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.
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