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.

Micromanaging in the Wrong Direction

Credit buying is much like being drunk.  The buzz happens immediately, and it gives you a lift.  The hangover comes the day after.         -- Dr. Joyce Brothers

Many of us have felt the effects -- both positive and negative -- of a buying binge.  Sometimes, we spend wisely.  At other times, our decisions are rational, but circumstances change, or we just get in a bit too deep.  Regardless of the reasons or the outcomes, we make these decisions voluntarily, ourselves.  No one puts a gun to our heads and says, "Buy this fridge on credit or else!"

Our credit histories can affect us in many ways, not least of which is in our efforts to find new employment.  Over recent years, employers have grown more sophisticated in screening employment applications and using all of the tools available to them, include credit reports.

Apart from the ongoing attack on using criminal histories to screen applicants, about which I will write more in the near future, there is a new bill pending in the Michigan House of Representatives, sponsored by the usual suspects, that would prohibit employers from using credit histories to screen potential employees.  Well, some employers would be prohibited.  The bill's drafters have apparently discerned that, in some cases, it might be a bad idea to have an employee with credit problems.

Under the bill, HB 4363, banks, credit unions, accounting firms, casinos, and insurance companies are largely exempted and thus able to use credit histories to screen employees.  All other employers are prohibited from doing so.

Why?

There are a couple of reasons supporters of this type of legislation will give.  The first is that a person's credit history is irrelevant to her job performance.  Is it really?  If so, why the exemptions for certain employers?  And since when does the government get to decide what is deemed relevant for a particular job?  Granted, certain broad categories related to personal characteristics (mostly involuntary) are prohibited bases for employment decisions under our civil rights laws -- sex, age, race, creed, national origin, religion, height, weight, etc.  But credit history?  That's usually the result of a voluntary act -- assuming credit obligations and the risk that payment will become difficult.  And if an employer determines, for example, that credit history is a good indicator of an employee's judgment and reliability, why shouldn't she be able to use it as a hiring tool?

A second reason offered by credit history opponents is that it has a disparate impact on minority applicants, presumable because they tend to have worse credit histories than white applicants.  Again, if this is true, why the exemptions?  Putting an exemption in the law does not wash away the discriminatory aspects of the hiring process, if there are any -- it enshrines them for those sectors who benefit from the exemptions. 

The exempt industries regularly handle cash or information pertaining to other persons' credit.  By exempting them, the law assumes that people with poor credit histories can't be trusted around money or others' personal financial information.  So why isn't there an exemption for cashiers? or lawyers' offices? or doctors' offices? or pharmacies? or any other business that handles money or confidential information?

To be consistent, this law should have no exemptions whatsoever.  As drafted, it is internally inconsistent and contradictory.  As conceived, it is simply stupid.

This is what happens when political hacks micromanage the millions of basic, everyday decisions made by employers and business owners.  They get it wrong.  In fact, they are incapable of getting it right, so they just need to get out.

Time for a March on Grand Rapids!

All of our most sacred institutions are under assault.

From government to the courts to the church, we are accustomed to defending the castle.  But now, they have gone too far.

Recently, plans were announced to mount a frontal assault on that most sacred of institutions -- ballpark food.  Ground zero in this battle?  Fifth Third Ballpark in Grand Rapids, home of the West Michigan Whitecaps.

FTB is a great minor league park and boasts one of the greatest culinary feats since man began to walk upright -- The Fifth Third Burger.  Checking in at 4 pounds and 4,800 calories, the Fifth Third Burger is the Eighth Wonder of the World (with apologies to Pampero Firpo).

The Wiz has honored the Fifth Third Burger twice before -- read about it here and here.

But, the good folks over in Amway-land just couldn't leave well enough alone.  They held a contest recently to pick a new food item to offer at the ballpark, and the winner was something called "Chicks with Sticks."  Okay, a cool name, I'll give you that -- makes me think of a female hockey team.  (Manon Rheaume, anyone?)  Don't let the name fool you -- Chicks with Sticks is definitely not cool.  Here's the description:
"fresh-cut vegetables with hummus."

Vegetables and hummus are NOT ballpark food.  These things have no place in a ballpark.  Reading about this new menu item, I experienced the same disoriented feeling I had years ago in San Francisco's Candlestick Park when I heard a female public address announcer for the first time and saw vendors walking through the stands hawking iced cappucino. 

