May 12, 2011 — In re Mason: Rights of incarcerated parents before children?

The first question in a ruling by the Michigan Supreme Court is this: did it go beyond reason to put what the majority saw as the rights of incarcerated parents ahead of those of their children?

The second is with what effect and at what cost?

When the Michigan Supreme Court decided to hear In re Mason, it set in motion a sequence that has resulted in what administrators at the Department of Human Services called “profound and immediate practice changes” in the ways that case workers now have to undertake dealings with incarcerated parents.

“This ruling is one of the biggest things that’s happened to the field in recent history,” said Tobin Miller, Office of Legal Services at DHS.

This case came because the Macomb County Circuit court acted on a DHS petition to terminate the parental rights of a father, Richard Mason, who was in prison.  The mother’s parental rights also had been terminated, but without contest.

The futures of two young boys, two and four years old, were at stake.  The question was whether DHS denied due process to the father.  Had then the circuit court and the Michigan Court of Appeals judges who ruled that the children were better off out of the custody of the imprisoned father also erred?

The court majority, including this time Justices Maura Corrigan (she is author of the majority opinion), Robert Preston Young, Jr., then-Chief Justice Marilyn Kelly, and Michael Cavanagh, said May 26, 2010, that the DHS worker had improperly done his work.  In particular, even though his attorney was present during the court proceedings, the father was not on the phone as was his right under MCR 2.004.  Nor was he offered a DHS Service Plan.  And finally, the court ruled that a parent’s incarceration is not grounds for termination.

That was based on the majority’s understanding of  MCL 712.A.19b (3)(h).  The statute reads, in part:

(3) The court may terminate a parent’s parental rights to a child if the court finds, by clear and convincing evidence, 1 or more of the following:

[…]

(h) The parent is imprisoned for such a period that the child will be deprived of a normal home for a period exceeding 2 years, and the parent has not provided for the child’s proper care and custody, and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.

“Before Mason first we’d look at how long a parent would be incarcerated,” said Miller.  “And if that period would be greater than two years then we would not offer that parent a service plan…that is, arrange for services that would allow that parent to be reunified with that child [or children] at the end of incarceration.”

And if the parent was going to be incarceration for two years or more, said Miller, “parental rights could be terminated.”

So, the majority reversed the findings of the Court of Appeals that upheld the Circuit Court that upheld DHS’ actions, the actions of casework Steven Haag (more about him presently).

The majority opinion is 26 pages.  Writing the primary dissenting opinion, Justice Stephen Markman asserted that the father’s right of due process was untrammeled.  This is the way he put it, siding with the lower courts:

I simply cannot support the majority’s conclusion that the trial court clearly erred by terminating respondent’s parental rights.  In addition, given that respondent received all the process to which he was entitled under the law, I find no “due process” violation in the fact that the majority is able to identify ways in which he could have been given still more process.  The majority, quoting the children’s lawyer-guardian ad litem, asserts that respondent was “‘hamstrung from the beginning [in] trying to get things in order so that he [could] one day be a father to these children.’”  However, the majority disregards two quite significant points.  First, to the extent that respondent was “hamstrung,” this was of his own making– nobody but respondent can be blamed for the fact that he was in prison during the pendency of these proceedings.  Second, there is no evidence that respondent did anything to provide for his children while they were living with their unfit mother, with foster parents, or with their paternal aunt and uncle. Instead, respondent pleaded ‘no contest’ to the removal petition that alleged that “Mr. Mason has failed to provide for the children physically, emotionally and financially.”  Indeed, although respondent knew that the children’s mother was drinking again even before the court did, he still did nothing to try to protect his children from the precarious situation in which this placed his children. In addition, when he knew that his children were being removed from their mother, he did nothing to prevent them from being placed in foster care even though he had relatives who were willing and able to care for the children.

Despite respondent’s repeated failures in these regards, the majority reverses the judgment of the Court of Appeals, which affirmed the trial court’s termination of his parental rights, on the basis that the Department of Human Services (DHS) and the trial court did not do enough to help respondent become a better parent.  I believe that the majority has it exactly backwards—respondent is the one who did not do enough to become a better parent.  He did virtually nothing to demonstrate that he was willing or able to take responsibility for the care and custody of these children.  It is potentially catastrophic for these children that their interest in a safe, secure, and stable home must again be placed in abeyance while respondent is afforded yet another opportunity to become a minimally acceptable parent.

Further, he warned the High Court against playing favorites:

Although the majority is certainly correct that an imprisoned parent is entitled to equal rights under the law, he is not entitled to special, and more favorable, consideration on account of this status.

He was joined in his opinion by Justice Diane Hathaway.

Justice Elizabeth A. Weaver (since retired from the Court) also agreed but took her dissent a step further:

The clear error in this case is not the Court of Appeals’ unanimous decision affirming the termination of the imprisoned father’s parental rights or the trial court’s decision to do so.  The clear error is the Supreme Court majority’s unrestrained reaching out and the creation of an issue that was not raised in the trial court or the Court of Appeals and that takes 26 pages to find clear error by the trial court where there is none, with the tragic result for these two little boys, two and four years old, who will be deprived of the only parents they have ever known and the security of a stable and loving home that they so need and deserve.  Indeed, the majority’s decision and opinion clearly and tragically have this case “backwards.”

“There was no judicial restraint in this case,” said Justice Weaver.  “There is no common sense to what the Justice Corrigan’s majority and opinion did.  The four-vote majority put the interests of an imprisoned father above those of his children when it’s not clear in the law to do so.  The majority court has gone beyond the statute.”

The result is things were going to change.  And the way things had been done could not be the way they would be done in the future.

