore the importance of the rule of law, I am reposting a piece that can be found in its original form here.  It illustrates how empathy judges decide however they want to, without regard for the law, for private contracts, or any other limits.  Empathy judging is an extreme danger to society, since it eliminates any reasonable expectations of how others will behave. For example, if contracts don't mean what they say, how can we rely on them?  The lessons of this piece are just as applicable today as they were when it was first posted.

Putting "The Rule of Law" in Perspective

This year's Michigan Supreme Court election will spotlight the "Rule of Law" issue. Voters will be asked to decide between Justice Robert Young and Judge Mary Beth Kelly (the Rule of Law judges) and Justice Alton Davis and Judge Denise Langford Morris (the "empathy" judges).

Simply described, RoL judges interpret the constitution, laws, and contracts by the plain meaning of the words used by their authors. Empathy judges, in contrast, interpret the same words in order to reach a desired result.

Here's a perfect example -- Elizabeth Weaver's parting gift to Michigan jurisprudence. The case is Shay v Aldrich, decided August 23, 2010. In short, the plaintiff sued five defendants, alleging that they had assaulted him. Partway through the case, the plaintiff settled with two of the defendants and signed two separate releases, each releasing a defendant "together with all other persons, firms and corporationsfrom any and all claims, demands and actions which I have now or may have arising out of any and all damages, expenses, and any loss or damage resulting from an incident occurring on September 8, 2004."

After the plaintiff signed these releases, the other defendants moved to dismiss the remaining claims, arguing that the plaintiff had waived them. The trial court denied the motion, but the Court of Appeals reversed. finding the releases unambiguous. The Michigan Supreme Court then granted leave to appeal and reinstated the claims against the remaining defendants, finding in a 4-3 opinion by Weaver that the plaintiff did not intend -- despite the clear language of the releases -- to waive any claims against the remaining defendants. The Weaver opinion equated "broad" with "vague" and permits the parties to use extrinsic evidence to introduce ambiguities into a contract, thus necessitating "interpretation" where there previously was none.

The impact of this opinion will not be limited to releases. Why should it be? Why are releases to be treated differently from every other kind of contract? Under the new Weaver rule, a contract means what it was intended to mean, regardless of what it actually says. Under the rule of law, contracts mean what they say, without an interpretive middleman in a black robe.

This Weaverizing of contracts is symptomatic of the elitist arrogance of the ruling class -- they know better than you do what you need and what you really mean. It is this arrogance that leads to Congress passing 3,000 page bills it hasn't read, doesn't understand, and has no intention of reading or understanding. Government power is thereby transferred to the bureaucracy, and the people are left with no option but litigation, hence the constitutional challenge to Obamacare. If we don't have the courts, we are lost.

In the July-August 2010 issue of the American Spectator, Angelo Codevilla published a brilliant article, America's Ruling Class -- And the Perils of Revolution. Please read it here. He describes the ruling class as considering itself "saviors of the planet" and "improvers of humanity." It is a penetrating, brilliant article.

A portion of Codevilla's article describes the interaction between the ruling class and the courts:

Disregard for the text of laws -- for the dictionary meaning of words and the intentions of those who wrote them -- in favor of the decider's discretion has permeated our ruling class from the Supreme Court to the lowest local agency. Ever since Oliver Wendell Holmes argued in 1920 (Missouri v. Holland) that presidents, Congresses, and judges could not be bound by the U.S. Constitution regarding matters that the people who wrote and ratified it could not have foreseen, it has become conventional wisdom among our ruling class that they may transcend the Constitution while pretending allegiance to it. They began by stretching such constitutional terms as "interstate commerce" and "due process," then transmuting others, e.g., "search and seizure," into "privacy." Thus in 1973 the Supreme Court endowed its invention of "privacy" with a "penumbra" that it deemed "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." The court gave no other constitutional reasoning, period. Perfunctory to the point of mockery, this constitutional talk was to reassure the American people that the ruling class was acting within the Constitution's limitations. By the 1990s federal courts were invalidating amendments to state constitutions passed by referenda to secure the "positive rights" they invent, because these expressions of popular will were inconsistent with the constitution they themselves were construing.

By 2010 some in the ruling class felt confident enough to dispense with the charade. Asked what in the Constitution allows Congress and the president to force every American to purchase health insurance, House Speaker Nancy Pelosi replied: "Are you serious? Are you serious?" No surprise then that lower court judges and bureaucrats take liberties with laws, regulations, and contracts. That is why legal words that say you are in the right avail you less in today's America than being on the right side of the persons who decide what they want those words to mean.

