attorneybutler.net

LETTER TO THE CLIFF TAYLOR CAMPAIGN

This message was sent today to Colleen Pero, campaign manager for Michigan Supreme Court Chief Justice Clifford "Cliff" Taylor.  The response will be posted when received.

Dear Ms. Pero,

I recently visited the "About Cliff" page on the CliffTaylor.com website.  On that page, it is stated that the Michigan Supreme Court has been called the “best in the nation” by the Wall Street Journal. The statement is in quotation marks on the site.  I was unaware of this fact, so I wrote to the campaign on October 21, asking that I be directed to the article wherein the Journal named the Court the best in the country.

I have not received a response to the question to date, but you have been nice enough to include me on the campaign's mailing list.  Though I had not asked to be included on the list, the first mailing received asked recipients:   "If you hear any accusations or rumors against the Chief, let us know ….we’ll fact check it for you, and make sure you get the truth!"

Well, I have come across inaccurate information being spread about the Clifford Taylor led Michigan Supreme Court, and fortunately you can take action immediately to see to it that the lies stop.

You see, when I didn't receive a response to my question concerning the Wall Street Journal quote, I was able to track down the reference described.  I was distressed to learn that the reference to the Michigan Supreme Court was not contained in a Journal editorial.  It was not the conclusion of a survey or comparative study of the various state Courts in the US.

So, where did the reference on the website come from?  It seems that in October, 2005, Mr. Patrick Wright, a member of the Michigan Supreme Court legal staff from 2002-2005, wrote an opinion piece in which he voiced his opinion that the Michigan Supreme Court "may be the finest court in the nation."  The quote, attributed to the Journal "best in the nation", never appears, not even in Mr. Wright's viewpoint piece.  The opinion expressed in the piece is Mr. Wright's, not the opinion or finding of the Wall Street Journal ownership, staff, or editorial board.

Now certainly, the wording in Cliff Taylor's bio is certainly inaccurate, and I believe, intended to be misleading to the Michigan voters.  As a textualist, Mr. Taylor certainly wants words to be given their "plain meaning".  The plain meaning of the words used in Mr. Taylor's bio is that the Wall Street Journal, as a paper, has made a determination that the Michigan Supreme Court is the best in the US.  This is patently false.  Not only were these words never used, though the Taylor site portrays them as a direct quote, they are obviously only the opinion of the opinion piece's author, a former member of Mr. Taylor' legal staff.

I believe you, and Mr. Taylor, hope the electorate doesn't understand the nature of the lie contained in Mr. Taylor's bio.  Let me try to explain it in plain terms.  Today, I received what appears to be a personal, 4-page letter from John McCain.  In it, John refers to me as a person who has done much for the Republican Party and someone John McCain wants to be working alongside him.  He refers to me as his "friend". not once, but three times.  He specifically states that he and I need to make sure the Republican Party has the resources it needs to fight for every vote, all across the country.  I guess I can now, in all truth, state that John McCain has repeatedly called me his personal friend and has asked me to work personally beside him in the upcoming election.  That statement is certainly closer to the truth than the statements made in Mr. Taylor's bio.

I'll make it even simpler.  I picked up an old Sports Illustrated and found the following statement on one of its pages:  "Prescription Valtrex is the only medication proven to reduce the risk of spreading genital herpes."  Does this mean that Sports Illustrated has called Valtrex the only medication proven to reduce the spread of this disease?  No.  Does it mean those words appeared on a page in the magazine?  Yes.  And nothing more.

Certainly, Mr. Taylor should know the difference between a quote and a paraphrase, and that the latter should not be portrayed to the public as the former.

As an avowed textualist, Mr. Taylor should know that even a little words can convey wildly different meanings.  "Called by" is significantly different than "contained in". 

As a judge who professes to oppose judicial activism, Mr. Taylor should know the danger of confusing opinion with fact and trying to portray the former as the latter.

As a non-partisan, textualist, non-activist jurist, Justice Clifford Taylor should recognize the fallacy involved in representing the opinion of his former employee as the endorsement of a national publication. 

Perhaps he does.   However, as an agenda-driven politician, intent on re-election, more likely he doesn't care. 

In any case, here is one fallacy about Justice Taylor's Supreme Court you have the power to nip in the bud, by removing it from his re-election site bio.

