Setting the Record Straight

I recently received an anonymous email criticizing Bill Schuette for certain decisions on the Court of Appeals. The email was so ludicrously awful, I almost deleted it immediately, but then I thought again -- it's an election year, and people who aren't familiar with the law might accept this as some sort of authority. Hence, we set the record straight here, by reposting my emailed response:

I join with Joan Fabiano in condemning this ridiculous attack on Bill Schuette. While everyone has a right to his or her opinion, no one has a right to be wrong on the facts. The anonymous person who attacked Judge Schuette for decisions in three cases involving criminal sentencings clearly does not understand the law or criminal procedure. These decisions show that Judge Schuette understands and applies the law as it is written. Moreover, the anonymous sender completely mischaracterizes the decisions themselves.

Case: People v. Olman, docket no. 268464 (2007)

Facts: The defendant was convicted of sexual assault on a four-year old girl and sentenced to 2-15 years in prison. He appealed his conviction and sentence.

Anonymous said: "Bill Schuette joined with a Granholm appointee (Servitto) and a Blanchard appointee (Jansen) in taking the rare view that the trial court judge actually abused his discretion in applying this sentence and sent the case back for re sentencing more in the range of "at most 12 months in jail, and probation" or a better explanation."

The Truth: The Court of Appeals panel affirmed the conviction and remanded for resentencing. They did not reduce the sentence or order it reduced.

Michigan law provides that a "court may depart from the appropriate sentence range established under the sentencing guidelines . . . if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure." Also, "A substantial and compelling reason must be an objective and verifiable reason that keenly or irresistibly grabs the court’s attention, is of considerable worth in deciding the length of a sentence, and exists only in exceptional cases. . .'The court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.'

The trial court had exceeded the sentencing guidelines, and did so based on factors that were already counted in the sentencing. Effectively, the trial court was counting the same factors twice. Under the law, the Court of Appeals had no choice but to remand for resentencing. To do otherwise would have been to do exactly what liberals do -- make up decisions based on their own feelings, not the law.

Case: People v. Prophet, docket no. 278184 (2008)

Facts: The defendant was convicted of criminal sexual conduct. He was sentenced by the trial court, and the Court of Appeals vacated the sentence and remanded for resentencing. After remand, he was given the same sentence he had received originally and he appealed again. The Court of Appeals again remanded for resentencing.

Anonymous said: "Bill Schuette rejected the trial court sentence that was a slight 14-month upward departure from the guidelines because, though the Defendant violated "a position of authority and trust" it was not clear that the Defendant "defendant exercised control over the entire household" which would have allowed for the upward departure."

The Truth: Again, the sentence was a departure from the sentencing guidelines prescribed by law. Departures are allowed, but they must be supported by substantial and compelling reasons. Under Michigan law, "Such reasons must be objective and verifiable, must keenly or irresistibly grab the court’s attention, and must be of considerable worth in deciding the length of a sentence. They only exist in exceptional cases."

Here, the trial court cited the fact the victim was a child as support for the departure. This factor was already taken into account in scoring the offense under the guidelines and therefore could not be used again. As for the other factors used by the trial court, the appeals court said: "The trial court’s remaining reasons for departure were not objective and verifiable. Although the victim’s mother was supportive of defendant, there was no evidence that she reacted in this manner due to fear of or submission to defendant. Thus, it is not clear that defendant exercised control over the entire household. Moreover, substance abuse was simply never addressed and accordingly, its role or lack thereof is not verifiable. Since these two factors could not properly be relied upon to depart from the minimum guidelines range, the factors adequately taken into account by the guidelines could not be considered, and it is not clear whether the trial court would have departed from the guidelines absent these reasons, this case must therefore be remanded for resentencing."

Again, the appellate panel -- which included Brian Zahra, whose conservative credentials are unimpeachable -- could not have reached any other conclusion. The law dictated the result, not the other way around.

