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.

Court of Appeals Holds State Cannot Increase Taxes on Civil Service Employees

Okay, so the Court of Appeals didn't exactly say that, but that's certainly one interpretation of the court's opinion in AFSCME v State Employees Retirement System, published yesterday.  And it's a troubling one.

Here's the background:  The State Civil Service Commission has the authority under the Michigan constitution to fix the compensation for all civil service employees, although its decisions can be changed by 2/3 vote of the Michigan legislature within 60 days of the CSC's recommendation.  During the last days of the Granholm administration, the state and its civil service employee unions agreed to a collective bargaining agreement (CBA) that froze hourly wages for the fiscal year 2008-2009, but increased them by one percent for fiscal year 2009-2010 by three percent for fiscal year 2010-2011.  Various resolutions were introduced in the legislature to reject these increases, but none were passed.

Fast forward to 2011, in which the legislature enacted and the governor signed MCL 38.35, requiring a three percent employee compensation contribution to finance public employee retirement health care.

In a series of consolidated lawsuits, the unions and their employees argued that MCL 38.35 was unconstitutional, because it reduced employee compensation and had not been passed by 2/3 vote of the legislature within 60 days of the CSC's recommendation.  The court stated:

In the present case, civil service employees were not given the option of participating in the retiree health care funding act.  Moreover, there is no correlation between the three percent reduction in compensation for individual civil service employee and the contribution into the system.  That is, there is no escrow of the individual’s contribution into a fund for that individual.

So, requiring civil service employees to pay 3 percent of their compensation into the state retirement fund is unconstitutional because (1) it wasn't voted on properly, (2) employees have no option of participating or not, and (3) the individual's contribution isn't escrowed into a separate fund for that employee's benefit.

So what's the difference between the 3 percent contribution and taxes?  Taxes are not voted on according to the civil service schedule and rarely pass with 2/3 of the vote, employees have no option of paying taxes or not, and their individual "contributions" aren't escrowed for the employee's benefit.  According to the court's reasoning, therefore, any tax increase not voted on within 60 days of a CSC recommendation and passed with 2/3 of the vote is unconstitutional.

How does the court answer this?  With one sentence:

Taxes imposed by the federal and state government are standard rates that apply based on income levels.

In the words of Joe Pesci as the title character in My Cousin Vinny, "That's it??"  "Standard rates that apply based on income levels"  -- that's your reasoning?  How does that even relate to the issues here? 

The CSC set the compensation levels.  The legislature did nothing to change those levels, other than order a deduction for retirement savings.  That does not change the total compensation ordered by the CSC.  If it does, so do taxes.  The court is clearly wrong here, unless it also believes that civil service employees are exempt from tax increases unless the legislature enacts them by 2/3 vote within 60 days of any CSC recommendation.  Of course, the court won't go that far, but that is the inescapable conclusion of its opinion.

The only way out of this box is to say, as the court tried but could not bring itself to say, that taxes are different.  No reason, no logic, just a statement, as though it is axiomatic:  taxes are different.

By the way, of the three judges on this panel, one was elected and two were appointed by Granholm.  All were Democrats before assuming their non-partisan positions on the bench.

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.

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.