JUSTICE CLIFFORD W. TAYLOR'S CONTROVERSIAL EDITORIAL

In the July 6, 2007 edition of the Detroit News, Chief Justice of the Michigan Supreme Court, Clifford W. Taylor, authored an editorial entitled: "Courts Need Help to Impanel Fairer Juries".

Readers of the piece will soon find that the title promises more than the body delivers. The editorial is basically an advertisement for July, 2007, which is Michigan Juror Appreciation Month. The more cynical among us may also look at this article as one of the opening moves in Justice Taylor's 2008 re-election campaign.

On the subject of cynicism, it is perhaps appropriate that Mr. Taylor begins his piece with a quote from H.L. Mencken, the greatest "cynic" (if there is such a title) of the 20th Century.

The quote goes: "Jury: A group of twelve men who, having lied to the judge about their hearing, health and business engagements, have failed to fool him."

Hardly sounds like a love letter to the average juror. Mr. Taylor, like Mr. Mencken, assumes that the average juror is something of a pathological liar, and a bad one at that.

This belief may explain why, despite the pious platititudes, Mr. Taylor, as Justice Taylor, has led the judicial movement that has substantially destroyed the right of Michigan citizens to have a civil jury decide their claims.

It is beyond dispute that the Michigan Supreme Court has, at every opportunity, taken away the right of juries to listen to, and decide disputes between citizens, and more importantly, between citizen and corporation. Rather than have a jury decide if the behavior of a business owner was negligent, or reasonable, the Supreme Court has decided cases that makes sure a jury will never hear anything. Under such cases, visible conditions are obvious to blind people (case thrown out, no jury), invisible conditions are obvious to sighted people (case thrown out, no jury), persons having major surgeries and career loss are not injured seriously to make a claim against the drunk driver who crossed the road and hit them (case thrown out, no jury). It has come to the point that a business owner can admit negligence, and will be held to have no responsibility to an injured person. Case thrown out, no jury.

Mr. Taylor's piece contains an interesting statement about the right to a jury being one of the rights fought for in the American Revolution. To wit:

The American Revolution was fought in part because British authorities prosecuted American colonists for revenue violations in admiralty courts without juries, rather than in common pleas courts where juries could have acquitted and freed protesters.

Well, under Justice Taylor's view of the jury system in Michigan, the average citizen is in much the same boat as the colonists. Justice Taylor follows a judicial philosophy known as "textualism" (don't try look that up in Webster's Dictionary), under which the letter of the law always prevails. If Mr. Justice Taylor was sitting in an Admiralty Court before the Revolution, he would have enforced the Revenue Acts as written by the King. And, he would would have been the first to take away the right of common pleas juries to hear cases, much less acquit and free protestors.

The Michigan Judiciary has indeed provided the government with immunity from suit on a truly kingly scale. For instance, if a city had a traffic light that showed green in four directions, and if the city knew about the problem for months and did nothing about it, and if repeated fatalities occurred, there would be no claim against the city. The law requires the city to keep streets safe for travel, and the city is not immune from such claims. But, because the street light is not part of the paved surface of the road, the textualist rule that this is not what the legislature meant when it defined the duty to maintain "streets". Case thrown out, no jury. It should be noted that sometime it does take the textualists some time and some creativity to find a dictionary that defines the "text" the way the "textualists" want.

If you check out the press release for Juror Appreciation Month, there really isn't much there of real substance. Sort of like having "Vermin Awareness" Month, but not telling you how to get rid of them.

However there is something interesting in the resolution. I am sure that everyone remembers the festivities that accompanied Juror Appreciation Month, when we last had one in 2005. The Resolution for that event contained the following paragraph:

The reference to the right to trial by jury in the Michigan Constitution is not included in the 2007 Resolution.

A coincidence? Has Justice Taylor done so much to the right to trial by jury in Michigan, that the Constitutional authority is no longer mentioned during Juror Appreciation month? Is Justice Taylor's idea of Juror Appreciation sending all jurors into early retirement? Or does Justice Taylor fear the jury system fought for in the American Revolution so much that he wants to do his best to eliminate it?

Some might say that only a cynic, like H.L. Mencken, might think that. The citizens of this state may do well to think about that before the next election. Mr. Justice Taylor is already running.