Case: People v. Givhan, docket no. 269500 (2007)

Facts: Defendant was convicted of felon-in-possession of a firearm, and felony-firearm. This was his second trial on these charges, the convictions arising from his first trial having been reversed. Following the second trial, he was given sentences greater than those imposed following his first convictions. The defendant appealed his sentence.

Anonymous said: "Bill Schuette again joined with a Granholm appointee (Servitto) and a Blanchard appointee (Jansen) in overturning the sentence because it was longer than the one given in the first trial and he didn't feel that the trial court judge [sic] enough reason for the second sentence being longer than the first."

The Truth: Michigan law provides that "A presumption of vindictiveness arises when a defendant is resentenced by the same judge and the second sentence imposed is longer than the first." The US Supreme Court has held: “Due process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” In order to overcome the presumption of vindictiveness, the trial judge must articulate reasons based on new information for imposing a longer sentence.

In this case, the trial court stated that it was relying on the defendant's history with firearms, but that history was not new. The trial court also said it was basing the increased sentence on the fact that the defendant fired his gun at a woman's house. There was no evidence of this, however. As the court noted: "The prosecutor concedes that no new information was available to the trial court at defendant’s sentencing following his second trial than was available following his first trial. The trial court’s assertion that defendant admitted firing shots at Diane’s house during his second trial was erroneous and therefore could not constitute new information justifying an increased sentence. Accordingly, the trial court’s reasoning did not overcome the presumption of vindictiveness."

This was another decision which complied in every respect with the law. These three cases were not judgment calls, where the decision could have gone one way or the other. The rule of law compelled the Court of Appeals to rule just as they did. To do otherwise would have violated the principles we all hold dear.

There may be reasons to oppose Bill Schuette, just as there may be reasons to oppose Mike Bishop. But the sort of disingenuous slop offered up by the anonymous poster is not reasoned, not logical, and not helpful. Whoever created this, shame on you. We need to condemn these tactics and remember what we are fighting for and why. Anonymous prevarications serve no purpose whatsoever other than to embarass the prevaricators and the candidates they support.

Making Sense of the Michigan Supreme Court Race

Party delegates to the August 28 State Republican Convention will face the formidable tasks of selecting candidates for Secretary of State, Attorney General, and governing boards of Michigan State University, Wayne State University, and one other whose name escapes me (I think it's in the People's Republic of Ann Arbor).

At least as important as these tasks is the responsibility to select two nominees for the Michigan Supreme Court. Justice Robert Young is running for reelection, and he deserves our unanimous, unwavering support. Justice Young is an extraordinary legal talent with a first rate mind, unshakable integrity, and incredible vision.

The other nomination is between Wayne County Circuit Court Judge Mary Beth Kelly and Court of Appeals Judge Jane Markey. Both are well-qualified. So, how does one distinguish them?

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. Also, Judge Kelly, as the former Chief Judge of the Wayne County Circuit Court, was often called upon to sit as an appellate judge, either in appeals from a district court or on motions to recuse her fellow judges. The cases are different, but the process and the decision making are similar.

I have appeared before Judge Kelly on numerous occasions, and I know her from our work together on the State Bar Civil Procedure Committee. She has an excellent mind and judicial temperament. She carefully applies the law as she finds it -- there is no legislating going on from her bench. Given the current tidal wave of reversals emanating from our current Supreme Court, understanding the proper role of a judge is crucial. Mary Beth Kelly gets it, and she lives it every day on the bench.

Although Judge Markey has been on the bench a long time, she sits on the west side of the state, and I cannot recall appearing before her, nor do I recall ever meeting her, so she is something of an unknown quantity to me. Absent this personal contact, I decided to look through some of her published decisions, and I ran across one that made me pause.

In Allen v Bloomfield Hills School District, a 2008 decision, the plaintiff was a train operator who was involved in an accident with a school bus. He sued the school district to recover noneconomic and excess damages under the no-fault act. The circuit court judge granted the school district's motion to dismiss the case. Writing for the 2-1 majority, Judge Markey reversed the trial court and reinstated the case.

