Thursday, September 16, 2010

Putting "The Rule of Law" in Perspective

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, September 1, 2010

Welcome to the High Court, Mr. Davis

The fake Tea Party has filed an application for leave to appeal with the Michigan Supreme Court, asking that court to overturn the Michigan Court of Appeals, a panel of which voted unanimously that the FTP should not be on the November ballot. With the much publicized departure of E. Weaver and the elevation of Alton Davis, this will be the first rule-of-law test for the newly constituted Supreme Court.

The issue is straightforward. Petitions to form new political parties are governed by Michigan's Election Law. The specific provision at issue here, apparently, is MCL (Michigan Compiled Laws) section 168.685(4), which states in relevant part:
The size of all organizing petitions shall be 8-1/2 inches by 13 inches and shall be printed in the following type sizes: The words "petition to form new political party" and the name of the proposed political party shall be in 24-point boldface type; the word "warning" and the language contained in the warning shall be in 12-point boldface type. (Emphasis added).
From the news accounts, it seems that the FTP submitted petitions for "The Tea Party" in which the word "The" was part of the party name, but was not in 24-point type. The Michigan Board of Canvassers deadlocked 2-2 on whether to approve the FTP for the November ballot, which constitutes a rejection. The FTP appealed to the Michigan Court of Appeals, which ruled 3-0 as follows:
The complaint for mandamus is DENIED. In light of plaintiff's failure to strictly comply with the requirements of MCL 168.685(4), plaintiff fails to establish a clear legal duty on the part of the [Board of State Canvassers] to certify the petition. See Michigan Civil Rights Initiative v Board of State Canvassers, 268 Mich.App. 506, 515; 708 NW2d 139 (2005). (Emphasis in original).
"Mandamus" (pronounced man-DAY-miss) is a legal term, short for "a writ of mandamus." Essentially, a complaint for mandamus is a request that a court order a government official or board to do something -- in this case, to certify the FTP for the November elections. To be successful, a mandamus plaintiff must show that (1) the plaintiff has a clear legal right to the performance of the duty sought to be compelled, (2) the defendant has a clear legal duty to perform, (3) the act is ministerial (meaning the government official has no discretion in the matter), and (4) the plaintiff has no other adequate legal or equitable remedy.

So, the FTP had to show that it had a clear legal right to be certified, and that the State Board of Canvassers had a clear legal duty to do so. In order to make the required showing, the FTP had to comply with the election law regarding petitions for a new party.

Notably, the election law 24-point language is clear and mandatory -- note the use of the word "shall." If the typeface does not meet this requirement, the petitions are invalid under state law and must be rejected, as the Board of State Canvassers and the Michigan Court of Appeals agreed.

FTP lawyers will argue that the petitions "substantially" complied with the law and that it would not be "fair" to reject the petitions on a technicality.

The word "shall" is there for a reason. Elections need to be sacrosanct if we are to survive and flourish. There can be no compromise, and there is no way to "substantially comply" with a 24-point typeface requirement -- it's either 24 points or it isn't.

So, we have a clear rule-of-law issue for the Supreme Court to consider -- either reject the application (or grant it and affirm the Court of Appeals) or reverse the Court of Appeals, judicially inserting words into the statute, so that it reads something like this:
The words "petition to form new political party" and the name of the proposed political party shall be in approximately 24-point boldface type;
or this:
The words "petition to form new political party" and the name of the proposed political party shall usually be in 24-point boldface type;
or this:
The words "petition to form new political party" and the name of the proposed political party shall be in 24-point boldface type, unless we feel it wouldn't be fair to those we favor politically.
What do you say, Mr. Justice Davis? Will your first significant vote on the Supreme Court affirm the rule of law or destroy the sanctity of our elections because of your feelings?

Welcome to the high court. Time to step up and be counted.