November 22, 2010 — They can’t even do a censure according to the rules.

When the news broke earlier today that the Michigan Supreme Court had censured Justice (retired) Elizabeth Weaver I posted the censure letter and posited that it was likely there would be a response.  There is.  What follows is a statement from Justice Elizabeth A. Weaver:

Imagine that!  I have been censured by the Michigan Supreme Court. 

Now, what, exactly does that mean?  The first two definitions in my dictionary relate it’s a “1.  strong or vehement expression of disapproval” and “2. an official reprimand, as by a legislative body of one of its members.”  Because the action to censure me was taken during the official administrative business of the court, and because it’s delivered on Court letterhead and ascribed to by five of the seven Justices, I take this as an official action.

But this word “censure” carries more meaning that just that from my dictionary.  It has a specific legal and constitutional meaning because it is used in our state’s Constitution:

Article VI. Section 30, Paragraph (2) provides:                                                                                                                    

“On recommendation of the judicial tenure commission, the supreme court may censure, suspend with or without salary, retire or remove a judge for conviction of a felony, physical or mental disability which prevents the performance of judicial duties, misconduct in office, persistent  failure to perform his duties,  habitual intemperance  or conduct  that is clearly prejudicial to the administration of justice.  The supreme court shall make rules implementing this section and providing for confidentiality and privilege of proceedings.”

In this action—as in so much else that it has done in recent years—our Supreme Court has been precipitous and acted outside the Michigan Constitution or the Code of Judicial Conduct.   The important part of the above-quoted passage is “On recommendation of the judicial tenure commission….”  

You need to know that didn’t happen. I received no notice of any proceedings against me or any recommendation of the judicial tenure commission to the Supreme Court to censure or discipline me in any way.

What did happen is that on Wednesday, November 17, 2010, five (5) of the seven (7) justices of the Michigan Supreme Court violated the Michigan Constitution.

These five justices—Chief Justice Marilyn Kelly, and Justices Michael F. Cavanagh, Maura D. Corrigan, Robert P. Young, Jr., and Stephen J. Markman—signed a letter of censure and sent it to me.  I found it on my doorstep Thursday.  Further, they emailed the contents of their letter.

It’s notable that Justices Diane M. Hathaway and Alton Thomas Davis did not sign the letter.

Further, Justice Hathaway added and signed the following statement: “Because I respect the Court and the integrity of the decision-making process, I do not sign this letter.  In my opinion, issuing a formal censure, without any adjudicative proceeding, is inappropriate and disregards an individual’s due process rights.”

Justice Hathaway can rest assured that I have violated no law, nor any of the Code of Judicial Conduct.  In short, I have done nothing wrong.  I have every right to do what I’ve done; I intend to do more.

And as much as I think openness at the Court is appropriate, I did not disseminate the censure to the news media because I wanted to see just if and how this news would come out.  So, how did it come to you?  Through what channel, if not through me?  Ah, yes, the Court itself. This is a part of what I call error exposing itself.

As I see it, these five Justices have made public their obviously unconstitutional and unjust attempts to censure my free speech, even as a retired Justice.  This is not the first time they’ve done so, and had they simply said they found my actions offensive or repugnant in letting you know about the character of Justice Robert Young and incoming Justice Mary Beth Kelly, and other matters at the Court, I’d have had no issue or complaint; their opinions are their own.  But when they use formal legal sanctions—as they have done here and as they have attempted in their illegal “gag order” of 2006—you have to recognize that something is seriously wrong, and it is not me. 

As for yourselves, are you better off for knowing or would you prefer to remain in ignorance of the actions and the methodology of our Supreme Court?  Are you better or worse informed to know that the likely new Chief Justice has used racial and sexual language during the course of his business at the Court?

Speaking out to warn you has never been a personal campaign against these five Justices, certainly not against Justice Young. I have long thought highly of his abilities and I still do; his deeds are another matter.  My speech and writing is about the actions of this majority of Justices and the cloak of unnecessary secrecy with which they have chosen to surround themselves as they undertake YOUR business.  (And as you’ve seen, it’s secret until they don’t want it to be.) 

I often have said that their ill-conceived acts are unworthy of them.  I do so again in this case.  It is another example of why the operations of the Michigan Supreme Court and the performance of some of its Justices, its state court administrative office, its judicial tenure commission and attorney grievance commission need investigation and reform.

