MIbLAWg: Michigan Supreme Court Commentary

Both Plaintiffs’ and Defendants’ Counsels Believe the Michigan Supreme Court is Biased

Here is the link to a very interesting article written by Attorney Robert F. Garvey and published at Michigan Lawyers Weekly. Mr. Garvey Follows up a headline from the January 8, 2007 cover of Business Week magazine called "How Business Trounced the Trial Lawyers." Essentially, Mr. Garvey correctly notes that the only for businesses to have trounced lawyers is to accomplish their goal their legislators and judges seeking a pro-business political agenda.

There is a lot of interesting stuff in this article. You should definitely read it. To me, the most amazing content it that a bi-partisan blind survey was done of plaintiffs’ and defendants’ attorneys throughout Michigan. The results point to a politically biased judiciary in Michigan essentially being run by insurance and corporate interests. Here are the stats:

Question 1: Do you generally agree that the decisions and opinions of the Michigan Supreme Court majority are the result of an agenda that is better left to the legislative branch?

Yes 83.7 percent

No 16.3 percent

Question 2: Do you generally agree that the decisions and opinions of the Michigan Supreme Court majority suggest a pattern of bias that favors insurance companies and large corporate interests over those of ordinary citizens in civil litigation matters?

Yes 79.3 percent

No 20.7 percent

Question 3: Do you generally agree that the decisions and opinions of the Michigan Supreme Court majority have resulted in a pattern of denial of the right to trial by jury in the State of Michigan?

Yes 80.5 percent

No 19.5 percent

Question 4: Would you generally support the concept of an analysis of the decisions of the Michigan Supreme Court majority as they relate to the denial of the right to trial by jury in civil cases?

Yes 83.5 percent

No 16.5 percent

Michigan Supreme Court A Disaster

The trusty getto blog has a great post on the WSJ article declaring the Michigan Supreme Court the greatest in the land.  Here is what the blog author has to say ...

When we talk about the ole pendulum swinging back and forth, the MI Supreme Court's pendulum has broken out of the clock tower, and is stuck as high as it will go to the right. The conservative right, that is. The Court has been a disaster for the citizens of the State of Michigan, and it has been all but a license to print money for the insurance industry and big business.

In other words, the court has become a political instrument for the conservative right.  The author is right (or maybe left) that real people have a hard time finding any sense of justice or fairness in our Michigan appellate system. Unfortunately, real people only find this out after it is too late.  When they do have a problem which requires court involvement, and they find the courthouse doors locked and the insurance companies holding the keys.  Many times, these real people are conservatives who are dumbfounded that they have done this to themselves, without realizing it along the way.

Michigan Lawyers Disagree with WSJ Article

A poll at Michigan Lawyers Weekly, a non-partisan journal for Michigan lawyers, finds strong disagreement with the Wall Street Journal article suggesting that the Michigan Supreme Court deserves praise.  I posted on this article previously here.

The last I looked, almost 89% of those responding  (which would overwhelmingly be comprised of Michigan lawyers and judges, both plaintiff and defense) disagreed with the article. Of course, attorneys in Michigan already know this as defense lawyers and trial judges are as likely to make jokes about our Supreme Court as are plaintiffs lawyers. When a the state's top court becomes a political joke to the members of the bench and bar, we have to wonder if our Michigan judiciary will ever recover from the damage being done to the court's reputation.

You can vote here (bottom right of page) or see the most current poll results here.

One man’s meat is another man’s poison

The Wall Street Journal has a story praising the Michigan Supreme Court as the greatest in the land.  The logic of the author Patrick Wright (a senior legal analyst at the Mackinac Center for Public Policy, where he directs the Legal Studies Project) is essentially is that this court is so 'brave and just' that it is willing to freely overturn any precedent or statute it disagrees with.  The most amazing thing is that the court's greatness is so compelling to the author that he gushes about what is effectively legislating from the bench. He states:

Respect for precedent is basic to the stability and predictability that is a prized achievement of the rule of law; but it can also turn into a rule of unreason, impeding necessary reform. Refreshingly, the Michigan Supreme Court has been willing to simply admit error and move on.

Of course, one man’s meat is another man’s poison.  One persons view that a decision is in error is little more than a political preference is most (but not all) instances.  And the author of this article no doubt agrees with the political outcomes in these cases which makes supporting the court easy.  Of course, nearly all lawyers in Michigan accept that we have an extremely conservative Michigan Supreme Court, and most believe that the Court comes to the political result it wants to reach, irrespective of prior precedent or legislative language. We can easily suspect the author's preference by his comment suggesting that somehow prior court rulings were "impeding necessary reform." 

Keep in mind, any decision by a state supreme court can be addressed in the legislature which has the ultimate authority to make laws.  We know this process best in today's world as 'tort reform.'  Nothing can get in the way of any democratic reform of law, which comes through the legislature. What the author is really saying is that the Supreme Court has an obligation to act where the legislature has refused to do so.  Even assuming prior precedent was wrong, stare decisis compels courts to follow that law until the legislature through the democratic process sees fit to change it, except in the most extreme circumstances. The Michigan Supreme Court has unabashedly overruled or ignored prior precedent at a rate unprecedented in American jurisprudence which this iteration of the court conveniently labels as 'wrong'.'

When precedent if shelved in favor of popular politics on the state's highest court, don't the conservatives understand that the entire judiciary suffers?  When the Michigan Supreme Court someday turns left and overrules the last 10 years of overruling, will they complain about stare decisis and the importance of legal precedent?  I'm, betting yes.  What do you think?

Respect for precedent is basic to the stability and predictability that is a prized achievement of the rule of law; but it can also turn into a rule of unreason, impeding necessary reform. Refreshingly, the Michigan Supreme Court has been willing to simply admit error and move on.

Of course, one man’s meat is another man’s poison.  One persons view that a decision is in error is little more than a political preference is most (but not all) instances.  And the author of this article no doubt agrees with the political outcomes in these cases which makes supporting the court easy.  Of course, nearly all lawyers in Michigan accept that we have an extremely conservative Michigan Supreme Court, and most believe that the Court comes to the political result it wants to reach, irrespective of prior precedent or legislative language. We can easily suspect the author's preference by his comment suggesting that somehow prior court rulings were "impeding necessary reform." 

Keep in mind, any decision by a state supreme court can be addressed in the legislature which has the ultimate authority to make laws.  We know this process best in today's world as 'tort reform.'  Nothing can get in the way of any democratic reform of law, which comes through the legislature. What the author is really saying is that the Supreme Court has an obligation to act where the legislature has refused to do so.  Even assuming prior precedent was wrong, stare decisis compels courts to follow that law until the legislature through the democratic process sees fit to change it, except in the most extreme circumstances. The Michigan Supreme Court has unabashedly overruled or ignored prior precedent at a rate unprecedented in American jurisprudence which this iteration of the court conveniently labels as 'wrong'.'

When precedent if shelved in favor of popular politics on the state's highest court, don't the conservatives understand that the entire judiciary suffers?  When the Michigan Supreme Court someday turns left and overrules the last 10 years of overruling, will they complain about stare decisis and the importance of legal precedent?  I'm, betting yes.  What do you think?

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.

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.

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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.