January 4, 2011 — Confirmation of Justice Corrigan’s intended departure

Ed White of the AP has followed up on Tim Skubick’s lead from last week that Michigan Supreme Court Maura Corrigan is to lead the troubled Department of Human Services.  You can read the account in the Chicago Tribune here.  Mr. White fleshes out Mr Skubick’s assertion that Justice Corrigan has been involved in the cause of young people facing difficulties.

It’s possible that Justice Corrigan could do a great deal of good in her new assignment.

And we’ll see who the new Chief Justice will be if they vote about that as scheduled tomorrow.

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December 31, 2010 — Or Judge Richard Bandstra

Another possibility of a Michigan Supreme Court appointee, soon-to-retire Court of Appeals Judge Richard A. Bandstra.  You can read a recent story in the Grand Rapids Press about his stepping down from the bench.  Hmmm.  The timing is convenient.

Here’s a look at his bio on the Court of Appeals website.  He certainly has credentials.

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December 30, 2010 — Trentadue stands and Justice Corrigan heads elsewhere, maybe

The Trentadue decision of 20o7 was important because it overturned common law concerning the window of opportunity to bring suit.  A murder, unsolved for 19 years, was the crime at the center of the case.  The victim’s daughter wanted to bring suit once the killer was identified.  The Michigan Supreme court went against common law and set a three-year window, even if the killer remained unknown.

I have had more than casual interest in the murder of Janet Chandler in 1979.  I, with the help of wonderful students at Hope College (I was teaching there at the time), made a film that started people talking.  The initial result was the formation of a cold-case team that spent two years investigating.  The result of that was the arrest and either plea or conviction of six people, all now in prison.  Five of those six were Wackenhut security guards, including the head of a strike detail that had been dispatched to little Holland, MI, where a number of those guards abducted and murdered Janet.

Her parents, Jim and Glenna Chandler, have sought damages against Wackenhut, and one of the impediments in their civil suit has been the Trentadue decision. 

When the court granted leave earlier this year to hear a new case, Colaianni v Stuart Frankel Development, there was the possibility that the case might overturn Trentadue, and that it would matter very much.  It seemed that the votes might be there to overturn…but it didn’t happen.

Word came down today that the Colaianni suit is dismissed.  While I am pleased for the parties, I’m disappointed that there was no further move to return to common law and common sense.

So, from here for the Chandlers?  Their suit (now on appeal) still goes forward at the U.S. Circuit Court, but this might have helped.

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Is it true that Justice Maura Corrigan is going to leave the Court?  Channel Six in Lansing reports that incoming Gov.  Rick Snyder has tapped her to head the Department of Human Services.

The story makes note of her “extensive background with foster care and adoptive services, which are overseen by the Department of Human Services.”  Just because reporter Tim Skubick says it doesn’t necessarily make it so.  If anything, the In re J.K. would illustrate just the opposite, and it is cause for concern that the new Governor would not have a sense of this.

But this is will result in another vacancy at the Court (and may I remind you of the moaning and complaining that the Republicans set up when Governor Granholm appointed Justice Alton Tom Davis?  According to GOP operative Jennifer Hoff,  the Governor was packing the court and her selection was “a party hack.”  Wonder what they’ll have to say about Governor Snyder’s selection.

I haven’t heard any names yet, but there comes to me the possibility of Judge Jane Markey.  She’s NOT from the Lansing-Detroit beltway (she lives in Grand Rapids) and she was worthy of consideration by the Republicans in the most recent election.  She just didn’t make the cut then, losing out on the nomination to Judge Mary Beth Kelly.  We’ll see.

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December 28, 2010 — Justices Weaver and Davis reflect on the Court

Brian McGillivary of the Traverse City Record Eagle has reported reflections by Justice Elizabeth Weaver (retired) of the recent events at the Michigan Supreme Court.  In particular, she speaks about openness at the Court, the recent election, and needed reforms.  In addition to Justice Weaver, McGillivary spoke with outgoing Justice Alton Tom Davis.  The article is worth a read.

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December 15, 2010 — A task force? Yep, it’s official: High Court elections/appointments are busted and need fixin’.