As the discretionary powers of officeholders and of their informal entourages have grown, the importance of policy and of law itself is declining, citizenship is becoming vestigial, and the American people become ever more dependent.

So, the battle for the Michigan Supreme Court is not merely a contest for control of the Supreme Court. It is a fight to regain some measure of the rule of law, to maintain a bulwark against the whims of the ruling class and government bureaucracies, and, perhaps most importantly, to assert our independence as free citizens.

If we don't have the authority to govern our own affairs through written agreements, what is left for us?

Sunday, October 26, 2014

Is Richard Bernstein Violating the Judicial Code of Conduct?

Ordinarily, I fast forward through commercials when I'm watching a program on DVR.  Sometimes, though, I'm not quick enough or I'm busy, and then I get to watch advertisements that remind me why I usually zip through them.

Yesterday, one of the commercials I saw by accident really caught my attention, but not in a good way.  It was a political ad for Richard Bernstein, who is running as a Democratic nominee for the Michigan Supreme Court.  At about the 14-second mark, Bernstein says:
Big corporations, polluters, and insurance companies have their high-priced lawyers, so let me be your judge.
Your wizard was astounded by this comment, so I quickly went to my copy of the Judicial Code of Conduct.  Right there, in Canon 7, part B, it clearly states:

(1)   A candidate, including an incumbent judge, for a judicial office:
*   *   *
(c)  should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.

So, what is going on in this commercial?  It is patently obvious that Bernstein is pledging that he will rule against big corporations and insurance companies.  Prejudging cases that are likely to come before the high court is the exact opposite of "the faithful and impartial performance of the duties" of Michigan Supreme Court Justice.

Perhaps this sort of inattention to the rules is to be expected from someone who has never been a judge and, according to the Michigan Courts website, has never appeared on a case in either the Court of Appeals or the Michigan Supreme Court.

Regardless of the cause, there is no excuse for a candidate so blatantly flouting the code of conduct governing the office to which he aspires.  This is a bad way to start, and voters would do well to make sure he doesn't get the chance to follow through.

Wednesday, August 20, 2014

"What the hell is going on out here?"

My apologies to anyone who might take offense at the famous Vince Lombardi exclamation in the title of this post, but I am amazed by the stuff I am seeing in advance of Saturday's Michigan GOP State Convention, particularly the stuff relating to Ron Weiser and Brian Calley.

I know Ron Weiser just a little, having had a total of about 30 minutes of conversation with him over the last two years.  I can't recall ever having a conversation with Brian Calley.  So, I am not writing this out of some long-developing bond with either man.

Against Weiser, people have dredged up the most inconsequential facts and attempted to turn them into some sort of indictment against a man we should all be foursquare behind.  Ron Weiser's contributions to the state and national Republican parties are monumental, and does anyone remember his pivotal role in making Michigan a freedom-to-work state?  Here is a man who has slaved tirelessly on behalf of Republicans -- all Republicans -- and has earned our respect, our loyalty, and our votes.

I have nothing against the other candidates, whom I also respect, but they should be denouncing these smear tactics, instead of remaining silent or, in at least one case, appearing to participate.

People are pretty familiar with the range of attacks on Calley, principally the same complaints people have about the governor -- Medicaid expansion, possible road taxes, etc.  There is certainly room for debate on these issues, but there is no room for debate on Michigan 2014 vs. Michigan 2010.  What a difference real leadership makes, even if you don't agree with it 100 percent of the time.  Like it or not, Calley is part of the team that has moved our great state forward, and he has earned his place as the Governor's choice for running mate.

For those who favor the other candidate, how would that work, exactly?  Do you honestly think he would be part of the administration?  Do you think he'd travel with the governor, talk strategy with the governor, or have any substantive role whatsoever?

Article V, Section 25 of the Michigan Constitution describes the role of the lieutenant governor:
The lieutenant governor shall be president of the senate, but shall have no vote, unless they be equally divided. He may perform duties requested of him by the governor, but no power vested in the governor shall be delegated. 
If Calley's opponent is selected on Saturday, and if the Governor is reelected in November (which would be made harder by the opponent's selection), the new LG won't need to find a residence in Lansing -- he'll be attending funerals around the state for the next four years.  His selection will be absolutely pointless, other than to provide certain folks with a source of misguided pride that they "took down the lieutenant governor."

