MIbLAWg: Michigan Supreme Court Commentary

Judge Jerry Smith of the 5th Circuit a Disgrace to Federal Bench?

Republican Judge Jerry Smith of the 5th Circuit responded to the president's recent  comments by ordering the Department of Justice to submit a three-page letter which amounted little more than a political stunt from an immature judge who puts his politics above his oath of office.  Republicans have been attacking state and federal courts for decades.  Apparently, Federal Judge Jerry Smith can dish it out but can't take it. His legacy will be defined by his childish ego driven stunt.  He will get what he deserves, permanent search results displaying articles detailing his stunt. 

He has tarnished the federal bench, but I doubt he cares about that. Judge's can get so wrapped up in their egos and own self-importance that they can't see beyond themselves.  They can sometimes live in narrow little worlds with little army's of people kowtowing to them like kings. One must wonder if that is Smith's affliction.

As a lawyer, it is hard not to agree that he is certainly an embarrassment.  The judiciary lives on its credibility as apoliticial.  In recent years, Republican Judge's have become increasingly activist in their approach.  Governors have become increasingly political in their appointments, choosing less qualified politicians to fill judicial seats. Smith just plays into the narrative that judges have become politicians in robes.

Referring several times to "Obamacare," the derisive name used by opponents of the Affordable Care Act, Smith said Obama's remarks troubled a lot of people. And, without consulting his two colleagues, Smith said he wanted in writing that the Justice Department recognizes the federal court's authority -- even though no ones challenging that authority in the case.

The larger concern, especially after last week's oral arguments at the Supreme Court, is that Americans can no longer have any confidence that judges, especially on the right, are guided by anything other than partisan and ideological goals. Our system of government relies heavily on an independent judiciary, but some judges appear willing, even eager, to blur the line between their duties and political activism. When Americans start to see conservative judges as Republicans, rather than just Republican appointees, the integrity of the courts suffers in immeasurable ways.

Read more here: http://www.star-telegram.com/2012/04/04/3861524/5th-circuit-judge-jerry-smith.html#storylink=cpy

Read more here.

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 Exposed

“Justices on the Michigan Supreme Court have fallen into sniping and name-calling and traded accusations of unprofessional conduct,” CNN…more here.

“The untold story is that the state Supreme Court—even in the opinion of mainstream attorneys—has closed the doors of justice to thousands of ordinary people based on a political agenda, prompting Weaver to part company with her fellow Republicans.” Anne Stanton, Northern Express…more here.

There has been an awful lot of press lately about very own Michigan Supreme Court. Journalist are starting to write about what we lawyers and even judges have known for a long time. We have the most activist and extreme state supreme court in nation. Some would argue that our Supreme Court is more extreme than any court in U.S. history. It is dominated by four justices appointed to the bench (that’s right, not elected out of the gate) by ex-Governor John Engler. These Justices pretend to be textualist, a thinly veiled excuse to strip Michigan citizens of their rights, ignore legal precedent, and rewrite statutes passed by the legislature to accomplish their own neoconservative goals.

If you haven’t been following the bouncing ball lately, here are some links about our Michigan Supreme Court that you might find interesting…

Letter to the Editor

Here is a very interesting letter written by a prominent Michigan attorney concerning the continued attack on our jury system by appellate courts.  Do you agree?

___________________________________

Decades ago, Americans were warned of the potential for abuse of power. The warning involved the foreseeable dangers of the rising influence of the military industrial complex:

"We must guard against the acquisition of unwarranted influence by the military industrial complex. The potential for the disastrous rise of misplaced power exists and will persist."

Perhaps more interesting than the quote itself, however, is its author. The quote is taken from a speech to the American people by our 33rd President, Dwight D. Eisenhower, at the conclusion of his presidency. President Eisenhower was a graduate of West Point and the Supreme Commander of Allied Forces in Europe during the Second World War. He was a moderate Republican, an insider, who knew what he was talking about when it came to war and its costs.

I was reminded of this speech recently while reading about the unusual events taking place in the Michigan Supreme Court.

Supreme Court Justice Elizabeth Weaver, in her published dissents, has been openly criticizing her Republican bench mates for abusing the power invested in them and for bias in their decisions. The justices she has concerns about are Justices Taylor, Young, Markman and Corrigan. All of these justices were appointees of Governor John Engler. Justice Weaver, by comparison, was elected to the probate court, the Court of Appeals and the Supreme Court by the voters.

Justice Weaver is a Traverse City Republican. She is known to be a moderate in the tradition of Michigan Supreme Court Justice James Brickley and Governor William Milliken. These Republicans managed to balance the rights of everyday people with the rights of corporations.

