February 25, 2012 — …And it lives on and on…

The appeal to the U.S. Sixth Circuit Court of Appeals has failed.  the word came this week that two of the three sitting on the appeal voted against it.  The third, Judge Martha Craig Daughtrey, affirmed the appeal in part and would have allowed the discovery to go forward.

The next step –if he takes it –will be for attorney Rob Gaecke to file for reconsideration. If that fails, there is always an appeal to the U.S. Supreme Court, but it seems unlikely that would happen.

The Circuit Judges come back, time after time, to the Trentadue decision rendered by the Michigan Supreme Court in 2007.  The judges in this case understand the horrific nature of Janet Chandler’s rape, torture and murder.  They get it.  But two of them — Judges R. Guy Cole, Jr., and John M. Rogers — find themselves constrained by their interpretation of Michigan law under Trentadue (Daughtrey sees a way around it).  All three of these judges are seekers after truth and upholders of the law.

…which is more than can be said of the Michigan Supreme Court when it opined in Trentadue.  Judge Cole put it this way:

When a federal court hears a case due to the diversity of the litigants, it must apply substantive state, not federal, law. As a general matter, this principle furthers justice by ensuring litigants the same outcome regardless of which court hears their claims. At times, however, this principle ties us to law we believe to be erroneous. Sadly, this is one such case.

Today, our hands are tied by a rope woven from the pages of the Michigan Supreme Court’s decision in Trentadue. To give James and Glenna Chandler their day in court, as they surely deserve, Michigan law requires us to find that Arthur Paiva’s actions were within the scope of his employment with Wackenhut. For the reasons stated in the majority opinion, I am unable to do so. I regretfully concur.


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