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CLIFFORD TAYLOR OF NEW YORK-COLONIAL ADMIRALTY JUDGE

Mike Butler — 2008-05-08T23:59:24-04:00

(With apologies to Steve Martin and his immortal Theodoric of York)

The various pronouncements coming from the Michigan Supreme Court over the past decade have led me to reread some of our American Colonial History. Our current Supreme Court will, under the guise of its "textualist" judicial philosophy, will enforce will enforce, as written, what it determines to be the "simple meaning" of words in any legislation passed with procedural legitimacy. If this leads to absurd, unfair, and unjust results(generally for individual citizens. Big Business and Big Insurance get along fine, thank you), so be it. For a Michigan judge, a sense of grammar and syntax is more important than a sense of justice and wisdom. I believe that our Supreme Court believes that Justice, in the State of Michigan can be properly meted out by an entry level clerk with a dictionary in one hand and a statute book in the other. Emphasis on the dictionary, mind you.

Prior to the American Revolution, the English Parliament passed various acts, all by legitimate procedure, that imposed unjust burdens on American Colonists. As schoolchildren we learned about the Sugar Act, the Stamp Act, and the Intolerable Acts. This last was a name given to a group of laws that included the following:

• The Boston Port Bill became effective on June 1, 1774. The King closed Boston Harbor to everything but British ships.

• The Quartering Act was established on March 24, 1765. The King sent lots of British troops to Boston. The colonists had to house and feed the British troops. If the colonists didn't do this for the British troops, they would get shot.

• The Administration of Justice Act became effective May 20, 1774. British Officials could not be tried in colonial courts for crimes. They would be taken back to Britain and have a trial there. That left the British free to do whatever they wanted in the colonies and to the Colonists.

• Massachusetts Government Act became effective on May 20, 1774. The British Governor was in charge of all the town meetings in Boston. There would no more self-government in Boston.

• The Quebec Act was established on May 20, 1774, This bill extended the Canadian borders to cut off the western colonies of Connecticut, Massachusetts and Virginia.

Intolerable they may have been called, but procedurally legitimate and textually enforceable they were. As such they would have been cheerfully enforced, as written, by Michigan Supreme Court Justice Clifford Taylor had he been practicing his peculiar talents as a judge back then.

I can see it, Squire Clifford Taylor, appointed by King George III (predecessor to John Engler) as an Admiralty Court Judge, transporting protesting colonists into slavery in the Sugar Islands for violating the simple meaning of the words of the Quartering Act. Oh, I am sorry; the simple wording of the Act stated that violators would be shot.

If you think this is an exaggeration, please consider what treatment our Federal government currently accords, under color of law, to those classified as enemy combatants at Quantanamo Bay.

In a hard hitting editorial entitled: "Courts need help to impanel fairer juries", in the July 6, 2007 edition of the Detroit News, Justice Taylor referred to colonial history and stated:

"The American Revolution was fought in part because British authorities prosecuted American colonists for revenue violations in admiralty courts without juries, rather than in common pleas courts where juries could have acquitted and freed protesters."

Sounds nice, but Justice Taylor's judicial philosophy would have denied a jury to each and every accused colonist brought before him on a revenue violation, if the prevailing law provided for trial by Admiralty judge.

Good Lord, look what he has done to the constitutionally protected right to trial by jury during his reign at Chief Justice of the Michigan Supreme Court. He has denied the right to civil jury trial to injured citizens consistently through his cases. He has done so, in part, by defining the word "serious" in the No-Fault Act, to mean "catastrophic". He has read the word "permanent" in the same statute, where it does not appear. As a result seriously injured citizens are thrown out of court. In the area of premises liability law, he has denied trial by jury to citizens injured by the admitted carelessness of business owners, by ignoring the provisions of a statute that requires that the degree of fault of all parties must be determined by a jury, not a judge.

Last week I watched an old tape of the Errol Flynn movie Captain Blood. Part of the trial scene in that movie is shown at the beginning of the clip at the end of this post. While the injustice of the trial and sentence are supposed to be apparent to the unsophisticated Depression Era audiences which saw it at the theatres, the law, Court, trial and sentence, as shown, were procedurally legitimate and historically accurate. As such, the justice dispensed in the film bears a remarkable resemblance to current Michigan jurisprudence.

YOUTUBE NATION-RETIRE THE INCUMBENT

Mike Butler — 2008-05-03T12:13:05-04:00

Most of us are aware that YouTube is the most far-reaching communication medium on the internet. However, the sheer volume often results in serious messages getting lost in the chaff. Getting your videos watched, once they are uploaded is an art.

Surfing YouTube yesterday, I came upon a "channel" called "Retire the Incumbent". There are five videos on the channel and it appears that each is a clip from the recent American Constitution Society seminar on the impact of the Michigan Supreme Court on the State of the Law. One of the videos is embedded here.

Unfortunately, though posted three weeks ago, the five videos have a combined view total of less than one hundred, about ten of those coming from me. The videos do carry "tags" designed to drive search traffic to them, as follows: Michigan Supreme Court insurance injury policy November election 2008 incumbent retire commentary analysis. Not overly specific or sexy tags, to be sure, but even the Michigan Supreme Court tags haven't done much to drive traffic.

The videos are not editted at all, which might cause viewers, when they come to click away, to videos that more closely match the length of their attention span.

The point here is that if you upload it, they won't necessarily come. The delivery of the message must take into account the audience and the medium used.

My firm, Bernstein and Bernstein, has started a project that we hope will get the message out in a way that YouTube Nation will find, watch and hopefully respond.