Cataloging the first four years of the Snyder administration, honest Republicans would admit they agreed with 90 or 95 percent of the things that have been accomplished.  There are always battles to be fought and won (like the bridge), but the areas of disagreement should not be the tail wagging the dog.

I always laugh when people use the term "establishment Republican."  There's a term with no meaning whatsoever, used only by those who want to be in the establishment.  What happens when the outsider gets elected -- does he automatically become an establishment Republican to be despised and vilified?  Look at our Attorney General -- he is an unbelievable public servant, conservative and dedicated.  Is he an establishment Republican?

For the last four years, Brian Calley deserves our support.  For a lifetime of dedicated service, Ron Weiser deserves our support.  Both of these men are undeniable conservatives and should be nominated at Saturday's convention.

Tuesday, December 3, 2013

Hey, It Could Happen . . .

Your Wizard has returned to the blogwaves after an extended absence and, to celebrate, I have decided to depart from the usual fare and talk a bit about MICHIGAN STATE FOOTBALL!!!

11-1, 8-0 in the Big Ten, ranked #10 in the BCS, and playing for the Big Ten Championship against undefeated Ohio State, winners of 24 straight games.  If OSU wins, the Buckeyes will likely play for the national championship.

But what if the Spartans win?  Is there a scenario in which MSU could play for the BCS National Championship?

I believe there is, and here's how.  First, the current standings:

1.  Florida State
2.  Ohio State
3.  Auburn
4.  Alabama
5.  Missouri
6.  Oklahoma State
7.  Stanford
8.  South Carolina
9.  Baylor

Now, here's how MSU can play for the national championship:

1.  Of course, MSU has to beat Ohio State, and pretty convincingly.  A beatdown like the one inflicted on a certain school in Ann Arbor would suffice.
2.  Baylor loses to Texas.
3.  Stanford loses to Arizona State
4.  Oklahoma State loses to Oklahoma
5.  Duke beats Florida State

If the foregoing results happen, MSU should jump over an idle South Carolina and get into the national championship mix.  But that leaves the three SEC schools -- Missouri and Auburn, which meet in the SEC championship game, and idle Alabama.   How does MSU jump over two of them, since one will win the SEC championship and Alabama is already six spots ahead of MSU in the BCS rankings?

6.  Missouri has to beat the daylights out of Auburn, like 59-3 or something like that.  This will show (1) Auburn is not that good, (2) Alabama, which lost to Auburn, can't be all that good, and (3) the SEC mystique isn't quite the same since Missouri came into the SEC only a year ago, and here it goes and wins the SEC championship and destroys Auburn in the championship game.

If all this comes to pass, the voters and the computers, sick of the SEC and sensing the destiny that surrounds the Spartans, will surely elevate Michigan State to number 2 in the BCS rankings, edging out Alabama and setting up an SEC-Big Ten matchup in the championship.

The Wiz might have to hop into the old balloon to go to that game.

It could happen.  Couldn't it?

Monday, November 5, 2012

The Stakes Could Not Be Higher

Tyranny, broadly defined, is the use of power to dehumanize the individual and delegitimize his nature.  Political utopianism is tyranny disguised as a desirable, workable, and even paradisiacal governing ideology. 
                                                                   -- Mark Levin, Ameritopia
Individual sovereignty is under attack.

Not the wacko, every-man-is-a-sovereign-the-United-States-is-a-corporation kind of sovereignty, but the notion that, as individuals, we have worth and dignity that deserve protection.

This attack exists in every corner of our society and has found its way into our language.  Liberal politicians talk about the "cost" of a tax cut and ask conservatives, "How are you going to pay for that tax cut?"  They thus view tax cuts as expenditures, but expenditures of what?  Of the money to which they deem the government entitled. 

A tax cut "spends" nothing.  It is an acknowledgment that the money being taxed belongs in the first instance to the earner, not the government.  Most Americans would willingly pay taxes to support legitimate government functions, but we resist ferociously the notion that our incomes belong to the government.

Of course, videos produced by the Democratic Party proudly proclaim that "government is the only thing to which we all belong."

The massive growth and rapid accumulation of power by the federal government threatens state sovereignty as well.  In Arizona vs. United States, the Supreme Court earlier this year affirmed an injunction preventing enforcement of Arizona's immigration law.  In doing so, Justice Scalia observed in dissent, the Court's ruling "deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have
no right to be there."

