Friday, September 7, 2012

Don't Get Your Panties in a Bunch -- It's Not Personal

Is it impossible these days to have a discussion about an issue or a political race without it becoming personal?  Apparently so, at least for one backer of Judge Jane Markey.

Markey is up against Colleen O'Brien for one of three Republican nominations for Michigan Supreme Court justice.  As faithful readers of this blog know, your Wizard has published three articles critical of Markey decisions, principally on the grounds that they contradict her claim to be a "rule of law" judge.  I have never attacked Judge Markey personally, nor have I attacked her supporters.

But they have attacked me personally.

The latest attack was purportedly authored by one Steven Vander Ark in an email distributed to the delegates to this weekend's Republican convention.  He says that I practice "the dark art of magic - turning fiction into fact while hiding behind the curtain of anonymity. Any lawyer reviewing his 'analysis' of Markey's decisions would recognize a straight up hatchet job: it is no wonder he wants to remain anonymous. His blog is a shameful sham set up for the sole purpose of producing political smears under the guise of legal analysis."  He goes on to criticize my discussion of the Wilkie case and my quoting of the Chief Justice in the Progressive Insurance case.

You know, if you're going to lie about me, at least tell the truth while doing it.

Here's where Mr. Vander Ark and the truth part company:

1.  This blog was established in 2007; it was not "set up for the sole purpose of producing political smears under the guise of legal analysis." 

2.  I never discussed the Wilkie case, and I do not consider a reversal as any reason not to vote for a judge.  As a judge whom I respect frequently says, "Even when the court of appeals affirms me, I still think I'm right."  I have never criticized Judge Markey or any other judge because one of their decisions was reversed.  My posts on Judge Markey may be reviewed here, here, and here.

3.  Mr. Vander Ark is correct that I quoted the Chief Justice in my discussion of the Progressive Insurance case here, and I did not quote Justice Markman's concurrence.  So what?  Does that somehow delegitimize the point I was making?  Am I under some obligation to quote Justice Markman?  If so, am I also obligated to quote Justice Marilyn Kelly, who sided with Markey's opinion?  And where is Mr. Vander Ark's defense of Judge Markey?  She claimed then -- and claims now -- to be a rule of law judge, but in Progressive Insurance, she cast aside clear statutory language in favor of a result that comported with her "sense of justice and fair play."  That is not a rule of law methodology; it is the very definition of an empathy judge.  Yet, Mr. Vander Ark says nothing, falling back on the notion that her position is "defensible."  That's a pretty low bar for someone who wants to be a Supreme Court justice.

So, you be the judge.  Have I turned "fiction into fact," as Mr. Vander Ark suggests?  If so, how? What exactly have I written that is incorrect?

Let's make things perfectly clear:  for me, this is not a personal issue.  I favor the rule of law, and I believe strongly, as Bob Young has written, that the "rule of law requires a judge to be subservient to the law itself, not the law to be subservient to the personal views of a judge."

In the cases I have described, Judge Markey has elevated her personal views over the the law.  Whether you agree or disagree with her ultimate decisions, this approach, this decisionmaking process, is not the approach and the process followed by rule of law judges.  That the results are "defensible" is irrelevant -- the rule of law does not concern itself with results, only with faithfully applying the law as written by the People through their elected representatives.

As I have written, Judge Markey seems like a very nice person.  I have no interest in her political donation history or in any of the rumors being circulated about her.  This is not personal; this is about job performance and judicial philosophy, period.

I don't know Mr. Vander Ark.  Is it significant that his email was paid for by Markey's campaign?  I don't think so.  His name is on it, and he will have to defend it, regardless of who wrote it or who paid for it.  His email is wrong and contains numerous factual errors, as I have outlined above, but I will not attempt to smear him as he has attempted to smear me.  Frankly, I have no interest whatsoever in Mr. Vander Ark -- he is not running for anything.  My only interest is in a full and frank discussion of the most important issue in this judicial campaign:  who will be a rule of law justice on the Michigan Supreme Court?

Let's just stick to the issue.  It's not personal.