So, make the signs, gas up the vans, initiate the email, blog, and Facebook campaigns, and let's get to Grand Rapids!  No beef, no peace!

Being a Judge Means Following the Law, No Matter How Distasteful

Last year's Michigan Supreme Court race featured a fairly clear choice between rule-of-law judges and empathy judges.  The former discern the law and apply it as they find it; the latter rule based on personal whim and feeling, contorting the law to fit their preordained results. 

Sometimes, the rule of law is painful to watch, but it is in these moments when it is most needed.  Judges don't get to make only the easy calls; they have to make tough, occasionally excruciating decisions.  This is the situation that confronted the U.S. Supreme Court in the case of Snyder v Phelps, the anxiosly awaited First Amendment case addressing picketing by the Westboro Baptist Church.  The Court issued its opinion today, available here.

Here are the facts, from the case syllabus:

For the past 20 years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America’s military. The church’s picketing has also condemned the Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing took place on public land approximately 1,000 feet from the church where the funeral was held, in accordance with guidance from local law enforcement officers. The picketers peacefully displayed their signs—stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is Doomed,” “Priests Rape Boys,” and “You’re Going to Hell”—for about 30 minutes before the funeral began. Matthew Snyder’s father (Snyder), petitioner here, saw the tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.

Snyder filed a diversity action against Phelps, his daughters—who participated in the picketing—and the church (collectively Westboro) alleging, as relevant here, state tort claims of intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury held Westboro liable for millions of dollars in compensatory and punitive damages. Westboro challenged the verdict as grossly excessive and sought judgment as a matter of law on the ground that the First Amendment fully protected its speech. The District Court reduced the punitive damages award, but left the verdict otherwise intact. The Fourth Circuit reversed, concluding that Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric.

Held: The First Amendment shields Westboro from tort liability for its picketing in this case.

Can there be anything more distasteful and sickening than the hate-filled rants of these Westboro kooks?  Does the First Amendment really protect this bigotry and invective?

No and yes, respectively.

Legally, this turned out not to be even a close question -- the margin on the Court was 8-1, with only Justice Alito dissenting.  One has to concede admiration for Chief Justice Roberts, who authored the majority opinion and who, I am certain, wishes he had been able to lead a unanimous court in this important case.  Chief Justice Roberts concluded his opinion this way:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

Undoubtedly, there will be many who decry this decision and call for, oh, something to be done.  But what?  Congress can pass a law making Westboro's conduct illegal, but such a law would itself be unconstitutional under the principles outlined in the Snyder decision.  

 

The First Amendment makes blogging possible.  Yes, it protects flag burning and Nazi marches, but it also prohibits speech codes and attempts to muzzle a free press and the free expression of ideas that characterizes healthy political discourse. 

 

The Snyder decision is not an endorsement of Westboro or its lamebrained antics; rather, it's a example of the majesty and breadth of the First Amendment and a reminder that the rule of law can be extremely difficult.  It is at these times, at the outer edges of freedom, that we must demonstrate our commitment to the Constitution and the exraordinary framework the Founders gave us.

And we must thank God for the Constitution and pray for all the men and women in our military.  And while we're at it, let's pray for the misguided souls at Westboro, that God may touch their hearts and minds, showing them His way.

A Moment of Reason

One of the problems with public discourse these days is that many people can't bring themselves to state their cases without engaging in wild histrionics.  How many times have you read something described as the most shocking, the most outrageous, the most ridiculous, etc.?  Not everything can be the most outrageous -- only one thing can be.  And yet, that doesn't stop people from launching into ludicrous hyperbole or, just as bad, cobbling together lists that supposedly divine some pattern of thought or action.

This is the case currently with a list floating around the internet, first finding publication on a noted left-wing site, titled "Top 10 Shocking Attacks from the GOP's War on Women."  The site reports, "The Republicans are on a rampage attacking women's health and rights this year."  Really?  A rampage?  Do all of the Republican legislators who happen to be women know about this?

Let's take a look at a couple of these items.  Here's the first one:

"Republicans not only want to reduce women's access to abortion care, they're actually trying to redefine rape. After a major backlash, they promised to stop. But they haven't yet. Shocker."

Of course, Republicans are not redefining rape (when did we start using that word again, anyway?  Isn't it supposed to be "criminal sexual conduct"?).  Rather, in those instances in which federal funding is available for abortion, the range of circumstances in which abortions are covered is being narrowed.  Also, there are 10 Democrat and 18 women cosponsors of this bill -- are they engaged in a war on women?

