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
10.  MICHIGAN STATE

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.


Monday, May 21, 2012

On My Son's Graduation

My son graduates from high school today.  In this day of nearly mandatory college, it's easy to lose sight of the fact that a high school diploma is a significant achievement to be celebrated.  To mark this special day, I'm reposting an item from last November.  Much has happened since then, but the essence of the post remains true, now more than ever.

******************************************************

Dear Alex:

In the 10 months since I wrote your last retreat letter, much has changed, but the important things are still the same, and the best things have gotten better.

This past January, you were working hard to make the varsity baseball team. Since then, you have lettered in track and cross-country, become a cross-country co-captain, and gotten into the best shape of your life.

Ten months ago, you were starting to rehearse a play in which you had a good, but small role. Today, you are rehearsing for a play in which you have the lead, and getting ready to audition for a play in which you hope to be the lead.

In January, you were thinking (occasionally) about school and (rarely) your AP exams. Now, you are thinking about college and even pausing once in a while to reflect on possible careers.

It should be obvious that this is a time of transitions for you. While you still have unfinished business at De La Salle, you are right to look ahead and plan ahead, because that’s the only way you will move ahead.

This is an exciting time for you, Alex, and it will get better (although, at times, there will be some moments of anxiety). Enjoy this time, and keep doing the things you need to do to enhance your life experience – focus on your classes, the play, and getting ready for the next track season – but keep looking forward.


While change swirls about you, the important things have not changed. What I wrote in January remains true today: “You are a fantastic person. You have a wonderful heart and care deeply about your family and friends. I marvel at your relationship with Tori, and I love hearing you talk to your mother about the events of the day or the latest drama in your life. I never get tired of talking to you (as you know all too well), and I really never get tired of listening to you. You have a wisdom and insight beyond your years, and it is endlessly fascinating to me.”

And while so many good things have been constant, the best things have gotten better. You have a deeper faith and appreciation of what it means to be a Christian in our world. You have begun to understand the positive impact you can have on others if you utilize the gifts God has given you.

As you move forward, always remember Jeremiah 29:11:

"For I know the plans I have for you," declares the Lord, "plans to prosper you and not to harm you, plans to give you hope and a future."

Prosperity, hope, a future –these are the wonderful things that await you if you remain steadfast in your studies, your virtues, and your heart.

You and I have spoken many times of the need to build a strong foundation. You are nearing the time when that foundation will be most severely tested, when you go off to college and live, work, succeed or fail, on your own. I know the kind of man you are, and I see the kind of man you can become. It makes me smile to think of you reaching your potential.

The great American soldier, General Douglas MacArthur, prayed:


Build me a son, O Lord, who will be strong enough to know when he is weak, and brave enough to face himself when he is afraid, one who will be proud and unbending in honest defeat, and humble and gentle in victory.

Alex, you have these qualities and so much more. I do not like to think about next year, because when you leave for college, there will be an incredible emptiness in my home and in my heart. But as painful as that will be, it is the inescapable companion and irrefutable evidence of the extraordinary joy you bring me every day.

You, your sister, and your mother are gifts from God, Alex, and I love you with the depth and emotion that such gifts deserve. I love you without condition, wholeheartedly. You are my son and, along with Tori and your mother, you are my life.

Dad.

Saturday, May 19, 2012

These Libertarians? They're a Joke.

Just returned to the Emerald City from day one of the State GOP Convention, during which each congressional district chose its national convention delegates.  In The Wiz's district, a total of six delegates were selected, of whom three have no business representing the party at the national convention.

During the presidential primary in February, our district voted for Mitt Romney.  So, our delegates have to commit to vote for Romney at least through the first ballot at the national convention.  In order to be considered for national delegate, each person had to sign an affidavit stating he or she would vote for Romney.

So, what's the problem?  Three of the delegates voted in by our district were selected by bloc votes cast by those committed to a former Libertarian now claiming to be a Republican, who puts one in mind of Professor Irwin Corey.  Not only were votes cast as a bloc, they were withheld from other candidates as a bloc, under orders from campaign organizers.

Here's how it works:  6 candidates were running for four spots, one of them being a "Corey" supporter.  The other "Coreybots" in the caucus all voted for the one Corey supporter only, and did not vote for any other candidate, thus reducing the votes the other candidates would have received and artificially inflating the relative votes of the favored Corey backer.

Now, let me make clear that I do not care how the vote came out, and I argued against naming a slate of candidates to exclude the Coreybots.