The fact that Judge Markey reversed the trial court, in and of itself, means nothing, since there are dozens of reasons why the Court of Appeals would reverse a trial court. It is her reasoning, however, that is troubling.

First, some quick background. The school district is a public entity and therefore enjoys immunity from most tort (personal injury) claims. There is an exception to this immunity for motor vehicle accident claims if the plaintiff suffers "bodily injury." That's the nub of this case.

The plaintiff was operating a train and approaching a crossing at about 65 miles an hour. A school bus tried to drive around the lowered gates, and the train collided with it. It took the train a half-mile to stop, and the plaintiff ran back to the scene of the accident. There were no children on the bus, but the bus driver was severely injured.

So, who sued? The train operator! What for? Post-traumatic stress disorder!

The Supreme Court has previously defined "bodily injury" under the governmental immunity law. In a case called Wesche v Mecosta County Road Commission, the Court held, quite sensibly, that " 'bodily injury' simply means a physical or corporeal injury to the body."

Reversing the trial court in Allen, Judge Markey held that PTSD constitutes "bodily injury." Her conclusion was based on a PET scan of the plaintiff's brain that showed he was "clearly different in brain pattern from any of the normal controls." In other words, the plaintiff witnessed the accident and was so upset by it that his PTSD caused his brain to function differently. The plaintiff's expert psychiatrist testified that PTSD "causes significant changes in brain chemistry, brain function, and brain structure."

There was no evidence of any "physical or corporeal injury to the body." The plaintiff's "injury" was purely psychological, indistinguishable from heartache, depression, or that feeling Michigan fans get after Michigan plays Michigan State in basketball. Whatever the plaintiff had, it was not a "bodily injury," and any discernible effect was not caused by the accident.

The dissenting judge made the point perfectly, quoting from a New Jersey federal decision that assessed, in another context, whether PTSD constituted "bodily injury." The New Jersey district court reasoned:

Given that all human thoughts and emotions are in some fashion connected to brain activity, and therefore at some level "physical," to accept Plaintiffs' argument would be to break down entirely the barrier between emotional and physical harms[.]

This case brings the Supreme Court race into sharp focus. Either we will have a court that believes in and applies the rule of law, enforcing the clear meaning of the laws enacted by the people through their elected representatives, or we will continue to have the kind of court we have now, driven purely by ideology and a desire simply to undo all that was accomplished during the ten years in which the conservatives were in the majority.

Conservatives believe in clear rules and standards so that citizens can rely on the law and behave accordingly, and so that trial courts and the intermediate appellate courts will know what the law means and what is expected. The current majority on the Supreme Court is engaged in a reckless, headlong effort to reverse any decision they don't like, regardless of whether it was rightly decided. Put another way, the current majority's test for a decision's "rightness" is whether they agree with it. Justice and predictability have nothing to do with their approach.

Against this backdrop, the Allen decision is extremely troubling. It reflects an unsettling willingness to disregard clear language in the law in favor of an inexplicable intent to reach a desired result. In Allen, the result drives the law, instead of the other way around.

These are precarious times for the Supreme Court, for Michigan law, and for the citizens of our great state. We cannot afford the result-driven approach of the current Supreme Court majority, and, based on the Allen decision, I am very concerned about Judge Markey's decision making.

Accordingly, for me, it will be Justice Young and Judge Kelly. I hope you will join me.

Living With An Addict

If you know me personally, you know that I am a private person. I avoid discussing medical issues, family business, or anything else of a confidential nature. Perhaps these are the habits of a nearly 28-year legal career, observing the attorney-client privilege.

But now, I cannot remain silent.

It is my hope that, by speaking out, I can help others who may be in the same situation. (Rick, you know who you are.)

I live with an addict. In fact, I'm married to her. Our 23rd wedding anniversary is August 21. All this time, she has never displayed anything close to an addictive personality. Sure, she went through occasional "phases" where certain things had to be locked up or kept out of the house, but nothing like this.

