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.
Showing posts with label judges. Show all posts
Showing posts with label judges. Show all posts
Tuesday, September 4, 2012
Friday, April 16, 2010
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.
Friday, May 22, 2009
Why Judges Matter, Part 4
Today was an unusual day in court, because I was able to compare how two different judges dealt with the exact same motion under the exact same set of circumstances with the exact same defendant and the exact same defense attorney. Not surprisingly, they rendered wildly different decisions.
First, a little background. In civil cases, the parties engage in a process known as "discovery," in which they attempt to ascertain all of the pertinent facts and documents. Written requests for information are known as interrogatories, and requests for documents are known as, well, document requests. After these requests are submitted to a party, the party has 28 days to respond. If they do not respond or do so inadequately, the next step is for the requesting party to file a motion to compel the responses. There is also a specific court rule that says, if the court grants a motion to compel discovery, the court "shall" require the party who did not answer the discovery to "pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees[.]"
I have two cases in which I represent two different clients suing the same defendant. The cases are assigned to two different judges. I submitted interrogatories and document requests to the defendant's attorney in each case in March. These were never answered. At the end of April, I wrote the other attorney two letters (again, one in each case) about his failure to respond. No answer. So, I filed motions to compel discovery; again, a separate motion for each case. No response. The hearings on these motions took place today.
In the first case, even though the other lawyer told me that he could answer my discovery requests within 14 days, the judge gave him another 30 days to answer and denied my request for the costs and attorney fees that, under the Court Rules, are mandatory.
In contrast, the judge in the second case gave the other attorney only 14 days to answer the discovery requests, and she ordered his client to pay my client $500 for having to file and argue the motion.
The second judge followed the rules. The first judge ignored them, apparently believing that in the phrase "the Court Rules," the word "Rules" is a verb. The problem is that there is no recourse for the first judge's blatant ignorance of the rules or his refusal to follow them. The cost of appealing is prohibitive, even if there was any prospect the Court of Appeals would agree to hear the case (it wouldn't), and a motion for reconsideration goes right back to the same judge, who will deny it, either without comment or by saying simply, "I've already decided this issue and I see nothing new here," or words to that effect.
So, two judges + same motion + same facts + same attorneys = two irreconcilable rulings. I know there is no IQ test to sit on the bench, and many of the judges I appear before are smart and/or they try to do the best they can, but it is extremely frustrating to appear before a judge who doesn't apply the rules correctly and doesn't care.
When the first judge denied my request for costs and attorney fees (without giving any reason, by the way), I asked if we could simply take the request under advisement pending the other side's compliance with the order requiring them to answer my requests within 30 days. In other words, no decision now on costs and attorney fees but, if the defendant doesn't comply, the judge can impose sanctions at that time. This is an unbelievably reasonable request on my part, so of course it was quickly denied without any explanation.
I have been practicing law for over 26 years. This experience today was, unfortunately, nothing new, but the fact that I had two identical motions pending before two different judges was unusual, giving me a control ruling, if you will, against which to judge the aberrant decision. Rarely is the contrast between competence and incompetence so glaringly obvious.
It is impossible for voters to be aware of the hundreds or thousands of rulings judges make that affect the course of litigation pending before them, so judicial campaigns devolve into contests of who-can-put-up-more-signs and who can pretend to be tougher on crime, all against the backdrop of name recognition and incumbency. No, the ballot box rarely improves the bench. The key point is to make sure that we elect a governor and a president who will make wise appointments, since these appointed judges then carry the power of incumbency.
Regrettably, our current governor and president will make and have made poor choices. When we see what they have done to our economy, we should not be surprised when they screw up our judiciary.
First, a little background. In civil cases, the parties engage in a process known as "discovery," in which they attempt to ascertain all of the pertinent facts and documents. Written requests for information are known as interrogatories, and requests for documents are known as, well, document requests. After these requests are submitted to a party, the party has 28 days to respond. If they do not respond or do so inadequately, the next step is for the requesting party to file a motion to compel the responses. There is also a specific court rule that says, if the court grants a motion to compel discovery, the court "shall" require the party who did not answer the discovery to "pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney fees[.]"