In a most painful intrusion into individual sovereignty, the Supreme Court blessed a mandate-as-tax designed to force Americans to engage in commerce, something never before attempted in the history of our great nation.  Despite the dissent's pointed observation that "Article I contains no whatever-it-takes-to-solve-a-national-problem power," we are in an era when every problem is deemed sufficiently serious to warrant federal intervention, appropriation, and perhaps even a new agency or board or czar, appointed by the president with plenary power to make things worse.

The attack on individual sovereignty is not just legislative, it is found in social and cultural attacks on the rich and the successful.  Mitt Romney is derided for paying taxes at a 14 percent rate, but little is made of his extraordinary charitable donations, particularly when matched up against the president's. 

Here in the Enchanted Mitten, the prevailing legal struggle is between rule-of-law judges, who apply the law as it is written by the people's elected representatives, and the empathy judges, who rule based on their own opinions and feelings, unfettered by notions of judicial restraint or faithful adherence to the will of the people as expressed by their representatives.  Rule-of-law judges respect people and what their legislators say; empathy judges have contempt for the people and apply their own views because they think they know better.  Rule-of-law judges believe in representative democracy; empathy judges believe in the elitism of the intellectual.  By disregarding the language of legislative enactments in favor of their own feelings, empathy judges demonstrate their contempt for individuals.

The defense of personal sovereignty is not founded upon positions on specific programs or issues, it is a philosophical defense of the individual that extends to all programs and issues.  Not every tax or program is an attack on the individual, but a political approach that treats the individual as an ATM from which to withdraw government funds is such an attack and must be fought. 

When judges interpret ambiguous language, they are doing their jobs, but when judges ignore clear and unambiguous language in a statute or contract in order to reach the result they personally desire, they are showing their distrust and contempt for individual decisionmaking and individual value.  While manifesting itself in specific decisions, the real issue is the broader philosophical problem that yields such results.

It remains to be seen how vigorously Mitt Romney would fight the vast expansion of federal power, but there is no doubt that another four years of President Obama would yield even more of what we have seen the last four years -- the relentless growth of government power and intrusion into the most private details of our lives and the continued seizure of economic activity and individual freedoms.  A Supreme Court already shaky in its defense of liberty would, under Obama II, become an eager participant in dismantling our constitutional protections.

We simply cannot allow this to happen.

We must elect Mitt Romney and give him a conservative Congress that will not only support his initiatives, but guide him on the course of liberty and individual freedom. 

In Michigan, we must vote for Justice Markman, Judge O'Brien, and Justice Zahra for the Michigan Supreme Court.

As Mark Levin put it so eloquently in Ameritopia:
It seems unimaginable that a people so endowed by Providence, and the beneficiaries of such unparalleled human excellence, would choose or tolerate a course that ensures their own decline and enslavement, for a government unleashed on the civil society is a government that destroys the nature of man.

Friday, September 7, 2012

Don't Get Your Panties in a Bunch -- It's Not Personal

Is it impossible these days to have a discussion about an issue or a political race without it becoming personal?  Apparently so, at least for one backer of Judge Jane Markey.

Markey is up against Colleen O'Brien for one of three Republican nominations for Michigan Supreme Court justice.  As faithful readers of this blog know, your Wizard has published three articles critical of Markey decisions, principally on the grounds that they contradict her claim to be a "rule of law" judge.  I have never attacked Judge Markey personally, nor have I attacked her supporters.

But they have attacked me personally.

The latest attack was purportedly authored by one Steven Vander Ark in an email distributed to the delegates to this weekend's Republican convention.  He says that I practice "the dark art of magic - turning fiction into fact while hiding behind the curtain of anonymity. Any lawyer reviewing his 'analysis' of Markey's decisions would recognize a straight up hatchet job: it is no wonder he wants to remain anonymous. His blog is a shameful sham set up for the sole purpose of producing political smears under the guise of legal analysis."  He goes on to criticize my discussion of the Wilkie case and my quoting of the Chief Justice in the Progressive Insurance case.

You know, if you're going to lie about me, at least tell the truth while doing it.

Here's where Mr. Vander Ark and the truth part company:

1.  This blog was established in 2007; it was not "set up for the sole purpose of producing political smears under the guise of legal analysis." 

2.  I never discussed the Wilkie case, and I do not consider a reversal as any reason not to vote for a judge.  As a judge whom I respect frequently says, "Even when the court of appeals affirms me, I still think I'm right."  I have never criticized Judge Markey or any other judge because one of their decisions was reversed.  My posts on Judge Markey may be reviewed here, here, and here.