Now, if I am wrong and I have been referring throughout this letter to the wrong Wall Street Journal opinion piece, please let me know.  I'll post it on my weblog, www.attorneybutler.net .  On the other hand, if such an article exists, maybe, in its quest to "make sure you get the truth", the campaign could have answered my initial request for information.

Mike Butler

CONFLICT AT THE COURT

As part of his website, Delayedjustice.com, David B. Schock, Ph.D. has filmed a video interview with Justice Elizabeth Weaver of the Michigan Supreme Court.  It is fairly long, but worth staying with for some insight into the rather odd internal workings of our current Michigan Supreme Court, led by incumbent candidate for re-election, Chief Justice Clifford Taylor.

PERSONAL ENDORSEMENT OF CLIFF TAYLOR BY GEORGE BUSH

  'Nuff said.

Well, not entirely. You won't see that endorsement anywhere on Cliff's re-election site. That's curious. He doesn't mention an explicit endorsement by the President of the United States(search the site and let me know if I am wrong), but states on his site that the Wall Street Journal calls the Clifford Taylor led Michigan Supreme Court the "best in the nation." (Quotation marks appear on the Taylor site.) By the way, that isn't true. That will be taken up in a post later this weekend.

JUSTICE CLIFF TAYLOR--WHAT'S TEXT?

    In the Michigan Court system, there has been a great deal of discussion, in recent years, concerning the judicial "philosophy" called "textualism".  The discussion, to be accurate, generally comes from the conservative majority of justices on the Michigan Supreme Court, when it attempts to explain why it is overturning yet another established Michigan precedent.  This, the conservative majority, led by Chief Justice Clifford "Cliff" Taylor, does with breathtaking frequency.  Normally, this might be considered as evidence of "judicial activism" by the Supreme Court. Mr. Justice Taylor emphatically denies this.  His decisions, he maintains, are merely based on the plain meaning of the "text" (hence the term "textualism") of the laws involved in the cases he decides.  Apparently, this plain meaning had escaped all of Justice Taylor's predecessors.  Apparently,only he and his conservative majority of four(a term he uses consistently), are the only instruments that can reveal the correct plain meaning of words.  Justice Taylor has no agenda, he says, he is merely an umpire calling balls and strikes.  (See:  A TEXTUALIST METAPHOR-PLAY BALL!)

While a textualist philosophy sounds simple and should make common sense, it really doesn't.  For instance, in the Michigan Citizens for Water Conservation v Nestle case, decided in 2007, the 4 justice majority decided that the word "anyone" contained in a state statute, did not mean "anyone", with the result that a law which was on the books 37 years, was effectively gutted.  "Anyone" doesn't mean "anyone".  How much more plain meaning, textualist can you get? 

Then again, in a 2002 worker's compensation case, Sington v Chrysler (See:  SINGTON THE BLUES), the court determined the plain meaning of the word "capacity"  as in "earning capacity", as in a worker's earning capacity, by resorting to a definition that could only be found in the glossary of a freight shipping manual.  The majority did not bother to look in Webster's dictionary, where the definition of "capacity" it used in the decision could not be found.  Maybe the majority did look in Websters, but, not finding the definition that fit the result desired, looked elsewhere.  It may not be surprising to learn that in both the Sington and Nestle cases the decisions not only changed prior law but benefitted business interests at the expense of the individuals involved in the cases.

I am persuaded that "textualism" is just a convenient tag line designed to give an air of impartiality and legitimacy to what has proven to be the greatest example of judicial activism seen in this state.

While I don't believe judges should be fashioning the law out of whole cloth from the bench, neither do I believe that judges when administering the oath should make witnesses put their hand on a dictionary instead of a Bible (dated reference, I know).  Believe it or not, our laws, though validly passed by the legislature may need some interpretation by our state's jurists. 

Our statutes may not be crafted with the same precision as those ten precepts, written on two stone tablets that came down from the Mount, one author, no editor, no House or Senate Committees.  Our statutes are generally the product of horse-trading, pork-barreling, influence peddling, special interest lobbying, and marker calling than anything else.  Small wonder that the result may look like a patchwork quilt put together by the church bazaar committee (no disrespect intended), than the seamless work product of our best and brightest legal and legislative talent. 