Here's what I find troubling and laughable at the same time:  these Coreybots think of themselves as libertarians.  Random House Dictionary defines "libertarian" as "a person who advocates liberty,  especially with regard to thought or conduct; a person who maintains the doctrine of free will."

These folks didn't exercise free will (unless you argue that it was an act of free will to give up their free will, in which case there are a few other descriptors that would apply) -- they voted in lockstep, following orders.  (And do they have to be so nasty about it?  Two of the elected ones called one of the other candidates a "witch.").

So listen up, bots -- don't give me any more of your claptrap about individual liberty and autonomy, until you start walking the walk. 

And by the way, we'll be watching you at the convention, to make sure you cast your vote for Romney.  If you don't, that affidavit you signed might be evidence in a perjury case.  Just sayin'.

Thursday, May 10, 2012

Poor Don Verrilli, or, "Thank you, sir, may I have another?"

Donald Verrilli, Jr. is the Solicitor General of the United States.  He argues the federal government's position in the most important cases that reach the U.S. Supreme Court.

He's not having a good 2012.

After getting pounded by the court in the health care litigation arguments (see here and here), he had to turn around less than a month later and argue that Arizona's immigration law, SB 1070, had been preempted by federal immigraton law.  The case, Arizona v U.S., featured another legal beat-down and, unlike the health care cases, the liberal wing of the court didn't exactly leap to his defense.  To top it off, his Arizona opponent was the same person he had faced in the health care cases - the great Paul Clement.

Here's the background on the Arizona case. 

Arizona's Border Problems

Arizona has a 370-mile border with Mexico.  One-third of all immigration-related arrests take place in Arizona.  Between 2006 and 2010, 51 drug-smuggling tunnels were discovered in the border town of Nogales, Arizona.  Phoenix has experienced numerous home invasions and hundreds of reported kidnappings, all linked to the drug trade and human smuggling.  As far as 80 miles from the border and within 30 miles of Phoenix, the federal government has put up road signs warning the public:
Danger -- Public Warning -- Travel Not Recommended" -- "Active Drug and Human Smuggling Area" -- "Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed" 
Arizona spends hundreds of millions of dollars each year incarcerating criminal aliens and providing education and health care to aliens unlawfully present in the state. 

The list goes on and on.  You get the idea -- unlawful immigration is an enormous problem in Arizona.

SB 1070

To address the problem, Arizona passed SB 1070.  The Supreme Court argument focused primarily on sections 2, 3, and 5.

Section 2 says that for any lawful stop, detention, or arrest by Arizona law enforcement, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."  The law further provides that the person's "immigration status shall be verified with the Federal government[.]"

Section 3 provides for state enforcement of the federal laws requiring persons to carry alien registration documents.  This section expressly does not apply to persons authorized to be in the U.S.

Section 5 makes it a misdemeanor for "a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in [Arizona]."

So, if you get stopped or arrested in Arizona and the police have a reasonable suspicion that you are in the U.S. illegally, they have to verify your immigration status with the federal government.

The Court Challenge and Preemption.

The U.S. sued Arizona, and ultimately, the Ninth Circuit (of course!) held that the Arizona law was preempted by federal law and, therefore, invalid and unenforceable.

The doctrine of preemption is founded on the U.S. Constitution's Supremacy Clause, Article VI, Clause 2, which states:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
Over the years, the cases interpreting the Supremacy Clause have described three types of preemption -- express preemption, field preemption, and implied preemption.  The first occurs when federal law expressly preempts state law; the second when federal law "occupies the field" to the exclusion of a state law.  Neither of these are applicable in this case.  Therefore, the question before the Supreme Court was whether federal law impliedly preempted state law.

Supreme Court decisions have made it clear that a law is not preempted unless there is clear evidence that Congress intended preemption.  A state law is not preempted merely because the executive branch claims the law is inconsistent with its enforcement priorities.

Verrilli at the Podium

In the Supreme Court, Paul Clement did his usual sterling job as attorney for Arizona, attacking the Ninth Circuit's decision and defending the Arizona law.

Then, it was Verrilli's turn.

