Tuesday, October 27, 2009

Saving Her Energy

When Richard Nixon ran for President in 1968 after six years out of public life and living in California, a popular slogan described him as "The New Nixon: Tanned, Rested, and Ready."

State Sen. Gretchen Whitmer (D-East Lansing) announced recently that she was running for Michigan attorney general. I can't comment on her tan or her readiness, but after eight years of doing nothing in the legislature, she should certainly be well-rested.

Using the state's legislature website, I searched records going back to 2001, Whitmer's first year in the House. I examined every bill for which she was the primary sponsor. In the House and Senate to date, Whitmer has sponsored 128 bills. Of these, a grand total of 3 made it to a vote, and 2 were passed. The third was defeated 81-22 in the House. She has not had a single bill make it to a vote since June 29, 2005.

If you're keeping score at home, that's 2 passed bills out of 128 attempts, which is a .015 batting average, enough to make Hank Aguirre blush.

So, there's no substantial accomplishment as a legislator in terms of quantity. But is the quality there? Has her legislation been of such monumental importance that we can forgive its infrequency?

In the words of Ted Kennedy, "Ah, no."

Whitmer's first legislative triumph was in 2004, when she sponsored HB 4703. From the Floor Analysis of the bill:

The bill would amend the Public Health Code to increase construction permit and license fees for campgrounds and public swimming pools. It also would create the "Campground Fund" and the "Swimming Pool Fund". (Punctuation in original).
So, a tax increase. Oh, excuse me -- a fee increase.

The following year, still recovering from the heady success of soaking Michigan's campground and swimming pool operators, Whitmer sponsored HB 4405. From the Floor Analysis of this bill:

The bill would amend the Public Health Code to eliminate the authority of a disciplinary subcommittee to impose sanctions against a pharmacist for employing the mail to sell, distribute, or deliver a drug that requires a prescription when the prescription for the drug is received by mail.
In other words, the bill permitted a pharmacist to mail out prescribed drugs when the prescription was received by mail.

Wow. That bill ranks right up there with the Declaration of Independence and the Magna Charta.

Two bills in four years! Raising taxes, er, fees, and letting pharmacists mail out prescriptions in certain cases -- woo hoo! Such success would certainly motivate a person to continue the trend, right?


Since June of 2005, Whitmer hasn't gotten a single bill to a vote. 70 bills in a row, referred to committee, never to be heard from again. Oh-for-seventy. An average of .000. If the 2008 Detroit Lions were a legislator, they would be Gretchen Whitmer.

And now she wants to be attorney general. Announcing her candidacy, Whitmer said, "Michigan families work hard and play by the rules. We need an attorney general who puts people first."

How about an attorney general who works hard, has a record of leadership and good judgment, and has demonstrated the ability to get things done? How about an attorney general with some experience in law enforcement or the courtroom?

We don't need someone who simply occupies space waiting for the next electoral opportunity -- we need someone who gets things done. By that standard and almost every imaginable standard, Whitmer fails.

As my kids would say, epic fail.

Monday, October 26, 2009

A Crystal Ball?

The Michigan Supreme Court experienced an extraordinary change in last year's elections, when Cliff Taylor was replaced by Diane Hathaway. This month, the new court begins its first full year together. Check here for one observer's keen predictions as to how the court will decide its first eight cases. Among other things, the cases involve home invasion, a vehicular homicide, and apples. Enjoy!

Stop the Obscene Profits of the Health Ca --- Whoops. Never Mind.

In the politics of demonization, few industries have suffered as much as health care insurers. Admittedly, they have sometimes brought it on themselves, but, as usual, the hysterical left is just that -- hysterical -- and, as usual, wrong.

One favorite theme of the HL is that the profits of health care insurers are "obscene." Nancy Pelosi called the profits "immoral" and "obscene," while Democratic congressman Chris Van Hollen said that insurance industry profits have "skyrocketed." The worst (as usual) is moveon.org, which said in an ad that "Health insurance companies are willing to let the bodies pile up as long as their profits are safe."

They're all wrong.

Check out the facts here. According to a study by Fortune magazine:

Health insurers posted a 2.2 percent profit margin last year, placing them 35th on the Fortune 500 list of top industries. As is typical, other health sectors did much better - drugs and medical products and services were both in the top 10.

The railroads brought in a 12.6 percent profit margin. Leading the list: network and other communications equipment, at 20.4 percent.

HealthSpring, the best performer in the health insurance industry, posted 5.4 percent. That's a less profitable margin than was achieved by the makers of Tupperware, Clorox bleach and Molson and Coors beers.

Gosh, 2.2 percent. Can't have that, can we?

But, you say, that was last year only -- what about the Bush years, when greed ran rampant?

Sorry, wrong again:
The industry's overall profits grew only 8.8 percent from 2003 to 2008, and its margins year to year, from 2005 forward, never cracked 8 percent.

I wish I could tell you how many times friends of mine, apparently rational, have railed about insurance company profits. To those friends I say this: You know who you are. Please use the comments section of this blog to leave your sincere, heartfelt apologies. In return, I won't gloat.


Wednesday, October 21, 2009

We're Number 7! We're Number 7!

Oh boy, the figures are rolling in on The One's stimulus package and that unbelievable recovery we're in! And the Enchanted Mitten is number 7 in the latest rankings!

All 50 states have been studied, comparing The One's projection of jobs created through December 2010 with the actual change in jobs through September 2009, using state payroll figures from the Bureau of Labor Statistics.

Do you remember the euphoria when The One said we would create 3.5 million jobs? The actual number, when you add up the state-by-state projections, was 3,460,000. Well, the figures are in so far, and it turns out the nation has actually seen jobs decline -- there are now 2,708,600 fewer people working, or a net loss of 6,168,600 jobs, compared to the projection.

Okay, I know the projection is for December 2010 and we still have a year to go, so it could still happen, couldn't it? After all, we're off to a flying start!

Here in the Enchanted Mitten, we were projected to gain 109,000 jobs. We've actually lost 137,300, for a net loss over the projection of 246,300 jobs. Still, this fine performance (guess we're just not making enough movies, or green products, or green movies, or whatever) only puts us at 7th worst among job losers. Here are the six ahead of us:

1. California, -732,400
2. Texas, -494,300
3. Florida, -371,100
4. New York, -326,800
5. Georgia, -291,900
6. Illinois, -256,900

Yes, we're only 10,600 lost jobs behind Illinois, a gap I think Gov. Tinkerbell and the rest of the Lansing think tank can easily close, but we'd better watch out -- Pennsylvania is only 100 lost jobs behind us, and Ohio is lurking in 9th with a net of 230,500 lost jobs.

I know what you're thinking, and you're probably right. It's not fair to compare Michigan's dismal performance against the failed stimulus, because the Mitten got out in front and started shedding jobs almost as soon as Tink could say, "You're gonna be blown away." But hey, rules are rules, and we have to take the rankings as we find them.

And so it goes. We're number 7! We're number 7!

Battling the Internet Czars

The One and his minions continue to pursue their radical agenda, wrapped in pleasant-sounding, benign terminology. To combat the fact that conservatives dominate the free market of ideas on talk radio, they want to bring back the so-called "Fairness Doctrine," which will force otherwise rational media outlets to air rejected liberal opinions because it's "fair" to do so. Think about Air America being rammed down your throat -- that's the Fairness Doctrine. Isn't it enough that we have to contend with the WNBA?

The latest threat to freedom and the free market is the equally benign-sounding "Net Neutrality" being pushed by the Democrats over at the FCC. Anyone who uses, reads, writes, or depends on the internet should be frightened by this concept. Here's how it works: right now, internet service providers are free to charge behemoth websites (think Google, Amazon, Twitter) to access their bandwith, while they are free to charge less to other, smaller users, or even to make access free. This freedom -- to price their services as they see fit -- has generated tremendous growth in the internet and the increasingly related area of mobile communications. As Bret Swanson put it in the October 4 Wall Street Journal:
Since 2004, bandwidth per capita in the U.S. grew to three megabits per second from just 262 kilobits per second, and monthly Internet traffic increased to two billion gigabytes from 170 million gigabytes—both tenfold leaps. * * * Wireless carriers invested $100 billion in just the past three years, and the U.S. vaulted past Europe in fast 3G mobile networks. Americans enjoy mobile voice prices 60% cheaper than foreign peers. And the once closed mobile ecosystem is more open, modular and dynamic than ever. All this occurred without net neutrality regulation.

Moreover, the hypocrisy of so-called “net neutrality” is truly astounding. Google, for example, operates Google Voice, but does not extend the service everywhere because in certain, rural areas and conferencing services Google has higher interconnection fees. So, Google wants to cherry-pick the most profitable networks but refuses neutral service when it’s costlier. This, of course, is perfectly rational, but sheer hypocrisy when Google complains about ISPs that want to charge it more because of the tremendous costs Google and other mega-sites like Facebook, Amazon, and Twitter impose on an ISP to be able to offer these services at a high enough speed to satisfy consumers.

