"Rule of Law" Should Be More Than Just A Slogan

Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey.  Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien. 

As I wrote in 2010, "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."  Since then, I have still not had the opportunity to argue before Judge Markey, but I have attended meetings at which she has spoken, and she seems like a nice person.  She describes herself as a "rule of law" judge, and, in a recent email, she stated:

Judge Markey knows that a judge's role is to follow the plain text of our Constitutions and statutes. You can see that for yourself in almost two decades of decisions that demonstrate she is a consistent constitutional conservative. Only appellate court judges, and not state trial court judges, generate open, public, easily accessible, transparent records because their decisions are written and used statewide each day by attorneys and judges in all types of cases. Only Judge Markey has this crucial credential, i.e. proof she adheres to the Rule of Law.  (Emphasis in original). 

Sounds good, right?  Well, in the words of the immortal Lee Corso, not so fast, my friend.  In 2010, I wrote about Allen v Bloomfield Hills School District, which was anything but a "rule of law" decision.  And, unfortunately, since then, I have learned of more examples of Judge Markey's adventures in open field running, untethered by the law.

One of the risks of touting your record is that people might actually read it.

The most glaring example of Judge Markey's departure from the law is her dissent from the majority decision in Progressive Michigan Insurance Company v Smith, a 2010 decision.  In that case, Smith drove his truck across the center line of the road and injured two other people. Since he had too many points on his record and no valid license, Smith had not been able to procure insurance for his truck, so his girlfriend bought it.  Smith was supposed to be excluded from coverage under the policy.  If excluded, the injured persons had no claim against the insurance policy and would be deprived of a potential source of recovery.  If not excluded, the insurance coverage would apply and potentially be available to those injured by Smith's negligence.

There is a Michigan statute directly on point here, MCL 500.3009(2), which states:

If authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person.  Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance:  Warning -- when a named excluded person operates a vehicle all liability coverage is void -- no one is insured.  Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.  (Emphasis added).

So, to exclude a person from coverage, (1) the person must be named as excluded and (2) the specified warning must appear on both (a) the face of the policy or declaration page or policy certificate, and (b) on the certificate of insurance.  In this case, Smith was named as an excluded person and the specified warning appeared on the declaration page, but the warning on the certificate of insurance was not identical to the specified warning -- the last word was "responsible" instead of "liable." 

Thus, the policy did not comply with the clear requirements of the statute, and the Court of Appeals determined that Smith's exclusion was not valid, resulting in coverage for the injured motorists.  This was a 2-1 decision.  Both judges in the majority are of Republican heritage; Judge Markey dissented. 

The majority reasoned:

The Legislature did not merely set forth the substance of the required warning.  Instead, the statute mandates use of "the following notice," which notice is explicitly provided for insurers to use verbatim.  Further the Legislature did not merely state that this notice is required, without specifying the effect of noncomplicance.  If the required warning notice is not provided, the named person "exclusion shall not be valid."  The statute could not be clearer.

 Dissenting, Judge Markey began with words that will echo throughout her campaign, but are belied by numerous opinions she has authored:

I too strongly adhere to the philosophy that it is this Court's function to apply the law as plainly written.  It is not our job to modify, amend, or read into a statute something that is not there; such legislating from the bench is simply improper.  Legislating belongs to the Legislature.

These are laudable sentiments, but they would be more persuasive if Judge Markey did not then immediately violate the philosophy she professes to share.  Judge Markey stated that she would have found the insurance company complied with the statute and excluded coverage for Smith, and she did so under the banner of "common sense":

Must we as strict constructionists abandon "common sense" and render a decision not only remarkably hyper-technical legally but also profoundly unjust and jarring to what I will presume to say is the average person's sense of justice and fair play?  I think not.

It is thus apparent that Judge Markey will apply the rule of law except where she believes it is not consistent with "common sense" or "the average person's sense of justice and fair play."  Under this standard, there is no standard -- she is free to rule as she wishes, without regard to the law, as long as she can fit her ruling under the unlimited umbrella of "common sense" or "fair play." 

The case was appealed to the Michigan Supreme Court, but the application ultimately was denied.  Still the denial afforded an opportunity for the justices to weigh in, and the Chief Justice did so, with his customary directness:

The dissenting opinion of Judge Markey in the Court of Appeals, although professing an adherence to the philosophy of interpreting the law as plainly written, nevertheless ignored the statutory language[.]  (Emphasis in original).