So interesting to see that others also think the operations of the Michigan Supreme Court are out of kilter.  This most recent election should give most of us some pause to wonder where all the money came from and where it went.  Rich Robinson and his organization, Michigan Campaign Finance Network, are in the early stages of compiling where some of the money went.  In terms of television advertising for the Supreme Court he’s come up with a total of more than $8 million.  That doesn’t include printed material, the infamous robocalls…and a whole lot more untraceable funding.  It’s darned near the television ads of $10+ million so far tallied on the gubernatorial race.  But it’s still a relative bargain, especially when compared to the House and Senate races…$30 million in three Congressional races.

PAC money?  You want PAC money: here you go.  Aw, heck, just poke around at the site and the more you see, the more you might wonder: What do people expect for all that money?  What are the stakes?  Sure looks like you get most bang for your buck at he Supreme Court level.  You can influence the outcome of one of the three pillars of government with relative ease…if you have the money.  And people do.

Assuming this is not the way to go about it all, how are we going to fix it?

So glad you asked.  …And just in time is this news report by Dawson Bell of The Detroit Free Press outlining a 24-member task force.   Chaired by Michigan Supreme Court Chief Justice Marilyn Kelly, the task force is going to look “without preconceptions” at how the High Court and the Court of Appeals function.

Dan Pero, former Governor John Engler’s former chief of staff (and now head of the American Justice Partnership) waxes apoplectic, or seems to, in the account.

Whatever is intended–Pero posits it’s to do away with election of judges and Justices–the task force may serve to focus attention where it’s been badly needed.  This could be a great thing and maybe they’ll take up the issues of secrecy at the High Court.

Justice Elizabeth Weaver (retired) has been working on analysis of such reform for years.  Her plan is something that is well deserving of consideration, and it may be that this task force will take up her plan sooner or later.  It doesn’t do away with elections, it takes the political parties out of the process in the nominations, and it eliminates the Governor’s unchecked powers of appointment.  

This may be a chance to have sensible reform at the Court if we as citizens take notice and engage in an active role in the process.  It IS your court.

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December 13, 2010 — Housekeeping: No robocalls at the Dems…and a little more

It’s taken a little while to get this to you: A message from Democratic Party Chairman Mark Brewer to me is that, no, the Democrats don’t have a copy of the Republicans’ robocall by Michelle Engler concerning Supreme Court Justice Robert Preston Young, Jr.  No surprise, really, but I had thought they might have come across it.  I have sent an e-mail to the National GOP headquarters but am not exactly holding my breath.  It’ll come some time.

Now, in relation to the comment from the robocalls tying SOMEBODY to the Ku Klux Klan, maybe after all the Republicans were referring to Mr. Brewer.  There was some link made in this story that indicates the Muskegon Chronicle carried a story that Mr. Brewer may have defended the Klan or somebody from the Klan in his earlier work with the ACLU.

Lawyers represent who they represent.  It’s their job to provide a zealous defense.

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In another little bit of housekeeping, when the transcript of Justice Robert Preston Young, Jr.’s, verbal excess was revealed my first thought was of the object of his scorn and locker-room humor, the disgraced former judge Andrea Ferrara.  I had tried to reach her to see how she was doing.  For all I know that episode of being removed from the bench was likely the worst time in her life.  We know she is still practicing law (specializing, according to her website, in immigration law).  It’s entirely possible that her behavior at a bad point in her life has been amended; many of us can and do change.  So my reaching out to her was not intended to reopen barely healed wounds; I had hoped to hear from her about her story since.  She might have had some wise counsel to give me or Justice Young.  After my third call came a return call asking me not to call again.  Of course I will honor that.  But I do wish her well.

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December 6, 2010 — Whipsaw at the Court

One of the things that we look for when we bring a matter to court is to have it settled…definitively settled.  The rule of law works when it’s orderly and stable.

Imagine this, then: The Michigan Supreme Court makes a decision–unanimously–in April. The court then decides in July that it was wrong in April.  And, in November it goes back again to set aside the July decision.  And, it’s possible that the matter will change yet again when Justice Mary Beth Kelly takes her seat Jan. 1.

What’s this all about?  It’s the Duncan case and it’s about court appointed attorneys.  The historic grievance has been that public defenders are recompensed for their time at about the hourly rates for fast-food employees.  The result, the plaintiff’s assert is “that Michigan’s provision of criminal defense services to poor people accused of crimes was constitutionally insufficient, and sought declaratory and injunctive relief. ”  That quote is from the Brennan Center For Justice of the New York University School of Law.  The Brennan Center joined in the filing of an amicus brief on this.