“Net neutrality” would require ISPs to treat every site exactly the same, turning the internet from a growing, vital resource into nothing more than a “dumb” pipeline, discouraging growth and stifling innovation. When will these morons learn that if firms cannot price their offerings to reflect market realities, there will either be no market or the prices will be so astronomically high that the market will be inaccessible for the majority of consumers?

There is an opportunity to be heard on this. Go to the FCC blog set up here to receive comments and tell them that there is nothing neutral about "net neutrality." You can find out more about this issue at the Technology Liberation Front site here.

Tuesday, October 20, 2009

Biggest. Understatement. Ever.

A recent story on WPTZ.com recounted the events leading up to a stabbing. Apparently, a man named Nazeih Hammouri stabbed his son after an argument over a clogged toilet.

Even better than the story was this, the Biggest Understatement Ever:

"Police said Hammouri was drinking."

No kidding!

Friday, September 25, 2009

Shelling ACORN

You may have heard about ACORN's recent troubles. Well, ACORN is fighting back with its characteristic hypocrisy and stupidity. Read part one of an analysis here and see one of the videos that started it all.

Tuesday, September 15, 2009

Politics and Puffery

We have all experienced puffery, although some may not be familiar with the term itself. "Puffery" is an exaggeration or statement that no reasonable person would take as factual. Typically occurring in advertising and sales, the fact that a statement is not believable means that you cannot sue someone for saying it. For example, "This is greatest car ever made" is an example of puffery, and if you buy the car and discover it isn't the greatest car ever made, you cannot sue over it.

The most common example of puffery besides sales is in resumes and job applications. There was an attorney who left our firm and, applying for other jobs, billed himself as experienced in ERISA transactions. Technically true, but the experience consisted of getting COBRA notices after being canned.

Among resumes and job applications, the worst subset has to be political biographies. These magnify every kid with a lemonade stand into a "job-creating small business owner" and anyone who flips off a light switch into a "green energy activist."

With the 2010 election season beginning to form like a high pressure system over the Rockies, we're going to hear a lot of biographical puffery from candidates.

Gretchen Whitmer? No exception.

Whitmer, the attorney general wannabe, describes her background in part as follows:

Prior to her election to the Michigan House of Representatives, Whitmer was a corporate litigator specializing in administrative and regulatory law with the firm Dickinson Wright in Lansing, Michigan. She practiced administrative law before the Ingham County Circuit Court and the Michigan Public Service Commission.

Sounds pretty good, right? When you look at the facts, not so much.

Whitmer was licensed in November of 1998. She was elected to the House of Representatives in 2000. So, she practiced law for about two years, although much of that time she was campaigning for the House seat.

Whitmer was employed as a lawyer by Dickinson Wright, a large, well-respected, politically heady firm with an office in Lansing. During her first two years out of law school, however, Whitmer was undoubtedly squirreled away in an office somewhere, drafting discovery responses or writing motions and briefs for the attorney who actually went to court and argued. Of course, to figure out how many cases Whitmer appeared on for her clients is a difficult task, since trial court dockets are not searchable by attorney. But we can search a surrogate database -- the Court of Appeals.

A busy attorney ends up in the Court of Appeals, either trying to get a ruling overturned, or trying to keep a judgment intact. The Court of Appeals' records are searchable by attorney, and a search for Whitmer's involvement results in zero -- as in ZEE-ROH -- cases. For contrast purposes, your humble Wizard has had 42 cases in the Court of Appeals, more than most, but far fewer than some. For someone running for attorney general, 42 is a respectable number, but zero is a joke.

Michigan law describes the duties of the attorney general. Primarily:

The attorney general shall prosecute and defend all actions in the supreme court, in which the state shall be interested, or a party; he may, in his discretion, designate one of the assistant attorneys general to be known as the solicitor general, who, under his direction, shall have charge of such causes in the supreme court and shall perform such other duties as may be assigned to him; and the attorney general shall also, when requested by the governor, or either branch of the legislature, and may, when in his own judgment the interests of the state require it, intervene in and appear for the people of this state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested.

Clearly, these are significant and important responsibilities. Am I alone in thinking that maybe, just maybe, it's a good idea to have an attorney general who knows where the courthouse is and has actually tried a case or argued one in the Court of Appeals?

When you're selling a car or trying to impress that special someone, puffery is an old and time-honored strategy. Isn't it about time, though, that we demanded more from our elected officials?

Friday, September 11, 2009

An Enduring Tragedy

Eight years ago today, we lost thousands of our family, friends, and fellow Americans in an unprovoked, despicable attack that will be forever remembered as this generation's Pearl Harbor.

May we never forget our loss or the murderers who inflicted it.

It's interesting now to go back at look at reactions to the 9/11 attacks. For instance, try this one, from September 19, 2001:

We must also engage, however, in the more difficult task of understanding the sources of such madness. The essence of this tragedy, it seems to me, derives from a fundamental absence of empathy on the part of the attackers: an inability to imagine, or connect with, the humanity and suffering of others. Such a failure of empathy, such numbness to the pain of a child or the desperation of a parent, is not innate; nor, history tells us, is it unique to a particular culture, religion, or ethnicity. It may find expression in a particular brand of violence, and may be channeled by particular demagogues or fanatics. Most often, though, it grows out of a climate of poverty and ignorance, helplessness and despair.

So the author is saying we should empathize with the 9/11 murderers and try to understand them, to relate to their childhoods or their lack of career advancement potential. They didn't want to kill Americans, they were just poor, or ignorant, or felt they were helpless, or were in despair.

Can you imagine someone making this argument on behalf of gangbangers who kill a child in a drive-by? How about KKK members who burn crosses or kill minorities? Maybe we shouldn't use military force against the Taliban and Al Qaeda, instead sending Dr. Phil and teams of therapists to raise their self-esteem?

You know what makes the quotation above even worse? Its author is now the President of the United States.

The quotation is from a September 19, 2001 article The One (then The Future One) wrote for the Hyde Park Herald, a local Chicago newspaper. (Hat tip to Red State and to The Incomparable Michelle Malkin for the article).

Compare The One's views with Tony Blair's:

So what do we do? Don't overreact some say. We aren't. We haven't lashed out. No missiles on the first night just for effect. Don't kill innocent people. We are not the ones who waged war on the innocent. We seek the guilty. Look for a diplomatic solution. There is no diplomacy with Bin Laden or the Taliban regime. State an ultimatum and get their response. We stated the ultimatum; they haven't responded. Understand the causes of terror. Yes, we should try, but let there be no moral ambiguity about this: nothing could ever justify the events of 11 September, and it is to turn justice on its head to pretend it could. The action we take will be proportionate; targeted; we will do all we humanly can to avoid civilian casualties.

But understand what we are dealing with. Listen to the calls of those passengers on the planes. Think of the children on them, told they were going to die. Think of the cruelty beyond our comprehension as amongst the screams and the anguish of the innocent, those hijackers drove at full throttle planes laden with fuel into buildings where tens of thousands worked. They have no moral inhibition on the slaughter of the innocent. If they could have murdered not 7,000 but 70,000 does anyone doubt they would have done so and rejoiced in it? There is no compromise possible with such people, no meeting of minds, no point of understanding with such terror. Just a choice: defeat it or be defeated by it. And defeat it we must. Any action taken will be against the terrorist network of Bin Laden.

The election of a president with so little understanding of the world, so little appreciation for the lives lost on 9/11, and so much desire to understand and therapize America's enemies is simply part of the enduring tragedy of 9/11.

Thursday, September 10, 2009

Obama's Ruse

One of the first cases we studied in law school was Carlill v Carbolic Smoke Ball Company. The "carbolic smoke ball" was a rubber ball with a tube attached. The ball was filled with carbolic acid. The user inserted the tube into his or her nose and squeezed the ball, releasing the enclosed vapors into the nose, causing the nose to run and the disease to be flushed away. What disease? The carbolic smoke ball was advertised to "positively cure" coughs, colds, catarrh, asthma, eroechitis, loss of voice, sore throat, "throat deafness," snoring, sore eyes, influenza, hay fever, headaches, croup, whooping cough, and neuralgia.

Last night, Americans were treated to a televised version of the carbolic smoke ball when The One took to the airwaves and delivered his "plan" for health care reform. Now that the tsunami of media gushing has subsided somewhat, let's take a look at some of The One's claims.

The One started off by saying "nothing in this plan will require you or your employer to change the coverage or the doctor you have." He immediately followed this by saying:

As soon as I sign this bill, it will be against the law for insurance companies to drop your coverage when you get sick or water it down when you need it most. They will no longer be able to place some arbitrary cap on the amount of coverage you can receive in a given year or a lifetime. We will place a limit on how much you can be charged for out-of-pocket expenses, because in the United States of America, no one should go broke because they get sick. And insurance companies will be required to cover, with no extra charge, routine checkups and preventive care, like mammograms and colonoscopies - because there's no reason we shouldn't be catching diseases like breast cancer and colon cancer before they get worse.