I have two cases in which I represent two different clients suing the same defendant. The cases are assigned to two different judges. I submitted interrogatories and document requests to the defendant's attorney in each case in March. These were never answered. At the end of April, I wrote the other attorney two letters (again, one in each case) about his failure to respond. No answer. So, I filed motions to compel discovery; again, a separate motion for each case. No response. The hearings on these motions took place today.
In the first case, even though the other lawyer told me that he could answer my discovery requests within 14 days, the judge gave him another 30 days to answer and denied my request for the costs and attorney fees that, under the Court Rules, are mandatory.
In contrast, the judge in the second case gave the other attorney only 14 days to answer the discovery requests, and she ordered his client to pay my client $500 for having to file and argue the motion.
The second judge followed the rules. The first judge ignored them, apparently believing that in the phrase "the Court Rules," the word "Rules" is a verb. The problem is that there is no recourse for the first judge's blatant ignorance of the rules or his refusal to follow them. The cost of appealing is prohibitive, even if there was any prospect the Court of Appeals would agree to hear the case (it wouldn't), and a motion for reconsideration goes right back to the same judge, who will deny it, either without comment or by saying simply, "I've already decided this issue and I see nothing new here," or words to that effect.
So, two judges + same motion + same facts + same attorneys = two irreconcilable rulings. I know there is no IQ test to sit on the bench, and many of the judges I appear before are smart and/or they try to do the best they can, but it is extremely frustrating to appear before a judge who doesn't apply the rules correctly and doesn't care.
When the first judge denied my request for costs and attorney fees (without giving any reason, by the way), I asked if we could simply take the request under advisement pending the other side's compliance with the order requiring them to answer my requests within 30 days. In other words, no decision now on costs and attorney fees but, if the defendant doesn't comply, the judge can impose sanctions at that time. This is an unbelievably reasonable request on my part, so of course it was quickly denied without any explanation.
I have been practicing law for over 26 years. This experience today was, unfortunately, nothing new, but the fact that I had two identical motions pending before two different judges was unusual, giving me a control ruling, if you will, against which to judge the aberrant decision. Rarely is the contrast between competence and incompetence so glaringly obvious.
It is impossible for voters to be aware of the hundreds or thousands of rulings judges make that affect the course of litigation pending before them, so judicial campaigns devolve into contests of who-can-put-up-more-signs and who can pretend to be tougher on crime, all against the backdrop of name recognition and incumbency. No, the ballot box rarely improves the bench. The key point is to make sure that we elect a governor and a president who will make wise appointments, since these appointed judges then carry the power of incumbency.
Regrettably, our current governor and president will make and have made poor choices. When we see what they have done to our economy, we should not be surprised when they screw up our judiciary.
Wednesday, April 29, 2009
Why Judges Matter, Part 3
U.S. Supreme Court decisions are issued throughout the year, from October to June, so rarely are two decisions issued on the same day that so clearly illustrate the vast judicial philosophy gulf separating conservative from liberal judges. This rare event occurred today, however, with the Court's decisions in Kansas v Ventris and Dean v U.S. Fortunately, the majority opinions were authored by Justice Scalia and Chief Justice Roberts. Both were 7-2 decisions, with Justice Stevens in dissent in both cases.
In the Ventris case, Donnie Ray Ventris and his girlfriend, Rhonda Theel, shot and killed one Ernest Hicks with a .38-caliber revolver, and then drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On a tip from the "friends" who drove Ventris and Theel to Hicks’s home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter. Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to “keep [his] ear open and listen” for incriminating statements. According to the informant, in response to his statement that Ventris appeared to have “something more serious weighing in on his mind,” Ventris divulged that “[h]e’d shot this man in his head and in his chest” and taken “his keys, his wallet, about $350.00, and … a vehicle.”