“The implications are very broad,” said Cass County Probate Judge Susan Dobrich.  She is past president of the Michigan Probate Judges Association, a group that takes positions on matters that come before its courts. “I think historically it does reflect that we didn’t do a good job locating our fathers early on in cases.  That’s what led up to it.”

And it’s mostly fathers in prison that we’re discussing here, she clarified.  “In Michigan we have a court rule that required judges allow fathers to have access to hearings by telephone.  If you read Mason, some courts were not meeting the requirements.  On first blush people will see due process issues.”

That doesn’t mean she favors the opinion.

“Read the dissent by [Justice] Markman.  He’s a good writer and he outlines the problems the ruling will raise.

“The ruling certainly expands an already overburdened system.  We did not do a good job engaging dads, but the question is did we swing the pendulum way far over on the other side.  From my perspective, Markman’s dissent is where I’m at.”

Further, she said, the Court’s opinion is imprecise: “I think the Court could have addressed the issue of services to be provided, but could have left it with more clarity for what we’re supposed to do.”

So, with no leadership (yet) from the legislature and an imprecise ruling from the Court, the Department of Human Services went to work to try to figure out what it needed to do to abide by the ruling of the Court.  By September 17, administrators had drafted an initial response noting:

Since the Mason decision was issued, the Michigan Court of Appeals has reversed several orders terminating the parental rights of incarcerated parents and remanded the cases to the trial courts for further proceedings.

[…]

In all caseswhether a termination of parental rights order has been reversed or the case is ongoingthe following practice changes must be implemented immediately.

Then it went on to lay out the new procedures.  …A lot of new procedures.  Henceforth, incarcerated custodial parents had to be available by phone to take part in all matters pertaining to their custody; it wasn’t enough that their attorneys do it.  If they were incarcerated in the same county as the court, the court may have them delivered to the hearings using writs of habeas corpus.

And the telephone hookup was not just court hearings, but all additional conferences, too, such as Permanency Planning Hearings.

Further, the foster care worker must attempt to engage incarcerated parents in developing a case service plan.  This requirement applies regardless of the length of the parent’s incarceration.

One of the most chilling statements from the memorandum was this: the Michigan Court of Appeals has reversed several orders terminating the parental rights of incarcerated parents and remanded the cases to the trial courts for further proceedings.

What does that mean?

“Quite a few custody cases have been reversed, a significant number…13 or 14.  And that’s since May,” said Judge Susan Dobrich. “It’s now the law and all the courts are following it.”

DHS’ Tobin Miller, double checked the number and confirmed: “I believe 13 cases have been reversed…13 reversals of terminations based on Mason.”

That doesn’t mean that adoptions have been reversed, but it could involve pre-adoptive planning and placement.

“You would never have the situation that an adoption was finalized and then an order reversing termination of parental rights,” said Miller.  “Michigan law says you cannot finalize an adoption [until all appeals have run].  You can have a child placed in a home and everything proceeding toward adoption and then have it terminated.  In that case the plan is undone.”

So, if there were 13 cases of custody reversed, what’s the larger universe?  How many incarcerated parents are we talking about?

“We don’t have a good idea about that,” said Miller.  “There is no way to query our computer system.  We draw our information from our SWSS (Service Workers Support System) and you can only draw out certain categories of information from the system.  There is no way to ask the computer to tell us how many people are incarcerated in these cases.  I wouldn’t even want to hazard a guess.  It’s a fairly frequent occurrence, but as a percentage, I just don’t know.”

And is there any idea of the numbers of children?

“There’s no way to tell,” he said.

Nor does the Michigan Department of Corrections have any idea.  Richard Stapleton, Administrator with the Office of Legal Affairs, CAN tell us  “there are 43,900 prisoners now in the Michigan system.  That’s down about a thousand from last year.

“We don’t know how many have children who might be affected,” Stapleton said.  “We may have the data available…but I suspect not.  Anecdotally, I think there are a good number of children of incarcerated parents.  The average age of the prison population is somewhere in their 20s.  And if they’re that age they are likely to have young children.  Now, how many involved in parental rights’ terminations?  Not all that many.  I would guess not terribly many, maybe several thousand.”

Several thousand.

Judge Dobrich notes the ruling leaves DHS responsible for the cooperation of the Department of Corrections.

And it’s not just access to hearings and planning sessions.  There is to be substantive education for the incarceration parent.  “What services will Department of Corrections provide that will meet the needs of parenting?” asked Judge Dobrich.  “It’s one thing to say ‘Take a parenting class in prison.’  Just because you pass it doesn’t make you a good parent.  We’re going to need evidence-based programs with appropriate outcomes.  And the only agency that can provide the service is the DOC.

“Our dads who are in prison often are put on waiting lists for programming, and that requires more work on the case worker.  We do want to engage the fathers but it’s difficult when in they are in prison.”

The longer the fathers have to wait, the longer it takes to make any assessments, to make determinations.  Somebody very important is left waiting, says Dobrich: “How long do these children have to wait because DOC isn’t going to provide the services we want?”

The Mason decision makes it clear that the length of the parent’s incarceration doesn’t necessarily play into the equation.  “How much can we do when they are in prison for a substantial time?” asks Judge Dobrich.  “And does this give more rights to the person in prison than the custodial parent who is not in prison?”

Another aspect of the decision was the determination that mere criminality cannot be a basis for termination.  “But [Justice] Markman said the reason the individual is in prison should be relevant.  But how relevant?  There needs to be more clarity.

“Philosophically, the [Mason] decision makes a whole bunch of sense but how are the services going to be delivered?”

The ruling, said DHS’ Tobin Miller, adds difficulty to an already difficult task: “So, after Mason, we said ‘Okay we have to offer reunification services for those incarcerated longer than two years.’

“That means we have to treat incarcerated parents just like any other parents: we need to formulate a plan to get those services to them so they’ll be a prepared when the time comes [for them to get out].

