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.

 

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.