She now has a full-blown addiction.

She wakes up with it, goes to bed with it. It completely dominates her life. There is nothing for her except the next hit, the next thrill, and it is never enough.

She hasn't just involved herself -- she has hooked her friends, and our daughter's friends as well. There is an ever-widening circle all sharing the same, destructive habit, and it's tearing us apart!

Of course, I'm talking about Words with Friends on the iPhone.

All she does -- all day long -- is play WwF. I hear the telltale chimes at night, in the morning, and when I call from work during the day. I find slips of paper or pieces of cardboard all over the house, with point value calculations hastily scribbled on them, the jagged numbers painting a picture of a nervous, almost crazed individual in desperate search of a double word score.

I'm tired of answering questions like, "Is 'schlumpy' a word?" NO! IT'S NOT A WORD! IT NEVER WAS A WORD! IT WILL NEVER BE A WORD!

This December, I plan on getting an iPhone. My wife keeps telling me how I will become addicted to WwF, just like she is. I hope -- no, I pray -- that by then, Apple will have come up with an antidote. When I say I won't get addicted and that WwF holds no fascination for me, my wife just laughs -- a knowing, sinister laugh.

Now I know how Eve felt in the Garden of Eden when the serpent whispered in her ear.

Have You Hired a Criminal Today?

What do elections in Washington state, census workers, and employment discrimination have in common?

Criminals. Specifically, convicted felons.

There's a new trend emerging in our country, a trend that is as misguided as it is dangerous. The trend is to file lawsuits challenging the use of criminal background checks as discriminatory, based on the theory that certain minorities are represented disproportionately among convicted felons.

The scary thing is that some of these challenges are actually succeeding.

Washington state's constitution bars convicted felons from voting. Six felons, who also happen to be minorities, claimed that although this felon disenfranchisement law may not have been enacted with a discriminatory purpose, it interacts with a racially discriminatory criminal justice system and, as a result, racial minorities are disproportionately denied the right to vote.

The trial court twice dismissed these claims, but twice the Ninth U.S. Circuit Court of Appeals (the most reversed circuit court in the country) reversed the district court. The second time, the appeals court ordered judgment in favor of the plaintiffs, finding that the "the discriminatory impact of Washington's felon disenfranchisement is attributable to racial discrimination in Washington's criminal justice system" and therefore violates the federal Voting Rights Act. You can read the whole sordid mess here. (The judges in the 2-1 majority were both Carter appointments. Read more about the Carter legacy here.)

Across the country, a class action was filed in the U.S. District Court for the Southern District of New York, alleging that the U.S. Census Bureau unlawfully discriminates against minorities in its hiring process by conducting criminal background checks and requiring applicants to provide information regarding their arrest and conviction histories. So, in the view of the plaintiffs, there is nothing wrong with permitting murderers and rapists to go door-to-door to count heads, all in the name of good government.

This approach will soon spread to the employment context. In fact, there have been a few such scattered cases over the last five or six years, but that trickle will soon become a serious wave. Aside from attempting to force employers to disregard criminal history as a factor in hiring decisions, this trend will put employers in a terrible fix, due to another social justice-inspired concept, negligent hiring.

Although they may vary somewhat from state to state, negligent hiring claims generally go something like this -- (1) an employee performs a bad act; (2) the employee is inherently unfit or has committed previous acts from which unfitness can be inferred; (3) the employer has actual or constructive notice of the employee’s unfitness; and (4) injury results from the employee's actions. Where an employer fails to perform an adequate background check and, as a result, hires an unfit -- perhaps even violent or criminal -- employee, you have a classic example of negligent hiring.

When this latest trend takes hold, however, the employer will be faced with the Morton's fork of either performing background checks, thus risking a discrimination lawsuit, or not performing such checks and risking negligent hiring claims.

This is what happens when liberals and the courts attack everything -- soon the attacks are turned upon themselves. But the trial lawyers don't care because they don't get hurt. Employers get hurt, and when employers suffer, so do their employees or the prospective employees who will never get hired.