The Order of the Court is well worth reading for a study in intransigence.  The law, per se, is taking a back seat to the vacillating interpretations, ideologies, whims, or…of the court…oh, except that IS the law.

You can read more about this issue here in a posting at the Warner, Norcross and Judd website.

This does not bode well for the Colaianni case, a decision due any time now from the Court; oral arguments were heard October 7.  That Colaianni case was likely to overturn the Trentadue decision, that 2007 ruling that left plaintiffs three years to bring suit, even if they didn’t know who to sue.  If Colaianni is affirmed how long will it stay that way?

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November 29, 2010 — More fallout from a paper that wants less information

Michigan Supreme Court Justice (retired) Elizabeth Weaver is taking more hits following the release, last week, of the High Court’s bobbled censure.  The Detroit Free Press took her to the woodshed in this editorial.  The Livingston Daily followed suit this morning, really nothing more than a reprint.

Here’s where I think the Freep should have left the above condemnation:

Weaver spent her last term as an increasingly alienated member of the high court’s Republican majority, which exercised partisan control of the nominally apolitical court for most of the last decade. First elected to the court in 1994, she was the only GOP justice whose ascent came without a career boost at some point from former Gov. John Engler ….

In her final six years on the court, Weaver was an increasingly independent voice who railed against both the Engler court’s published jurisprudence and its administration of court business, which she regarded as excessively secretive.

We shared many of her concerns, especially her conviction that special interest contributions were undermining public confidence in the justices’ independence. We believe, as she does, that the explosive growth of untraceable campaign contributions compelled the need for reform of both the judicial selection process and the rules governing a justice’s disqualification for conflicts of interest.

That would have been fine and in line with the work of a newspaper, but they couldn’t leave it there.  Nope, had to go to back-room deals with the governor to appoint Alton Tom Davis, had to go to the transcript: [We] were dismayed by her unilateral decision to release excerpts of case status conferences she had secretly recorded in an effort to embarrass Justice Robert Young Jr., whose re-election Weaver opposed.

The leaked recordings betrayed the confidence of Weaver’s colleagues without revealing any significant evidence of unethical behavior or even incivility.

So, as far the Freep is concerned it’s perfectly ethical and civil to call people N_____s and to suggest that officers of the court be referred to as sluts.  Got it.  You mean you don’t think Justice Robert Preston Young, Jr., SHOULD have been embarrassed?  For goodness sakes, he had to have his momma come out and tell everybody he was a good boy.

Next, the Freep said this:

If Weaver possesses records that document criminal or unethical behavior on the part of her former colleagues, she should bring them to the attention of the appropriate authorities. But the actions that earned her colleagues’ censure appear to have been animated by more personal and puerile motives, and they disserve the reform agenda she purportedly hopes to advance.

The Appropriate authorities…let’s see…the Judicial Tenure Commission.  Nah, that’s busted.  And anyway it would all wind up back at the Supreme Court.  The Attorney Grievance Commission?  Ditto.  So…where, then?

And she’s been trying to bring it to the attention of the press for quite some time, beginning wth her objections to the “gag order” the rest of the court tried to impose on her in 2006, an order that clearly flies in the face of both the Code of Judicial Conduct (see especially Canon 3A6) and the Michigan Constitution (especially Article VI, section 6).  Isn’t that illegal?  How about the dealings of the Supreme Court Administrator Carl Gromek in dealing with the Macomb County Probate Court?  Wasn’t that unethical?  What about the In re: JK in Grand Rapids?  Didn’t that violate the way the Court historically went about business and didn’t the prejudgement result in unjust and unethical treatment to those represented in the case at hand?  Was it illegal?  Alas, one of the dictates of the system is that unless challenged, the Court itself gets to dictate what’s legal.  What about JTC’s Paul Fischer attempting to coerce the retirement of Kent Court Dictrict Court Judge Steven Servaas?  That was an act of extortion.  …At least that’s how Servaas’s attorney Jon Muth–himself a former president of the Michigan Bar–described it.  And there is more and more much yet to come out.

I think the most telling half sentence from the Freep editorial is this: We were more skeptical of Weaver’s assertion that most of the court’s deliberations should be public ….