Stay Tuned. In the meantime, forward the link to this channel to your friends, clients, etc. If they can stick with it, the message is there.

LINK TO ARTICLE IN MARK WARBA'S LETTER

Mike Butler — 2008-05-02T17:54:38-04:00

In his letter,Mark Warba refers to an article from a leading defense firm regarding the "imponderable" result reached by the Supreme Court in the Kik case, the companion case to Wesche.

This is a link to that issue of the Garan Lucow Law Fax newsletter that contains the article. It is written by Sean Fosmire, of the firm's Marquette office. Sean and I completed the Supreme Court's approved mediatior training program in 2006, and he is a good attorney, a fine mediator and an honorable man.

LETTER FROM THE WESCHES' ATTORNEY

Mike Butler — 2008-05-02T07:36:37-04:00

As referenced in the previous post, I was lucky enough to receive this letter from Mark Warba, who represented the Wesche's in the recent case of Wesche v Mecosta County, decided by the Michigan Supreme Court. That letter is presented here, in its entirety, with the kind permission of Mr. Warba.

April 24, 2008

Michael J. Butler, Esq.
BERNSTEIN & BERNSTEIN
3000 Town Center, Suite 1601
Southfield, MI 48075

Dear Mr. Butler:

First, let me say how much I enjoy reading the articles featured on “attorneybutler.net,” so much so, that I have added your web site as a link on my own web site. I would strongly encourage you to continue with your efforts in calling attention to what is taking place in our civil justice system [or what’s left of it].

Secondly, I wanted to respond to the piece that appeared at your site on 4/21/08 [“Bring Me Your Tired, Your Poor, Your Dictionaries”].

I am the trial and appellate attorney for the Wesches, the case wherein the 4-justice majority of the Supreme Court recently announced that loss of consortium is not a recoverable element of damage under the motor vehicle exception to governmental immunity.

The companion case to Wesche also decided by the Supreme Court was Kik v Sbraccia. There, the 4-justice majority ruled that the parents of a child killed in a car accident caused by the negligent operation of a government-owned vehicle cannot recover for the loss of society and companionship of their child.

Your article referenced the Plaintiff having been killed in the Wesche case due to the negligence of the Mecosta County Road Commission; again, the Kik case involved the death of an infant.

I have enclosed copies of the syllabus and the Supreme Court Opinion from the Wesche and Kik cases [including the dissents authored by Justices Weaver, Kelly and Cavanaugh].

In Wesche, Daniel Wesche’s Toyota was rear-ended by a Road Commission Gradall being operated by an employee while Mr. Wesche was stopped for a red light on a public road.

As a result of the rear-end collision, Mr. Wesche sustained serious injuries to his cervical spine [requiring him to undergo an anterior cervical fusion, wherein the damaged C4-5 and C5-6 cervical discs were removed, and the C4-5 and C5-6 vertebrae were permanently fused].

Mr. Wesche’s injuries also interfered with his marriage relationship to his spouse, Beverly Wesche, and both sought to recover damages against the Road Commission, including claims for loss of consortium.

One of the arguments I advanced on behalf of the Wesches invited the Court to decide whether or not it would divide similarly injured individuals into two separate and distinct classes:

1. Married persons who are injured in a motor vehicle collision with non-governmental tort-feasors, where the spouse of a person who sustains bodily injury is permitted to recover damages for loss of consortium, and

2. Married persons [like the Wesches] who are injured as the result of the negligent operation of a motor vehicle owned by a governmental agency, where the spouse of a person who sustains bodily injury would be prevented from recovering damages for loss of consortium.

I felt the above was a relevant inquiry, for several reasons, such as:

A. In Hardy v Oakland County, 461 Mich 561 (2000), the Supreme Court held that the threshold requirements for pursuing a tort remedy for non-economic damages under the No-Fault Act are applicable when the defendant is a governmental agency being sued under the motor vehicle exception to governmental immunity.

B. In Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502 (1981), the Supreme Court concluded that Michigan’s No-Fault Act must be construed as retaining common law claims for loss of consortium.

C. Since the threshold requirements for pursuing a tort remedy for non-economic damages under the No-Fault Act are applicable when the defendant is a governmental agency being sued under the motor vehicle exception to immunity, and because the No-Fault Act did not abolish common law claims for loss of consortium, I argued that the Wesches’ claims for loss of consortium against the Road Commission were not barred by governmental immunity. Moreover, there is nothing in the statutory language of MCL 691.1405 [the motor vehicle exception to governmental immunity] that required such a construction.

D. As a matter of public policy, I argued that marriage has occupied a special place in Michigan’s legislative history and jurisprudence since its inception.

As set forth in MCL 551.1, and as a matter of public policy, the State has a special interest in protecting the marriage relationship.

E. As a further reflection of Michigan’s public policy and special interest in marriage, the State’s constitution was amended in 2004 [Const 1963, Art 1, Sec 25, approved on 11/2/04 and effective 12/18/04], providing that to secure and preserve the benefits of marriage for our society, the union of one man and one woman in marriage is the only agreement recognized as a marriage or similar union.

F. Given Michigan’s public policy and special interest in protecting the marriage relationship, and that Michigan has long recognized a claim for loss of consortium in favor of spouses, I questioned how the Legislature did not intend to afford such recognition and protection when it enacted the Governmental Tort Liability Act, and more specifically, the motor vehicle exception to governmental immunity.

Unfortunately, and according to the 4-justice majority, the marriage relationship is to be ignored, and the government is not be held accountable when it interferes with that relationship. I wonder how many legislators know that, or agree with it?