The Chief Justice described Judge Markey's opinion as "a shocking departure from the rule of law," and noted:

All Michigan citizens should be extraordinarily troubled by any judge who advances the notion that the rule of law must be enforced unless a judge finds an outcome in a particular case to be one of which he personally disapproves.  In a constitutional republic, judges have no such authority, and the rule of law crumbles where a constitutional, validly enacted mandate can be ignored simply because it offends a judge's sensibilities -- even if on "rare occasion[s]."  (Emphasis in original).

As if that wasn't clear enough, the Chief Justice kept the pedal to the metal:

With all due respect to Judge Markey, our judicial oaths require judges to enforce the Legislature's policy choices, even when we may personally find the outcome in a given case "unjust," "inequitable," "jarring," "hyper-technical," or contrary to what we intuit an "average person's" sensibilities to be.  As this Court has stated, it is a mere "caricature" of judicial restraint for a judge "to assert that her common sense should be allowed to override the language of the statute."  (Emphasis in original; footnotes omitted).

It's pretty simple -- "rule of law" is a standard to be applied in judicial decision-making.  It embraces the notion that the people speak through the Legislature and that clear and unambiguous statutes -- like the one involved in the Smith case -- are to be enforced as written.

When a judge decides that a statute, despite its clarity, must be interpreted in a way that comports with "common sense" or her notion of "justice and fair play," her opinion becomes unmoored from the law, and the result becomes a function of her feelings.  This removes important, perhaps the most important, characteristics of law itself -- the ability to know what the law is and to rely upon it.

In a just and ordered society, commercial and personal interaction depend upon our ability to rely on others' behavior.  For example, roads and motor vehicles are useless without traffic laws, and without laws enforcing contracts, people cannot rely on their agreements, even if written.  In this way, the rule of law promotes freedom because it produces a common understanding of what the law means and how it applies to us.  In other words, we can play the game because we know the rules. 

In Judge Markey's world, and in the world of the so-called "empathy judges," there really are no rules, since even crystal clear statutes must always pass the "feelings" test, and there will always be cases in which a judge simply doesn't like the result the law compels.  At that point, she resorts to vague notions of "common sense" or her individual concept of "justice and fair play."  A judge taking that approach ceases to apply the law and forfeits her right to proclaim herself a "rule of law judge."  She has instead become simply another legislator, imposing her personal viewpoint on the parties before her and on anyone else affected by her decision.  Her standard for decision-making is no standard at all.

More to come.

 





 

Saving Her Energy

When Richard Nixon ran for President in 1968 after six years out of public life and living in California, a popular slogan described him as "The New Nixon: Tanned, Rested, and Ready."

State Sen. Gretchen Whitmer (D-East Lansing) announced recently that she was running for Michigan attorney general. I can't comment on her tan or her readiness, but after eight years of doing nothing in the legislature, she should certainly be well-rested.

Using the state's legislature website, I searched records going back to 2001, Whitmer's first year in the House. I examined every bill for which she was the primary sponsor. In the House and Senate to date, Whitmer has sponsored 128 bills. Of these, a grand total of 3 made it to a vote, and 2 were passed. The third was defeated 81-22 in the House. She has not had a single bill make it to a vote since June 29, 2005.

If you're keeping score at home, that's 2 passed bills out of 128 attempts, which is a .015 batting average, enough to make Hank Aguirre blush.

So, there's no substantial accomplishment as a legislator in terms of quantity. But is the quality there? Has her legislation been of such monumental importance that we can forgive its infrequency?

In the words of Ted Kennedy, "Ah, no."

Whitmer's first legislative triumph was in 2004, when she sponsored HB 4703. From the Floor Analysis of the bill:

The bill would amend the Public Health Code to increase construction permit and license fees for campgrounds and public swimming pools. It also would create the "Campground Fund" and the "Swimming Pool Fund". (Punctuation in original).

So, a tax increase. Oh, excuse me -- a fee increase.

The following year, still recovering from the heady success of soaking Michigan's campground and swimming pool operators, Whitmer sponsored HB 4405. From the Floor Analysis of this bill:

The bill would amend the Public Health Code to eliminate the authority of a disciplinary subcommittee to impose sanctions against a pharmacist for employing the mail to sell, distribute, or deliver a drug that requires a prescription when the prescription for the drug is received by mail.

In other words, the bill permitted a pharmacist to mail out prescribed drugs when the prescription was received by mail.

Wow. That bill ranks right up there with the Declaration of Independence and the Magna Charta.