At trial, Ventris took the stand and blamed everything on Theel (who says chivalry is dead?). The prosecutor then asked to call the jail cell informant to impeach Ventris's testimony. The trial court let the testimony in and Ventris was convicted. The Kansas Supreme Court reversed the conviction, holding that allowing the informant to testify violated Ventris's Sixth Amendment right to counsel during all custodial interrogation. The US Supreme Court then reversed and reinstated the conviction, finding that the Sixth Amendment would prohibit the prosecution from using the informant's testimony as part of its case in chief, but once Ventris testified, the informant could be used to impeach him. As the prosecution put it at trial, the Sixth Amendment “doesn’t give the Defendant … a license to just get on the stand and lie.”
In the Dean case, Christopher Michael Dean, wearing a mask, entered a bank, waved a gun, and yelled at everyone to get down. He then walked behind the teller counter and started removing money from the teller stations. He grabbed bills with his left hand, holding the gun in his right. At one point, he reached over a teller to remove money from her drawer. As he was collecting the money, the gun discharged, leaving a bullet hole in the partition between two stations. The robber cursed and dashed out of the bank. Witnesses later testified that he seemed surprised that the gun had gone off. Fortunately, no one was hurt. At trial, Dean admitted the robbery and was convicted.
Federal law imposes additional, mandatory sentences on defendants for using firearms during crimes -- 5 years for carrying one, 7 years “if the firearm is brandished” and 10 years “if the firearm is discharged.” Dean appealed the additional 10-year sentence he got because the gun went off, claiming that it was an accident. The Supreme Court affirmed the added sentence, finding no requirement that the defendant intend for the gun to discharge. In part of his opinion, Chief Justice Roberts quoted from one of history's greatest legal writers, on whom much of our common law relies:
Justice Stevens dissented in both cases, finding on behalf of the criminal each time, despite the fact that there was no doubt about guilt in either case. He described the Ventris decision as "another occasion in which the Court has privileged the prosecution at the expense of the Constitution," despite the fact that, as Justice Scalia observed, "we have multiple times rejected the argument that this “speculative possibility” [that police will use informants solely to gain impeachment material for the unlikely event that the defendant will testify] can trump the costs of allowing perjurious statements to go unchallenged. *** We have held in every other context that tainted evidence—evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid—is admissible for impeachment."
In Dean, Justice Stevens found that an intent to discharge the weapon must be found, despite the absence of any statutory requirement for intent. This conclusion is so obviously inconsistent with his decision in Ventris that the only way it can be reconciled is to observe that, in both cases, Stevens would have ruled for the guilty defendant instead of the prosecution.
Stevens would exclude the informant's testimony in Ventris, despite the fact that it was being used to impeach perjury by the defendant, and regardless of the intention of law enforcement. On the other hand, in Dean, Stevens would protect a criminal who takes a loaded gun to a bank robbery by requiring that the prosecution prove that, if the gun went off, the criminal intended for the gun to go off.
Thus, in Dean, where the criminal is concerned, intent is everything, while in Ventris, where the focus is on the prosecution's conduct, intent is irrelevant.
We expect this kind of flip-flopping inconsistency from our politicians. Are we now relegated to getting it from our judges also? And, what's worse, we're getting it from our Supreme Court justices, who have the highest responsibility of all -- defining, defending, and applying our magnificent Constitution.
In the Ventris case, Donnie Ray Ventris and his girlfriend, Rhonda Theel, shot and killed one Ernest Hicks with a .38-caliber revolver, and then drove off in Hicks’s truck with approximately $300 of his money and his cell phone. On a tip from the "friends" who drove Ventris and Theel to Hicks’s home, officers arrested Ventris and Theel and charged them with various crimes, chief among them murder and aggravated robbery. The State dropped the murder charge against Theel in exchange for her guilty plea to the robbery charge and her testimony identifying Ventris as the shooter. Prior to trial, officers planted an informant in Ventris’s holding cell, instructing him to “keep [his] ear open and listen” for incriminating statements. According to the informant, in response to his statement that Ventris appeared to have “something more serious weighing in on his mind,” Ventris divulged that “[h]e’d shot this man in his head and in his chest” and taken “his keys, his wallet, about $350.00, and … a vehicle.”