Before Verrilli spoke even one complete sentence, the Chief Justice interrupted him:
Before you get into what the case is about, I'd like to clear up at the outset what it's not about.  No part of your argument has to do with racial or ethnic profiling, does it?  I saw none of that in your brief.
To which Verrilli responded, "That's correct."  But, a few moments later, Verrilli seemed to backtrack:
Now, we are not making an allegation of racial profiling.  Nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. . . . And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully -- 
JUSTICE SCALIA:  Sounds like racial profiling to me.
Later, Verrilli argued that "under the Constitution, it's the President and the Executive Branch that are responsible for the enforcement of Federal law[.]"  This argument proved to be a little too much for Chief Justice Roberts, who responded:
It is not an effort to enforce Federal law.  It is an effort to let you know about violations of Federal law.  Whether or not you enforce them is still entirely up to you. . . .Under 2(B), the person is already stopped for some other reason. . . . So that decision to stop the individual has nothing to do with immigration law at all.  All that has to do with immigration law is the -- whether or not they can ask the Federal Government to find out if this person is illegal or not, and then leave it up to you. It seems to me that the Federal Government just doesn't want to know who's here illegally or not.
Justice Alito joined in, focused on Verrilli's argument that the Arizona law interfered with federal immigration law enforcement priorities:
How can a State officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the Federal removal priorities without making an inquiry to the Federal Government?
Verrilli responded:
[T]here's a difference, Justice Alito, I think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case.
In other words, Arizona police officers can contact the Federal government for immigration information voluntarily, but Arizona cannot tell them to do so.

At this point, even Justice Breyer was confused:
Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government.  And then it says that the Federal Government has -- any agency -- and then it says the Federal Government has an obligation to respond. . . .If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call? . . .Because in my mind, I'm not clear what your answer is to that.
Verrilli stumbled around for a few seconds until he heard the lilting voice of Justice Sotomayor.  Surely, this would be a lifeline, right?

Not exactly.
JUSTICE SOTOMAYOR:  Can I get to a different question? . . . Putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else?  Because I, frankly -- as the Chief has said to you, it's not that it's forcing you to change your enforcement priorities.  You don't have to take the person into custody.  So what's left of your argument?
That was a good question.  Apparently, what was left of Verrilli's argument was the notion that foreign policy requires the Court to invalidate the Arizona law.  Verrilli argued:
And so -- so you're going to have a situation of mass incarceration of people who are unlawfully present.  That is going to raise -- poses a very serious risk of raising significant foreign relations problems.  And those problems are real,  That is the problem of reciprocal treatment of United States citizens in other countries. 
JUSTICE KENNEDY:  So you're saying the government has a legitimate interest in not enforcing its laws?
Shortly thereafter, Justice Scalia took up this issue:

JUSTICE SCALIA:  Well, can't you avoid that particular foreign relations problem by simply deporting these people?  Look, free them from the jails. . . and send them back to the countries that are objecting. . . . What's the problem with that? 
GENERAL VERRILLI:  *  *  * Between 60 and 70 percent of the people that we remove every year, we remove to Mexico.  And in addition, we have to have the cooperation of the Mexicans.  And I think as the Court knows from other cases, the cooperation of the country to whom we are -- to which we are removing people who are unlawfully present is vital to be able to make removal work.  In addition, we have very significant issues on the border with Mexico.  And in fact, they're the very issues that Arizona's complaining about in that -- 
JUSTICE SCALIA:  So we have to -- we have to enforce our laws in a manner that will please Mexico.  Is that what you're saying? 
GENERAL VERRILLI:  No, Your Honor, but what it does -- no, Your Honor, I'm not saying that -- 
JUSTICE SCALIA:  It sounded like what you were saying. 

Mercifully, Verrilli's time ran out shortly after that exchange.  That brought Paul Clement back up for rebuttal, which gave him the opportunity to add the human touch to his brilliant constitutional analysis:

[L]ook at the declaration of Officer Brent Glidewell[.]  He pulled somebody over in a routine traffic stop and was shot by the individual.  Now, the individual it turns out was wanted for attempted murder in El Salvador and was also guilty of illegal entry into the United States.  He was stopped on three previous occasions, and his status was not verified.  Now, if it had been, he certainly would have been apprehended.  In at least two of the stops, his immigration status wasn't checked because of a city policy, City of Phoenix. 
In the movie Animal House, Kevin Bacon is initiated into a fraternity by being ruthlessly paddled.  After each whack, he shows he can take it by saying, "Thank you, sir, may I have another?"

Don Verrilli can relate to Bacon's character.  The Obama administration hands him lousy case after lousy case, he goes up the Supreme Court and takes his lumps, then has to go back to his office and wait for the next loser.