For much of last 10 years of my almost 16 years as a Justice of the Supreme Court, I worked from within with little success to reform the Court for it to become less secret, more transparent and open, fair, just, orderly, and professional.  My concern is that the Court, as it now operates, is driven by special interests, partisan and personal agendas, and ideologies.  This Court is undeserving of the trust and confidence of the public. 

You can tell that at least five Justices of this Court are more than passing nervous about other things I might make public.  I have promised to open my files to those who are truly interested in understanding what’s gone on at the state’s High Court.  And those Justices who see my work as worthy of censure must know that I have kept a lot of detailed records, something I was prompted to do when they first launched the campaign in 2003 to discredit me.  It’s possible that they may want to censure me again…and again.  I hope they won’t, but if they do they should pay attention to the Constitution.  And they need to remember that the first and only time (as far as I know) they complained about me to the Judicial Tenure Commission (this past April) it all came to naught.  They also might keep in mind that their actions are likely to be very closely examined at the federal level.

Throughout, I have tried to act in the best interests of the people of this state and always—ALWAYS—to tell the truth.  Here’s my continued pledge: as a retired Justice I will work and speak out as long as there is potential for success in reforming Michigan’s dual system of electing and appointing Supreme Court Justices and for reform of the operations of the Supreme Court and its offices and commissions.

As for this latest attempt against me, this censure, I will continue to “Do right and fear not.”

_____________________

The news went large.  Here’s the story from the Detroit Free Press.  This this from the Detroit News…note that the Court is now backing off the idea that this is a formal censure.  What would you call it, then?  They didn’t call it a rebuke…they pulled the trigger on the Constitutional language of “censure” and now they’re stuck with it.  This from The Michigan Messenger.

________________________________________

And this is a reminder that this is a day of remembrance: 47 years ago today John F. Kennedy was murdered.

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9 Responses to November 22, 2010 — They can’t even do a censure according to the rules.

  1. Barbara Taylor says:

    Wonderful letter, clearly stated and based on sound facts. It would be highly important for this letter to have wide circulation and receive the necessary attention so action on all helpful and necessary levels can take place. Those sitting on the Supreme Court are responsible to the citizens of this State, to the Constitution that governs all State action and to enter a serious phase of deep self examination. These Justices are first and foremost citizens and in their current legal position must express obedience to their office and perform their duties with all legal components. Things exposed must be faced and thoroughly corrected and a new pledge made to themselves to conduct Court business with the highest possible integrity. This must be done for themselves and for the good of the public. The Supreme Court should have no cloud over it and should focus all endeavors on self correction and recommitment to the highest possible standard of openness, fairness and individual decorum.

  2. Henry Taylor says:

    Again, Justice Weaver excels in logic and reason, as well as legal expertise and common sense. Why the Republican demagogues continue their doggerel is beyond comprehension. Their protectiveness of their peculiar secrecy and ill-mannered behavior is humanly logical, but that these individuals should have the qualifications as Supreme Court Justices simply boggles the mind of the public spirited populace.
    “Do right and fear not” is the maxim of one who has more than mere human affairs at heart. This is an infinitely higher standard for motivation than the success measured only by human ways and means. The signers of the censure are those who must not truly understand the eternal nature of justice as exemplified in the Christian-Judaic heritage in the exceptional founding of our country and underlying it exceptional success.

  3. Phil says:

    You people have absolutely no idea what you are talking about! And Justice Weaver’s bulb shines less brightly than I originally thought.

    By her own definition, censure is defined as “strong or vehement expression of disapproval.” That is all this is. The Court has the power to enter a formal censure or take other actions at the behest of the JTC, but it also has the power to promote its institutional integrity. In short, they do not need the approval of the JTC (or the AGC, or any other governing body) to WRITE A LETTER, which is what this is. Once again, Justice Weaver is trying to cover up her wrong-doing (and probably her embarassment for having been censured by her former colleagues, including two of the Court’s Democrats) by raising red herrings.