“It extends what case workers do now for non-incarcerated parents.  It is much more difficult.  You can’t just walk into a prison and say ‘I’m a caseworker and I am here to talk to a parent….’

“We make contact by mail or telephone.  We try to identify the services a parent needs and resources available in the prison to the parent.  That’s difficult because services in DOC are limited and often the types of services the parent will need to be made whole, to be a good parent, are not available until parent approaches the out date.  DOC says unless you are within six months, you’re not eligible for certain services, so case worker has to work within strictures of DOC.”

For the DOC, Richard Stapleton says there’s not a lot more work: “I remember reading this [the decision] and thinking ‘Oh, shoot, what do we have to do now?’  As it worked out, not too much.  The impact is minimal for corrections,” he said.  “We met not long after the case with DHS.  All corrections has to do [in addition to what it already is doing] is facilitate communication between the prisoner and the court.  We’ve agreed to get prisoners to the phones—and most of these will be by phone.  A lot of the work can be done by mail.  There is very little impact even by our staff being involved or even needing to know what’s occurring.

“But there’s a lot of work for DHS.”

DHS’ Tobin Miller confirmed the meetings: “We work with them [DOC].  We’ve done a couple of presentations and I’ve met with them, but we don’t have any direct control.  That’s the tough part of this.  If we could just say to DOC ‘The rules you have regarding types of service or when they’re available to prisoners are going to have to be changed’ our lives would be a whole lot easier.  But we can’t.  And I don’t think the DOC has the ability to do that anyway.

More confusing, posits Judge Dobrich, what happens in cases out of state?  How does DHS compel another state’s prison to meet the dictates of the Michigan Supreme Court?  “What do we do if father is in Arizona?” she asks.

“We have no control whatsoever,” says Miller of our-of-state incarcerations.  “And the problems with out-of-state prisoners are compounded. […]  In Michigan you have a court rule that requires a prisoner within MDOC to participate by telephone in all proceedings. Outside of Michigan that court rule does not apply.  And you have the added problem getting in touch with the prisoner.  With regard to our communication with that prisoner there are different rules different states.  And if that person is in a jail as opposed to a prison, it can be extremely difficult to get to the prisoner…there’s often no telephone.  They’re just holding people.  There is no way for us to contact them.  Those things make it all the harder in those cases.”

But does that obviate the obligation imposed by the Court through Mason?

No.

“All we can do is work within Mason,” said Miller.  “In those cases where there are no relevant services available to the prisoner some courts have been getting a psychological portrait of the parent.  Then the court would have at least some other grounds on which to base terminations.  But Mason says you cannot terminate solely on the grounds of incarceration.

“What this will do in many cases is put the department in the position of really having to evaluate closely alternatives to termination and adoptions.  Guardianship is an alternative.  You may have kids in juvenile guardianships […] for a fairly long time and you can’t get grounds for termination.

“That is not necessarily a negative thing.  But generally, we don’t like to say we’re going to put the child in the care of another person for the long term and maintain the parental relationship.  That can be kind of warehousing the child for a long time. It will make us evaluate those things when we end up with a fairly young child placed in guardianship or with family.

Warehousing a child.  So, it’s possible you might have a two year old who could be in guardianship for the next 16 years because the parent isn’t going to get out before the child ages out?

“This is not ideal with young children,” said Miller.

The majority in delivering this ruling singled out the caseworker, Steven Haag.  Is that unusual?

“Well, generally,” said Miller, “what they do is say ‘Once again the Department….’ Did they single him out?  I’ll have to read the case again…[flipping pages]…he formulated a service plan.  There was proof that he was complying with certain things.  ‘Had never spoken with respondent parent’…‘didn’t comply with policy’…‘failures by case worker jeopardized federal funding’….

“I’d have to look at case service plan and then talk to the case worker.  Just because the opinion states it [criticism] doesn’t mean it’s an accurate description of what happened.  The case service plan is supposed to contain efforts to contact people but case workers are overworked.  Fairly often.”

Haag didn’t operate in a vacuum.  DHS is nothing if not a bureaucracy, replete with forms, procedures, and supervisors.  Does all this land on Haag?  What about his supervisor?

“It does fall to the supervisor,” said Miller.  “As a matter of practice case workers and supervisors are so busy that if the case workers can get some minimal notes down in the case files, and continue to service the case, and remember what they did…that’s what they do.

“Being a foster worker is one emergency after another.  By time a case gets up to appeals it’s a more or less reflection of the way the case was treated on paper.  I think in Mason the Supreme Court was simply making a point in a forceful way that we weren’t fulfilling what they saw as our duties.  It does seem a bit unfair in that way [to the case worker].”

But blame aside, correction by the Court is not unknown, says Miller:  “We have to try to interpret the various laws that govern us, and it was determined that we were incorrect.  That happens quite frequently.  We change our policies and that changes practice.”

Even though the judgment requires a “substantial amount of work,” says Judge Dobrich,   “we’re following the ruling, taking it in stride, and obeying it.”

But is there some serious grumbling?

“Judges always grumble, and then they get to work and move on,” she said.

DHS, Tobin Miller adds: “There is a lot of grumbling about the decision including on my part because it opened up a new field of difficulties at a time when we have a list of them.  Especially, it affects the trial courts.  I guess we can see that we needed to change practice…but day to day, getting communication with that incarcerated parent so he or she can participate in hearings or conferences….  We grumble because they [the majority Supreme Court justices] don’t perceive just how difficult those things are for people who don’t have enough time.”

Is there any irony in that Justice Corrigan, who led the charge into this issue, now has to deal with it as the head of DHS?

“Maura’s got it back, eh?” asked Stapleton of DOC.