Verrilli is an excellent lawyer (you don't get to be Solicitor General unless you 've got something on the ball) and the Court respects him.  It would be nice if his boss respected him enough not to keep sending him to the Supreme Court armed with the sort of arguments we've seen in the last couple months.

Tuesday, March 27, 2012

Understanding the Health Care Litigation, Part Three

First, the gloating.

Yesterday, I wrote:  "Commerce doesn't exist to be regulated until people engage in commerce. The ACA forces people to engage in commerce, then regulates them."

Today at the Supreme Court, Justice Kennedy asked the Solicitor General: "Can you create commerce order to regulate it?"

Now, I'm not saying that Justice Kennedy checks out the Wizard of Laws before important arguments, but is it more than a coincidence that his first question to the Solicitor General echoed the Wiz?  Just sayin'.

Now, to business.

Today's Arguments

Not a good day for the Obama administration or its Solicitor General, Donald Verrilli.  He was questioned relentlessly by the Justices -- especially Kennedy, Alito, and Scalia -- on the implications of the administration position that the individual mandate was founded on the Commerce Clause.

Here are three beautiful statements by Justice Scalia:
The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what -- what else can it not do?
          and

An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.
          and
I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.
Verrilli had a difficult time, but as flustered as he got, Paul Clement, arguing for the 26 states challenging Obamacare, was that composed and cool under fire.  Here's an example from an exchange between Clement and Justice Breyer, who, as part of a question that ran two pages in the transcript, inquired whether Congress had the power to create commerce, based on the fact that Congress created a national bank, which was approved by the Supreme Court in the 1819 McCulloch v Maryland decision.  Clement replied coolly:

MR. CLEMENT: Well, Justice Breyer, let me start at the beginning of your question with McCulloch.  McCulloch was not a commerce power case.

JUSTICE BREYER: It was both?  

MR. CLEMENT: No, the bank was not justified and the corporation was not justified as an exercise of commerce power. So that is not a case that says that it's okay to conjure up the bank as an exercise of the commerce power.

That's pretty much the way the day went -- Verrilli struggling and Clement in command.  As most appellate lawyers will tell you, it's risky to predict outcomes based on questions during oral argument, but it's difficult to see this as anything other than a good day for Obamacare opponents.

Wednesday's Arguments on Severability and Medicaid

Read about severability here.  If the lower court decisions on severability were laid end to end, they would point in all directions.  Still, it's hard to imagine that this bill would have passed without the individual mandate, so if the mandate is declared unconstitutional, there is no logical reason the rest of the bill should survive.

The other issue is Obamacare's Medicaid expansion.  As described by the 26 states challenging the law:

Title II of the ACA expands the Medicaid program in multiple respects and transforms it from a cooperative program addressed to specific categories of the most needy into a mandatory program designed to fulfill the individual mandate for the entire non-elderly population with income below 138% of the federal poverty line. Whereas States traditionally were required to offer Medicaid only to those low-income individuals who fell within certain “categorically needy” groups (families with dependent children, elderly, blind, disabled, children, and pregnant women), and retained significant flexibility to determine whether and to what extent to cover other low-income individuals, the Act requires States to cover all individuals under age 65 with incomes up to 133% of the poverty level, with a 5% “income disregard” provision that effectively raises that threshold to 138%.

Congress could not require the states to implement and expand these programs through direct legislation, however, so it is attempting to accomplish it through the "spending power."  Congress has conditioned the receipt of all federal monies on state compliance with the new Medicaid provisions, thus effectively coercing state compliance by a kind of blackmail.  As the 26 states put it:
The ACA threatens States with the loss of every penny of federal funding under the single largest grant-in-aid program in existence—literally billions of dollars each year—if they do not capitulate to Congress’ steep new demands. There is no plausible argument that a State could afford to turn down such a massive federal inducement, particularly when doing so would mean assuming the full burden of covering its neediest residents’ medical costs, even as billions of federal tax dollars extracted from the State’s residents would continue to fill federal coffers to fund Medicaid in the other 49 States.
Ultimately, I think the Court may end up not deciding the Medicaid question at all.  If the Court finds the individual mandate unconstitutional and determines that it is not severable, the entire act, including the Medicaid provisions, crumbles.  At that point, the Medicaid issue is moot and can be reserved for another day.

Another fascinatiing day coming up on Wednesday, with severability being the big issue of the day.