Here's another one:

"In South Dakota, Republicans proposed a bill that could make it legal to murder a doctor who provides abortion care. (Yep, for real.)"

For real?  Really?  No, not really.  Here's the language of HB 1171, the South Dakota bill in question, in its entirety:

Section 1. That § 22-16-34 be amended to read as follows:

22-16-34. Homicide is justifiable if committed by any person while resisting any attempt to murder such person, or to harm the unborn child of such person in a manner and to a degree likely to result in the death of the unborn child, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is.
Section 2. That § 22-16-35 be amended to read as follows:
22-16-35. Homicide is justifiable if committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant, or the unborn child of any such enumerated person, if there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished.

Let's put aside the fact that this legislation has been tabled, and ignore the fact that nine of the sponsors are women.  What does this legislation actually do?  It acknowledges the protections afforded by South Dakota law to a fetal human being and plugs a hole in the state law, allowing a person to come to the aid of a pregnant woman where the object of the attack is specifically the unborn child she is carrying.  While the wording could be clearer, the bill's sponsor has clarified that the bill is unrelated to abortion:

"It would if abortion was illegal," he told me. "This code only deals with illegal acts. Abortion is legal in this country. This has nothing to do with abortion."

You can see what kind of problems this list causes.  People who read only the headline think there really is a "war on women," and people who read the blurbs in this list are told these issues are "for real."  To figure out why these are lies takes time and effort and knowing where to find and how to interpret the source documents.  Relatively few people have the time or know where to look, with the end result being that the lies are accepted at face value, a result upon which the left depends. 

The left cannot long survive in a thinking, rational society, so we need to keep up our efforts to educate our families, our friends, and our children.  And, when we're confronted with the kind of prevarication that teaches there is a "war on women," we can defeat it with a simple, logical, moment of reason.

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.

 

Accounting for the Tax Cut Extension Compromise

Not a long post today, just something that bugs me.

Some people are assailing the just-announced compromise on extending the Bush-era tax cuts, complaining that it will cost the government hundreds of billions of dollars.

This is sheer nonsense or, as we say, sophistry.

Keeping tax rates the same means that the government will continue to extract the same percentage of income from you and me that it has taken in the past. Thinking of that as "costing the government money" is to argue that it is the government's money to begin with.

Get it?

Taxes cost US money. Keeping taxes where they are does not "cost" anything.

Maintaining tax rates at their current levels "costs" the government the same way that steel vaults "cost" bank robbers or alarms "cost" car thieves.

What's Wrong With The Macomb County GOP?

It's late. I'm tired. I just returned from the Macomb County Republican Party's Fall Convention. The sole purpose of this meeting was to elect 32 members to sit on the party's executive committee, along with 32 "statutory" members (the Republican candidates for state and local office in the last election).

The meeting was supposed to begin at 7:30 p.m. It started about 7:45. After it was called to order, one delegate jumped up and began yelling, "Point of order!" Huh? Point of order? At 7:46? Really? Eventually, he shut up while we said the Pledge of Allegiance and saluted the veterans on this, Veterans' Day.

Following the ceremonial aspects and a couple of short speeches from our Congresswoman and a state representative, the meeting disintegrated. One genius moved that the meeting adjourn promptly at 10 p.m. Not surprisingly, this motion passed! Dumbest. Motion. Ever.

In order to proceed with the sole item of business, it was necessary first to elect a chair of the convention. This did not take place until about 10 p.m., at which time another vote was held and the meeting time was extended until 11. By the way, the vote was not held until we had a vote over how to vote -- by secret ballot or by standing up or a show of hands or some other way. Secret ballot won, which of course meant another long delay.

Finally, with the chair chosen, order ensued, right? Wrong. The chair -- Stanley Grot -- promptly appointed a credentials committee, a rules committee, three parliamentarians, two sergeants-at-arms, and a nominating committee. I may have left out a committee or two, but you get the idea. He then asked the assembled delegates (almost 300), "Who wants to be on the executive committee?" (Did I mention this was the only piece of business to be conducted?)

