Thursday, August 16, 2012

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

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

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

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

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

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

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

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

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

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

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

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

More to come.




  1. A Question, Wizard:

    You have, in the space of two election cycles, selected a grand total of two cases from Judge Markey's nearly 18-year tenure on the Appeals bench. (She was originally elected in 1994 and her current term expires January 1, 2015, which puts her somewhere between sixth and ninth in seniority.)

    Out of the 28 judges on the Michigan Court Of Appeals bench, I'm told that Westlaw Review ranks Judge Markey as the “third most upheld” judge on that bench. In other words, of the 28 judges currently sitting on the COA, only two get overturned less often than Markey does; not perfect, but not bad either. (I'm still tracking down paper-trail proof of this, so feel free to not take my word on it.)

    Here's my question: As a percentage of Judge Markey's caseload while on the COA bench, how often has she has gone "off the reservation" with regard to rule-of-law decisions?

    I'm curious as to your answer.

    Oh, and there will be some rebuttal to the two cases that you've laid out so far. Let me start with this concurring opinion from Justice Markman on Progressive v. Smith (all emphasis in original):

    MARKMAN, J. (concurring).

    Although I reach the same result as the Chief Justice, and, even had I not, I would have articulated my position much differently than do the dissents in this Court and in the Court of Appeals, I nonetheless respectfully believe that the Chief Justice is overly severe in his criticism of these dissents.

    The issue here is whether an insurance policy stating that an owner of an insured vehicle, under specified circumstances, remains “personally responsible” conforms with a statute requiring that all policies must communicate that an owner, under these circumstances, remains “personally liable.” In my judgment, plaintiff-insurer’s insurance policy did not satisfy the statute because an exact identity in language is required in the instant circumstances, in which an insurance statute has specified precise language for inclusion in such a policy. However, I also believe that this is a case in which a judge who adheres to the interpretative philosophy articulated by the Chief Justice, as do I, may quite reasonably disagree with his, and my, conclusion. In fairly giving meaning to the law, the obligation of the “textualist” or “interpretivist” is not to read the law “literally” or “narrowly,” or to engage in “strict construction,” but it is simply to read the law “reasonably.” In light of this premise, I do not believe that either of the dissents has reached an indefensible conclusion. A judge who views the difference between “liability” and “responsibility” as being of no reasonable consequence in the insurance policy at issue is not “ignoring words,” engaging in a “shocking departure from the rule of law,” or otherwise acting in disregard of his or her “oath of office.” Nor do I believe, as suggested by the Chief Justice’s citation to People v McIntire, that a judge who undertakes within the most narrow realm to consider the genuine “absurdity” of a result is acting in violation of his or her judicial powers. See Cameron v Auto Club Ins Ass'n, 476 Mich 55, 78-86 (2006) (MARKMAN, J., concurring). While I respect the Chief Justice’s convictions — and while I appreciate his apparently-approving references to my own past jurisprudential statements, to which I continue to adhere — I also believe that there are many better cases in which to bring those convictions to bear.

    Evidently, at least one member of our "rule of law" majority has an issue with Chief Justice Young's overly-narrow interpretation of the legal difference between "liable" and "responsible" . . . more to come on this point.

  2. Kevin -- I've already responded to the first part of this on RightMichigan, so I'll refer interested readers there. As to the latter part, focused on Justice Markman's concurrence, I saw his opinion as an effort to tone down the effect of the Chief Justice's rather strident commentary, an effort at collegiality, rather than a spirited defense of Judge Markey's opinion (with which Justice Markman also disagreed). The fact that Judge Markey's opinion may be defensible does not make it right, nor does it mean that her opinion comports with her avowed commitment to the rule of law.

    Thank you for reading this and for commenting. I look forward to carrying on the discussion here and elsewhere.

  3. Actually, I think that Markman is defending Markey a bit here. Keep in mind that what Markman is agreeing to is that the majority decision should be upheld. You know as well as I do that that doesn't necessarily mean that the minority dissent is wrong; and it sure as hell doesn't justify eviscerating the minority judge for no good reason.

    Markman agrees with Markey that the distinction between "liable" and "responsible" is a hyper-technical splitting of hairs, given the specific law in question. If the law as written intended specific wording to be included, then said wording would have been included in quote marks (such as with MCL 28.425j(1)(c) in regard to pistol safety training programs).

    I fail to see how not making a distinction that the law itself doesn't make renders a judge less "rule of law" than her 18-year record on the bench would otherwise indicate.