Unfortunately, and as wretched as the Opinion is in the Wesches’ case, the same 4-justice majority issued a grotesque Opinion in the Kik case. In the Kik case, Justices Corrigan, Young, Markman and Taylor [and not that it matters to them, but I believe all are married and parents as well] ruled that the motor vehicle exception to governmental immunity does not allow a parent to recover for the loss of society and companionship when a child is killed.

The Supreme Court’s Opinion in the Kik case is so alarming that even the defense bar [which has been the primary beneficiary of Supreme Court Opinions] has expressed concern. I’ve enclosed an article from a leading defense firm about the “imponderable” result reached by the Supreme Court in Kik.

As you may know, Chief Justice Taylor is up for re-election this year. It will be interesting to see how he will appeal to married couples and parents in our State given how he views them, as reflected in the Wesche and Kik cases.

I am also asking Legislators to review and consider what the Supreme Court has said and done to married couples and parents in the Wesche and Kik cases. I am not optimistic there will be a legislative remedy or response to the Supreme Court’s policy-making Opinion, but it might cause some to reflect on how important their spouses and children are, regardless of how 4 justices view them.

Keep up with the good work you are doing to increase awareness of the state of the law in Michigan.

Sincerely,

Mark J. Warba

MJW:djb

Enclosures: Syllabus
Supreme Court Opinion in Wesche and Kik
Garan Lucow Law Fax

CORRECTION

Mike Butler — 2008-05-02T07:28:44-04:00

In the recent post, Bring Me Your Tired, Your Poor, Your Dictionaries, I referred to the recent case of Wesche v Mecosta County Road Commission, where loss of consortium was held not to be a claim that survived a governmental immunity. In describing that case, I did mix up the facts in Wesche with those of the companion case of Kik v Srbraccia, whose facts, are, frankly, are quite provacative.

I received a nice letter from attorney Mark Warba, the Plaintiff's attorney in the Wesche case, which speaks quite eloquently about these two cases. It is included in the next post, with the kind permission of Mr. Warba.

So, I apologize for the error. It is sometimes hard to keep up with the sheer volumn of injustice cominig from Lansing.

TRIAL BY DICTIONARY

Mike Butler — 2008-04-28T22:19:23-04:00

Todd Berg of Michigan Lawyers Weekly has written another great article concerning the "Rule of Dictionary" by the Michigan Supreme Court. In a piece entitled: "Dictionary (dik she ner'e) noun, 1. a statutory interpretation tool", appearing in the April 28 issue, Mr. Berg asks whether our Supreme Court should declare an "official dictionary".

Mr. Berg writes:

"Yet, despite the consensus of opinion that dictionaries do and will play key roles in the Supreme Court's statutory interpretation analysis, there is a lack of consensus on a very important, albeit related, point.

What dictionary or dictionaries does the Supreme Court rely on?

Unlike with statutes and caselaw where there are commonly understood authorities, with dictionaries there is nothing.

There's the Michigan Compiled Laws for statutes, and the Michigan Reports and Michigan Appellate Reports for caselaw.

But with dictionaries, litigants and their attorneys have no advance notice of what dictionary or dictionaries —or what editions — the court is going to rely on to decide their case. "

Is there an "official" Supreme Court dictionary? Mr. Berg's article states:

"In fact, in response to Michigan Lawyers Weekly's inquiry, the justices wouldn't even confirm or deny whether the court has an "official" dictionary."

That's precisely the point. The Michigan Supreme Court does not want an official dictionary, as it would restrict its ability to select, from among thousands of dictionaries and millions of entries, the definition that best matches the predetermined result the Court desires. A result, that almost invariably restricts access to the court system to the individual citizen.

Finding and relying on a dictionary definition provides a thin facade of legitimacy to a decision making process that is cetainly not impartial. In fact, the decisions rendered by the current Supreme Court majority to not reflect an imparitiality one might expect from a pure "text" based analysis of the particular statute under consideration. The decisions of this Court reflect most closely the mission statement of the American Justice Partnership, founded by the National Association of Manufacturers, whose president, former Michigan Gov. John Engler, first appointed many of the current majority. If you think this organization is about the impartial disposition of Justice, take a gander at the the website.

By the way, the president of the AJP is Dan Pero, whose wife Colleen is Mr. Justice Taylor's campaign manager. Justice fans, beware. But more of that in a future post.

Our Supreme Court has been known to consult a variety of dictionaries to arrive at that "perfect" definition required by the outcome of a particular case.

Should we have a state dictionary, like our state bird, flower, stone etc. Appellate practioner Mark Bendure is not in favor of it. In the Berg article, he states:

"If the quest [to understand a word's meaning] is in earnest," Bendure said, then "perhaps it's best to look at all reputable dictionaries to see whether there is a true consensus or unanimity — or whether varying dictionaries recognize differences that the justices can fight over."

Excellent idea. Michigan can be the first state in the country to have a "Dictionary Court" to decide the "plain meaning" of a particular word from the thousands of dictionaries available. Each dictionary would be entitled to an advocate on the dictionary court, and decisions would be made by majority vote, after hearing each dictionary plead its case.

I can see it now, the Court could be housed in the Hall of Justice in Lansing. There should be room enough after Mr. Justice Taylor clears out some of those unnecessary judges he thinks we have in Michigan.

The Court would be presided over by Mr. Justice Webster, pictured below.

