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?

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.

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."

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.

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.

Huh?

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.

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.