Two bills in four years! Raising taxes, er, fees, and letting pharmacists mail out prescriptions in certain cases -- woo hoo! Such success would certainly motivate a person to continue the trend, right?

Wrong.

Since June of 2005, Whitmer hasn't gotten a single bill to a vote. 70 bills in a row, referred to committee, never to be heard from again. Oh-for-seventy. An average of .000. If the 2008 Detroit Lions were a legislator, they would be Gretchen Whitmer.

And now she wants to be attorney general. Announcing her candidacy, Whitmer said, "Michigan families work hard and play by the rules. We need an attorney general who puts people first."

How about an attorney general who works hard, has a record of leadership and good judgment, and has demonstrated the ability to get things done? How about an attorney general with some experience in law enforcement or the courtroom?

We don't need someone who simply occupies space waiting for the next electoral opportunity -- we need someone who gets things done. By that standard and almost every imaginable standard, Whitmer fails.

As my kids would say, epic fail.

Why Judges Matter, Part 1

Many people are aware when the U.S. Supreme Court issues a landmark opinion. Think Roe v Wade or Brown v Board of Education. These decisions are of transcending importance to our national fabric.

What most people are not aware of are the thousands of decisions made every day by lower courts. These decisions have a profound impact on our courts, our businesses, our institutions, and our own responsibility and accountability. These decisions magnify the critical nature of selecting judges to sit on the bench. One such case was recently decided by the U.S. Court of Appeals for the Sixth Circuit, which covers Tennessee, Kentucky, Ohio, and Michigan.

In Gass v Marriott Hotel Services, the Sixth Circuit reinstated a lawsuit filed by two women against Marriott and an exterminating company, in which the women claimed that they were injured by pesticides sprayed in their Maui hotel room after they complained about seeing a dead cockroach.

This case is especially troubling because of the following:

• The two plaintiffs did not seek treatment from a physician specializing in environmental medicine until a month and a half after they returned to Michigan from Hawaii (they did see a general practitioner -- the husband of one of the plaintiffs -- when they got home);
  
  
• The specialist tested the plaintiffs for -- but could not find -- any detectable levels of the chemical compounds found in the pesticide used, and he did not test for any others;
  
  
• An expert toxicologist testified that there has never been any peer review study linking the one pesticide admittedly used to any toxic effect in humans;
  
  
• A renowned clinical psychiatrist testified that the physical symptoms of the two plaintiffs were likely a psychological reaction to stress, and that the plaintiffs had "demonstrated a tendency to react to stress in the past with physical symptoms";
  
  
• There was no evidence that any of the pesticides that potentially could have caused the plaintiffs' problems were used in the hotel room;
  
  
• There was no evidence that the pesticide admittedly used in the hotel room was used in sufficient quantity to cause any problems, nor was there any evidence about the length or intensity of the plaintiffs' exposure, the ventilation, etc., all factors that bear on whether the defendants caused the plaintiffs' alleged injuries.

Thus, there was no evidence that the plaintiffs were actually exposed to any harmful chemicals or that the exposure was at a level that is harmful. As a result, there is no way the plaintiffs could establish that exposure to a chemical actually caused them any harm. Nevertheless, in a 2-1 decision, the Sixth Circuit found there was enough to send the case to trial.

Of course, this result was a foregone conclusion. The majority consisted of Judges Eric Clay and Karen Nelson Moore, both appointed by Bill Clinton, while the dissenter, Chief Judge Danny Boggs, was appointed by President Reagan.

This case and others like it weaken evidentiary requirements, making it easier to file and pursue marginal, even frivolous, lawsuits. This increases the expense of doing business, will drive up insurance costs and prices, and further burden our courts while making it more difficult to get rid of groundless claims.

This is nothing new, of course -- read The Litigation Explosion or anything else by Walter Olson. It illustrates, however, the continuing crisis in our courts, driven by the tension between the rule of law and the political desire to bend (or ignore) the rules to promote a social agenda.

Just another reason why judges -- and votes -- matter.

Welcome!

This is the first post in my continuing quest to dissect and explain the nature of our legal system, what's happening in the courts, and where we're going. My guiding principles are truth and straightforward discussion. Also, I'll occasionally provide updates on my beautiful family.

For background purposes, I am a Michigan attorney. I've been practicing law for over 24 years, both in private practice and as an in-house general counsel. I am married, with two children. Politically, I tend to be conservative, with a substantial independent streak.

Let me hear from you with your questions and comments about current legal and political issues. And thanks for checking in!

Dan.