3.  Mr. Vander Ark is correct that I quoted the Chief Justice in my discussion of the Progressive Insurance case here, and I did not quote Justice Markman's concurrence.  So what?  Does that somehow delegitimize the point I was making?  Am I under some obligation to quote Justice Markman?  If so, am I also obligated to quote Justice Marilyn Kelly, who sided with Markey's opinion?  And where is Mr. Vander Ark's defense of Judge Markey?  She claimed then -- and claims now -- to be a rule of law judge, but in Progressive Insurance, she cast aside clear statutory language in favor of a result that comported with her "sense of justice and fair play."  That is not a rule of law methodology; it is the very definition of an empathy judge.  Yet, Mr. Vander Ark says nothing, falling back on the notion that her position is "defensible."  That's a pretty low bar for someone who wants to be a Supreme Court justice.

So, you be the judge.  Have I turned "fiction into fact," as Mr. Vander Ark suggests?  If so, how? What exactly have I written that is incorrect?

Let's make things perfectly clear:  for me, this is not a personal issue.  I favor the rule of law, and I believe strongly, as Bob Young has written, that the "rule of law requires a judge to be subservient to the law itself, not the law to be subservient to the personal views of a judge."

In the cases I have described, Judge Markey has elevated her personal views over the the law.  Whether you agree or disagree with her ultimate decisions, this approach, this decisionmaking process, is not the approach and the process followed by rule of law judges.  That the results are "defensible" is irrelevant -- the rule of law does not concern itself with results, only with faithfully applying the law as written by the People through their elected representatives.

As I have written, Judge Markey seems like a very nice person.  I have no interest in her political donation history or in any of the rumors being circulated about her.  This is not personal; this is about job performance and judicial philosophy, period.

I don't know Mr. Vander Ark.  Is it significant that his email was paid for by Markey's campaign?  I don't think so.  His name is on it, and he will have to defend it, regardless of who wrote it or who paid for it.  His email is wrong and contains numerous factual errors, as I have outlined above, but I will not attempt to smear him as he has attempted to smear me.  Frankly, I have no interest whatsoever in Mr. Vander Ark -- he is not running for anything.  My only interest is in a full and frank discussion of the most important issue in this judicial campaign:  who will be a rule of law justice on the Michigan Supreme Court?

Let's just stick to the issue.  It's not personal.

Tuesday, September 4, 2012

Upon Further Review: More Problems for Markey

The debate over the O'Brien vs. Markey race for the third GOP Supreme Court nomination has, for the most part, been respectful.  Oh sure, there are the usual hysterics because 20 years ago someone bought a ticket to a colleague's fundraiser, but these are minor and safely ignored.  I like to think of the pro-Markey crowd as best represented by Kevin Rex Heine, who at least does his homework.  [Someday, I'd like to meet Kevin and shake his hand.]  That doesn't mean I agree with him, however.  In fact, the more I study Markey's decisions, the more uncomfortable I am with the thought of her on the high court.

In a recent post, Kevin essentially made this argument:  We don't know much about Colleen O'Brien because she is a circuit court judge, and there have been other judges or nominees, about whom we knew little, who disappointed us, e.g., Harriet Miers, David Souter, and Mary Beth Kelly.  Therefore, we should not nominate Colleen O'Brien in favor of a candidate with a more readily viewable record.

I will address Kevin's observations about Mary Beth Kelly in a near-future article.  At this point, I will only say that Kevin has questioned my writing about two of Jane Markey's decisions when his entire criticism of Mary Beth Kelly is based on one decision, ignoring the many opinions in which she joined with the rule-of-law majority.   Harriet Miers was never confirmed, and Souter was put forth by the moderate northeastern wing of the party (i.e., John Sununu) in response to prior confirmation battles that got out of control due to the flyspecking and nitpicking over productive nominees.

Still, Kevin raises a valid point, but it doesn't carry the day.  He is arguing, in essence, that we should reject an "unknown" circuit court judge in favor of a "known" appellate judge with a troubling record.  That's not an exchange I'm willing to make, for a number of reasons.  First, I do credit endorsements to some extent, particularly by respected and unimpeachable judges such as Chief Justice Robert Young.  Second, I have met and talked to Colleen O'Brien and, frankly, I believe her when she says she is a rule-of-law judge.  Third, as I have detailed here and here, at least some of Judge Markey's opinions don't square with her rule-of-law claims.  Fourth, as I describe below, the decisions I discussed previously are not the only ones that concern me.

