MIbLAWg: Michigan Supreme Court Commentary

Trial Courts Take Their Direction from the Appellate Courts

One of the many reasons why legal precedent is so important for a supreme court to show respect for is that trial level courts take their lead from the state’s highest court. My dad says that trial judges have always been political and agenda driven. I am not so sure. His idea of agenda driven was allowing personal rights and extending legal principles. For him and many others, a court that extends rights that had not been extended by the legislature is an activist court. But when a supreme court decided so extinguish existing rights under which society has been living, it does much more than destabilize the legal system. It changes the courts view of itself. By engaging in unprecedented judicial activism, by over ruling, ignoring or distorting prior precedent, in order to achieve a certain result, the court smashes the very foundation of our third branch of government. Once the court has become a blatant political instrument as it is in Michigan, its operation of a court becomes a fraud. A legitimate court by definition abides by precedent and allows the legislature to correct by statute any necessary changes in law, driven by good old fashioned majority law. Courts used to protect people from the arbitrary whims of the majority. In Michigan today, the court has become a political tool of the majority.

The worst part is that intermediary appellate courts and trial level courts lose their own judicial focus. Instead of applying law, they live in a system wherein the judge decides what the law should be. Instead of being an invisible implementation of the law, lower courts start to drift away from their historical foundation and into an instrument of raw power. It makes me wonder whether people really realize how powerful judges are and why it has always been so critical to keep them out of the hands of politicians.

Michigan Supreme Court Strikes Again

The Engler-stacked Michigan supreme court has launched an all out attack on the Michigan judiciary and Michigan citizens these last few years.  They openly state that they do not need to follow prior precedent.  They only rule in favor of insurance companies, regardless of the facts.  They have destabilized the judicial system in our great state to the point where it is considered by many to be a joke.  They are described readily as radical and dangerous.

No citizen can receive any reliable legal advice because the Engler justices continually change the law to their own political preference, and either ignore or overrule decades of established law.

Is it time to create a new justice system for the great people of Michigan so that they have a chance at the justice they deserve?  Judge Judy would be a better alterative than the joke of judiciary we now offer them.

Michigan Supreme Court Incites Judicial Anarchy

I don't care whether judicial activism comes from the right or left.  Activism is activism.  From whichever direction, it has the ability to destroy our third branch of government. 

It is worth noting however, that activist courts such as the Michigan Supreme Court which are bent to limit and extinguish rights and principles which have existed in Michigan law for  decades or longer have a far more serious and potentially disastrous effect on the judicial system than activist courts that extend the law or citizen rights.  Extinguishing rights by overruling or simply ignoring prior case law creates tremendous instability because of the thousands of pending cases which have already been filed by Michigan citizens relying on prior case law. 

Michigan citizens have a right to know what the law is, and to govern their behavior accordingly.  The Michigan Supreme Court has stripped citizens of that right, and created instability within our Michigan judiciary.

The Michigan Supreme Court is Frightening to Many

Here is an excerpt from the Traverse City Record Eagle which warns about he dangers of Judicial Activism by the Engler Four:

The four justices in question, however - Chief Justice Maura Corrigan, Justice Cliff Taylor, Justice Stephen Markman and Justice Robert Young Jr. - are known to take a narrow view of citizen standing to sue.
That seems to be an ideological devolution from the bedrock premise that the power of government derives from the consent of the governed.
Lawmakers can make laws because voters give them the right to do so. Judges can throw people in jail because citizens say they can. Without citizen consent, the government doesn't exist.
If anything, the justices should be demanding to know why citizen standing should be limited, not why it should be granted.
It's a form of judicial activism reminiscent of the liberal Earl Warren U.S. Supreme Court, but this time it is aimed at limiting the rights of individual citizens, not enhancing them.
      And it's frightening.

What is more frightening is the shallow rationalization which these Justices advance in support of their handiwork.  Do they really believe that their agenda is anything but political?

Judicial Activism Defined

As set forth at http://www.auburn.edu/~johnspm/gloss/judicial_activism, judicial activism is defined as:

The view that the Supreme Court justices (and even other lower-ranking judges as well) can and should creatively (re)interpret the texts of the Constitution and the laws in order to serve the judges' own considered estimates of the vital needs of contemporary society when the elected "political" branches of the Federal government and/or the various state governments seem to them to be failing to meet these needs. On such a view, judges should not hesitate to go beyond their traditional role as interpreters of the Constitution and laws given to them by others in order to assume a role as independent policy makers or independent "trustees" on behalf of society.

Is there any question that this describes our present Michigan Supreme Court?

Here is a Google search on judicial activism.

Justice Weaver Takes Engler 4 To Task

Justice Weaver is a conservative Republican Justice of our Michigan Supreme Court.  But even Justice Weaver appears to have had enough activism from her neo-conservative co-Justices which are commonly referred to as the Engler 4: Justice Maura D. Corrigan, Justice Robert P. Young, Jr. (elected during Engler reign as Michigan Governor), Justice Stephen J. Markman (appointed by Engler), Chief Justice Clifford W. Taylor (appointed by Engler).