So, there will be no cap on benefits, government-imposed co-pay limits, and insurance companies will be required to cover a government-imposed list of procedures at no extra charge. Can you say "premium increase"? Co-pays and benefits are adjusted as a means of negotiating lower premiums. The government is going to prohibit these negotiations, and the costs will be passed on to the consumer. Thanks a lot.

Here are two more:
There are also those who claim that our reform effort will insure illegal immigrants. This, too, is false - the reforms I'm proposing would not apply to those who are here illegally. And one more misunderstanding I want to clear up - under our plan, no federal dollars will be used to fund abortions, and federal conscience laws will remain in place.

If our new government-run health care system will not cover illegal aliens, why does The One try to sell it using a figure -- "47 million without health care" -- that includes nearly 10 million illegal aliens? And why did the House kill an amendment that would that would have explicitly banned health care for illegal aliens? On the same day, the House killed an amendment that would have expressly prohibited abortion funding through government health care. If Congress won't expressly prohibit abortion funding and benefits for illegal aliens, how can we trust the repeated assurances that these things won't happen?

That was a rhetorical question. Of course we can't trust them.

Hey, here's a good one:
Right now, too much of the hard-earned savings and tax dollars we spend on health care doesn't make us healthier.

Let's apply this rationale to the Department of Energy and the Department of Education. They have produced neither energy nor education. Let's get rid of these two departments and use that money to pay down the deficit. When The One does that, we can talk about a government takeover of health care.

Which brings us to another hilarious line:
My health care proposal has also been attacked by some who oppose reform as a "government takeover" of the entire health care system.

The One denies this by saying . . . well, actually, he never denies this. Read the speech. He never once disclaims that his intent is a government takeover. Instead, he offers an extended misdirection, which includes this startling admission:
[C]onsumers do better when there is choice and competition.

Huh? Was he kidding? I say, let's take him at his word here and, while our elected representatives in Washington are trying to divine the perfect health care system, let's do three -- that's 3 -- simple things in the interim to increase "choice and competition."

First, allow health care companies to compete across state lines. Second, make health care premiums tax deductible for individuals as well as employers. Third, allow consumers and small businesses to group together to buy health care coverage.

That's it for now -- a one page bill, maybe two pages. Talk about unleashing competition and making health insurance affordable for more people!

Meanwhile, Congress can spend the next four years arguing over whose state gets the building housing the health care "exchange" The One has envisioned.

Look, there are a lot of other problems with The One's health care ruse. How will he pay for it? Even the Los Angeles Times couldn't choke down his ludicrous explanation ("we'll cut out waste and fraud!"):
[T]he president's comments about the savings available in Medicare were disingenuous, as was his assertion that a new tax on insurers would lead them to "provide greater value for the money" instead of simply passing the cost on to policyholders. Obama will have to come up with a more complete approach to paying for reform as the legislation moves forward. He claimed the plan as his own with this speech, but he left some of the hardest questions unanswered.
Wisely, The One has postponed the public option and his insurance "exchanges" for four years, until after the next presidential election. No sense making this an issue, is there?

The Carbolic Smoke Ball Company disappeared a long time ago, like the smoke they touted as a cure. One gets the sense that, despite the energy (and desperation?) fueling The One's extraordinary address to Congress, we are being fed a carbolic smoke ball, touted as a cure, but ultimately a fraud and a ruse.

Wednesday, September 9, 2009

And A Little Child Shall . . . Obtain An Injunction

In the continuing search for solutions without apparent problems, the lovely and talented Gretchen Whitmer has done it again. Our erstwhile attorney-general-wannabe has taken laptop in hand, not to play solitaire, but to craft legislation that will permit 12-year-olds to get personal protection orders without telling anyone!

Here's the background -- when children have legal rights to pursue in court (if injured in an accident, for example), they sue through a device known as a "next friend." A next friend is a person who acts on behalf of someone who lacks the legal capacity to act on his or her own behalf. When a child brings a lawsuit, typically a parent or close relative will act as next friend. In many courts, the term "guardian ad litem" (meaning guardian for the litigation) is used.

Personal protection orders are authorized by Michigan law when a court determines there is reasonable cause to believe that the person to be restrained (the "respondent") may commit or threaten to commit an act of violence against the person seeking the order (the "petitioner").

PPOs are available to restrain a spouse, a former spouse, an individual with whom the petitioner has a child in common, a person with whom the petitioner has had a dating relationship, or an individual residing in the same household as the petitioner.

If a child needs a PPO, then the child -- who lacks the legal capacity to sue -- needs an adult to serve as his or her "next friend." Makes sense, right?

Cue Gretchen Whitmer.

On August 18, in the midst of a recession and an impending budget crisis, Whitmer zeroed in on a problem apparently more pressing -- all those 12-year-olds who want personal protection orders -- and introduced SB 734, which would amend the law to say:

If the petitioner for a personal protection order . . . is a minor 12 years of age or older, the petitioner may proceed under this section without a next friend.

So, your 12-year-old can go to court for a personal protection order without you -- or any other adult -- knowing anything about it. Is there any reason for this?

You might say, " Hey, Wiz -- what about a case where a 12-year-old is being abused by a parent? Shouldn't the child be able to go to court without the abusive parent being notified?"

There are a couple of problems with that argument. First, PPOs are ordinarily forbidden where the putative respondent is the petitioner's parent. Second, if the parent cannot be the next friend, there are other adults -- relatives, neighbors, teachers, social workers -- who can be. Third, there are other, more effective alternatives for children in that situation, and fourth, the parent will be notified in the event the PPO is issued, effectively mooting any advantage to a lack of notice.

Ah, but you come back with, "Look, Wiz, isn't the child better off if he or she at least has the option of a PPO?" Maybe, but maybe not. What happens when the child, upset that he can't go to a party, swings by the courthouse to falsely accuse his mother of abuse and to ask for a PPO? Do you think his parents might be just a tad upset when they find out what he tried to do?

"Tsk, tsk," you say. "Most children don't know where the courthouse is, let alone have the wherewithal to get there or to ask for a PPO." Exactly. So why propose to let them do it?

Parents are responsible for their children's protection. If the parents cause harm, they are liable. But these problems are few and far between, and they cannot be remedied by PPOs.

Permitting children to act without their parents' knowledge and participation erodes the family. We would never think of letting children have surgery without parental consent (unless, of course, it's abortion, which the left reveres above all). Why would we consider letting children start lawsuits without their parents' knowledge or approval, or at least the knowledge and participation of an adult?

There is an ongoing legislative effort in this country to circumvent parents and the family, to empower children to a degree for which they are unprepared, and in the process to further degrade the institution of the family. The Great Society programs have destroyed the poor family in America, a development directly related to poverty, crime, and unemployment.

Perhaps this PPO legislation will have no effect at all on the family. Given Whitmer's track record, it will never even see a Senate vote. But we need to stand firm wherever the family is challenged, starting right here at home.

Friday, September 4, 2009

Oh. The Humanity!

Be sure to check out this post about a ridiculous lawsuit at Good Law, Bad Law, It's The Law!

Ernie Harwell

Hall of Fame announcer -- and person -- Ernie Harwell has been diagnosed with an incurable cancer. 91 years old, Ernie is an icon in baseball and in Detroit particularly. One of my fondest memories of Ernie is his 1981 Hall of Fame induction speech, which he concluded with a piece he wrote in 1955:

Baseball is the President tossing out the first ball of the season and a scrubby schoolboy playing catch with his dad on a Mississippi farm. A tall, thin old man waving a scorecard from the corner of his dugout. That's baseball. And so is the big, fat guy with a bulbous nose running home one of his 714 home runs.

There's a man in Mobile who remembers that Honus Wagner hit a triple in Pittsburgh forty-six years ago. That's baseball. So is the scout reporting that a sixteen year old pitcher in Cheyenne is a coming Walter Johnson. Baseball is a spirited race of man against man, reflex against reflex. A game of inches. Every skill is measured. Every heroic, every failing is seen and cheered, or booed. And then becomes a statistic.

In baseball democracy shines its clearest. The only race that matters is the race to the bag. The creed is the rulebook. Color merely something to distinguish one team's uniform from another.

Baseball is a rookie. His experience no bigger than the lump in his throat as he begins fulfillment of his dream. It's a veteran too, a tired old man of thirty-five hoping that those aching muscles can pull him through another sweltering August and September. Nicknames are baseball, names like Zeke and Pie and Kiki and Home Run and Cracker and Dizzy and Dazzy.

Baseball is the cool, clear eyes of Rogers Hornsby. The flashing spikes of Ty Cobb, an over aged pixie named Rabbit Maranville.

Baseball just a came as simple as a ball and bat. Yet, as complex as the American spirit it symbolizes. A sport, a business and sometimes almost even a religion.

Why the fairy tale of Willie Mays making a brilliant World's Series catch. And then dashing off to play stick ball in the street with his teenage pals. That's baseball. So is the husky voice of a doomed Lou Gehrig saying, "I consider myself the luckiest man on the face of this earth.”