As lawyers and citizens of this great State, we ignore Justice Weaver’s concerns at our peril. We need to be aware of what is going on in our highest court. We need to be sure that the power entrusted to our highest judicial officials is not abused for the benefit of a few special interests to the detriment of this state’s citizenry.

The four justices who regularly vote as a block have characterized Justice Weaver’s attacks as purely personal in nature. However, as lawyers, schooled in the art of analysis and cognizant of the importance of precedent, we have the tools necessary to arrive at reasoned conclusions with respect to these serious allegations. The claims by Justice Weaver are serious and warrant follow up and analysis.

In our system of government it is permissible and in fact expected that the legislature will have a political agenda. However, the only permissible "agenda" of our highest court is the adherence to precedent and the protection of constitutional rights of its citizens.

An analysis of the opinions of this Court should put the issue to rest one way or another. The analysis should begin with a few simple questions.

First, to what extent has this Court respected the concept of stare decisis? The role of precedent in the judicial branch distinguishes it from the legislative and executive branches. The concept of stare decisis discourages the influence of political agendas.

Second, to what extent have the opinions of the Engler appointees preserved the constitutional right to jury trial? Judges with an agenda disfavor trusting decision-making to everyday people.

Finally, do the opinions of these appointees overwhelmingly favor a particular class of litigants or particular special interests?

Our oath as lawyers compels adherence to the Constitution, to the concept of trial by jury and to the concept of stare decisis. An independent, fair judiciary is a crucial element in a functioning democracy. The public has a right to expect that as officers of the court, we will have open and honest dialogue where issues of impropriety or undue influence surface in our highest court.

It may be that Justice Weaver’s "personal attacks" are without substance. It may also be that Justice Weaver’s observations and criticisms are well-founded. As lawyers, we have the intellectual tools and the public responsibility to investigate these serious charges.

Sincerely,

Robert F. Garvey

Attorney Robert Garvey is President-Elect of the Michigan Chapter of the American Board of Trial Advocates whose goal is the preservation of the right to jury trial. He is also an Adjunct Professor at the University of Detroit School of Law and a recent recipient of the Michigan State Bar Association’s President’s Choice Award for his support for the Access to Justice Program.

Do Our Courts Provide Effective Justice?

lineThose of us who practice in court know the failings of the court system all too well.  We are the ones who have to explain to our clients why the procedural aspect of litigation dominates.  Clients really understand why justice is so slow and prodding.  It is not lost on clients that Judges are sometimes unprepared or indifferent, while others greatly exceed their constitutional role by imposing outcomes on cases that they personally think should occur.

I do not think it is any great surprise to those of us in the business that the system is seriously flawed and broken.  Few clients come through the court system believing it was anything more than time, money and frustration. 

Arbitration offers an alternative, which continues to grow.  International arbitration systems such as offered though WIPO are gaining hold.  In many matters where the amount in controversy cannot justify the fifty to one hundred and fifty thousand dollar attorney fee it will cost to wan your way endlessly through the court system simply does not make sense. 

We as lawyers have a responsibility to create competition for our court systems and alternatives for our clients.  In a way, our court system has operated as a monopoly and grown fat and pompous.  By exploring alternatives with our clients, we may someday wake up our failed court system and apply market forces in a little good old fashion competition.

Michigan Supremem Court Goes Techie

      The Michigan Supreme Court has made a number of moves over the last twelve months to become more high-tech. The court recently redesigned its "Michigan Courts" website as noted in this press release. Available online is a wealth of information including the Michigan Court rules, court forums, Supreme Court and Court of Opinions and legal self help information.

      Of course, one of the great things about the Internet is its ability to bring information to people who want to know. It used to be that the average Joe or Jane could not find an opinion recently issued by a particular court without paying for a service such as Lexis or Westlaw. Now, courts such as those in Michigan regularly make those opinions available online for free. If a citizen really wants to understand a legal issue or gain access to a recent case, they can do so through the court sponsored websites.

      The court is also looking at possible e-filing for attorneys. The Federal Court System has led the way in terms of e-filing which makes filing paper much easier and cost effective. The court has a link to other courts which allow for e-filling which can be found here. Hopefully this list will grow quickly over the next twelve to twenty-four months as both local and appellate courts in Michigan realize the benefits which technology can bring to bear.