The Dictionary Court and the Supreme Court would work together. Here is a suggested emblem:

It appears the Rule by Dictionary will be with us for a while. As it so often used to eliminate the right to civil trial by jury, we may find that we need to change some of the titles of old books, plays and movies:

RUNAWAY WEBSTER
TWELVE ANGRY DEFINITIONS
and, most sadly, Mickey Spillane's Classic:

BRING ME YOUR TIRED, YOUR POOR, YOUR DICTIONARIES

Mike Butler — 2008-04-21T23:03:17-04:00

The devotion of the majority of the Michigan Supreme Court to dictionaries is well known. Give those four justices a good dictionary, and all the prior decisions of their learned predecessors can go hang.

The sheer number of dictionaries currently available lets our justices select from among many definitions of any particular word, that one which best suits its desired outcome.

Now this sounds like the sour grapes of a plaintiff lawyer, doesn't it? Well, I do have evidence to support my opinion. If this new "textualist" philosophy is being applied to generations of cases "wrongly decided" under the old philosophy of stare decisis, one would assume that the results would affect both plaintiff and defendants in the area of tort law, roughly equally. Just on a random basis, the new "textualist" legal analysis, looking at the plain language of all laws, based on the almighty dictionary, should result in plaintiffs and defendants winning in roughly equal percentages. Such is not the case. "Textualist" analysis has resulted, almost without exception, in decisions favorable to tort defendants, insurance companies, and corporations. The average citizen has seen his right of access to the Courts eroded to the point of non-existence.

Again, as there are literally millions of dictionaries in the on-line world, the search for an outcome-supportive definition is generally not a long or difficult one.

One aspect of this devotion to the dictionary I especially like is the "Era of Enactment" rule. Our majority now wants to widen the dictionary search to find one that was published the year a particular law was enacted to find the precise meaning apparently intended at that time.

The Justices, however, don't always follow this rule, as pointed out in Todd Berg's excellent article in today's Michigan Lawyers Weekly, entitled: "High court ignores 'era of enactment' rule". One of the cases discussed is the recent decision of Wesche v Mecosta County Road Commission, where the court used a 2000 dictionary to define the expression "bodily injury" as used in the motor-vehicle exception to governmental immunity, MCL 691.1405, which was passed in 1965 and has never been amended since. That's all right. The 2000 dictionary was all that was necessary to through out the plaintiff's case. You see, the plaintiff had been killed in the Wesche case due to the negligence of the road commissiion. A wrongful death suit had been started by the family under the wrongful death statute. The case against the road commission was brought pursuant to an exception to governmental immunity that allowed a cause of action for bodily injury caused by the negligent operation of a government owned vehicle. But, the family bringing the wrongful death suit had not suffered a bodily injury itself, the dead person had. The family's wrongul death suit was thrown out. To those too unsophisticated to understand the workings of the high and mighty, if the plaintiff had survived, she would have a case. Because she died, she didn't. See how the dictionary clears things right up.

I am really not so sure where this dictionary stuff will lead. Do I throw out all my law books and fill my library with a dictionary published each year since Michigan became a state?

I think our common law tradition comes from the Magna Carta, which was signed in 1215. I don't remember too many US Supreme Court decisons referring to an Old English Dictionary (Hey, Nonny, Nonny), to explain the meaning of the word "freedom" as it was used by the English Barons.

And what dictionary is the authoritative one? This one?

Do international lawyers look at dictionaries from both countries signing a treaty. If we want to determine what our negotiators meant during the cold war, do we use a Russian Dictionary, like this one?

And to see what the American negotiators meant, do we use an English dictionary widely in use at the time?

Perhaps this specialty dictionary could be used to explain the confusing portions of the Michigan No-Fault Law as applied to motorcycles.

On the other hand, based on the decisions of the Supreme Court over the last dozen years, maybe this one would be most appropriate.

"Bring Me Your Dictionaries, and I'll Take Good Care of Your Tired and Your Poor."

BERNSTEIN AND BERNSTEIN-A CAPSULE HISTORY

Mike Butler — 2008-04-19T10:06:02-04:00

I HAVE WORKED FOR THE FIRM OF BERNSTEIN AND BERNSTEIN FOR SOME YEARS. WHEN I FIRST STARTED THIS SITE, I WANTED TO INCLUDE ARTICLES ABOUT THE STATE OF THE LAW IN MICHIGAN AND THE HISTORY OF DETROIT. THE HISTORY OF THE FIRM SEEMS THE PERFECT TOPIC TO COMBINE BOTH.

THIS HISTORY, IN EXPANDED FORM, WILL BE FEATURED ON THE SOON TO BE LAUNCED BERNSTEIN AND BERNSTEIN WEBSITE. THE SITE WILL ALSO INCLUDE SOME VERY INTERESTING CONTENT REGARDING THE STRUGGLE TO PROTECT CIVIL JUSTICE IN THIS STATE.

1923, Detroit, Michigan. Ty Cobb was playing for the Detroit Tigers. Ernie Harwell hadn’t started grammar
school.

There were no Lions, no Red Wings, no Pistons. The other pro sports team in town was the Detroit Stars of the National Negro Baseball League. The Tigers played baseball in a place called Bennett Park. No luxury boxes, no giant instant replay screens.

In 1923, there were no IPods, no computers, and no copy or fax machines. Copies of documents were made with carbon paper. Typists couldn’t make mistakes. Documents were all delivered by US mail, or by personal currier.

There was no television. There were only two radio stations in town, both AM, there was no FM. Movies wouldn’t talk for another four years. No cell phones, either. Those were the days.