“She’ll see it from a different perspective,” theorized Judge Dobrich.  “She is going to see that dealing with the pragmatic part is very difficult.”

“Where are the funds coming from for all this?” Justice Weaver wonders.   “The people of Michigan do not have infinite resources.  In fact, there are fewer and fewer resources to try and get it right.

“The majority created an issue that wasn’t there.  It was reaching.  By interpretation the majority created unneeded law.  You’re dealing with nonsense, not common sense, don’t you understand?”

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April 5, 2011 — What Dat? Incompetence or malice? Both?

Who Dat?  What Dat?  Those are phrases expressing incredulity that ring familiar in the ears of Michigan Supreme Court Justice Elizabeth A Weaver (retired).  As a native New Orleanian, she grew up with the patois of those questions surrounding anything unidentified or anyone unknown.  They might be joined now by When Dat? given this latest in the long-running saga of her efforts to reveal and right wrongdoing at the Michigan Supreme Court, it’s offices and commissions.

This time  he saga continues in the form of an announced request for investigation by the Attorney Grievance Commission.  Here’s the letter:

The Attorney Grievance Commission is that commission of the Michigan Supreme Court that enforces penalties for misconduct by attorneys.  It is on par with the JTC, the Judicial Tenure Commission, that performs a like function for sitting judges.  Attorneys found in default by the AGC may suffer consequence up to disbarment…if the findings are upheld by the Supreme Court.  Judges found in default by the JTC may face removal from office or lesser sanctions, again if the findings are upheld by the high court.  And note that the AGC website says “The AGC does not have primary jurisdiction over the Michigan Judiciary.”

Interestingly enough it SEEMS the sole complainant is Maura D. Corrigan, formerly of the Supreme Court and now head of the Department of Human Services.  But, What Dat?, the signatures from the so-called recent complaint include those of now Chief Justice Robert P. Young, Jr., and Justice Steven Markman.  And the date on their complaint is almost a year old.  Recent?  Is this even the right complaint?

(The entirety of the complaint and supporting documents are soon to be up at Justice Weaver’s website, www.justiceweaver.com.)

So, here you have the AGC stepping in to pursue a complaint by perhaps three justices in an area it acknowledges it doesn’t have primary jurisdiction, using a complaint that is nearly a year old and signed by more than the number of complainants it says.  Oh, and that complaint sure looks like it might have been the same complaint sent last year by the three (and by their own admission) to the JTC (which body found no cause for action).

What Dat?  What Dat?  What Dat?

Wow.  Maybe Maura D. Corrigan complained again.   Why?  Doesn’t she have enough to do trying to save the state?  (More of this later.)

In the meanwhile, the request for investigation necessitated a whole lot of work on the part of Justice Weaver.  True, she said in conversation, she could have ignored it and allowed the AGC to take her law license.  It might even have been tempting…for about five minutes.  ”Then I realized that if I didn’t sound the warning I would be responsible for allowing this to go on.”  She went on to quote from Ezekiel 33:

But if the watchman see the sword come, and blow not the trumpet, and the people be not warned; if the sword come, and take any person from among them, he is taken away in his iniquity; but his blood I will require at the watchman’s hand.

In other words, if she did not speak out she was responsible for allowing this scourge to remain.  ”If I warn people and they don’t listen, it’s on them; I will have done what I could.”

Justice Weaver has done a lot of speaking out, revealing what she believes the truth, and that has not endeared her to some of her former colleagues.  She has said she finds the Michigan Supreme Court, “with its seven justices, their decision making and their administration of the people’s judicial business badly flawed. It’s a miracle that any justice gets done, bur some does. But then,” she says, “even a broken clock is right twice a day.” She notes that the trial courts and the Court of Appeal are not the problem.  We have listed on this site her plans for court reform and increased transparency.  Her latest iteration, a speech March 15 to the Leland Educational Foundation, can be found on her own website.

Given all that, she set out to answer–as demanded and required–the charge against her. Here is her response.

April 4, 2011

 Ruthann Stevens, Esq.

Senior Associate Counsel
Michigan Attorney Grievance Commission
Suite 256
243 West Congress
Detroit, MI  48226-3259

            Re:            Honorable Maura D. Corrigan as to the Honorable Elizabeth A. WeaverFile No. 0665/11

Dear Ms. Stevens:

This letter is the response required of me by MCR 9.113(A) to your Attorney Grievance Commission (AGC) Request for Investigation letter dated March 15, 2011, which I received a few days later.  As explained below, I adamantly deny the allegations and intimations of misconduct stated in the materials submitted by former Justice Corrigan and Justices Young and Markman attached to your letter. 

What a sad surprise to receive the AGC Request for Investigation letter, a letter giving me 21 days to respond to a nearly year old communication of false allegations and intimations (April 28, 2010) addressed to the AGC by my politically motivated former colleagues.  I believe the AGC should have long ago wisely disposed of this old Request filled with false allegations and intimations.  For over six (6) months, the AGC has known that the Judicial Tenure Commission (JTC) dismissed last September 2010 this same communication sent to the JTC by the same former colleagues.  (The dismissal was noticed to me September 27, 2010 and also noticed to the AGC) 

Your Request letter states: “Enclosed please find a recent Request for Investigation received by this office.  Hon. Maura D. Corrigan is the complainant.”  The referenced enclosure was the nearly year-old document on Supreme Court stationary dated April 28, 2010, apparently received by the AGC April 30, 2010, as it is stamped “2010APR30 PM 1:50.”  The document is signed not just by Justice Maura D. Corrigan, but also by Justices Robert P. Young, Jr. and Stephen J. Markman.  

How is this nearly year-old request “recent”?  Since April 2010, until a few weeks ago by your March 15, 2011 letter, I heard nothing from the AGC.