Republicans, Pharmaceuticals and Insurance Companies

      I saw two recent articles which I thought were very interesting and worthy of note. The first involves Michigan state republican legislators who are trying to introduce a bill which would roll back the immunity granted in Michigan for drug companies from law suits. Some time ago the Michigan legislature in its political wisdom decided it wanted to attempt to lure drug companies to Michigan. In order accomplish that political goal, they offered drug manufacturers and pharmaceutical companies immunity from law suits even in situations where they were negligent and put drugs on the market which they knew or should have known would cause substantial harm and even death to individuals. The upshot of that effort was that drug companies did not come to Michigan and have in fact been leaving the state at a steady pace. Taking peoples rights away to hold drug manufacturers responsible when they recklessly put pharmaceuticals on the market which kill or seriously injure people did not accomplish its goal. But what was the cost to the people of the state of Michigan? We are talking about mothers and fathers and grandparents and even children who have died as a result of negligently manufactured or marketed drugs left without any legal rights. This would include the right to get lost income of a person who was supporting their family, who was killed as a result of overly zealous drug manufacturer marketing their wares without letting the public know what they know about the dangers of that drug.

      So even republicans are now repulsed by the legislation enacted by their own party not too many years ago. What I have never understood about the tort reformers is why they just don't come clean and let people know that it is really not insurance rates or over crowded court rooms which is driving their tort reform agendas. It is simply to allow corporations to do whatever they want without the possibility of being held responsible for those actions. There is a huge economic benefit to companies who become immune from accountability. Let Michigan be a lesson to those stomping up and down about tort reform.

      The next article I saw was a top republican attorney and Washington insider who was giving a speech about the problems with insurance premiums. The jist of the article was that while overall expenditures on malpractice payouts and transactional costs have steadily declined by hundreds of millions of dollars these last years, premiums have gone up exponentially. So how does the overall litigation and settlement cost go down, when insurance rates for doctors, lawyers and everyone else is going drastically in the other direction? The answer is that many insurance companies are simply poorly managed by fat cat executives who are overpaid. They have to make up for their own deficiencies and business acts including poor investment decisions, by taking money from those who they insure. This is pretty incredible considering insurance commissioners around the country are allowing so many exclusions and limitations in insurance policies that there is barely coverage in the first place.

Michigan Stuck with Corrigan at Least for Now

      Well, you all know by now that Bush did not pick Maura Corrigan as his Supreme Court Nominee. It looks like we are going to have Justice Corrigan for quite some time into the future. I can't help wonder what was said about her in the inner circles as the names were being talked about. I wonder if our Michigan Supreme Court approach to precedent was viewed outside the mainstream even of conservative thought? Certainly there would be many who would simply respect her pro-business approach to legal rights. But, the true conservative constitutional scholars, those are the ones for whom I would have loved to have been a fly on the wall listening to the commentary.

Michigan Supreme Court Ego Answers to No One

      Maura Corrigan did not get the nomination to the U.S. Supreme Court. Alas, it appears that we are stuck with the current incarnation of our Michigan Supreme Court. We could not pawn Justice Corrigan off on the rest of the nation.

      These last several months have caused me to think a lot about the difference between our conservative Michigan Supreme Court Justices and the conservative Justices who sit on the U.S. Supreme Court. Clearly, the difference is respect for precedent. The thing that makes the Michigan Supreme Court so unique, unlike probably any other court in the history of state or federal courts, is this courts belief that all other prior Supreme Courts offer nothing to Michigan jurist prudence. The ego of this court is such that it has no respect for prior Justices and their analysis of issues. The ego of this court is that this court gets to decide what is right without any regard for what prior courts thought.

      Of course, our U.S. Supreme Court Justices, many of whom are viewed as more conservative than our Michigan Supreme Court Justices, reject the premise upon which our Michigan Supreme Court is built. The U.S. Supreme Court Justices have tremendous respect for precedent and do not view themselves as the first and final say on all legal issues. They decline to hear cases on issues which are already governed by existing U.S. Supreme Court precedent, even when it is clear that they would disagree with that precedent. While they will overrule prior court holdings, they do so as the rare and extreme exception rather than the rule.

      The ego of our Michigan Supreme Court is that they don't have to answer to anyone, not prior courts, not the legislature, and not the people of the state of Michigan.

Michigan Lawyers Confilcted about Maura Corrigan

     Trail lawyers in Michigan must be conflicted about the prospect of Michigan Supreme Court Justice Maura Corrigan being nominated to the United States Supreme Court. On the one hand, many lawyers do not agree with her and her brethren and their so called "textualist" approach to constitutional and statutory interpretation. Many Michigan lawyers and judges see this as simply an excuse to limit rights and inflict literally absurd results on the state of Michigan. A "textualist" will presumably never look beyond the point meaning of the words in a statute or constitutional provision. Of course, words rarely have just one meaning and words are never meant to be interpreted outside the context in which they are spoken.