Venerable old Detroit buildings like the Guardian Building, the Fisher Building and the Penobscot Building had yet to be built. There was no bridge to Belle Isle in 1923, the old wooden bridge having burnt down. The first Hudson’s Thanksgiving Day Parade would not make its way down Woodward Avenue until the next year.

Detroit was a boom town in the Twenties, with building going on all over. Detroit was already the world’s automotive capital, but the automobile was still something new on the city scene. The first traffic light was
not patented until 1923, by Garrett Augustus Morgan, the son of slaves.

At the start of 1923, Warren Harding was President of the U.S. Alexander Groesbeck was Governor of the State of Michigan. And John C. Lodge was Mayor of the City of Detroit. There was no Lodge Freeway then. There were no freeways at all, anywhere

World War I had ended five years before and US involvement in World War II was still eighteen years away. There were still Civil War Veterans living in the city, and would be for several years thereafter. The GAR Building, built for veterans to conduct their meetings, was still in business at 1942 Grand River.

The hub of transportation in Detroit was the Michigan Central Train Depot, which had opened in 1913. As the US has moved beyond reliance on passenger rail traffic, the building has now been empty for decades, and has become a national poster child for urban decay. It is shown here before its 1913 opening. Passenger air travel was still by zeppelin.

In 1923, all citizens of the United States were living through the failed national experiment known as Prohibition. All the fashionable and not so fashionable bars and restaurants were restricted to serving tea, coffee and soda water (allegedly). The Detroit River was a major destination for “Rum Runners”, smuggling in illegal liquor from Canada.

The families of many people, who consider themselves long time residents of the Detroit area, still lived in Europe or the American South in the Twenties.

The physical and social landscape of Detroit changed almost completely since 1923. In addition, the way we live our lives is so fundamentally different now, that our ancestors from the Detroit of 1923, might well think that we had come from another planet. Indeed, our current way of life is much closer to the future depicted in the Saturday matinee world of Flash Gordon and Buck Rogers, than that of the Roaring Twenties.

Into that Detroit of long ago, the Bernstein brothers decided to open a law practice. The firm was called Bernstein and Bernstein from the start, though at one time or another all four of the Bernstein brothers, Nathaniel, Jacob, Mandell and David, worked with the firm. Though Nathaniel moved his practice to the state of Indiana in the early Thirties, and Jacob died a very young man, in the early Forties, members of the Bernstein family have continued to be associated with the firm, in an unbroken line, for over 85 years, to the present day.

Over the years, the firm’s mission, to help those who can’t help themselves, has taken its lawyers many places. Current partners recall going to Eloise Sanitarium, in western Wayne County, and wearing surgical masks while interviewing quarantined patients, foundry workers, victims of silico-tuberculosis, acquired during their employment.

You won’t see Bernstein and Bernstein lawyers in a TV ad during a commercial break on the Judge Judy show. They are where they always have been, in the courtroom, fighting for our clients, fighting for you. As they have since 1923.

While much of the Detroit landscape has changed since the firm was founded in 1923, a few landmarks remain. In 1923, in addition to the founding of the firm, the First National Building opened on the corner of Woodward and Congress, where it still stands. Bernstein and Bernstein was one of the buildings first tenants, and when it moved out (The firm’s Detroit office is now located in the historic Buhl Building), it was the buildings longest continuous tenant.

In an age where justice for the injured and defenseless is under constant attack by moneyed interests and an often uncaring court system, Bernstein and Bernstein remains committed to its mission of helping those who cannot help themselves.

JUSTICIA INCREBRESCO

PANELISTS DISCUSS 'SUPREMES' EFFECT ON STATE LAW

Mike Butler — 2008-04-16T09:20:21-04:00

A recent article, written by John Minnis in the Detroit Legal News, covered the recent symposium at the Wayne State University Law School, sponsored by the American Constitution Society for Law and Policy.

Legal News Article Link

Ten attorneys and law professors spoke regarding the effect the current majority on the Supreme Court has had on the stability of Michigan law.

The article quotes Thomas Tellerico, President of the Michigan chapter of the ACS:

"Whatever your political or social views," he said, "I believe most of us would agree that the law provides a steady influence to guide us."

He then went to show how that stability--stare decisis, to stand by precedent--has been, well, overturned by the present court in Michigan, meaning the Majority of Four.

"This court has overturned five precedents a year," he said. "The recent increase in reversals is alarming."

Justice Marilyn Kelly of the Michigan Supreme Court attended the event, and, according to the article, "wrapped up the panel presentation by vouching for the veracity of all the presenters' case summaries and concerns."

Though I was not able to attend the event, I am alarmed at the trends in the law as set out in Supreme Court decisions over the past ten or so years.

Current opinions from the Michigan Supreme Court come in three varieties, generally speaking:

Affirmed-lower court defense victory upheld
Reversed-lower court plaintiff victory thrown out
Wrongly Decided(a new favorite)-lower court plaintiff victory supported by decades of precedent thrown out by throwing out decades of precedent.

These antics have seriously eroded the citizens' right to civil justice in this state.

DEMS FILE ETHICS COMPLAINT AGAINST TAYLOR-GOOD GOD

Mike Butler — 2008-04-13T21:50:21-04:00

Michigan Democratic Party chief Mark Brewer filed an ethics complaint against Michigan Chief Justice Clifford Taylor with the State Judicial Tenure Commission. The substance, if any, of the complaint is set forth in the very fine blog piece written by Ed Wesoloski in the Michigan Lawyer Blog, which is part of Michigan Lawyers Weekly:

http://michiganlawyerblog.blogspot.com/

The complaint contends that a fundraising letter sent out on behalf Mr. Taylor by former Michigan Governor John Engler, friend of the common man.