And why do you state the Hon. Maura D. Corrigan is the only complainant?  Have there been secret communications by my former colleagues with the AGC your letter failed to disclose to me?  Has former Justice Corrigan communicated with you or the AGC about me and/or this Request since April 2010?  If so, when and what?  Have Chief Justice Young and/or Justice Markman communicated with you or the AGC about me and/or this Request since April 2010?  If so, when and what?    

Although I heard nothing from the AGC in 2010, I knew the false allegations and intimations had been sent to the AGC and the JTC because the complaining justices sent copies to me, and publicly accused and judged me at the televised May 12, 2010, public administrative hearing.  Further, in violation of the Michigan and United States Constitutions, the Michigan Supreme Court censured me without recommendation from the JTC and without notice or hearing, informing me by a letter on Supreme Court stationary dated November 17, 2010, and signed by a majority of five (5) justices (the 3 complaining Justices—Corrigan, Young, Markman—and Justices Cavanaugh and Kelly) with Justice Hathaway writing her refusal to sign the letter.  Justice Davis did not sign the letter. 

Nevertheless, since April 2010, I sent the below-listed communications to the AGC  answering these baseless, politically motivated allegations and intimations attempting to harass, gag, and prevent me FOREVER from doing my duty as a justice, and now as a retired justice (with almost 36 years experience as a trial and appellate judge and as a supreme court chief justice), to share with people what I believe they need to know about the Michigan Supreme Court and its justices’ performance of their duties, including their decision-making and the administrating of the operations of the court itself as well as its offices, commissions and boards. 

As to what I believe the people need to know about our Supreme Court and its performance and operations, I refer you to my recent speech to the Leland Educational Foundation at the Leland public school, March 2011, found on my website  www.justiceweaver.com.  

 The following communications were sent to the AGC between April and June 2010, and each thoroughly refutes and shows untrue these allegations and intimations: 

  • My April 20, 2010, statement of disclosure in Brady, et al v Attorney Grievance Commission, 486 Mich 997 (2011) (which can be found www.justiceweaver.com); 
  • My statement of non-participation in the June 23, 2010 Supreme Court Order of     Dismissal in Brady, et al v Attorney Grievance Commission (which can be found at www.justiceweaver.com). 

As to the allegations and intimations in the request please note the following:

I did not violate Admin Order 2006-8.  Even if constitutional, which I deny, that Order declares to be confidential only “[a]ll correspondence, memoranda and discussions [by justices of the Supreme Court] regarding cases or controversies.”  Disclosing an earlier vote in a case, and speculating why some justices changed their votes, which is all I did, quite properly, did not reveal any “correspondence,” “memoranda,” or “discussions” as specified in the Order.  At most, what I am accused of disclosing are deductions from the latter, which are different.  In their rush to adopt that Order, a majority of the Supreme Court did not, apparently, write it carefully.

 Furthermore, what I am accused of disclosing was, I believe, “unethical” and “improper” conduct by Justices Young and Corrigan.  Changing votes based on information which is not part of the record, but was provided to those Justices in some other fashion, not only reflects ex parte communications by and/or with them, the very thing of which I am accused, but is action based on ex parte, secret communications, which is worse.  That is inherently unethical and improper.  The Administrative Order cannot, as it purports to do, limit disclosures of improprieties to the JTC or proper authorities.  Such disclosures to the voting public cannot be stifled.

For the reasons elaborately stated in my dissent from the adoption of Admin Order 2006-8, the Order is unconstitutional.  But, even if my analysis is flawed, which I do not believe it is, I was no more obligated to blindly follow what I believed to be an unconstitutional Order than were, according to them, Justices Markman, Young and Corrigan obligated to follow what they perceived to be an unconstitutional disqualification rule.  See, e.g., Pellegrino v AMPCO Systems Parking, 485 Mich 1147, 1155 (2010); Bezeau v Palace Sports & Entertainment, Inc, 488 Mich 891 (2010); and McCarthy v Sosnick, 488 Mich 1030 (2011).  If the Commission believes that I acted improperly, it must find that those justices also acted improperly and must file complaints against them with the JTC.  Finding my conduct improper, but their indistinguishable conduct proper, would not only be hypocritical, but would undermine the credibility of the discipline process and the integrity of the Court.  Blatant inconsistency is intolerable. 

Furthermore, my luncheon chat with Mr. Muth, which was no more substantive than a casual chat, did not violate either Canon 3(A)(4), which addresses communications with parties concerning a “pending or impending proceeding,” or Canon 3(A)(6) which restricts judges’ comments “about a pending or impending proceeding.”  Our chat pertained exclusively to the case of In re Servaas, 484 Mich 634 (2009).  The Judicial Tenure Commission Director Mr. Fischer was never mentioned. By the time of our lunch, the Supreme Court had issued its opinion in Servaas and had denied a motion for reconsideration.  Therefore, according to Grievance Administrator v Fieger, 476 Mich 231, 249-250 (2006), that case was neither pending nor impending, so that neither of those canons apply to my lunch with Mr. Muth.

Nor did my lunch conversation with Mr. Muth violate MRPC 3.5(b).  That subrule forbids ex parte communications “concerning a pending matter.” “Impending” matters are not included.  As just noted, the Servaas case was no longer pending.  Hence, it was not improper for Mr. Muth to talk to me about the case, and, necessarily, my talking to him cannot have been improper.  Furthermore, as noted, we did not discuss Mr. Fischer or the as-yet-unresolved grievance against him.