Baseball is cigar smoke, hot roasted peanuts, The Sporting News, ladies day, "Down in Front", Take Me Out to the Ball Game, and the Star Spangled Banner.

Baseball is a tongue tied kid from Georgia growing up to be an announcer and praising the Lord for showing him the way to Cooperstown. This is a game for America. Still a game for America, this baseball!

God bless you, Ernie, and Lulu, your wife of 68 years. Your faith in God and baseball is inspiring. Here's hoping we meet again.

Tuesday, September 1, 2009

Keepin' It Real

Thanks for stopping by this site. Make sure you check out my post, "Keepin' It Real," here.

UNESCO Strikes Again!

We're Americans. We're generous and forgiving and tolerant. I get all that. But why do we feel it necessary to fund every lunatic organization on Earth?

Okay, that may be a bit of an exaggeration, but it galls me when I read that the U.S. is giving hundreds of millions of dollars to UNESCO, which advocates teaching 5- to 8-year olds about masturbation!

UNESCO is the United Nations Educational, Scientific, and Cultural Organization. In 1984, President Reagan cut off U.S. funding for UNESCO. The State Department said, “UNESCO has extraneously politicized virtually every subject it deals with. It has exhibited hostility toward a free society, especially a free market and a free press, and it has demonstrated unrestrained budgetary expansion."

The ban on funding remained in place until 2004, when it was restored by W. (See, not a partisan post!). Even Clinton refused to fund these nuts.

Since 2002, however, the U.S. has thrown $536 million down the UNESCO hole, and The One wants to send them another $78 million.

So what's wrong with education, science, and culture? Depends on your definition and its application. In UNESCO's case, everything is wrong. In June of this year, UNESCO published a report recommending that sex education begin at five (that's 5) years old. From CNS News:

The report, called International Guidelines on Sexual Education, was released in June in conjunction with the U.N. Population Fund (UNFPA), an organization which works for universal access to “reproductive health care.”

In its rationale for creating the guidelines, the UNESCO report said it is “essential to recognize the need and entitlement of all young people to sexuality education.” An appendix backed that claim by pointing to a 2008 report from the International Planned Parenthood Federation that argued governments “are obligated to guarantee sexual rights,” and that “sexuality education is an integral component to human rights.” The guidelines are designed, according to the report, to be “age-appropriate” and break down the suggested curriculum into four age groups: 5- to 8-year-olds, 9- to 12-year-olds, 12- to 15-year-olds and 15- to 18-year-olds.

For those aged 5 to 8, some key concepts to be discussed are:

-- “Touching and rubbing one’s genitals is called masturbation” and that “girls and boys have private body parts that can feel pleasurable when touched by oneself.”
-- That “people receive messages about sex, gender, and sexuality from their cultures and religions.”
-- That “all people regardless of their health status, religion, origin, race or sexual status can raise a child and give it the love it deserves.”
-- “Gender inequality,” “examples of gender stereotypes,” and “gender-based violence.”
-- Description of fertilization, conception, pregnancy, and delivery.

Sharp-eyed readers will note not only the integral role of Planned Parenthood, but also the reference to a child as "it."

To take just one aspect of the guidelines, what does it mean to say that all people, "regardless of their health status . . . can raise a child and give [him or her] the love [he or she] deserves"? (Hey, wait -- is the use of him, her, he, and she "gender stereotyping?") To what "health status" is UNESCO referring?

And why are we supporting an organization that recommends 5-year olds be taught about masturbation, and "sexual status?" It might be nice if we occasionally threw in some reading, writing, and arithmetic before we jumped into sex toys and cross-dressing.

We're Americans. We want to be loved. Do we have to be so stupid about it?

Yikes! Health Care Histrionics Unleashed

It's hilarious that the White House started (then abruptly cancelled) a web site where people could snitch on those who were allegedly spreading misinformation about The One's health care proposals, particularly since the misinformation is largely coming from proponents of a government-run health care system.

Consider the following:

* The "public option" so beloved by The One and his minions was supposedly intended to create competition with private insurers, but now Mark Penn has written that "The subsidized 'public option' was always meant as a transition to single payer, not merely as an aid to competition with private insurers."

* Penn also states that "Americans want universal care as they define it — the unlimited right to have all the health care they need and access to the latest technologies to live longer and extend the lives of their loved ones." Sure, and I'd like a scratch handicap, an invisibility cloak, and the ability to time travel, but those aren't going to happen either.

* The junior senator from the Enchanted Mitten, Debbie Stabenow, said in a recent interview that "The reality is that we need to act when you're talking about 62 percent of the bankruptcies in this country coming because of a health care crisis." This is a flat-out lie. The Fraser Institute did an extensive study of this precise issue, and specifically compared the U.S. to Canada, the left's third favorite paradise (behind France and Cuba). Here are two of their findings:

The most recent data (2006 and 2007) shows that personal bankruptcy rates are actually higher in Canada (.30% for both years) than in the United States (.20% and .27%).
Research indicates that medical spending was only one of several contributing factors in 17 percent of US bankruptcies,and that medical debts accounted for only 12 to 13 percent of the total debts among American bankruptcy filers who cited medical debt as one of their reasons for bankruptcy.

* As part of her ongoing series, TMAC authored part 2 of "Liberal Lies About National Health Care." Read and learn.

I can't remember who said it first, but I have always believed that while everyone is entitled to his or her own opinion, no one has a right to be wrong on the facts. Mark Penn surely slipped up when he disclosed the true purpose of the public option (for which he certainly will be taken to the liberal equivalent of the woodshed, perhaps some re-education camp), but at least he told the truth that it is just a path to a single-payer, national health care system. Like all such systems, this will destroy private medicine and innovation, producing long waits for vital medical services and rationing, particularly for the elderly and persons otherwise afflicted and therefore undeserving of special care.

Truth and justice -- more of both, please.

Gretchen Whitmer and the Assault on Free Speech

Conspiracy theorists imagine wide, well-coordinated, concerted efforts to pursue particularized agendas. To some extent, these efforts exist, though I would not necessarily call them conspiracies, since that implies something sinister. For example, when the White House changes its message or adopts new terminology (think about the change from "health care reform" to "health insurance reform" to make insurance companies the target), memoranda go out, talking points are distributed, and the organization -- the MSM included -- delivers a coordinated message.

Beyond that sort of rudimentary message distribution, widespread conspiracies are hard to implement, and one should take such accusations very skeptically. It is far more likely that persons pursue similar agendas, not because they are engaged in a conspiracy, but because they share a particular ideology or worldview.

This is the alarming condition -- the number and variety of initiatives spawned, not by conspiracy, but by a common disregard for constitutional liberties and an infatuation with government power.

Cue Gretchen Whitmer.

Last week, I wrote about Whitmer's SB 668, in which she seeks to force crisis pregnancy organizations to distribute abortion information in violation of their rights to free speech and freedom of religion.

SB 668 could be an isolated meandering into the wilderness, but there are numerous other examples of assaults on free speech that suggest Whitmer is part of a greater problem. For example:

-- Sen Jay Rockefeller's staff has been working for months on a bill giving The One the power to seize private sector computer networks during a "cybersecurity emergency" that would be declared by, of course, The One Himself. (Remember that scene in Episode III where Emperor Palpatine "reluctantly" accepts the
emergency powers bestowed on him by his puppet senators and pledges to relingquish them once the emergency is over? Life imitates art.)

-- The Coalition for Urban Renewal and Education and the Association of American Physicians and Surgeons have sued the White House, alleging violations of their First Amendment and privacy rights. Remember the website set up by The One to allow people to report if they believed their fellow citizens were spreading misinformation about the health care bill? Well, what do you think happened with the complaints the White House received? Apparently, right back to The One's friends, who began their campaign of intimidation. As Kathryn Serkes, AAPS' Director of Policy and Public Affairs, put it, "My hate mail started shortly after the White House issued the 'fishy' request. We were quite visible and vocal before then, so it doesn't seem like a coincidence. Who did they share their data with? With whom might they share it?"

-- Democrats and the SEIU pack "town hall meetings" to keep dissenting voices from being heard, school officials in Florida are prosecuted because they had the nerve to say grace before a luncheon meeting, and on and on.

These events are not themselves connected, but the people behind them are -- connected by a philosophy that treats constitutional rights as obstacles to be overcome or ignored, rather than sacred endowments to be treasured and protected.

Gretchen Whitmer, who wants to be attorney general, is part of this anti-constitution mob. She, like the rest, will pay lip service to the constitution, but ultimately she will side with political expedience and opportunism.

Tuesday, August 25, 2009

I Do Solemnly Swear To Protect And Defend The What?

The First Amendment prohibits any law abridging freedom of speech or prohibiting the free exercise of religion. Religious freedom is further enshrined in Article I, Section 4 of Michigan’s constitution, and Article I, Section 5 states:

Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.

When people think about freedom of speech, they may not realize that the freedom to speak includes the freedom not to speak. When people gather to discuss important (or even not-so-important) issues, they cannot be made to voice certain opinions or viewpoints, nor can they be required to adopt the views or religious beliefs of others.

