Eternal Vigilance -- The Battle for the Michigan Supreme Court and the Rule of Law

Once again, we find ourselves on the brink of another Supreme Court election, again featuring a distinct contrast between rule-of-law judges and the so-called "empathy" judges.  On the rule-of-law side, we have Brian Zahra, David Viviano, and James Redford.  The principal empathy candidate is Richard Bernstein.

All elections and races are important, but as the final arbiters of what will and will not be constitutional or enforceable, there is no race more important than the race for Justice of the Michigan Supreme Court.

Bernstein's candidacy is summed up well here.

To underscore the importance of the rule of law, I am reposting a piece that can be found in its original form here.  It illustrates how empathy judges decide however they want to, without regard for the law, for private contracts, or any other limits.  Empathy judging is an extreme danger to society, since it eliminates any reasonable expectations of how others will behave. For example, if contracts don't mean what they say, how can we rely on them?  The lessons of this piece are just as applicable today as they were when it was first posted.

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.

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?

Is Richard Bernstein Violating the Judicial Code of Conduct?

Ordinarily, I fast forward through commercials when I'm watching a program on DVR.  Sometimes, though, I'm not quick enough or I'm busy, and then I get to watch advertisements that remind me why I usually zip through them.

Yesterday, one of the commercials I saw by accident really caught my attention, but not in a good way.  It was a political ad for Richard Bernstein, who is running as a Democratic nominee for the Michigan Supreme Court.  At about the 14-second mark, Bernstein says:

Big corporations, polluters, and insurance companies have their high-priced lawyers, so let me be your judge.

Your wizard was astounded by this comment, so I quickly went to my copy of the Judicial Code of Conduct.  Right there, in Canon 7, part B, it clearly states:

(1)   A candidate, including an incumbent judge, for a judicial office:

*   *   *

(c)  should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.

So, what is going on in this commercial?  It is patently obvious that Bernstein is pledging that he will rule against big corporations and insurance companies.  Prejudging cases that are likely to come before the high court is the exact opposite of "the faithful and impartial performance of the duties" of Michigan Supreme Court Justice.

Perhaps this sort of inattention to the rules is to be expected from someone who has never been a judge and, according to the Michigan Courts website, has never appeared on a case in either the Court of Appeals or the Michigan Supreme Court.

Regardless of the cause, there is no excuse for a candidate so blatantly flouting the code of conduct governing the office to which he aspires.  This is a bad way to start, and voters would do well to make sure he doesn't get the chance to follow through.

Please, Ms. Weaver, Just Retire Already!

Remember the music from Jaws that heralded the shark's return?  I hear that music in my head just before Elizabeth Weaver launches another one of her loony broadsides against the Supreme Court and the process for selecting justices.

The latest is her harebrained idea for choosing justices.  You can find it here.  After taking advantage of the current system for two terms, Ms. Weaver has decided that the entire process has to be scrapped (this will, of course, require that our Constitution be amended).  Her notion is that, instead of party nominations, all Supreme Court candidates would have to file nominating petitions, use public money only, and be elected by district, with the state being divided into seven districts.

Why?  Well, because "people in varying parts of the state look at life in different ways" and all current members of the Court live in "the Detroit/Lansing beltway." 

First, I-96 is not a beltway.  It does not circle Detroit or Lansing.  A corridor?  Maybe, but definitely not a beltway.  Ms. Weaver's incorrect use of the term "beltway" reflects her sloppy thinking while on the Court.  All members of the Court are elected by all of Michigan.  It's not a "Court of Representatives," it's the Michigan Supreme Court, deciding cases for the entire state. 

Second, the Court does not exist to look at life; it exists to render decisions on the law.  "Looking at life" is a hallmark of an empathy court, which makes decisions based on the whim of the moment, not the will of the people as expressed by its legislature and in its Constitution.

In the event of a vacancy, Ms. Weaver channels the following proposal:

•  A 30 to 40-member "Qualifications Commission" would meet and provide two non-binding recommendations to the governor.
• The Commission would be comprised of "all stakeholders in the justice system.  For example, representatives from labor, business, law enforcement, doctors, lawyers, prosecutors, environmental groups, corrections, education, insurance, local government and the like. Each organization would choose its own representative."
• The governor can choose one of the two recommendations, or not.  But, if not, the governor must justify the appointee in writing, "giving written reasons why her or his appointee is the best choice[.]"
• The Senate has 60 days to hold a public hearing on the governor's nomination.  If the Senate takes no action, the appointment becomes effective.  If the Senate rejects the nominee, the whole process starts over again.  If for some reason the process doesn't restart, the vacancy gets filled at the next general election.

Can you imagine the mischief in this system?  How will the Commission be chosen?  Who decides which group represents which segment of "stakeholders in the justice system"?  How long will it take to establish a commission and come up with agreement on two nominees?  How long will vacancies remain open?  It would be a nightmare.

Ms. Weaver also argues for "public scrutiny" of the "inner workings on our Supreme Court."  It's not clear what she means by this, particularly since she also concedes that "there are certain things that must be done at the court in private."  Where does she draw the line?  She never says.  Presumably, since she secretly recorded and then released selected portions of confidential Court deliberations, she values neither confidentiality nor the need for frank and open discussions during case conferences.

The notion of public deliberation may well lead to greater divisions over the Court's decisions. David Stasavage of the London School of Economics did an interesting study of public versus private deliberations in representative democracies.  He concluded in part:

[P]rivate deliberation may, in many instances, actually do more to reduce polarization of opinions in society than will public deliberation. This runs contrary to the common suggestion that public discussions will produce greater social consensus. When members of society have divided opinions about the effects of a policy, if “responsiveness” is the unique equilibrium under public deliberation, then representatives will articulate the opinions of their constituencies, but the public will not actually learn anything from observing public deliberation, because it knows that representatives are simply mirroring the attitudes of their constituents. In contrast, when an “independence” equilibrium prevails, which is more likely to be the case under private deliberation, then even if it does not observe the actions of individual representatives, the public will know that the policy outcome has depended upon the private information held by representatives.  As a consequence, members of the public will be able to draw inferences from the policy outcome, and they will revise their beliefs about which policy outcome is preferable. If beliefs are initially polarized, then they will tend to converge.

It would be a shame if anyone took Ms. Weaver's proposals seriously.  There will be some, of course, but our time would be much better spent if we focus on re-electing the rule-of-law judges currently on the Court and electing rule-of-law judges to all positions in the future.

Ms. Weaver, thank you for your service.  Now, please, go away.

 

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?

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.

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.