That there was pending before the AGC a request for investigation of the JTC Director Fischer’s behavior in the Servaas case does not transform my conversation with Mr. Muth about that case into a conversation about the JTC Director.  Our conversation related exclusively to what had happened in the Servaas case.  An early vote and speculation as to why the lineup changed are not matters pertaining to the grievance against the JTC Director.  Nor would have any disclosure about the Justices’ dissatisfaction with the JTC tactics, which we did not discuss, have violated MRPC 3.5(b).  Their dissatisfaction was stated bluntly and publicly during oral argument in the Servaas case and in their separate opinions. 

Moreover, there was nothing “impending” in the Supreme Court, not even something that might eventually be filed.  According to the commentary to the Rules of Professional Conduct, “impending” means a proceeding that “is anticipated, but has not yet begun.”  When I had lunch with Mr. Muth, there was no basis to anticipate an appeal to the Supreme Court.  At the time of our luncheon, a complaint for superintending control against the AGC was merely a possibility just because the rules authorize such a filing if the Grievance Commission denied the request for investigation and the complainants were dissatisfied.  That that ultimately did happen does not mean that it was likely enough, when Mr. Muth and I met, to happen to constitute “impending.”

For your further information I provide the following legal analysis.  If it proceeds against me in this matter, the Attorney Grievance Commission’s actions will be unconstitutional in violation of the Michigan and United States Constitutions and in violation of Michigan Court Rule MCR 9.116(B)

In Grievance Administrator v Fieger, supra, then-Justices Taylor and Corrigan and current Justices Young and Markman asserted that I had leveled “irresponsible and false charges” against them and had undertaken to “falsely” impugn them.  That is a statement that they have already concluded that I am dishonest.  Then, in a public administrative session of the Supreme Court, now-Chief Justice Young stated in so many words that I am “dishonest” and “unethical.”  Then, in connection with Brady v Attorney Grievance Commission, 486 Mich 997 (2010), Justices Young, Markman and Corrigan sent to the AGC, a memorandum accusing me of assorted misconduct.  Finally, those Justices filed requests for investigation, commonly called “grievances,” with the JTC.

It is plain from the just-recited history that two current Justices of the Supreme Court, Chief Justice Young and Justice Markman, have already determined that I cannot be believed and am guilty of the very misconduct alleged by Justice Corrigan.  Were their separate opinion in Fieger, the materials they circulated in Brady, and their filing with the JTC of a grievance against me all that had happened, those two Justices would, unquestionably, be disqualified from hearing this case should it progress to the Supreme Court.  A majority of the Court would, however, be available to hear the case.  But, much more has happened, and what did happen means that the grievance against me by former Justice Corrigan cannot be processed any further without violating the Constitution of the United States.

On November 17, 2010, five Justices of the Supreme Court, four of whom still sit on that Court, publicly and in writing “censur[ed]” me for, among other things, the very conduct which is the subject of former Justice Corrigan’s and Justices’ Young’s and Markman’s grievance and your letter.  Specifically, those Justices castigated me for having made public material from the Court’s deliberations and for believing that I had authority to use my best judgment in deciding whether to do so.  In other words, a majority of the Court has already determined that not only am I guilty of doing the kinds of things former Justice Corrigan alleges, but that I have done what she and Justices Young and Markman allege.

The Supreme Court’s “censure” of me establishes three facts: that the AGC cannot handle this matter any further; that the Attorney Discipline Board (ADB) cannot constitutionally adjudicate the matter, should it be presented to them; and, that the Supreme Court cannot review any of the ADB’s decisions regarding me.

 The letter of censure does not merely “pose[] such a risk of actual bias or prejudgment” that proceeding any further with former Justice Corrigan’s grievance “must be forbidden if the guaranty of due process is to be adequately implemented,”  Caperton v C A Massey Coal Co, Inc, 556 US ___; 129 S Ct 2252, 2263; 173 L Ed 2d 1208 (2009), quoting Withrow v Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975); rather, that letter establishes unmistakable prejudgment by a majority of the Court.

Because, plainly, the Supreme Court cannot hear this case, it would be unconstitutional to proceed with this matter.  Any lawyer, a former Supreme Court Justice included, against whom a request for investigation is filed with the AGC is entitled to review by the Supreme Court of the AGC’s and the ADB’s decisions.  MCR 7.304(A), and 9.122(A).  Such review is mandatory because the power of discipline belongs exclusively to that Court.  MCL 600.904.  Discipline proceedings without the availability of Supreme Court review would violate that statute.  Therefore, because no honest, meaningful review will ever be available to me in this case, proceeding with this grievance will violate Michigan law.  Action by either the AGC or the ADB, without any possibility of review by the Supreme Court, would arrogate to those entities the control over the lawyers of this State which the Legislature has chosen to place in the Supreme Court, not in them. 

In addition, Caperton makes it clear that not only may the Supreme Court not be involved, given its prejudgment of me, neither can the AGC or the ADB.  That case reminded all that because “no man is allowed to be a judge in his own cause,” no one can “choose[] the judge in his own cause.”  Allowing either the AGC or the ADB to proceed would be the latter.  The AGC “is the prosecution arm of the Supreme Court,” MCR 9.108(A), while the ADB is “the adjudicative arm of the Supreme Court,” MCR 9.110(A), and both are appointed by the Supreme Court.  In other words, the Supreme Court has chosen all of the persons charged with deciding former Justice Corrigan’s and Justices Young’s and Markman’s grievance.  Under the circumstances of this case, that is constitutionally intolerable.  For the AGC to do anything other than decline to entertain the grievance is forbidden by the core doctrines of separation of powers and due process.

Under other circumstances, the inability of the AGC and ADB to properly proceed could be remedied by MCR 9.131.  Were only the AGC, disqualified from proceeding, the Court could itself review a request for investigation and appoint an independent attorney to investigate, file a complaint, and prosecute any complaint.  MCR 9.131(A).  Were the ADB disqualified, the Chief Justice could appoint a hearing panel and that panel’s decision would proceed directly to that Court.  MCR 9.131(B).  Neither the Supreme Court nor the Chief Justice may so act in this case, however.  They are disqualified.  Therefore, there is no way around the AGC’s and ADB’s respective disqualifications. 