Unfortunately, Sen. Gretchen Whitmer (D-East Lansing) and certain of her colleagues do not share this perspective on freedom. They are attempting not only to tell certain non-profit organizations what they can and cannot say, but they want to force these organizations to share information promulgated by certain, selected professional associations. In so doing, they are circumventing the will of the people of the State of Michigan.

On June 25, 2009, Whitmer as principal sponsor introduced Senate Bill No. 668. This bill seeks to regulate non-governmental, non-profit “crisis pregnancy organizations” by requiring them to give pregnant women, “orally and in writing,” a “medically accurate and objective explanation of the full range of options available . . . including abortion, parenting, and adoption,” and “medically accurate and objective information on the range and medical risks associated with abortion, pregnancy, and childbirth.” If requested, the organization must give women “geographically indexed, printed materials that contain a comprehensive list of the medical clinics and hospitals that provide abortion services.”

The term “crisis pregnancy organization” was not chosen by accident. CPOs are typically pro-life centers, often affiliated with Christian organizations such as Care Net and Heartbeat International. Heartbeat International, for example, describes itself as a “nonprofit, interdenominational Christian association of faith-based pregnancy resource centers, medical clinics, maternity homes, and nonprofit adoption agencies endorsed by Christian leaders nationwide. Heartbeat's Life-Saving Vision is to help create a world where every new life is welcomed and children are nurtured within strong families, according to God’s Plan, so that abortion is unthinkable.”

Obviously, such radical organizations must be stopped, and Gretchen Whitmer is determined to do so.

SB 668 will require these Christian CPOs to distribute “medically accurate and objective” information about abortion, to provide “comprehensive” lists of abortion providers, and, in so doing, to violate their own beliefs and principles.

And how do CPOs know if the information they are required to provide is “medically accurate and objective”? Simple – Whitmer outsources this responsibility in section 1(b) of her bill:

“Medically accurate” means verified or supported by research conducted in compliance with scientific methods and published in peer-reviewed journals, where appropriate, and recognized as accurate and objective by professional organizations and agencies with relevant expertise in the field, such as the American college of obstetricians and gynecologists or the American gynecological and obstetrical society.

So CPO volunteers will not be able to share their own experiences or opinions unless they have been published in peer-reviewed journals and stamped “approved” by an OB/GYN society. Do their views on religion and morality have to be approved also? Does the Bible have to be published in a peer-reviewed journal to be persuasive? Yes, according to SB 668.

This is America?

Here’s another problem: in 1987, Michigan voters approved, 54% to 46%, a new provision of state law that prohibits public funds from being used to provide abortions unless necessary to save the life of the mother. SB 668 circumvents this prohibition, not by using public funds, but by using the force of law and the threat of prosecution or private litigation to strong-arm private organizations into providing abortion-related information and, specifically, giving women comprehensive lists of abortion providers. This is completely inconsistent with the will of the voters, who determined that tax dollars should not be used to promote abortions.

Abortion is a divisive issue, obviously, but SB 668 does not seek peace or propose a solution – it seeks to use the brute force of government to impair the freedom of speech currently enjoyed by crisis pregnancy organizations and, in turn, to attack religious liberty by outlawing Christian-based opposition to abortion.

Gretchen Whitmer wants to be attorney general. Does she think she can get there on a platform of attacking our most dearly held rights?

Thursday, August 20, 2009

Speaking The Truth About Health Care

Not a post today, but a link to The Magnificent Ann Coulter, who identifies and describes one of the biggest (if not the biggest) obstacles to reducing health care costs and expanding the scope and reach of health care insurance.

I suspect that, for many of my friends who favor national health care, TMAC's presence will be a distraction from the issues. Is she wrong? Tell me how.

Wednesday, August 19, 2009

Do As I Say, Not As I Do

Opposing a bill to eliminate the MBT surcharge, Sen. Gretchen Whitmer (D-East Lansing) accused Republicans of lacking the courage to cut spending and said:

Yes, we want to move forward, absolutely, but with mature reflection and a dedication to ensure that these things we hold dear are not blindly sacrificed in the process.

So, Sen. Whitmer wants to do things with "mature reflection" and "dedication to . . . these things we hold dear[.]"

Oh, really?

Consider Senate Bill No. 953, introduced by Whitmer on December 5, 2007, nearly seven years after she arrived in the legislature. This bill relates to that thing which Whitmer apparently holds dear -- shampoo. More specifically, the bill addresses who can perform "shampoo services" in a "cosmetology establishment."

Under current Michigan law, no one can render cosmetology services to someone (other than an immediate family member) without a cosmetology license. Whitmer's bill would allow "senior cosmetology students" to perform "shampoo services" in a "cosmetology establishment" if the student has completed "350 hours of instruction." The student has to produce proof of meeting the academic requirements in those 350 hours, the cosmetology establishment has to keep the records on file for at least three years, and the Department of Commerce must be allowed access to the records.

No, I'm not kidding. One wonders about the "mature reflection" that produced this piece of . . . legislation.

Perhaps there is rampant shampoo malpractice occurring all over Michigan. Are there swarms of unlicensed hairwashers occupying our salons? Are consumers being injured in conditioning accidents?

At least now we can anticipate Whitmer's slogan when she runs for attorney general -- "Gretchen Whitmer: Head and Shoulders above the competition."

Tuesday, August 11, 2009

Why It's Important To Read The Bills

Our poor men and women in Congress have a tough life. Flitting from fundraiser to fundraiser, they can hardly be expected to sit down and actually read the laws they're voting to impose on the rest of us, especially 1000-page monstrosities like the stimulus package or the current health care proposal. Like John Conyers said, you'd need two days with two lawyers to understand it, and who wants to spend that much time in the company of lawyers?

At the state level, things might at first seem a little more sedate. Given the smaller size and scope of state government, you would think that our representatives would read the bills that come before them. Even more basic, you'd think they would read the bills they sponsor.

Gretchen Whitmer must be an exception. Perhaps she is too busy organizing her nascent attorney general campaign. Perhaps she is too busy promoting voter fraud. Whatever the reason, it's obvious she hasn't read Senate Bill No. 83, which she (alone) sponsored and introduced on January 27, 2009.

The operative portion of SB83 is section 7, which works a radical, fundamental, and wholly illogical change in Michigan no-fault insurance law. To understand that, we need a brief primer on no-fault insurance.

No-fault insurance was designed to replace the old system, where recovering for auto accidents from the other driver took a long time and cost a lot of money to litigate. In 1973, this tort system was replaced by the no-fault system, in which a person injured in an automobile accident is entitled to compensation from his own insurance company regardless of fault. In exchange for prompt payment, the legislature limited an injured person's ability to sue the other driver for noneconomic damages (i.e., pain and suffering). An injured person can sue for pain and suffering, however, if he suffers "death, serious impairment of body function, or permanent serious disfigurement.” This has been termed the "threshold issue," since a plaintiff must demonstrate it to the judge's satisfaction before he can proceed to have the case heard by a jury.

Death and permanent serious disfigurement are fairly straightforward concepts, but defining "serious impairment of body function" has been an ongoing struggle in the courts and the legislature, with the Michigan Supreme Court reversing itself at least twice, and the legislature amending the no-fault act to address Supreme Court rulemaking. The law now says that "serious impairment of body function" means "an objectively manifested impairment of an important body function that affects the person's general ability to lead his or her normal life."

So, how does a court decide if a plaintiff has suffered a serious impairment of body function? The last word on the issue was the Supreme Court's 2004 decision in Kreiner v Fischer. In that case, the Supreme Court established a three-part test -- (1) whether there is any factual dispute over the plaintiff's injuries, (2) whether an important body function has been impaired and whether it is objectively manifested, and (3) whether the impairment affects the plaintiff’s general ability to lead his or her normal life. In deciding the last part, the court listed some of the factors a court should consider:

In determining whether the course of a plaintiff’s normal life has been affected, a court should engage in a multifaceted inquiry, comparing the plaintiff’s life before and after the accident as well as the significance of any affected aspects on the course of plaintiff’s overall life. Once this is identified, the court must engage in an objective analysis regarding whether any difference between plaintiff’s pre- and post-accident lifestyle has actually affected the plaintiff’s “general ability” to conduct the course of his life. Merely “any effect” on the plaintiff’s life is insufficient because a de minimus effect would not, as objectively viewed, affect the plaintiff’s
“general ability” to lead his life. The following nonexhaustive list of objective factors may be of assistance in evaluating whether the plaintiff’s “general ability” to conduct the course of his normal life has been affected: (a) the nature and extent of the impairment, (b) the type and length of treatment required, (c) the duration of the impairment, (d) the extent of any residual impairment, and (e) the prognosis for eventual recovery.

Seems reasonable, right? Well, to paraphrase one of my best friends from college Kreiner has been met by the plaintiffs' bar with all the ardor of a hemophiliac maiden who opens the door to discover her blind date is Count Dracula. To hear plaintiffs' lawyers tell it, Kreiner is the death knell of Western civilization. Not to worry, though -- Gretchen Whitmer will fix it with SB 83.