Dave Barry, in an article entitled:  "The $8.95 Tax Plan" written sometime in the 1980's described the legislative process well.

"Well, first it has to be formally introduced as a bill on 'Meet the Press';  then various congressional committees and subcommittees have to go to Aruba with their spouses for several weeks to see if there are any similar tax plans operating in the Caribbean;  then interested groups such as the American Eggplant Council have to modify it so that members of the eggplant industry are exempt from paying any taxes ever and get flown free wherever they want on Air Force jets;  then Senator Jesse Helms has to attach an amendment making it legal, during the months of May and June, to shoot homosexuals for sport, except of course for homosexual tobacco farmers;  then the bill has to be signed by President Reagan;  then the Supreme Court has to check it to make sure he didn't forget and sign 'Best Wishes, Ron' again."

So, while deference is due, sometimes judgment may be required.  We should not accept textualism for anything more than an attempt to justify a desired result by resort to a room full of dictionaries to try to find a way to justify a decision already made.  Unfortunately, the previous sentence may be a fairly accurate definition of the doctrine.  You probably won't find it in any dictionary in Lansing.

IF CLIFF TAYLOR LOSES THE ELECTION-IN HIS OWN WORDS

Cliff Taylor is the incumbent Chief Justice of the Michigan Supreme Court, and he is running for re-election on November 4.  As an incumbent with a well-funded campaign he stands a pretty good chance of getting elected again.  But what if he doesn't.  What if he loses the election.  Well, our Clifford Taylor is always thinking ahead.  As far in advance of the election as June of 2007, he had a pretty good idea of what he would do politically if he was turned out of office.

To set a little background, last week I received a phone call from a person who sent me a series of email messages that had been forwarded to this person.  The emails date from June 21, 2007 and are an exchange between Clifford Taylor and Ron Modreski, who I do not know.  However, a quick Google search leads me to believe that Mr. Modreski is owner of RAM Management Group and retired from Vickers Incorporated, having worked in its Aerospace Marine Defense Group.  He also appears to be a UofM alum, as is Mr. Taylor.  This might explain how the emails refer vaguely to a group gathering, perhaps a fraternity group.  My source provided me the emails on condition of anonymity and the source is not one of those whose email address is listed on the messages.  The four pages of messages can be found in the photo album "Taylor Emails" in the sidebar of this site.

To get back to the messages.  Here is the quote from Justice Taylor in his June 21, 2007 message to Mr. Modreski:

"One of the standing jokes here on the court with the conservatives (four of the seven)is that if the left manages to beat me when I am up in 2008, I will, implausible-even shocking-as its seems, run for Governor in 2010 and then bring back John Engler back as my Chief of Staff-only this time, as the old saw goes, it will be personal with him.  I will of course, once John is in the saddle, de-camp for the Caymans and the down-sizing that only he could have the courage to undertake will commence.  Good fun.  I look forward to seeing you an the other soon."

 

Isn't that nice?  Our textualist, non-activist, non-legislating from the bench Chief Justice, is not above a little social engineering from the bench. This attitude would explain a lot of the court's overturning of prior precedent since Mr. Taylor was appointed to the Supreme Court by Governor Engler.

Some of Mr. Modreski's comments in this exchange, with which Mr. Taylor whole-heartedly agrees, may help us understand the agenda of the Taylor Court. 

According to Mr. Modreski, in this exchange, when he returned to Michigan in 1990:

"It was like most of Michigan was still in a time warp.  The auto industry, union leaders, and elected state legislatures seem to be still living in the world we grew up in the 50's and 60's.  Meanwhile many others parts of the country (some of which I lived in)where moving ahead..."

Clifford Taylor had previously written to Mr. Modreski:

"The difficulty is that the leadership of the state, both parties, feels that Michigan's economy is in a blip.  The fact is that our tax base is I believe, permanently reduced, and will likely be further diminished in the days ahead, and the accommodations that suggest should be undertaken.  It is good to recall that for our whole lifetimes in the state, Michigan has been a 'big' services state for better or worse.  Those days are most likely gone for the simple reason it can no longer be afforded.  It is getting that internalized that is the hardest part of our current situation."