In People v Dowdy, a 2010 decision, Markey joined with two Democrat-appointed judges to find that Randall Dowdy, who pleaded guilty in 1984 to kidnapping, five counts of first degree criminal sexual conduct, and possession of a firearm during the commission of a felony, was not required to register with local law enforcement under the Sex Offenders Registration Act (SORA), because he happened to be homeless.  SORA expressly states that its purpose is to "better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders" and to "provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those people who pose such a potential danger."   Nonetheless, Markey and her Democratic colleagues on the panel found that sex offenders who happen to be (or claim to be) homeless do not have to register with law enforcement because they do not have "the security of a customary place of lodging."

The Supreme Court reversed the Court of Appeals, in a 4-3 decision (Young, Markman, Kelly, and Zahra in the majority), holding that the Court of Appeals had erred by ignoring longstanding precedent (dating back to at least 1897) that, under Michigan law, every person has a "domicile." Moreover, apart from reporting a residence or domicile, SORA requires every sex offender to report to law enforcement in person four times per year, a requirement that "is unconditional and contains no exceptions or exclusions for homelessness."  The evidence in the case showed that Dowdy failed to report for four years, or 16 quarters.  This requirement was ignored by the Court of Appeals. 

In summary, the Supreme Court found that "the Court of Appeals panel interpreted SORA in a manner contrary to the plainly expressed intent of the Legislature[.]" 

As we have seen, Judge Markey's record includes decisions utterly contrary to the rule of law, in which decisions she has greatly expanded civil liability beyond that intended by the Legislature, ignored clear and unambiguous statutory language in favor of her own feelings as to what constituted "fair play," and, in Dowdy, ignored the clearly expressed intent of a statute in a manner not only contrary to the law but potentially quite harmful to public safety.

The reader may think we don't know enough about Colleen O'Brien, but I suggest we know more than enough about the troubling judicial decisionmaking of Jane Markey.

Thursday, August 16, 2012

"Rule of Law" Should Be More Than Just A Slogan

Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey.  Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien. 

As I wrote in 2010, "Judge Markey stresses her experience on the Court of Appeals. This is obviously a positive quality, but it should not be overstressed to the neglect of the quality of the decisions."  Since then, I have still not had the opportunity to argue before Judge Markey, but I have attended meetings at which she has spoken, and she seems like a nice person.  She describes herself as a "rule of law" judge, and, in a recent email, she stated:
Judge Markey knows that a judge's role is to follow the plain text of our Constitutions and statutes. You can see that for yourself in almost two decades of decisions that demonstrate she is a consistent constitutional conservative. Only appellate court judges, and not state trial court judges, generate open, public, easily accessible, transparent records because their decisions are written and used statewide each day by attorneys and judges in all types of cases. Only Judge Markey has this crucial credential, i.e. proof she adheres to the Rule of Law.  (Emphasis in original). 
Sounds good, right?  Well, in the words of the immortal Lee Corso, not so fast, my friend.  In 2010, I wrote about Allen v Bloomfield Hills School District, which was anything but a "rule of law" decision.  And, unfortunately, since then, I have learned of more examples of Judge Markey's adventures in open field running, untethered by the law.

One of the risks of touting your record is that people might actually read it.

The most glaring example of Judge Markey's departure from the law is her dissent from the majority decision in Progressive Michigan Insurance Company v Smith, a 2010 decision.  In that case, Smith drove his truck across the center line of the road and injured two other people. Since he had too many points on his record and no valid license, Smith had not been able to procure insurance for his truck, so his girlfriend bought it.  Smith was supposed to be excluded from coverage under the policy.  If excluded, the injured persons had no claim against the insurance policy and would be deprived of a potential source of recovery.  If not excluded, the insurance coverage would apply and potentially be available to those injured by Smith's negligence.

There is a Michigan statute directly on point here, MCL 500.3009(2), which states:
If authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person.  Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance:  Warning -- when a named excluded person operates a vehicle all liability coverage is void -- no one is insured.  Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.  (Emphasis added).
So, to exclude a person from coverage, (1) the person must be named as excluded and (2) the specified warning must appear on both (a) the face of the policy or declaration page or policy certificate, and (b) on the certificate of insurance.  In this case, Smith was named as an excluded person and the specified warning appeared on the declaration page, but the warning on the certificate of insurance was not identical to the specified warning -- the last word was "responsible" instead of "liable." 

Thus, the policy did not comply with the clear requirements of the statute, and the Court of Appeals determined that Smith's exclusion was not valid, resulting in coverage for the injured motorists.  This was a 2-1 decision.  Both judges in the majority are of Republican heritage; Judge Markey dissented. 