Well, apparently the solicitation letter did not contain the required language limiting contributions from lawyers to $100. However, it appears that the response card included with the solicitation did contain the
required language.

Some familiar with the devotion textualists like Mr. Taylor have to following the letter of the law, to the exclusion of its spirit, might think that even a minor techinical violation, if any, of the finance law was a big deal. I don't. And frankly this was not the point made by Mr. Brewer. He believes this rises to the level of a serious ethics violation, one, in fact, that should be investigated by the State.

Mr. Brewer has gone on record saying he will do "everything necessary" to unseat Cliff Taylor next election. This in itself is a pretty stupid remark, and one that I'm sure will come back to haunt the Democratic Party before election day.

After saying that, and with all the damage done to civil justice in this state during Justice Taylor's tenure, this is the stuff Mr. Brewer comes up with? This and the big "car" scandal. If Justice Taylor had a car paid for by the state, so had a lot of other judges, as well as thousands, of corporate executives, middle and low level managers, and countless white collar workers. Big deal. I am not a big fan of Cliff Taylor, but it doesn't bother me at all that a car was part of his benefit package. As I have said before on this site, I am not concerned with how he gets to work, I am concerned with what he does when he gets there.

Perhaps Mr. Brewer and the Democratic Party should worry about educating the voters about real issues rather than this trivia. Issues like the systematic denial of access to civil justice for the average citizen of the State of Michigan.

Right now Mr. Brewer looks foolish, in my opinion. Kind of like Paris Hilton saying that she always opposed Saddam Hussein because he wore white after Labor Day.

Until Mr. Brewer has something important to say, perhaps it would be best if he said nothing at all. If he continues in this manner, he might not get not get a campaign solicitation letter from Mr. Taylor. He may get a thank-you note.

And the friends of civil justice will be preparing for another six years of the current judicial Ice Age.

A LITTLE THEORY-A LITTLE FUN, PART 3

Mike Butler — 2008-04-12T01:23:55-04:00

This clip is dedicated to Attorney Wayne Miller, a Stooge Fan.

WHERE TEXTUALISM DOTH LEAD

Mike Butler — 2008-04-12T01:17:52-04:00

As those who follow this blog know, I am not a big fan of the judicial philosophy of "textualism" currently espoused by the majority of the Michigan Supreme Court. The textualist devotion to the "plain language of the statute" does have a superficial, though simple-minded, appeal. The "plain language" can be chosen by a Justice from one of literally thousands of dictionaries, until a meaning can be found that fits the Justice's desired outcome. Textualism substitutes deference for the judicial reasoning of past courts and substitutes deference to the work of some clerk employed by Merriam-Webster, American Heritage or the Urban Dictionary, of which I am fond. While B&B may be thought by some to be the acronym of the law firm for which I work (Bernstein and Bernstein,not Sam), that would be incorrect according to the authoritative Urban dictionary, which defines B&B as: "An abbreviation for Beer and Bongs. Describes the combined act of drinking alcoholic beer and smoking marijuana bongs." Didn't know my firm, which has been around since 1923, was that hip.

These days, the fate of the citizens of the State of Michigan unfortunate enough to seek justice in our state courts, can be influenced more by some drone in a dictionary publisher's office cubicle than by the collective experience and wisdom of our rich judicial tradition. ("Schmidlap, welcome to Merriam-Webster. This week we want you to review and revise 'aardvark to abacus'. We are trying to push out a new Collegiate edition before the back to school season". "Uhh...Okay".)

So, I do have some strong opinions on the issue of a judge's responsiblity. I think "judge" means "one who exercises judgment", and not "five letter job title of sometimes elected, often appointed political functionary wearing a black robe to work."

A few days ago, I was at a used book sale, and I came upon a 1976 volume entitled "This is the Law? A Selection of Silly Laws From Around the World", by Nigel Napier-Andrews (a name that fairly drips with authoritativeness). Here might be a great source for an article showing stupid, archaic laws, still on the books which would still be enforced by textualist courts because the plain language of the statute was still on the books, however unjust or plain stupid the result.

The book was a bit of a disappointment as a source, though I could see Cliff Taylor upholding the criminal sentence of a citizen found guilty of wearing a felt hat in the steam room of a public bath (Page 93). After all our Supreme Court has been very explicit in stating (very, very often) that the plain language of validly enacted statutes must control even in the face of unjust results. See Devillers v. Auto Club Insurance Association, 702 N.W.2d 539, 473 Mich. 562 (Mich. 07/29/2005), one example among countless others.

This set my thinking in another direction, away from the little book of stupid, anachronistic laws. It is the position of the textualist majority that if the plain language of validly enacted statutes cause unjust results, than it is up to the legislature to correct the injustice with a new, or revised law. Perhaps the textualists feel that they are doing the citizens of this state and their legislators a favor by pointing out the imprecision of statutory language by visiting its resulting injustices upon the litigants before them. By so doing, they become an agent for change...or something.

Here's my problem. Not all bad, unjust decisions are the result of poorly written legislation. Historically, there have laws validly enacted pursuant to the political system in place that had unjust results as the goal, not the perhaps unintended by-products. In such a system, our textualists would be bound to follow the letter of the validly enacted statute, whatever the result.