Is this the opinion of a newspaper?  Wow!  You’d think they’d be lining up and cheering.

In her response to the bobbled censure, Justice Weaver reiterated her willingness to open her files for inspection.  Has anybody taken her up on that?  I have.  Anybody else?Now, that’s some serious journalism.

Interesting to note that the only organ that seems to be taking her seriously is the Wall Street Journal in its Law Blog.

Some time ago I was thinking that the in-state news media really were not paying much attention to the substance of what was occurring at the court.  Into mind popped the image the late Martha Mitchell.  She was a Southern lady of distinction who had become known as The Mouth of the South.  And it was she who–at the risk of being a laughingstock–dropped the dime on presidential wrongdoing.  As Richard Nixon later said, if there had been no Martha Mitchell, there would have been no Watergate.  They tried to control her but still she spoke out, alarmed that no one was paying attention.  I trust that Justice Weaver might receive better hearing.  But you never know.  And it may be history that writes the final evaluation on this chapter at the Court.

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November 28, 2010 — That’s odd. Just hearing about it in GR?

Enjoying my coffee on a Sunday morning and looking over the metro daily, the Grand Rapids Press.  On page A13, under The Week in Review, is a segment called “They Said It; Last Week in Quotes” I found this:

“As an attorney, I can’t disagree with it and I can’t say I’m surprised.  And, as a memer of the State Bar of Michigan, I’m embarrased.” –Traverse City attorney Tim Smith, as quoted by Public News Service, on a University of Chicago study saying Michigan’s Supreme Court is worst in the nation for judicial independence.

Hmm, I wondered, isn’t that somewhat familiar?  Haven’t I read this some time ago? Certainly the issue of the Court’s independence and competence was brought up before the Nov. 2 election.  Tim Smith said it…last week?

No.  He said it two years ago.

I tracked it down; not hard to do.  Here’s the news story surrounding the release of the report…and it’s from July 13, 2008, Tim Smith quote and all.  Now, I know that news sometimes is a little slow getting our way, but this seems unlikely delayed, an aberration, perhaps a mistake.  Or somebody at the Press has realized something; there are lots of good people at that paper.

But it gave me pause to go back and reread the study.  You can read that 50-page analysis by Stephen J. Choi, Mitu Gulati, and Eric A. Posner here: WHICH STATES HAVE THE BEST (AND WORST) HIGH COURTS?

The three researchers gathered their own data relative to U.S. State Supreme Courts from 1998 through 2000.  Those are years when 5/7ths  of the current Michigan Court was sitting.  (Justice Taylor was unelected in 2008 and Justice Weaver resigned in 2010.)   Not only did they do their own study but they also compared their work to that of others, in particular two Chamber of Commerce studies.  (I find those Chamber studies badly flawed; the studies survey attorneys and judges and that’s the measure of the high courts.)

Choi, Gulati, and Posner set out to meaure three things:

Productivity–they use as their criterion the numbers of opinions generated at each Court.

Influence–they use the numbers of out-of-state citations of opinions as a measure of the quality of the reasoning at the Courts.

Independence–they measured numbers of times Justices crossed party or other affiliations lines to side with opposite parties as a measure of “the judge’s ability to withstand partisan pressures, or disinclination to indulge partisan preferences, when deciding cases.”

So, how did Michigan do?  Not well, not well at all.

Productivity? Michigan ranked 40th with 389.  Georgia claimed the top spot with 1225; New Mexico the bottom with 151.

Influence? Michigan ranked 42nd with 8.67 out-of-state citations/year.  Top was California with 33.67 and bottom was Oklahoma (criminal) with 3.69.

Independence?  Michigan ranked 52nd.  (Yes, I know there are only 50 states, but Washington, D.C., was not included and Oklahoma and Texas Civil and Criminal Courts were ranked separately to equal 52 units.)  The rankings ranged from -1 to +1.  The top was Rhode Island with 0.19.  Michigan was -0.31.  That means that partisan aggregation was prevelent, birds of a political feather, if you will, were sticking together.

Even combining all three measures Michigan was still on the bottom.  California claimed to the pole position.

So, in one sense it’s good that the Grand Rapids Press was so dilatory in getting the news: it gave me a chance to think and write about it.  (Yes, I realize that’s navel gazing; but this work on the Court is kind of new.  So, mea culpa.)

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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.”

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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.

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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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