At trial, Ventris took the stand and blamed everything on Theel (who says chivalry is dead?). The prosecutor then asked to call the jail cell informant to impeach Ventris's testimony. The trial court let the testimony in and Ventris was convicted. The Kansas Supreme Court reversed the conviction, holding that allowing the informant to testify violated Ventris's Sixth Amendment right to counsel during all custodial interrogation. The US Supreme Court then reversed and reinstated the conviction, finding that the Sixth Amendment would prohibit the prosecution from using the informant's testimony as part of its case in chief, but once Ventris testified, the informant could be used to impeach him. As the prosecution put it at trial, the Sixth Amendment “doesn’t give the Defendant … a license to just get on the stand and lie.”
In the Dean case, Christopher Michael Dean, wearing a mask, entered a bank, waved a gun, and yelled at everyone to get down. He then walked behind the teller counter and started removing money from the teller stations. He grabbed bills with his left hand, holding the gun in his right. At one point, he reached over a teller to remove money from her drawer. As he was collecting the money, the gun discharged, leaving a bullet hole in the partition between two stations. The robber cursed and dashed out of the bank. Witnesses later testified that he seemed surprised that the gun had gone off. Fortunately, no one was hurt. At trial, Dean admitted the robbery and was convicted.
Federal law imposes additional, mandatory sentences on defendants for using firearms during crimes -- 5 years for carrying one, 7 years “if the firearm is brandished” and 10 years “if the firearm is discharged.” Dean appealed the additional 10-year sentence he got because the gun went off, claiming that it was an accident. The Supreme Court affirmed the added sentence, finding no requirement that the defendant intend for the gun to discharge. In part of his opinion, Chief Justice Roberts quoted from one of history's greatest legal writers, on whom much of our common law relies:
“[I]f any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour.” 4 W. Blackstone, Commentaries on the Laws of England 26–27 (1769).
Justice Stevens dissented in both cases, finding on behalf of the criminal each time, despite the fact that there was no doubt about guilt in either case. He described the Ventris decision as "another occasion in which the Court has privileged the prosecution at the expense of the Constitution," despite the fact that, as Justice Scalia observed, "we have multiple times rejected the argument that this “speculative possibility” [that police will use informants solely to gain impeachment material for the unlikely event that the defendant will testify] can trump the costs of allowing perjurious statements to go unchallenged. *** We have held in every other context that tainted evidence—evidence whose very introduction does not constitute the constitutional violation, but whose obtaining was constitutionally invalid—is admissible for impeachment."
In Dean, Justice Stevens found that an intent to discharge the weapon must be found, despite the absence of any statutory requirement for intent. This conclusion is so obviously inconsistent with his decision in Ventris that the only way it can be reconciled is to observe that, in both cases, Stevens would have ruled for the guilty defendant instead of the prosecution.
Stevens would exclude the informant's testimony in Ventris, despite the fact that it was being used to impeach perjury by the defendant, and regardless of the intention of law enforcement. On the other hand, in Dean, Stevens would protect a criminal who takes a loaded gun to a bank robbery by requiring that the prosecution prove that, if the gun went off, the criminal intended for the gun to go off.
Thus, in Dean, where the criminal is concerned, intent is everything, while in Ventris, where the focus is on the prosecution's conduct, intent is irrelevant.
We expect this kind of flip-flopping inconsistency from our politicians. Are we now relegated to getting it from our judges also? And, what's worse, we're getting it from our Supreme Court justices, who have the highest responsibility of all -- defining, defending, and applying our magnificent Constitution.
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