Tuesday, September 4, 2012

Upon Further Review: More Problems for Markey

The debate over the O'Brien vs. Markey race for the third GOP Supreme Court nomination has, for the most part, been respectful.  Oh sure, there are the usual hysterics because 20 years ago someone bought a ticket to a colleague's fundraiser, but these are minor and safely ignored.  I like to think of the pro-Markey crowd as best represented by Kevin Rex Heine, who at least does his homework.  [Someday, I'd like to meet Kevin and shake his hand.]  That doesn't mean I agree with him, however.  In fact, the more I study Markey's decisions, the more uncomfortable I am with the thought of her on the high court.

In a recent post, Kevin essentially made this argument:  We don't know much about Colleen O'Brien because she is a circuit court judge, and there have been other judges or nominees, about whom we knew little, who disappointed us, e.g., Harriet Miers, David Souter, and Mary Beth Kelly.  Therefore, we should not nominate Colleen O'Brien in favor of a candidate with a more readily viewable record.

I will address Kevin's observations about Mary Beth Kelly in a near-future article.  At this point, I will only say that Kevin has questioned my writing about two of Jane Markey's decisions when his entire criticism of Mary Beth Kelly is based on one decision, ignoring the many opinions in which she joined with the rule-of-law majority.   Harriet Miers was never confirmed, and Souter was put forth by the moderate northeastern wing of the party (i.e., John Sununu) in response to prior confirmation battles that got out of control due to the flyspecking and nitpicking over productive nominees.

Still, Kevin raises a valid point, but it doesn't carry the day.  He is arguing, in essence, that we should reject an "unknown" circuit court judge in favor of a "known" appellate judge with a troubling record.  That's not an exchange I'm willing to make, for a number of reasons.  First, I do credit endorsements to some extent, particularly by respected and unimpeachable judges such as Chief Justice Robert Young.  Second, I have met and talked to Colleen O'Brien and, frankly, I believe her when she says she is a rule-of-law judge.  Third, as I have detailed here and here, at least some of Judge Markey's opinions don't square with her rule-of-law claims.  Fourth, as I describe below, the decisions I discussed previously are not the only ones that concern me.

In People v Dowdy, a 2010 decision, Markey joined with two Democrat-appointed judges to find that Randall Dowdy, who pleaded guilty in 1984 to kidnapping, five counts of first degree criminal sexual conduct, and possession of a firearm during the commission of a felony, was not required to register with local law enforcement under the Sex Offenders Registration Act (SORA), because he happened to be homeless.  SORA expressly states that its purpose is to "better assist law enforcement officers and the people of this state in preventing and protecting against the commission of future criminal sexual acts by convicted sex offenders" and to "provide law enforcement and the people of this state with an appropriate, comprehensive, and effective means to monitor those people who pose such a potential danger."   Nonetheless, Markey and her Democratic colleagues on the panel found that sex offenders who happen to be (or claim to be) homeless do not have to register with law enforcement because they do not have "the security of a customary place of lodging."

The Supreme Court reversed the Court of Appeals, in a 4-3 decision (Young, Markman, Kelly, and Zahra in the majority), holding that the Court of Appeals had erred by ignoring longstanding precedent (dating back to at least 1897) that, under Michigan law, every person has a "domicile." Moreover, apart from reporting a residence or domicile, SORA requires every sex offender to report to law enforcement in person four times per year, a requirement that "is unconditional and contains no exceptions or exclusions for homelessness."  The evidence in the case showed that Dowdy failed to report for four years, or 16 quarters.  This requirement was ignored by the Court of Appeals. 

In summary, the Supreme Court found that "the Court of Appeals panel interpreted SORA in a manner contrary to the plainly expressed intent of the Legislature[.]" 

As we have seen, Judge Markey's record includes decisions utterly contrary to the rule of law, in which decisions she has greatly expanded civil liability beyond that intended by the Legislature, ignored clear and unambiguous statutory language in favor of her own feelings as to what constituted "fair play," and, in Dowdy, ignored the clearly expressed intent of a statute in a manner not only contrary to the law but potentially quite harmful to public safety.

The reader may think we don't know enough about Colleen O'Brien, but I suggest we know more than enough about the troubling judicial decisionmaking of Jane Markey.