SB83 starts by changing the definition of "serious impairment of body function" to mean "an objectively manifested INJURY OR impairment INVOLVING an important body function that HAS AFFECTED, affects, OR MAY AFFECT IN THE FUTURE the person's ability to lead his or her normal life." The changes (shown in all caps here) remove the requirement for an impairment, since all that will be required is an injury, not necessarily an impairment, and there will be no requirement that the person show any actual effect, only something that "may in the future affect" the ability to lead a normal life. Could anything be more vague?

Even worse is the next part of SB83, which states that in order to show a serious impairment of body function, a plaintiff is not required to show "at any point in time" that "the person's life after the injury [is] substantially different from the person's life before the injury," that the injury or impairment was "permanent, severe, substantial, extensive, or pervasive or lasted for a significant period of time," or that there were physician's restrictions.

If a person's life is the same before and after an injury, how can that person allege serious impairment of body function? Under the Whitmer plan, a person with any objectively manifested injury (i.e., an expert witness will say, "Yeah, I saw it,") can recover, regardless of the extent, severity, or impact of the injury. This is completely contrary to the balance struck by the no-fault law and would leave us with both a no-fault system and the tort system no-fault was intended to replace. SB 83 is a gift to the plaintiffs' bar.

But, not only is it bad policy poorly written, SB83 is internally inconsistent and contradictory. Section 7B says that in determining whether a person's ability to lead his or her normal life has been affected (something section 7A says is irrelevant), a court must consider, among other things, "the duration of the injury, impairment, or treatment" and "the impact of the injury or impairment on the injured person's quality of life."

Hey, wait a minute -- how can a court consider the duration of the injury when the bill says that a person cannot be required to show that the injury "lasted for a significant period of time"? And how can the court look at the impact on a person's quality of life when the bill also says that the court cannot examine whether "the person's life after the injury [is] substantially different from the person's life before the injury"?

SB83 is a mess. Has Whitmer read it? Who knows? Still, we expect more from someone who wants to be Michigan's chief law enforcement officer.

Friday, August 7, 2009

Worst. Decision. Ever.

If you scroll through the posts on this blog, you may notice that, for a guy who has proclaimed himself "The Wizard of Laws." there are surprisingly few law-related posts. Maybe it's not so surprising, though, since posts about decisions or statutes can get a little esoteric and may not be readily accessible to some readers.

There are times, though, when the worth or worthlessness of a particular court decision is plain, even without the legal training I received at Mr. Jefferson's university. Today, I go back into the archives to bring you one such case, a 1998 case I consider to be the Worst Decision Ever.

Here are the facts: Tonya Brown and Anita Addison bought some snacks at Hampton's Party Store, located at the intersection of Saginaw Street and Russell Street in Flint. They went outside and Tonya used a payphone on the wall of the store while Anita stood nearby.

Enter Ruby Greer. Ruby was driving a car on Saginaw and tried to make a left onto Russell. She lost control and the car jumped the curb, went across the parking lot, and struck Tonya and Anita, who were severely injured.

Ruby, as it turns out, was fleeing the scene of an armed robbery and had been drinking and smoking crack in the hours before the accident. She had never driven a car before, did not have a driver's license, and, as the court described it, "drove south on Saginaw Street for a few blocks at an excessive rate of speed before the car crashed into Hampton's Party Store." Ruby pleaded guilty to felonious driving.

So, whom did Tonya and Anita sue? If you answered, "Ruby," you'd be wrong. If you answered, "Hampton's Party Store," you would be half-right. To win the big prize, you had to know they also sued MICHIGAN BELL TELEPHONE COMPANY. Of course! Isn't it obvious?

The plaintiffs' theory in Brown v Michigan Bell was that the telephone company was negligent in putting the payphone where it was, because the series of events causing their injuries was "reasonably foreseeable." In other words, Michigan Bell should have known that a drunk, high-on-crack, unlicensed, zero-experience driver might be going way too fast on Saginaw, jump the curb, and run into a party store.


You can't make this stuff up.

Naturally, Michigan Bell filed a motion to dismiss the case. The trial court denied it! Michigan Bell filed an appeal, which the Court of Appeals refused to hear! They then tried the Michigan Supreme Court, which sent the case back to the Court of Appeals with instructions to hear the appeal and decide it.

So, the Court of Appeals agreed with the trial court, affirmed the denial of Michigan Bell's motion to dismiss, and found that the accident was foreseeable and therefore Michigan Bell owed a duty of care to the plaintiffs.

No, I'm not kidding. It was a 2-1 decision, about which more in a minute.

The two-judge majority found that the accident was foreseeable because "Plaintiffs averred that a number of substantially similar accidents had occurred at or near the intersection by the party store and specifically listed eight such accidents. They averred that Michigan Bell knew or should have known of the frequency of the accidents at the intersection involving fixed objects. * * * As the trial court concluded, and we agree, it was foreseeable that an automobile could run off the road and hit the telephones."

Judge Henry Saad wrote the dissenting opinion. Here's his opening salvo:

As is common knowledge, there are many places in any city where pedestrians are clearly at risk if a reckless driver veers off the road. This is true whether one waits at a corner for a light to change or traffic to clear, waits at a bus stop or cab stand, stops to buy a paper from a paper stand or a hot dog from a vendor, or makes a telephone call from any number of locations. Most people would be very surprised to learn, as I am today, that the hot dog vendor, newspaper stand owner or telephone company is responsible in damages if an inexperienced, intoxicated, criminally reckless driver injures someone who stops to use the vendor's services. Though it is virtually impossible to predict (much less guard against) the wildly erratic driving exemplified by Ruby Greer, my colleagues in the majority impose such an unrealistic duty upon Michigan Bell.

Not stopping, Judge Saad continued:

Not only was the telephone booth in question clearly a reasonable distance from the streets, but plaintiffs' counsel conceded during oral argument that there had never been a car accident involving this telephone stand in its history. That there were car accidents in the vicinity is not terribly relevant because one would be hard pressed to find a major intersection in a city free of car accidents. What is troubling is the majority's unfortunate use of such common-place data to justify the imposition of a duty that, to my mind, violates, among other things, common sense. While I can understand the compassion that may motivate the majority, nonetheless, to shift the responsibility for this tragedy from where it truly belongs - on the impecunious criminal wrongdoer - to the innocent defendant with resources does violence to the law of negligence, which only imposes reasonable duties, and to the law regarding causation, which mandates the sensible conclusion that Ms. Greer caused this accident, not Michigan Bell.

So, there was no evidence that any accident had ever occurred involving the telephones on the party store. So much for foreseeability. In fact, the Michigan Supreme Court later agreed. Nine months later, the Court reversed the Court of Appeals and remanded the case to the trial court with instructions to enter an order dismissing the complaint. The Supreme Court stated:

The allegations within the plaintiffs' complaint, which focused on the general likelihood of a motor vehicle accident in the vicinity, failed to make a showing of the foreseeability of an accident involving defendant's phone stand. Defendants did not owe plaintiffs a duty to protect them from the unusual chain of events which led to their injury.

So, the Court of Appeals' decision lasted only nine months before it was put out of its misery by a one-paragraph Supreme Court reversal. Still, for its sheer foolishness, intellectual dishonesty, and modern liberal sophistry, the majority's opinion in Brown v Michigan Bell goes down as the worst decision ever.

Now, about those judges in the majority. Kathleen Jansen is still on the Court of Appeals, but Janet Neff has moved on. As part of a deal to break loose certain of his federal court nominations, President George W. Bush agreed to nominate Neff and Helene White to the federal bench. In exchange, Sens. Levin and Stabenow dropped their opposition to Bush's other nominations. So, Janet Neff now has a lifetime appointment as a judge on the U.S. District Court for the Western District of Michigan. That should help you sleep better at night.

On the plus side, Judge Saad is now the chief judge of the Michigan Court of Appeals. A ferocious litigator when he was in private practice, Judge Saad is now a feared and demanding presence on the appellate bench. I say "feared" not because of his demeanor, but because he is always prepared and extremely focused. Lawyers hoping to get his vote had better be ready to answer tough questions about their cases and their legal theories. We need more judges like Henry Saad.

Tuesday, August 4, 2009

Whither Whitmer?

Every sport has an off-season (except possibly for Davis Cup tennis, which never seems to begin or end; it just keeps going). Electioneering used to have an off-season, when the voters could relax, watch TV, listen to the radio, and drive without being assaulted by an endless array of commercials, jingles, and road signs.

Those days are over.

Now, the end of one election merely signals the beginning of the next election cycle, when candidates begin lining up support and money for their next try at electoral glory. The parties, fundraisers, websites, and chatty emails begin slowly, then build to a headsplitting crescendo from the primaries to the general election.

And so, we now have candidates jockeying for position in the 2010 race for statewide office. As voters, it’s tempting to tune them out, but as responsible voters, we need to take some interest in the candidates now, if only to sort out the contenders from the pretenders.