About 80 people indicated an interest, so Grot had us all amble up to the front and fill out forms that magically appeared. The "nominating committee" then spent about 15 minutes whittling the 80 names down to 32 and presented them to the delegates as a slate for approval. In a fit of Pelosian legerdemain, the 32 chosen matched almost exactly the list of people Grot appointed to his "committees" in the first place. Since Grot's supporters outnumbered the survivors by this point, the slate was approved, and the meeting was promptly adjourned. Grot received the heartfelt congratulations of many sycophants, since he is now virtually assured to be selected by the executive committee as the new chairman of the Macomb GOP.

The outgoing chairman is Jared Maynard. There was some dissatisfaction with his leadership, but the day a party chair is unanimously loved has never happened. Nevertheless, the manner in which Grot and his pals operated during this meeting was reprehensible.

For example, the party's bylaws require that the delegates to the meeting approve the procedure for electing members of the executive committee. At the outset, Maynard proposed -- in writing -- a procedure that would have 2 candidates selected from each of the 13 county commissioner districts, with the chair choosing six more. This would have spread the representation throughout the county and allowed the districts to select their own candidates. This was voted down by a combination of Grot supporters, anti-Maynard types, and those who simply wanted to "do it the way we've always done it."

After Grot became chair of the meeting, he had his rules committee recommend a series of rules to be adopted by the convention, putting the whole nominating committee idea in among such controversial notions as adopting Robert's Rules of Order. There was no opportunity to vote on them individually, so the whole package passed, thus validating the procedure that was not only already in progress, but to any sentient being, concluded before the convention ever started. There was no way the nominating committee could sift through 80 applications and make any informed decision about the best 32 in 15 minutes. Even to read the applications in that time would have required reading 5.3 applications per minute, or about 11 seconds per application. There was only one set of these -- how could a seven person committee read, review, understand, discuss, and decide on 32 people out of 80 applications in 15 minutes? Of course, they could not. The entire outcome was predetermined.

Laughably, the Grot crowd opposed the Maynard-suggested procedures because they wanted everything to be "transparent." It was a total joke.

The Macomb GOP took a giant step backward tonight. I am certain that some of the people who will be on the executive committee have the ability to do a good job, but the leadership of this county party is in dire straits.

After this year's election, we should be consolidating our gains, expanding our outreach, and professionalizing our operations and image. This will not happen now.

On Nov. 6, Grot sent an email out to all of the convention delegates. Here's a part of it, unedited:

Now for the good news: I intend to be nominated for permanent chair to conduct the Macomb county convention for that evening only. There will be a democratic and honest process of selecting 32 people that will serve on the Macomb County Republican Party’s executive committee. Once elected these 32 people together with 32 statutory members will get together at some point and elect Macomb County officers for a two year term. Next, let me be very clear that I am not supporting anyone individual to be our next Macomb County Republican Chairman. Very viciously some people started making phone calls spreading lies that I have a favorite in the race for our next Macomb County Chairman. It is filthy bold trickery which I believe does not belong in any campaign for any office. If you happen to receive any trashy literature or any outrageous phone calls or you have any doubts about the correctness of information, please contact me immediately.

Most of you already know who I am, what I stand for, and what my values are. I am not going to get in the gutter and throw mud simply to satisfy personal ambitions. I encourage all of my supporters to be positive, discuss issues, and concentrate on what we really need to accomplish for our County, State, and Country. This type of filthy campaigning does not meet my moral standard or serve our Conservative Republican cause well.

This portion I have quoted professes ideals and intentions that are the exact opposite of what happened at the convention tonight. The executive committee was selected by an undemocratic, dishonest process that was given the indicia, but not the substance, of fairness. Moreover, to send out an email that uses terms like "filthy bold trickery" and phrases like "I am not going to get in the gutter and throw mud" reflects an utter lack of professionalism.

Perhaps this is what the GOP precinct delegates want. It's not what I want, and it's not wanted by any of the people I spoke with at the convention. This was raw, small-minded, parochial politics at its worst. What should have been a triumphant convention focused on 2012 degenerated into a sleazy power grab, undoing much of what was accomplished in the last election.

In the long run, will Grot's ascendancy mean anything? Will he so implode over the next two years that the delegates will come to their senses and get rid of him? Time will tell. In the meantime, however, a Grot chairmanship will severely damage the party. I cannot see myself contributing to it or doing anything to make this party more viable. My time and effort will be better spent on the state level or assisting with individual campaigns.

The Macomb GOP has long been afflicted by small thinkers, but this past year it seemed as if we had turned the corner. There were quite a number of new, exciting candidates with vision and high ideals. Our new leadership (if Grot is elected chair) will have neither.

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.