Justice Weaver acknowledged that she disagreed with prior law.  However, she also acknowledged her sworn duty to apply that law.  Here is what Justice Weaver thoughtfully wrote in a recent decision Devillers v. Auto Owners Insurance Company, 473 Mich. 562 (2005) where the Supreme Court considered itself immune from having to honor established legal precedent:

First, the Lewis decision does not defy "practical workability"; it has been applied for
nineteen years without causing any fundamental problems with no--fault insurance. Second, the Lewis decision has indeed become "so embedded, so fundamental, to everyones expectations that to change it would produce not just readjustments, but practical real--world dislocations." Robinson, supra at 466. Claimants who consulted an attorney on whether they needed to file suit after receiving no response to a filed claim would have been told, on the basis of Lewis, that filing the claim had preserved their rights until they received an answer from the insurance company. Changing that rule now will affect an unknown number of claimants who will lose their rights to benefits that had previously been protected. Third, there have been no changes in the law or facts since Lewis was issued. Finally, Lewis did not misread or misconstrue a statute; instead, it applied judicial tolling to the statute as an equitable matter.

In light of the doctrine of stare decisis and the purposes it serves, neither the defendant nor the majority have given sufficient reason to overrule Lewis. Correction for correction's sake does not make sense. The case has not been made why the Court should not adhere to the doctrine of stare decisis in this case.

The Michigan Supreme Court has destabilized the judicial system in Michigan to such an extent that it is virtually impossible for Michigan citizens to know what the law is or understand their rights.  Lawyers can not advise their clients because legal precedent which is the foundation of our legal system has become meaningless and become replaced by the political agenda of the court.  Because our Michigan Supreme Court majority refuses to honor precedent, it is impossible to say what the law will be one week or one year from now. 

At best, Michigan attorneys are forced to guess which cases the Supreme Court will decide to accept for review.  Attorneys across the State of Michigan already are forced to advise clients that  "If you are not a major corporation or insurance company, and your case goes up to the Michigan Supreme Court, you will likely lose, irrespective of established precedent or the facts." 

Michigan citizens need to realize that they are being stripped of their legal rights by the present court majority, irregardless of which political party you belong to.  It is my Republican clients that are always most shocked when they learn what has happened to our Michigan justice system. Even they understand the need for precedent in order for the legal system to properly function.

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Hypocrisy On The High Court

Here is what one attorney has posted about Michigan Supreme Court Justice's Markman's view of his judicial role:

In a speech delivered April 29, 2003 at Hillsdale College, Justice Stephen Markman of the Michigan Supreme Court discussed a number of misconceptions about the Constitution of the United States. One of those misconceptions was that the role of a judge in interpreting a constitution is to do justice. As Justice Markman points out, the role of a judge is to do justice under law. Justice Markman states: “The responsible judge must subordinate his personal sense of justice to the public justice of our Constitution and its representative and legal institutions.” He quotes Justice Felix Frankfurter to the effect that: “The highest example of judicial duty is to subordinate one’s personal will and one’s private views to the law.”  more.

Can you spell h-y-p-o-c-r-i-s-y?  Wikipedia offer this definition:

Hypocrisy is the act of pretending to have morals or virtues that one does not truly possess or practise. The word derives from the late Latin hypocrisis and Greek hupokrisis both meaning play-acting or pretence. The word is arguably derived from hypo- meaning small, + krinein meaning to decide/to dispute. A classic example of a hypocritical act is to denounce another for carrying out some action whilst carrying out the same action oneself.

Supreme Court Justice Stephen J. Markman Invites Debate

Judicial Activism Debate:  Here is what Justice Markman has to say about the controversy concerning assertions of the court's judicial activism, assertions which have swirled around the Michigan Supreme Court since Engler stacked the bench with judges who are more interested in making law than following it. 

"What is reflected in these cases is a continuing jurisprudential debate concerning the role of the judicial branch and the meaning of the “judicial power,” concerning the relationship between the courts and other branches of government, concerning how the language of the law is to be interpreted and given meaning, concerning the impact of precedent, and concerning how the law can best be maintained as a stable and predictable body. Obviously, these are matters about which a consensus cannot always be found on this Court. Yet there is a consensus that these are matters worthy of reflection and analysis and debate, and that is what you have. And it is a debate, in my judgment, that has been carried out in a robust, but also a civil, fashion." more ...

Do we need any more of an invitation to take this debate from the judicial halls to the street, right to the citizens of Michigan?

Michigan Supreme Court Strikes Again

The Engler-stacked Michigan supreme court has launched an all out attack on the Michigan judiciary and Michigan citizens these last few years.  They openly state that they do not need to follow prior precedent.  They only rule in favor of insurance companies, regardless of the facts.  They have destabilized the judicial system in our great state to the point where it is considered by many to be a joke.  They are described readily as radical and dangerous.

No citizen can receive any reliable legal advice because the Engler justices continually change the law to their own political preference, and either ignore or overrule decades of established law.

Is it time to create a new justice system for the great people of Michigan so that they have a chance at the justice they deserve?  Judge Judy would be a better alterative than the joke of judiciary we now offer them.