Back in our colonial past, textualist judges would have been compelled to visit the injustices of the "Intolerable Acts" on their fellow colonists. The Intolerable Acts, according to the authoritative "Wikipedia" (don't know if that has been used as the basis for a Supreme Court decision...yet):

"Four of the five acts were issued in direct response to the Boston Tea Party of December 1773. Lord North said 'The Americans have tarred and feathered your subjects, plundered your merchants, burnt your ships, denied all obedience to your laws and authority; yet so clement and so long forbearing has our conduct been that it is incumbent on us now to take a different course. Whatever may be the consequences, we must risk something; if we do not, all is over'. The British government hoped these punitive measures would, by making an example of Massachusetts, reverse the trend of colonial resistance to parliamentary authority that had begun with the 1765 Stamp Act."

The article describes the various Acts in detail, but one deserves special mention:

"The Administration of Justice Act allowed the governor the option of a change of venue for accused royal officials to another colony or even to Great Britain if he believed the official could not get a fair trial in Massachusetts. Although the act stipulated that witnesses would be paid for their travel expenses,
in practice few colonists could afford to leave their work and cross the ocean to testify in a trial. George Washington called this the "Murder Act" because he believed that it allowed British officials to harass Americans and then escape justice. Some colonists believed the act was unnecessary because British soldiers had been given a fair trial following the Boston Massacre in 1770."

Note, that even back then, the word "Justice" was used in the title of an enactment whose object was anything but justice. Times haven't changed so much.

I am sure Justice Taylor would say that the plain language of these Acts, validly passed by the English Parliament, were binding on his textualist judicial forefathers, justice be damned. Thank God that the rebels (probably a lot of "trial lawyers") took things into their own hands.

And right now, I want to be very careful. My next example comes from Nazi Germany. Many political "outs" are fond of calling the "ins" modern day Nazis. Evokes a nice, visceral, emotional response. Usually not based in reality, or rational however.

My reference here is to a war crimes trial after World War II. After the trials of Hess, Goring and the like, there was another trial, called the "Justice" Trial. There were 16 defendants, members of the Reich Ministry of Justice or People's and Special Courts. The trial raised the issue of what responsibility judges might have for enforcing grossly unjust--but arguably binding--laws. The trial was the inspiration for the movie Judgment at Nuremberg.

The judges, during their trial, defended their decisions and administration of the law during the Nazi regime. Believing themselves bound to the letter of the law, courts and prosecutors obeyed politically and racially repressive laws without asking moral questions. And, according to the system in place, the laws were valid based on the rules of the system which enacted them. That system provided that the laws were established through the executive, that is Chancellor Hitler. Those portions of the Weimar Constitution that protected individual rights could be suspended by the president, who did so, under the authority provided him by that document. Ex post facto laws, racially and ethnically discriminatory and repressive laws, excessive and extreme punishments, sterilizations, murder, all with the superficial gloss of validity under the rule of law as establish by the regime in power, that made the rules.

What would our textualist majority have done when faced with the plain language of those laws? Followed them, though the results were unjust?

This is an over simplistic, emotionally charged, and unfair line of argument on my part. Yet, the over simplistic, arrogance of the textualist philosophy invites over simplistic emotional response. The adherence to the "plain language" of law to the exclusion of all other considerations as advocated by the textualists, does not lead inevitably to judicial restraint and clarity of reasoning. It can lead, just as inevitably, to perdition.

APRIL FOOLS-SOUND TEXTUALIST ANALYSIS

Mike Butler — 2008-04-04T05:49:48-04:00

The following piece was written as an April Fool's joke by attorney Doug Shapiro of the fim, Muth and Shapiro in Ypsilanti. It is reprinted here with the kind permission of the author.

Though clearly intended as a comic piece, those familiar with the textualist decisions of the current majority of the Michigan Supreme Court will recognize that the "reasoning" employed here has indeed been used by the folks in Lansing in many of their "landmark" opinions.

Good work, Doug.

Taylor, Markman, Young Ousted

A spokesman for the Michigan Supreme Court announced today that in an extraordinary session of the Court, Justices Robert Young, Clifford Taylor and Stephan Markman had been relieved of their duties. The unprecedented action came after it was learned that their initial appointments by former Governor John Engler were ineffective. The appointments as published by Governor Engler's office in 1998 and 1999 stated that they were being appointed to the "Supeme Court" rather than the "Supreme Court". The error was apparently discovered by a deranged bag lady who happened to be wandering through the Supreme Court archives. She noted that the error was apparent on casual observation.

Taylor, Markman and Young protested their removals claiming that Governor Engler clearly intended for them to be appointed to the Supreme Court. Markman stated that "there is no such thing as the Supeme Court. Obviously, this was a typographical error. Governor Engler intended to appoint us to the Supreme Court and his intent should be respected". Robert Young noted that the Court's strict reading of the appointment delcaration was "absurd and just plain unfair given that Supeme isn't even a word". However, the Court's spokesman noted that "we must assume that the thing the Governor wanted is best understood by reading what he said. Therefore, the three must be removed from the Supreme Court and instead placed on the "Supeme Court". If there is no such thing as the "Supeme Court" then it is for the Legislature to remedy, not this Court". When contacted about the issue, Senate Majority Leader Bishop indicated that the Senate was awfully busy already.

An understandably distraught Cliff Taylor insisted that the decision would affect the trajectory of his life claiming that he is unlikely to find legal employment elsewhere. Court officers noted however, that Mr. Taylor could surely be hired elsewhere in the legal field -- as a copy clerk -- and that while such a position lacked the prestige of a Supreme Court Justice, this was only a limitation upon - not a full restriction from - working in law.

Stephan Markman called a press conference to say that had already received offers to serve as Deputy Counsel for Waterboarding from the Bush Administration. Mr. Young stated that he continue his career as what he described as, "beyond peradventure, the smartest guy in whatever room I happen to be in ".