The majority reasoned:
The Legislature did not merely set forth the substance of the required warning.  Instead, the statute mandates use of "the following notice," which notice is explicitly provided for insurers to use verbatim.  Further the Legislature did not merely state that this notice is required, without specifying the effect of noncomplicance.  If the required warning notice is not provided, the named person "exclusion shall not be valid."  The statute could not be clearer.
 Dissenting, Judge Markey began with words that will echo throughout her campaign, but are belied by numerous opinions she has authored:
I too strongly adhere to the philosophy that it is this Court's function to apply the law as plainly written.  It is not our job to modify, amend, or read into a statute something that is not there; such legislating from the bench is simply improper.  Legislating belongs to the Legislature.
These are laudable sentiments, but they would be more persuasive if Judge Markey did not then immediately violate the philosophy she professes to share.  Judge Markey stated that she would have found the insurance company complied with the statute and excluded coverage for Smith, and she did so under the banner of "common sense":
Must we as strict constructionists abandon "common sense" and render a decision not only remarkably hyper-technical legally but also profoundly unjust and jarring to what I will presume to say is the average person's sense of justice and fair play?  I think not.
It is thus apparent that Judge Markey will apply the rule of law except where she believes it is not consistent with "common sense" or "the average person's sense of justice and fair play."  Under this standard, there is no standard -- she is free to rule as she wishes, without regard to the law, as long as she can fit her ruling under the unlimited umbrella of "common sense" or "fair play." 

The case was appealed to the Michigan Supreme Court, but the application ultimately was denied.  Still the denial afforded an opportunity for the justices to weigh in, and the Chief Justice did so, with his customary directness:
The dissenting opinion of Judge Markey in the Court of Appeals, although professing an adherence to the philosophy of interpreting the law as plainly written, nevertheless ignored the statutory language[.]  (Emphasis in original).
The Chief Justice described Judge Markey's opinion as "a shocking departure from the rule of law," and noted:
All Michigan citizens should be extraordinarily troubled by any judge who advances the notion that the rule of law must be enforced unless a judge finds an outcome in a particular case to be one of which he personally disapproves.  In a constitutional republic, judges have no such authority, and the rule of law crumbles where a constitutional, validly enacted mandate can be ignored simply because it offends a judge's sensibilities -- even if on "rare occasion[s]."  (Emphasis in original).
As if that wasn't clear enough, the Chief Justice kept the pedal to the metal:
With all due respect to Judge Markey, our judicial oaths require judges to enforce the Legislature's policy choices, even when we may personally find the outcome in a given case "unjust," "inequitable," "jarring," "hyper-technical," or contrary to what we intuit an "average person's" sensibilities to be.  As this Court has stated, it is a mere "caricature" of judicial restraint for a judge "to assert that her common sense should be allowed to override the language of the statute."  (Emphasis in original; footnotes omitted).
It's pretty simple -- "rule of law" is a standard to be applied in judicial decision-making.  It embraces the notion that the people speak through the Legislature and that clear and unambiguous statutes -- like the one involved in the Smith case -- are to be enforced as written.

When a judge decides that a statute, despite its clarity, must be interpreted in a way that comports with "common sense" or her notion of "justice and fair play," her opinion becomes unmoored from the law, and the result becomes a function of her feelings.  This removes important, perhaps the most important, characteristics of law itself -- the ability to know what the law is and to rely upon it.

In a just and ordered society, commercial and personal interaction depend upon our ability to rely on others' behavior.  For example, roads and motor vehicles are useless without traffic laws, and without laws enforcing contracts, people cannot rely on their agreements, even if written.  In this way, the rule of law promotes freedom because it produces a common understanding of what the law means and how it applies to us.  In other words, we can play the game because we know the rules. 

In Judge Markey's world, and in the world of the so-called "empathy judges," there really are no rules, since even crystal clear statutes must always pass the "feelings" test, and there will always be cases in which a judge simply doesn't like the result the law compels.  At that point, she resorts to vague notions of "common sense" or her individual concept of "justice and fair play."  A judge taking that approach ceases to apply the law and forfeits her right to proclaim herself a "rule of law judge."  She has instead become simply another legislator, imposing her personal viewpoint on the parties before her and on anyone else affected by her decision.  Her standard for decision-making is no standard at all.

More to come.



Tuesday, June 12, 2012

Crittendon's Island

Those of us steeped in 1960s culture have no problem recalling the most famous charter of all time -- the SS Minnow, hired for a three hour tour that lasted three seasons and 98 episodes. 