At this stage, however, there is little to go on. Without position papers, press conferences, and debates, it’s not easy to tell what many candidates stand for. In some cases, there is a track record of accomplishment or futility that can inform and enlighten us.

Ah, futility. That brings us to Gretchen Whitmer, a state senator from East Lansing, who is apparently interested in running for attorney general next year. What does her record reveal about her and what kind of attorney general she would be?

First, it is important to remind ourselves what the attorney general does. Michigan’s chief law enforcement officer, the AG has far-reaching duties. Under Michigan law:

The attorney general shall prosecute and defend all actions in the supreme court, in which the state shall be interested, or a party; he may, in his discretion, designate one of the assistant attorneys general to be known as the solicitor general, who, under his direction, shall have charge of such causes in the supreme court and shall perform such other duties as may be assigned to him; and the attorney general shall also, when requested by the governor, or either branch of the legislature, and may, when in his own judgment the interests of the state require it, intervene in and appear for the people of this state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested.

These are heavy powers and responsibilities, and the person exercising them should be qualified to do so, with a record that demonstrates he or she possesses the necessary judgment and commitment to the rule of law this position requires. Whitmer does not have such a record, and the record she has compiled casts serious doubts on her judgment.

Whitmer was admitted to the bar in November of 1998 and elected to the House of Representatives in 2000. She has been in the state legislature ever since. So, she spent about two whole years practicing law, and undoubtedly spent a good deal of that time running for office. She worked for a large firm, which can be good experience, but large firms are notorious for not letting their newest lawyers do anything of consequence, so in all likelihood she spent her two years of legal practice running for office and handing papers to a partner who was actually doing the heavy lifting.

What’s that, you say? Once she got to the legislature she really blossomed? Uh, not so much. After being in the House from 2000-2006, she moved on to the Senate. I reviewed the records from the last five years, and she has not been the primary sponsor on a single piece of legislation that passed either House. In the one instance in which she got her legislation to the House floor for a vote, it was defeated. Badly.

But let’s give Whitmer the benefit of the doubt here. She is, after all, a Democrat in a Republican-controlled Senate. Surely, her legislation is merely being blocked for political reasons, despite its obvious wisdom, right? Sorry, no.

Take, for example, Senate Bill 88, which Whitmer introduced on January 27, 2009. This bill would permit voters to have addresses on their driver’s licenses and state-issued identification cards different from their addresses on the qualified voter list. Obviously, this removes an important protection against fraud, since every voter is required to show a picture identification at the precinct, which is compared against the qualified voter list. If the addresses are allowed to differ, the fraud door is flung open wide.

Incredibly, Whitmer introduced this bill less than three months after the 2008 presidential election, which was marked by rampant voter fraud. In some cases, the fraud was officially sanctioned. As I wrote here:

The dregs of ACORN, considered criminals in days gone by, are now embraced by our federal government and given hundreds of millions of dollars in funding. Remember, this is the same group that, in concert with the Ohio Secretary of State (a Democrat) and a federal judge (appointed by Clinton), effected a settlement by which the homeless were permitted to use park benches(!) as their addresses for voter registration purposes. ACORN is being investigated or has been charged with voter fraud in 14 states. The U.S. Department of Justice has now ordered that states are not permitted to verify voter citizenship.

What does it say about Whitmer’s judgment that she would introduce such a bill? A bill, by the way, for which she couldn’t even get any other Democratic co-sponsors. When I contacted Whitmer’s office to ask about the reason for this bill, I was told by a staff member that it was to permit college students (particularly those in Whitmer’s district) to vote where they go to school without having to go home or get an absentee ballot. (What is the purpose of an absentee ballot if not for this situation anyway?).

So Whitmer has never really practiced law, has served with zero distinction in the legislature, and has proposed a bill that would encourage voter fraud. Only in the Democratic Party would this be considered a background worthy of an attorney general.

If this is what we have to look forward to in the next election cycle, I can wait a while longer.

Monday, July 27, 2009

Michigan's Car Owners Socked for $693 Million -- By the Supreme Court!

It's summer. The governor and the legislature are missing in action, so the Supreme Court is taking a swing at hammering Michigan's citizens. Their weapon? US Fidelity Insurance & Guaranty Company v Michigan Catastrophic Claims Association II, which overturned a Supreme Court decision rendered in the same case just seven months earlier and will impose $693.8 million in additional costs on Michigan's car owners.

Here are the facts of the case: Daniel Migdal suffered catastrophic injuries in a 1981 car accident. Due to the nature and extent of his injuries, he required 24-hour nursing care. Daniel's father sued USF&G to recover the costs of the attendant care, and they agreed that USF&G would pay $54.84 an hour for the care. USF&G then applied to the Michigan Catastrophic Claims Association for reimbursement.

The Michigan Catastrophic Claims Association (MCCA) was created by statute in 1978. Michigan's no-fault law provides unlimited lifetime coverage for medical expenses which result from auto accidents. The MCCA reimburses insurance companies for every claim paid in excess of a threshold amount. The insurance company initially pays the entire claim, but is reimbursed by the MCCA for the excess medical costs.

All auto insurance companies operating in Michigan are assessed to cover catastrophic medical claims occurring in Michigan. Those assessments are generally passed on to auto insurance policyholders. The 2009-2010 assessment is $124.89 per vehicle.

The MCCA refused to pay the total amount requested by USF&G on the grounds the amounts were unreasonable, agreeing only to pay $22.05 per hour for attendant care. USF&G sued the MCCA, and the Supreme Court ruled that "when a member insurer's policy only provides coverage for 'reasonable charges,' the MCCA has authority to refuse to indemnify unreasonable charges." This was the USF&G I decision, issued on December 29, 2008.

Here's another interesting twist to the Migdal story. Daniel's father stated a company, Medical Management, to make a profit from the attendant care paid by USF&G. From the $54.84/hour payments, Medical Management paid the nurses actually providing the care an average of $32/hour, including benefits, and kept the rest of the payments for itself. In 2003, Medical Management earned about $200,000 in profits.

Under USF&G I, Michigan's car owners did not have to pay for Medical Management's profits, nor did they have to pay outrageous premiums to support unreasonable payouts. All that changed on January 1, 2009, when Cliff Taylor left the bench, replaced by the victor in last November's election, Diane Hathaway. The liberals (Hathaway, Elizabeth Weaver, Michael Cavanagh, and Chief Justice Marilyn Kelly) now outnumber the conservatives (Maura Corrigan, Stephen Markman, and Robert Young).

The change in court composition motivated USF&G to leap into action. It filed a motion for rehearing (very seldom granted), expressly on the grounds that the court's membership had changed, reasoning (correctly, as it turned out) that the membership change would produce a flip-flop in the court's conclusions. USF&G argued, apparently unashamed:

[T]his Court's practice of granting rehearing requests based on nothing more than a view of a majority of the Justices that the Court's original opinion is incorrect . . . is as it should be, given this Court's status as a court of last resort.

This argument ignores Supreme Court precedent dating to 1883, and is a view with which the current majority apparently agrees. So, the court granted the motion for rehearing, and reversed itself, holding that the MCCA is required to reimburse insurers for all costs incurred in paying for catastrophic claims, regardless of whether the costs are reasonable. This was USF&G II, issued on July 21, less than 7 months after USF&G I.

How does this affect you? If you own a car, you pay insurance premiums. You are required by law to have catastrophic injury coverage. The MCCA determines what that will cost each year, then assesses the insurance companies doing business in Michigan. The insurers then pass the assessment on to their insured drivers, who pay it in the form of a premium. If the MCCA's liability is unlimited, the premiums go up.

And go up they already have. After the court granted USF&G's motion for rehearing, the MCCA did an actuarial study to calculate the impact of the decision eventually issued by the court. As a consequence of the court's decision, the MCCA has increased its assessment by 19 percent, or $693.8 million dollars.

This is a tax increase of over $693 million, perpetrated by the Michigan Supreme Court, and on what basis? Under the applicable rules, there was no basis for a rehearing, and the Supreme Court's majority opinion is nothing more than the previous dissent, re-titled and logically incoherent.

It's tough to do business in Michigan, and liberals are making it even more expensive to live here.

Monday, July 13, 2009

What in the World?

Are there no limits anymore?

Wilson Sporting Goods apparently is crafting a special baseball glove for The One to throw out the first pitch at the All Star game tomorrow night. It will have his last name stitched on it along with the number 44 and be sent to the Hall of Fame afterward. The Hall of Fame!! And, the first pitch will not go to the All Star catcher for the home team, but to Albert Pujols!

Will the fans in St. Louis at least have the good sense to boo?

On another front, that corpulent environmental whiner and hypocrite, Al Gore, has dropped all pretense about his efforts to ruin our economy and has thrown in with . . . the French!

As reported here:

Gore touted the Congressional climate bill, claiming it “will dramatically increase the prospects for success” in combating what he sees as the “crisis” of man-made global warming. “But it is the awareness itself that will drive the change and one of the ways it will drive the change is through global governance and global agreements.”