    What Justice Weaver has done in making public these private materials is exposed to the public that which is protected by the deliberative privileges accorded all judges everywhere in America. Her actions are absolutely unprecedented and unbelievable. No serious person acts this way, secretly and deceivingly recording her colleagues, and then cherry-picking those conversations, releasing them out of context for political purposes to make a political opponent look bad. Every court in our country–including the US Supreme Court–has the privileges that Weaver has violated here. It is an absolute and utter shame. Justice Weaver: you are a disgrace.

    • david says:

      You know, Frank, I think you DO know what you’re about. Perhaps as a former commissioner you have seen a lot and your experience and affiliation would lead you to this. But even you wrote against the Court taking up In re: JK after they put it aside on first consideration. When it came up again at the behest of Justice Markman you circulated your greenie recommending that they not go there. Alas. They did.

      As for the language of the Court in this censure, I don’t think the five can back away from what they have chosen. This was a formal censure, ungainly and unconstitutionally done. And they are stuck with it.

      But of course I have absolutely no idea what I’m talking about, do I? Heck, I’m no lawyer; I wouldn’t pretend to such learning. I am sure there will be times when I am wrong. It’s a good thing you’re here to point out just when that occurs. Thanks.

  4. Mary says:

    Ex- MI Supreme Court Justice Elizabeth you have been publicly CENSURED due to your release of transcripts that were made public from you taping of private, internal court deliberations. This was misconduct in office!

    In my opinion it is just too bad that you could not also be banished and SHUNNED – having everyone turn their backs on you as you walk by!

    It looks as if Ms. Weaver that you think you are above the rules! Your ego is beyond self-serving when you show such flagrant abuse of the office you once held to serve the people. May no once else follow in your abusive footsteps.

    The censure had nothing to do with “Free Speech.” The censure was due to your violating privately held court deliberations.

    I agree with Phil in his post, “Justice Weaver: you are a disgrace”.

  5. Debra Brandell says:

    It seems to me that the best way for the justices of the Supreme Court to “promote its institutional integrity” is for them to behave, in public and in private, with integrity. If that had been the case, there would not be this discussion. Being entrusted with upholding the justice and integrity of this state, the “deliberative privileges” should be carried out with the kind of integrity that one would exercise as though God were looking over his shoulder. Secrecy is only valid when it protects justices/jurists from being exposed to or influenced by special interests; it is not a means by which one is free to demean one’s fellow man.

  6. L C Burgundy says:

    Deb, it’s obvious you’ve never been on a serious deliberative body of any sort where attempts are made to look at situations from many points of view, sometimes espousing and explaining points of view you may completely disagree with. Any person involved in any serious deliberation can be made to look bad by a person with malevolent motives taping your words without your knowledge and piecing them together as she sees fit to publish them.

    Ex-justice Weaver is doing this to promote her own little ego stroking exercise. Shame on you Ms. Weaver, and I hope those around you realize how little trust you are worthy of.

  7. Maria says:

    It doesn’t matter on which side you fall in this debate. The bottom line doesn’t change: our Supreme Court is an embarassment and a disgrace because it is a political body. The politics should stay with the other two branches of government; the third branch is supposed to operate beyond the political in its pursuit of justice. Because it does not, Michigan’s highest court is looked at with disdain nationally. Something has to change.

  8. CJ says:

    I find it odd and a bit shocking that people actually support the idea of closed, private, censored court proceedings. 1) It is perfectly legal in Michigan to record conversations as long as at least one party is aware of the recording. Sad that some with law degrees and other professional knowledge of this issue try to pretend they do not know this fact and that they are ‘shocked.” 2) The word ‘censure’ is used by the state’s highest court in its legal meaning–not according to a dime-store dictionary definition. The high court tried to bully justice Weaver and overstepped its legal authority. 3) The issue is not the deliberations; the issue is the use of foul, racist, sexist, denigrating language by high elected officials speaking in a derogatory way about others *during official court business* and then *lying about it.* We are not talking about locker room talk or after-hours discussions at the bar. And Justice Young lied about this in public, in the media, and kept lying until the true facts were revealed.

    All it takes for evil to prevail is for good people to do nothing, whether out of apathy or a willfully ignorant desire to ignore what ought to be honest, open, professional, respectful public business.

    You do not have to like or respect Justice Weaver, or Justice Young, in order to be appalled that such things go on during the proceedings of these Justices of the highest court in the state.

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