Now, we have another charter that has beached, this time in the city of Detroit with a spinoff in the Ingham County Circuit Court.  It's the Detroit City Charter, but this time, instead of the hapless Gilligan, we have Krystal Crittendon.  Like the original series, this comedy seems destined to be with us for awhile.

You know the story by now.  In a nutshell, the city and the state of Michigan signed a consent agreement in an 11th hour effort to avoid an emergency financial manager.  As its implementation neared, Crittendon, the city's chief lawyer, filed a lawsuit in the Ingham County Circuit Court, claiming that the agreement is unenforceable because the city Charter prohibits agreements between the city and any entity that owes the city money.  Crittendon alleges that, because the state owes the city money for past revenue sharing and other items, the agreement cannot be enforced.  In response, the state is threatening to withhold $80 million in revenue sharing, which will send the city spiraling into insolvency.

It's important to note that neither the city council nor the mayor authorized or directed Crittendon to file this lawsuit.  She filed on her own, claiming that the city Charter imposes on her not only the responsibility, but the obligation to do so.  This line -- that the Charter gives her not just the authority to file but makes her file -- has been repeated in the press, but is it true?

There are three provisions of the Charter that, theoretically, might support Crittendon's position.  Here they are:

Sec. 7.5-203. Civil Litigation.
The Corporation Counsel shall defend all actions or proceedings against the City. The Corporation Counsel shall prosecute all actions or proceedings to which the City is a party or in which the City has a legal interest, when directed to do so by the Mayor.

Sec. 7.5-204. Penal Matters.
The Corporation Counsel is the city prosecutor and shall:
1. Institute and conduct, on behalf of the people, all cases arising from the provisions of this Charter or city ordinances and, when authorized to do so by law, cases arising under state law.

Sec. 7.5-209. Enforcement of Charter. 
The Corporation Counsel shall be responsible for enforcing compliance with the Charter. Corporation Counsel shall document in writing any violation of the Charter by the executive or legislative branches, Office of City Clerk, elected official or other persons subject to compliance with the Charter. This written notice shall contain the nature of the violation, including the Charter section(s) violated, direct the necessary action to be taken to remedy the violation, and date by which the remedial action must be taken. The time for taking the required remedial action shall not exceed fourteen (14) calendar days. The notice of Charter violation shall be presented to the offending body or individual, with a copy provided to the Mayor, City Council and City Clerk. In the event the offending body or individual fails to remedy the Charter violation within the time frame and manner required in the written notice, Corporation Counsel shall take all reasonable actions to secure compliance, including, but not limited to, judicial action.

Crittendon cannot rely on section 203, since she is barred from "prosecut[ing] all actions or proceedings to which the City is a party or in which the City has a legal interest," unless she is "directed to do so by the Mayor."  The mayor has publicly stated his disapproval of the lawsuit, so I think it is safe to say he did not direct Crittendon to file it.

Section 204 appears to provide independent authorization for Crittendon to act on her own and to command her to act -- "The Corporation Counsel . . . shall institute and conduct. . ."  But section 204 expressly relates to "Penal Matters," meaning criminal violations of city ordinances or charter provisions.  Black's Law Dictionary defines "penal" as "punishable; inflicting a punishment; containing a penalty, or relating to a penalty."  An action seeking a judgment declaring whether a contract is enforceable is not "penal" and, therefore, not a proper subject for unilateral action by the city's counsel.

Section 209 comes the closest to justifying Crittendon's position, but it falls short because it is obviously written to permit the city's counsel to enforce charter compliance internally, within the city government.  It could be argued that, since the city council approved the consent agreement, allegedly in violation of the charter, Crittendon is doing nothing more than securing the council's compliance.  The case, however, is City of Detroit vs. Michigan Treasury Department.  If the case was really all about forcing council to comply, it would be captioned Corporation Counsel vs. City Council, or something similar.  Section 209 does not apply to external entities.

Even if an arguable case can be made for Crittendon's actions, how can she square her lawsuit with section 210:

Sec. 7.5-210. Claim Reduction.
Corporation Counsel shall advise City departments, agencies and entities on risk reduction strategies that are necessary to limit or eliminate the City’s exposure to liability.

By filing this lawsuit, not only has Crittendon not acted to "limit or eliminate the City's exposure to liability," she has increased exponentially the possibility of an even greater financial crisis than currently exists.

Gilligan had a good heart, but when he tried to help his fellow castaways, he often made things worse.  That seems to be the case here as well, on Crittendon's island.