In 2000, French president Blacque Jacque Shirac said during a speech at The Hague that the UN's Kyoto Protocol represented "the first component of an authentic global governance."

So, "global governance" will become the term of choice for those on the fringe who traipse through life, blithely ignorant of the realities the rest of face -- earning a living, making a payroll, paying for college, putting something away for retirement.

In the face of a crushing economic downturn, we have a government that is doing everything it can to ruin -- ruin! -- our economy. First pointless spending, now we are on the verge of wrecking the greatest health care system in the world and imposing unprecedented taxes on us in the form of the so-called "cap-and-trade" bill. And for what? None of this will work! If you like the VA and Medicare, you're going to love government-run health care.

And if you think the government can do anything about global warming, you're fooling yourself. And you need to come to the Enchanted Mitten -- we're in the middle of July with temperatures in the 70s. I wish we had global warming!

This is what happens when you move in lockstep with the French.

Monday, June 29, 2009

Battle Creek, Part Two

After splitting the first two games of the Mayor's Tournament, my son's team came back to win its next game in a rout. Then, inexplicably, they dropped the fourth game to fall to 2-2, playing a team they could have and perhaps should have beaten. This second loss meant they would not be in the playoffs for the tournament championship.

The fourth game was a disaster in most respects. Our pitching faltered, the hitting did not come through, and Alex took a beating. Playing third, he dove for a ground ball and cut up his elbow. Then, another grounder took a bad hop and hit him in the Adam's apple, leaving quite a mark. I told him later that you could see where it said "Rawlings - Official Size and Weight" on his neck. Others told him they could see the stitching from the ball.

When it hit him, he bent over, put his hands on his knees, then rubbed his throat and went back to his position. It was obvious that it hurt, and he was taken aback. His coach came out to talk to him, and the conversation went something like this:

Coach: Are you okay?

Alex: I'm fine.

Coach: Can you keep playing?

Alex: Yes, I'm fine.

Coach: I'm taking you out anyway.

So Alex sat and watched the rest of the game. The next day, playing their fifth game in three days and with nothing to play for except pride, the Stars went out and hammered the opposition, winning 12-6 and finishing the weekend 3-2. Alex started and got the win, while going 2-4 at the plate.

In many respects, the last game of the tournament was the best -- the teams were competitive, and the Stars had to find out what they're made of. A win meant nothing in the context of the tournament, but it meant everything to their pride and self-confidence.

We can all learn a lot from teams that pull together in the face of adversity and persevere, if only for pride. These boys can be proud of themselves that they didn't quit and didn't phone in the last game -- they put forth a tremendous effort, even when one of their best players got spiked at second base and had to sit out the rest of the game.

I think we would all be better off if we lived the principles we try to teach our children.

Thursday, June 25, 2009

Blogging from Battle Creek

If you have been able to work your way through this site, you have read about my son and his baseball team. This week, we are in Battle Creek, in the western part of the Enchanted Mitten, as his team plays in the Mayor's Tournament.

Their first game was this morning at . . . wait for it . . . 8:30 a.m.!

Although the boys were half asleep when they got to the park at 7:30, they slowly awakened and began the game. Alex, my son, was the starting pitcher. He was salivating over the fact that instead of the mound being 60 feet from home, as he has played all year, it was only 54 feet in this tournament. That's a 10 percent increase in velocity, without doing anything differently.

The game started slowly, with Alex walking the first hitter, who made his way over to third on an error. Then, with one out, the batter hit one back to Alex, who grabbed it and got the runner in a pickle between third and home. It looked like they might get out of the inning until the ball got away and the runner scored. No further damage that inning or in the second. 1-0, going into the bottom of the second.

After a lead off walk and a stolen base, Alex doubled up the gap in right center, driving in the tying run. He then scored the go-ahead run on a single, and the team widened its lead to 4-1, then later 6-1 with some timely hitting. Alex was rolling on the mound, pitching very efficiently, although he gave up 5 walks. Still, the other team was not scoring until the fifth, when they put together three unearned runs (on only one hit, their first of the game) to pull within 6-4.

Not to worry. Our boys hung a 6-spot on them in the bottom of the fifth to close out the game on a mercy, 12-4 (8 runs or more ahead after 5 innings and the game is over). Alex pitched 5 innings, gave up 4 runs, all unearned, and had 5 walks and 5 strikeouts while giving up only one hit. He was also 1-3 with 2 runs batted in. All in all, a good performance.

The good feelings were short-lived, however, as the boys had to go right back to work with a game at 10:30 against a very good team. The boys fought hard, but they seemed tired and the bats stopped working, the end result being a 7-0 loss.

Two more games tomorrow and one on Saturday. Then, we'll see whether they make the playoff games on Sunday.

It's hot here -- high 80s. Gatorade sales are through the roof.

So what do we do tonight, with some down time from the baseball tournament? We watch baseball! Alex and I are going with one of the other boys and his dad to the West Michigan Whitecaps game in Grand Rapids.

It's summer. There is baseball to be played, watched, analyzed, and loved for all of its intricacy, difficulty, and beauty.

I wish you baseball.

Friday, June 12, 2009

The Governor Turns On Her Own

Our governor, whom we affectionately refer to in these pages as Tinkerbell, is no orator. Her speeches sound like they were written for mediocre high school oratory contests, and they are delivered with all the gravitas of a cheerleader. The phrase "a mile wide and an inch deep" comes to mind when I hear her speak, but her speeches -- scripted and controlled -- show the governor at her best (which is none too good).

When she is off-script, however, watch out. You just never know what might come out of Tink's mouth. Like the other day, during a factory tour in Grandville, when she said that the delay in the Chrysler bankruptcy proceedings (due to a stay issued by the U.S. Supreme Court) was caused by "some greedy lawyers." (The stay has since been lifted and the Chrysler bankruptcy is humming along, shedding assets, jobs, and the future of the U.S. auto industry).

Tink did not identify the "greedy lawyers" by name, but presumably she meant the lawyers representing the Indiana State Police Pension Trust, the Indiana State Teachers Retirement Fund, and the Indiana Major Moves Construction Fund, who requested the stay in the first place.

Let's take a closer look at the greedy lawyers and their clients.

The police and teacher pension funds manage retirement assets for approximately 100,000 Indiana civil servants, including police officers, school teachers, and their families.

The construction fund finances infrastructure construction projects. (Aren't these supposed to be the saviors of our economy under The One's stimulus package?)

Chrysler owes the pension funds alone $100 million, secured by a first lien on all of Chrysler's assets. This is part of a total "first lien" debt of $6.9 billion.

So, police officers and school teachers have been putting away money into a retirement fund, which in turn lent $100 million to Chrysler, in exchange for what amounts to a first mortgage on Chrysler property. So, what did that first lien, that mortgage, get the Indiana retirees? How does "virtually nothing" sound?

The Indiana funds will get about 28 cents on the dollar, while all of Chrysler's unsecured trade obligations will be paid, all warranty and dealer obligations will be paid, and $10 billion in unsecured claims against Chrysler's VEBA (the Voluntary Employee Benefit Association, a UAW-run health care trust) will be paid by giving the UAW a $4.6 billion promissory note and a 68 percent share of the reorganized Chrysler. Based on testimony at the bankruptcy court hearing, the UAW stock is worth about $24 billion. Wealth distribution, anyone?

The lawyers for the Indiana funds were looking out for their clients, police and teacher retirees. In doing so, they argued for the law and against the massive distortion of the bankruptcy code orchestrated by the federal government and financed by our tax dollars. The Chrysler bankruptcy has turned the law on its head and will have substantial repercussions for all manufacturing entities in the future, because the current administration treats contracts and the law as irrelevant obstructions to be overcome on the way to its apparent goal of eliminating private enterprise and the right to make a buck.

Not to mention the Indiana retirees, who have seen 72 million dollars go up in smoke, in a fire lit and stoked by the U.S. Treasury.

Perhaps Governor Tinkerbell, who has always fed at the public trough and has never had to worry about running a business (as demonstrated time and again by her wretched handling of our state government), considers lawyers trying to protect 72 million pension dollars to be "greedy," but in doing so she has turned on police, teachers, union members, and lawyers, all of whom have supported her in varying degrees over the years. See what happens when you don't have a script in front of you?

And where is the outrage from teachers, police, and lawyers? Do they just chalk it up to rhetoric, knowing that at crunch time Tink will carry the water? That she won't touch teacher health care in Michigan, that she won't fool with defined benefit pensions, that she will appoint judges of dubious quality in thinly veiled payoffs to the trial lawyers?

By using the phrase, "greedy lawyers," Tink pandered to the lowest elements of our society, among which, apparently, her heart lies. These are the groups that substitute slogans for political thought, and consider bumper stickers to be a form of literature.

If advocating zealously on behalf of my clients and arguing for the rule of law makes me a "greedy lawyer," then I am proud to be one. What does destroying Michigan's economy, causing tens of thousands of families to go on public assistance, and driving tens of thousands of people out of our state make you, Governor?