Given that Taylor, Markman and Young's appointments were invalid from the outset, the Court also ordered that it "had no choice" but to apply the decision retroactively. Thus, all decisions in which any of the three were in the majority were vacated. Many litigants protested that they had relied upon the Court's decisions for a decade but the Court declined to offer any relief. Some hope for these litigants may be found in a footnote to the Court's order, however, which noted that the Court would consider abandoning the retroactivity of the order without explanation after applying it relentlessly for eight years.

The failure to include the letter "r" in the word Supreme in the documents of appointment appears to have been an error by a typist in the then-governor's secretarial pool. In response to rumors that the three former justices might file suit against the typist in the then-governor's secretarial pool, Professor Myron Fultz of George Mason University Law School noted that while the typist's contract with the State specifically mandated accurate keyboarding, the typist owed no duty to anyone no matter how much his error harmed them given that the work was done pursuant to a contract. The professor further observed that no actual injury had come to the three Justices until they were unseated today and the typist's contract, which the three had never seen, required that suit had to be brought within one year of the inaccurate keystroke. Finally, legal commentators noted any loss of salary was speculative since it was conceivable that Michigan could eliminate its judiciary entirely before the next payday in which case the judges would never have gotten their pay anyway. One scholar noted that "future lost wages have not yet been incurred" while another noted that no such claim should be permitted given that regardless of this particular event, "service on the Supreme Court can be terminated at any time or for any reason or for no reason at all".

High ranking Republican Party officials and insurance company representatives immediately sought injunctions to prevent the dismissal of Young, Taylor and Markman under the Michigan Justice Protection Act which provides that "any citizen" has standing to bring such a case, The Court noted that no one named "Any Citizen" had brought the case, stating, "the persons who brought this case all have names and none of them are named Any Citizen. While we do not comment on the standing of Mr. Any Citizen were he to appear, it is clear that the Legislature intended that no one other than him could bring such a claim." In addition, the Court noted that to the degree the plaintiffs had standing, they had waived it by remaining seated throughout the hearing.

At the conclusion of the Court's extraordinary session, all in attendance were wished a Happy April Fool's Day.

A LITTLE THEORY-A LITTLE FUN, PART 2

Mike Butler — 2008-04-01T16:13:00-04:00

IS THIS WHAT THE MICHIGAN SUPREME COURT THINKS HAPPENS AT A TRIAL? MAYBE THAT'S WHY IT DOES ITS BEST TO PREVENT THEM FROM HAPPENING.

A TEXTUALIST METAPHOR-PLAY BALL!

Mike Butler — 2008-03-31T21:31:43-04:00

A story in the March 31, 2008 edition of the Dowagiac Daily News reports on a recent speech given by Justice Clifford Taylor at the Cass County Republicans' Lincoln Day dinner at the Edwardsburg American Legion Post 365. Justice Taylor, a textualist, described his perception of the role of judges with a baseball analogy. Judges should be umpires calling balls and strikes--not pitchers putting spin on the ball, so says Michigan's Supreme Court Chief Justice.

The article, written
by John Eby, states:

"As a strict constructionist, Taylor believes the role of a judge is not to make policy, but to interpret the words of the constitution or the statute at issue and interpret them by fairly reading the language."

Head Umpire Taylor's baseball metaphor is an apt one, but not for reasons he might appreciate.

A baseball umpire calls balls and strikes. Ball in the strike zone, strike. Ball out of the strike zone, ball. Plain and simple, according to Justice Taylor, black and white. Words in statutes are easy to read. Read them, decide the case. Plain and simple. Black and white. No "spin". No problem.

But let's take a look a baseball umpire and the strike zone. According to Major League Baseball, the strike zone is:

"The Strike Zone is that area over home plate the upper limit of which is a horizontal line at the midpoint between the top of the shoulders and the top of the uniform pants, and the lower level is a line at the bottom of the knees. The Strike Zone shall be determined from the batter's stance as the batter is prepared to swing at a pitched ball."

So, the size of the strike zone is different for every player, and is different for any player depending on his stance. Batter changes his stance, his strike zone changes.

The strike zone is invisible. Its dimensions can't be seen, even by the umpire.

The judgment of the umpire as to what is or is not a strike can't be reversed by anyone, no matter how loud they complain.

And, finally, any pitch, even one with "spin", that is in the strike zone should be a strike.

While Justice Taylor would have us believe that the meaning of words he interprets, like the strike zone, is absolute and unchangeable, that really is not true. Though the rule establishing the strike zone is simple English, the dimensions of the strike zone are perceived to be different in the American League than in the National League.

And, Roger Clemens, one of the great pitchers has said that the size of the strike zone has changed during his career, even though there has been no rule change. Clemens recently said:

“Pitches that were strikes when I first started (in 1984) have been balls after the mid-‘80s,” Clemens said. “Hitters started laying off high pitches. Umpires stopped calling them. Back then a high breaking ball was a real bad pitch because hitters were looking up there. Now you miss up and hitters just relax."

So, I agree with Justice Taylor. He and the current majority of the Supreme Court are indeed like baseball umpires. The principles that guide their decisions change with every case, are impossible for the average litigant to see or perceive, and the exercise of their judgment is not subject to challenge. And, they are free to change the meaning of words without changing their definitions. All this while saying that they are just following the rules.

It would not be a bad thing if the Michigan electorate, come November, told Mr. Umpire Chief Justice Taylor: "Yer Outta Here!"