There is more.  Read the emails.  Clifford Taylor thinks some of his fellow judges are behind the down-sizing of the State of Michigan curve themselves. 

Mr. Justice Taylor's rulings have reflected his "downsizing" and "rightsizing" the State agenda.  He certainly has down-sized the rights of the average citizen.  Perhaps he believes they are living in a past when they had too many rights, and they need bringing into the 21st Century.  May explain also why he thinks all those judges and all their decisions from back in the 50's, 60's, 70's, 80's, well anytime before he was appointed by Governor Engler were wrong.

Well, I believe that despite his protestations of conservatism, and judicial restraint, Justice Taylor has an expansive agenda that he has brought to the bench and has tried to make the law of the land through his decisions.  After down-sizing the citizens rights, he may turn to down-sizing state government itself, and horror of horrors, even the corporations and insurance companies that support him.  After all, none of us in Michigan know what's good for us, except our Chief Justice.

JOHN KENNEDY POLITICAL AD-THOSE WERE THE DAYS

Here is a John Kennedy for President ad from the 1960 election.  Catchy jingle, bouncy song, fresh young voices, no lies, no character attacks.  Given today's typical political ad, this one seems to be not just from another time, but from another planet.

Why the difference?  Who knows.  Certainly it wasn't a more innocent time.  Before the next Presidential campaign, we would see the Cuban Missile Crisis, a US-backed, unsuccessful invasion of that same country only 90 miles from our shores, and the assassination of the very candidate for whom this ad was made.

Perhaps the ad men back then thought style was more important than substance.  Maybe they thought you'd be more likely to vote for Kennedy if you were humming his campaign song than if you remembered his position on the economy. 

As you watch and listen to this ad you may get the same feeling I did when I first saw it.  I thought that it looked like and sounded like a cigarette ad of the same era.  Cigarette ads are banned on TV now.  Maybe those advocating truth in advertising should consider doing the same with political ads.

JUDGE DIANE HATHAWAY PODCAST-WILL CLIFF TAYLOR DEBATE?

Judge Diane Hathaway, running against Chief Justice Clifford Taylor in the upcoming election for Michigan Supreme Court, appeared on the Brian Dailey Law Show on WJR 76am, this past Sunday, October 5, 2008. During the broadcast, she challenged Cliff Taylor to a debate on his record and the issues facing the Michigan Supreme Court.

Download JudgeHathaway.mp3 (0.0K) 

 Will Clifford Taylor accept the debate challenge? Will he act as Michigan's highest ranking judicial official, a trained and skilled legal scholar and advocate,and enter the arena and engage in the debate process which is the very essence of the lawyer's art? Will he take of the black robe and try to persuade the citizens of this state of the correctness of his decisions and the righteousness of his textualist philosophy on a level playing field? Or will he act like the politician, who believes that the best way to that all important re-election bid is to rely on the designation of "incumbent" on the ballot, and a big campaign war chest used to produce and air one sided attack ads?

The odds of seeing the Detroit Lions in the next Super Bowl are better, I am afraid, than of seeing a Hathaway/Taylor debate. 

CHIEF JUSTICE CLIFFORD TAYLOR IN BARAGA COUNTY

On YouTube, with a whopping 25 views to date.  A recent appearance by our Chief Justice in Michigan's Baraga County, in the Upper Peninsula.

If someone could explain to me what Justice Cliff Taylor was saying about the Michigan Supreme Court and property rights beginning at :35, I would be grateful.  I can't make any sense of it.

"And this is a court that has done a lot with regard to protecting property rights.We believe that the government’s power to take land should not be taken away from the people."

CLIFF TAYLOR'S RESULTS

Again, alert readers have compiled a list of some of the results of Michigan Supreme Court Chief Justice Clifford Taylor's decisions while on the bench.  Althuogh Mr. Taylor states that he does not "legislate from the bench", and opposes all judges who do, his decisions have routinely ignored prior decisons and have changed Michigan law radically.

The file can be found here:  Taylor Results

CHILDISH ELECTION ATTACK ADS

In this election season, I have seen some bad attack ads, but these two are truly childish.

By the way, during the 2006 election, I wrote and article on attack ads called AD NAUSEAM.  It was run in the Michigan Lawyers Weekly and the Livonia Observer.