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CLIFFORD TAYLOR OF NEW YORK-COLONIAL ADMIRALTY JUDGE

(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.

YOUTUBE NATION-RETIRE THE INCUMBENT

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

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

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.

CORRECTION

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

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. "

BRING ME YOUR TIRED, YOUR POOR, YOUR DICTIONARIES

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.

BERNSTEIN AND BERNSTEIN-A CAPSULE HISTORY

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.

PANELISTS DISCUSS 'SUPREMES' EFFECT ON STATE LAW

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

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.

A LITTLE THEORY-A LITTLE FUN, PART 3

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

WHERE TEXTUALISM DOTH LEAD

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".)

APRIL FOOLS-SOUND TEXTUALIST ANALYSIS

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.

A LITTLE THEORY-A LITTLE FUN, PART 2

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!

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.