The most galling aspect of this entire mess is that it centers around and is intended to benefit people who deliberately broke serious laws and were convicted. Why bother sending them to prison? If employers cannot choose not to hire convicted felons and states cannot bar them from voting, is there any basis on which choices can be made? And what's next -- you can't discriminate on the basis of education level? experience? work history? Aren't all of these susceptible to the same challenges as criminal history?

In National Review's first issue, William F. Buckley said of his creation, "It stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it." To the trial lawyers and all those who so diligently work to make sure convicted felons stop by our houses and populate our workplaces, I say, Stop!

Why I Won't Boycott BP

My, it's fashionable to bash BP right now. Perhaps, in time, we will come to find BP deserves the bashing, but right now, what has it done?

There's a giant oil gusher dumping millions of gallons of oil into the Gulf of Mexico, killing wildlife, disrupting local economies, and destroying environmentally sensitive areas. Whose fault is it?

To assess fault, you start with the facts -- what caused the rupture? Do we know yet? No, we don't. And just why are we blaming BP? Hyundai Heavy Industries built the Deepwater Horizon platform. It was owned by Transocean, operated under the Marshalese flag of convenience, and leased to BP.

So, if we can't blame BP - yet - for the spill, we can blame them for the failure to clean it up, right?

Wrong. It turns out that BP can't do anything on its own. Herewith, our President, The One, on May 27:

[M]ake no mistake: BP is operating at our direction. Every key decision and action they take must be approved by us in advance. I've designated Admiral Thad Allen, who has nearly four decades of experience responding to such disasters, as the national incident commander. And if he orders BP to do something to respond to this disaster, they are legally bound to do it.

BP is not in charge of the cleanup -- the federal government is. Feeling better now? Reassured? President Bush was excoriated for not going to the Gulf for four days in the wake of Katrina, but The One took eleven days to get down there, stopping along the way to hang with Jay Leno and work on jokes for the White House Correspondents Dinner. Where's all the criticism?

The well in question was permitted and approved by The One's administration. The One is in complete control of the cleanup efforts. Let's boycott the federal government! How about we all stop paying our taxes until the feds get their act together, clean up the Gulf, and pay for all the damage they caused!

It may well be that, at some point, we discover the cause of the spill and we can place the blame squarely on BP or wherever it truly belongs. Maybe then, I'll stop going to BP. Until then, however, the rest of you can do whatever you want. If you boycott BP, that's fine with me. Lower demand results in lower prices, and fewer customers means no waiting at the pump.

To whoever started this silly "boycott BP" notion -- thanks! I won't be joining you because the whole idea is ridiculous, but don't let me stop you from making my life cheaper and easier!

Understanding Arizona

In my never-ending quest to spread enlightenment, we can all relax and breathe a little easier about the new Arizona immigration law if we read the analysis here.

A National Day of -- oh, never mind.

A Wisconsin federal court judge's recent decision that the National Day of Prayer is unconstitutional has caused a lot of people to sit up and take notice about just what is going on in our nation's courtrooms. For a look at this case and others, with a clue as to a common factor, go here.

Okay, Now They're Just Playing With Us

As you may know, the case for anthropogenic global warming (AGW), if there ever was one, is collapsing. Phil Jones, the director of the University of East Anglia's Climatic Research Unit, ground zero in the war on carbon emissions, put another nail in the coffin when he admitted to the BBC that there has not been any statistically significant warming since 1995.

Apparently, the fact and effect of Jones's about-face is taking some time to drift over to the AGW zealots here in the colonies. Or perhaps they're just snowed in and can't receive transmissions from the home planet.

Take, for example, Jane Lubchenco, Administrator of the National Oceanic and Atmospheric Administration (NAOA). Lubchenco was asked whether she agreed with Jones that there had been no statistically significant warming since 1995. Of course, she couldn't admit it, so she fell back on the old "that's a stupid question" posture, saying that "it is inappropriate to look at any particular short period of time to discern the long-term trend."