It also appears to be improper for the AGC to review the grievance because pertinent evidence may be testimony and a memorandum by one of its own employees, Mr. McGlinn, about a conversation he had had with Judge Servaas.  The comments by Judge Servaas in his memorandum are hearsay and significantly inaccurate as to me.  Were there no other problem, the situation could be handled by the procedures set out in MCR 9.131(A).

I also note that the JTC declined to take action on the complaint sent to it by former Justice Corrigan, and Justices Young and Markman.  By letter dated September 27, 2010, it “dismissed” their request for investigation.  MCR 9.116(B) dictates that the AGC “may not take action against a judge unless and until the Judicial Tenure Commission recommends a sanction.”  Obviously, the JTC did not recommend a sanction.  It dismissed the grievance.  The AGC has known this since September 2010, more than six (6) months ago.  Therefore the AGC “may not take action” against me.  The dictate of the subrule could not be clearer.

Admittedly, nowhere in any of the rules pertaining to attorney discipline, including MCR 9.116(B), is the word “judge” defined.  That word is defined, however, in MCR 9.201(B) to include former judges against whom a request for investigation was filed while they were in office or about conduct while in office, both of which are my situations.  That definition applies to MCR 9.116(B) because MCR 9.201 declares that all of its definitions apply to “this chapter,” which is Chapter 9 of the Michigan Court Rules, which includes MCR 9.116(B).

In conclusion, I hope the Attorney Grievance Commission will now dismiss this old baseless Request for Investigation and cease to be a part of this injustice –this tyranny—this misuse and abuse of Supreme Court power by my former colleagues, attempting to stifle my free speech as a justice and now as a retired justice in letting the people know what I believe they need to know about the Michigan Supreme Court and its justices performance in decision-making and administering the operations of the court itself and its offices, commissions, and boards.  It is unworthy of my former colleagues,  unworthy of the office of Supreme Court justice,  and  unworthy of the Attorney Grievance Commission.

Very truly yours,

Elizabeth A. Weaver

Posted on my website: www.justiceweaver.com

She contends she has broken no law, violated no constitutionally sanctioned principle, nor broken any of the Code of Judicial Conduct.  True, she has not and will not abide by the Gag Order passed by her former colleagues that was intended to silence her revelations. In fact, it was during her efforts May 12, 2010, she explained that the Dec. 6, 2006, emergency order (the Gag Order) was never retained at a hearing held Jan. 17, 2007, or any time thereafter. At the May 12, 2010, meeting her colleagues voted to retain it and revealed that they had sent her to the JTC and the AGC. If you have time you might want to watch all of it. It certainly shows the vituperative environment in which she was working.

Here’s the first segment. I have tried to embed it but it keeps slipping away. If you can see the screen, please hit the link for the first segment.

Here are the subsequent segments: Part 2, Part 3, Part 4, Part 5, Part 6, Part 7, Part 8.

As I said at the beginning…this most recent mess seems either a matter of incompetence or malice, or maybe both.

Concerning my assessment of incompetence, here are some questions for Ruthann Stevens at the AGC:  Is this the complaint left over from almost a year ago? How often do complaints linger for eleven months before there is action? How did there come to be action now…just getting around to it? Or, did somebody in the office pick out this complaint to move on now? For what reason? Is this the way the AGC office normally handles a high-profile case?  Was Maura D. Corrigan the sole complainant? Or, were the other two justices part of it?  If so, why didn’t the complaint say that? If not, where is the complaint from just Maura D. Corrigan.

Concerning the second possibility based on the actions of Maura D. Corrigan…actions that could be considered malicious, with evil intent, is this in her character?  Is there any evidence that she might act in such a fashion? What would be gained?

And there are lots of other questions.  We may find answers to tell more about the When Dat?, the What Dat?, and Who Dat?

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January 28, 2011 — Rich Robinson REALLY gets it

Rich Robinson of the Michigan Campaign Finance Reform Network not only gets it, he’s been leading the charge for reform armed with facts, facts, facts.  His research has done more to reveal the excesses of campaign funding than any other analysis I can think of.

And here is his take, Reinventing Michigan Politics, published by the Center for Michigan, another powerful voice for reason.

The dangers of a politicized Supreme Court cannot be overstated.  One-third of the state’s power of government in the hands of seven individuals, some of whom have betrayed their office by serving ideology above the law.

Okay, let’s look at just ONE example, In re Mason, a case involving the parental rights of incarcerated prisoners.

Justice Maura Corrigan led the charge to change law to fit her point of view.  The result has created a nightmare for the Department of Human Services.  At the very least, according to DHS  administrators Terry A. Salacina, Director, Field Operations Administration, and Kathryne A. O’Grady, Director, Children’s Services Administration the ruling will result in ”profound and immediate practice changes.”  That will mean a tremendous amount of additional work.

In her dissent, Justice Elizabeth A. Weaver, went beyond that of Justice Stephen Markman and Justice Diane Hathaway, and she concluded “The clear error is the Supreme Court majority’s unrestrained reaching out and the creation of an issue that was not raised in the trial court or the Court of Appeals and that takes 26 pages to find clear error by the trial court where there is none….”  The result, she says, is tragic–in this case tragic especially for two young children. 

There is some justice in all this…in a perverse way.  Justice Corrigan created this mess and now she has to deal with it as the new Director of DHS.  Pride (and politics) won’t let her back away from her decisions, but it seems at least this one little chicken has come home to roost.

Look for more on this.