     So, many trial lawyers would love to be rid of Maura Corrigan and would hope that Governor Granholm would appoint a less extreme jurist to the bench, with a more balanced approach. Because Bush is going to appoint someone conservative to the U.S. Supreme Court anyways these same lawyers don't feel bad about bumping justice Corrigan to the countries highest court. Because, the other Supreme Court justices are far less extreme than her Michigan Supreme Court brethren, there is some thinking that she can do less damage at a national level. Getting rid of Justice Corrigan would potentially bring some measure of balance back to the Michigan judicial system.

      I have to agree that Justice Corrigan would do less damage at the U.S. Supreme Court level. I don't think that any of the current Supreme Court Justices view themselves as "textualists." Several are certainly strict constructionists which is two steps or more to the left of the textualism approach. Furthermore, I believe that all of our Supreme Court Justices have considerable respect for the judicial doctrine of precedent and stare decisis. Even when justices disagree with previous court rulings, they are extremely hesitant to overturn precedent.

      On the other hand, Maura Corrigan and the other Engler justices on the Michigan Supreme Court openly ignore prior precedent if they simply disagree with it. Again Maura Corrigan could do less damage on the U.S. Supreme Court simply because other justices, even the most conservative ones, will not go along with Justice Corrigan's inclination to simply ignore prior case law when it doesn't suit her view of judicial review.

Congress Prefers Justice Corrigan

Bob Novak reported yesterday that support among senators for Bush's nomination in place of Miers is concentrated on two conservative women: Federal Circuit Judge Karen Williams of Orangeburg, S.C., and Michigan Supreme Court Justice Maura Corrigan. Because there is a sense that the next nominee should be a woman, and prior judicial experience is mandatory, Corrigan's name will likely become the source of more speculation early this week.  Because there is no record for Maura Corrigan on abortion, she may be more 'confirmable' than other candidates with judicial experience who are also outspoken against Roe v. Wade.

Bush will have to decide whether he is up for the abortion fight, now the empowered Democrats are in a better position to fight back on any nomination as a result of Bush's problems across the political board.  If he is not up for a charged political battle over Roe v Wade, he may choose someone like Corrigan who won't be defined by that single issue.

As you can see here, I have rated Corrigan's chances in the top three ... 

What do you think? Call or email the President and tell him what you think.  White House switchboard: 202-456-1414 or [email protected].

Justice Maura Corrigan's Name Thrown into the Mix Again

Breaking Down the Potential Female Nominees For Supreme Court:

If you view the potential female candidates for the once again open Supreme Court nominations, only two others have the judicial experience of Michigan Supreme Court Justice Maura Corrigan.  For instance, see this CNN link.

Assuming there is a preference to fill this seat with a woman Justice, I would have to say that Maura has an inside track.  After the Harriet Miers debacle, Bush can't possibly pick someone who is either an insider or does not have a judicial record.  That nixes most of the other female on this list thus far. Here is my own breakdown.

#1.  Judge Edith H. Jones:  Considered a staunch conservative with long record of opposing abortion. Served as general counsel for the Republican Party of Texas from 1982-83.
Nomination Chance: Strong given abortion record, although could fall to cronyism charges because of Texas connections.

#2.  Alice Moore Batchelder:   Upheld partial ban abortion.  Judicial experience. 
Nomination Chance:  Strong, conservatives would love her abortion record.

#3.  Justice Maura Corrigan: Long Michigan appellate record.  In 1992, Governor John Engler appointed her to the Michigan Court of Appeals. She was twice elected to that court and was appointed as its Chief Judge from 1997-1998 until her election to the Supreme Court. Was elected to the Michigan Supreme Court in 1998 and served two terms as Chief Justice from 2001-2004.
Nomination Chance: Strong, although lacks a record on abortion.

Also rans ...

Judge Consuelo Callahan: Only been  on the federal bench 2 years.  Limited record.
Nomination Chance:  Weak, Bush can't afford to nominate someone without a significant record.

Judge Edith Clement: She supports a constitutional right to abortion, opposes the death penalty.
Nomination Chance:  Non-existent, conservatives would not allow it.

Maureen Mahoney: Mahoney has no judicial experience.
Nomination Chance:  Non-existent, Bush can't nominate anyone with no judicial experience.

Judge Priscilla Owen: President Bush nominated her in 2001 but Senate Democrats filibustered the nomination until 2005. Before that, she was on Texas Supreme Court, elected in 1994.
Nomination Chance:  Non-existent, Cronyism and filibuster are two words that Bush does not want to hear..

Judge Karen Williams: On the bench since 1992 with less than distinguished record.  No abortion record.
Nomination Chance:  Limited, Very few memorable opinions for someone with a decade on the bench.  John Kerry faced the "what have you done with your time" arguments.  So will she.

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.

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.