Huh? What was that? Inappropriate to look at a short period of time? She's kidding, right?

From 1940 to 1970, we were in a period of falling temperatures, prompting the usual nutcases to run screaming into the streets about "global cooling." But that stopped, so they ceased their hysterics, gathered themselves, and made lemons out of lemonade by redirecting their efforts to fight the illusion of global warming. Pretty resourceful.

So, was there actual warming from 1970 to 1995? Let's say there was -- that's only 25 years. Is 25 years somehow enough time to "discern the long-term trend" but 15 years isn't? What is the cutoff? And to what are we comparing the number of years to conclude whether they constitute a "short period of time" or a long-term trend? To the life of Earth?

As I thought about these things, it finally occurred to me -- this is all just one huge joke! After her interview, Lubchenco went back to her office, called Al Gore or some of her other pals and had a good laugh:

Lubchenco: (Laughing hysterically) And then, I said you can't use the last 15 years because it's too short a time!

Gore: (Doing that Precious Pup-type snicker) Oh no you didn't! That's too much! Did they believe you?

Lubchenco: (Wiping tears from her eyes) Of course they did! I'm the NAOA Administrator; I know all about science and stuff.

Gore: Oh man, I wish I could have been there. It would have been just like when I won the Academy Award. For best documentary! We slapped that thing together in a weekend! And they bought it! God, I love Hollywood.

I think I would have more respect for these people if they really were just putting one over on us for laughs, rather than pushing this ludicrous agenda as an excuse to ruin our economy and seize even more power.

Fifty years ago, conservatives gathered at William F. Buckley Jr.'s home in Sharon, CT, to sign the Sharon Statement, a collection of conservative principles. Two in particular apply here with gusto:

That the market economy, allocating resources by the free play of supply and demand, is the single economic system compatible with the requirements of personal freedom and constitutional government, and that it is at the same time the most productive supplier of human needs;

That when government interferes with the work of the market economy, it tends to reduce the moral and physical strength of the nation; that when it takes from one man to bestow on another, it diminishes the incentive of the first, the integrity of the second, and the moral autonomy of both[.]

Getting it Right

From time to time, the courts get it right. Actually, they do so more often than not, but we usually point out only the missteps.

In the case of Citizens for Environmental Inquiry v Department of Environmental Quality, several Michigan citizens and the CEI sued Michigan's Department of Environmental Quality, claiming that the DEQ was required to issue rules regulating carbon dioxide emissions. The plaintiffs alleged that unregulated CO2 emissions cause "global warming and/or climate change" and impose upon "all the people of Michigan a severity of injury that is indivisible and at once a substantial concrete injury personal to every citizen."

The trial court tossed the case out, and the Court of Appeals affirmed the dismissal on February 9, finding that the DEQ had not done anything wrong, and the plaintiffs had no standing to pursue their claims. Appellate judges Cavanagh, Fitzgerald, and Shapiro got this one right, as did Judge William Collette of the Ingham County Circuit Court.

Ironically, this dismissal happens just as any semblance of a case for anthropogenic global warming seems to be completely unraveling. See here, here, and here.

According to its website, CEI is an organization committed to killing coal-fired and nuclear power plants in Michigan. (Okay, "killing" is my word, not CEI's.) Governor Tinkerbell has done this -- congratulations! After all, why would we want to explore all potential sources of energy? That new "green" economy is working out so well for us here in the Enchanted Mitten -- over 15% unemployment, a real unemployment rate closer to 25%, no prospects for recovery, and a governor who thinks the way to make things better is to -- wait for it -- raise taxes!

Sorry about that last paragraph. This started as a nice positive post about a court making the right decision, so let's end it that way. Good job, Judge Collette! Good job, Judges Cavanagh, Fitzgerald, and Shapiro! Keep up the good work!

Check it out!

For an account of an unusual case and the billion dollar catastrophe that can occur when you don't pay attention to details, check out the post here.