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January 25, 2011 — Columnist Jack Lessenberry gets it

Justice Elizabeth A. Weaver’s (Michigan Supreme Court, retired) plan for reform is really quite simple but comprehensive.  And when combined with openness would well serve the citizens of this state.

Syndicated columnist NPR commentator Jack Lesenberry gets it and has supplied these two columns:

“Betty Weaver Speaks Out” from yesterday 

and

“Reforming Our Courts: Betty Weaver SPeaks Out” from today.

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January 21, 2011 — The dangers of secrecy, and Justice Weaver’s plan

With the move to a Supreme Court once again under the control of Justices who have been pushed forward by then-Governor John Engler, we see an increase in secrecy.  Even the process of the selection of Robert Preston Young, Jr., as Chief Justice has been secret.  Is this not the administrative business of the Court?  Is this not the people’s business?  Why the secrecy?  You can be assured that had the vote been unanimous that we’d have heard about that.  So, instead it had to be a divided vote and that perhaps along party lines: 4-3.  

Does it really matter that we don’t know the vote?  

I think it serves as an indication of what’s to come.  After all, how silly is it that the Court refuses to tell who voted for whom?  Would it be unexpected that perhaps Justice Hathaway, Marilyn Kelly and Michael Cavanagh just might not vote for Justice Young?Have you watched many of the oral arguments, read their opinions?  What possibly benefit, then, could it be to hide this?

Another needless secrecy doing the business of the people.

It is this needless secrecy that took up much of Justice Elizabeth A. Weaver’s talk before the Berrien County Bar Association, January 19th.  She also  articulated her detailed proposal for reform at the court.   You can watch the video and read the plan here.

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January 18, 2011 — In the case of Judge Steven Servaas

This is a work in progress, at early stages yet and there is much more to tell, but we offer the tale of Judge Steven Servaas.

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January 17, 2011 — Here’s a letter worth reading…it’s from Birmingham jail

Yes, this is a holiday set aside to honor the slain civil rights leader Martin Luther King, Jr.  Last week I had the opportunity to read afresh his letter written when he sat in the Birmingham jail.  Imagine, if you will, what it felt like for Dr. King to linger there, under arrest.  Was he discouraged by that apparent overwhelming authority that shouted with its every action that he and his cause would not prevail?  If he was, still he didn’t give up or give in.  We need his courage, his conviction.  Wherever there is injustice…let there be truth telling.

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January 10, 2010 — And the winer is…Judge Brian Zahra!

Southeast Michigan is now, again, still the seat of authority for the Michigan Supreme Court with this morning’s appointment of Court of Appeals Judge Brian K. Zahra to the High Court.  Here’s the Michigan Public Radio story.

Here’s some background on him from 2006 when he was named as Chief Judge Pro Tem of Michigan Court of Appeals.  Here’s the Peter Luke account in the Grand Rapids Press. Another Dickinson, Wright-er (with Chief Justice Robert Preston Young, Jr., and Justice Mary Beth Kelly (did I miss anybody?).  Another Engler appointee (to Wayne County Circuit Court in 1994 and the Court of Appeals in 1998).

So, what’s it mean?  Is he independent, fair, well reasoned?  We’ll find out.

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January 6, 2011 — Justice Weaver’s response to the Task Force

Here it is, here it is, just off the website of the Grand Rapids Press: Guest Commentary: How to reform Supreme Court elections in Michigan.  The author is Michigan Supreme Court Justice Elizabeth A. Weaver (retired) and it should come as no surprise; if you’ve followed this site, you’ve read bits and pieces of this in earlier iterations.  Here the concept is fully matured.  At the heart of it is maintaining elections by the citizenry but shedding partisan nominations.  Justice Weaver is also correct that all the reform in the world will not do much as long as this Court maintains its secretive ways.

Justice Weaver was writing in response to the Press’ editorial of Dec. 21, 2010.  You can read that here: Why we need to reform judicial elections in Michigan.  It seems like the Press is endorsing the appointment process, something that’s been favored by U.S. Supreme Court Justice Sandra Day O’Connor, the honorary co-chair of the Task Force.

Thanks, but no thanks.  I’d like to keep my vote.

______________________

Governor Rick Snyder has indeed proposed Justice Maura Corrigan to head the Department of Human Services, effective Jan. 14.  The vacancy he creates at the High Court will reveal much about him and his intentions.  He has promised to name Justice Corrigan’s successor before she leaves.  If he appoints another John Engler protege it will send a troubling signal.  If he selects an independent who is not beholden to partisan interests it’s just possible that we might have a better Court.  Of course this is mightily important.

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January 5, 2011 — That will be CHIEF Justice Young to you and me.

We predicted it (November 22, 2010) and it has transpired.  Robert Preston Young, Jr., is now the Chief Justice of the Michigan Supreme Court.  You can read about it almost any place.  Here’s the story in the Michigan Messenger.  The Court has fulfilled Justice Young’s vision and dream (except, perhaps, for ascension to the U.S. Supreme Court) and we now have a Chief Justice who is comfortable with using inappropriate racial and sexual language while doing the business of the Court…and then lying about it.

Before the end of last year’s term there was one excellent decision made by the court, a return to environmental standards as enacted.  This was a huge victory for clean water.   If Justice Tom Davis had done nothing else in his short tenure on the Court this would be plenty.  He wrote the majority opinion and it’s clear and sets right a number of issues where the Taylor Court meddled.  In dissent, Justice Young gives indications of impending apoplexy (we had thought that was Justice Markman’s province).  I’ll write more about this later, but it will be interesting to watch to see if the court takes another activist approach to again take the teeth out of the law.  Will the Republican justices ask for a reconsideration?  What other case might they bring forward if they chose to wait?  How will THAT play in the media?  Enough to make any difference?

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