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LET'S GO, SHAMROCKS!!

Excellent stuff here from Rep. Thad McCotter, regarding Michigan's auto industry.   This was posted Nov. 20, 2008, three days before an great column by Mitch Albom appeared in the Detroit Free Press.  That column will be featured in a future post.

Oh, and by the way, the Albom column came out one day before a 25 Billion bail-out for CitiBank was announced.  No delays.  No Congressional hearings necessary.  Interesting.

Thanks, Thad, for standing up for the auto industry and Main Street America.  Thanks, also for doing Detroit Catholic Central High School proud.

Respectfully,

Mike Butler, CC class of 1971;  member, CC Alumni Board of Directors; Chairman, Shamrock Bar Association.

DEMS FILE ETHICS COMPLAINT AGAINST CLIFF TAYLOR-GOOD GOD, PART 2

Back on April 13, 2008, I wrote a piece outlining the Michigan State Democratic Party's action in file an ethics violation against Michigan Chief Justice Clifford Taylor, alleging some minor/technical violation (I didn't think it was a violation at all myself), in a campaign financial solicitation letter.  Don't know what came of it.  Nothing, I hope. 

During the campaign, there came to light certain emails that came from Cliff Taylor in September, 2007.  An article concerning the content of those emails can be found here.

The State Democratic Party sees those emails somewhere (they were over a year old when I saw them), and what does it do?  No comment on the sentiments expressed in the messages.  It files yet another ethics complaint against Cliff Taylor, this time with the State's Judicial Tenure Commission.  What violation is alleged?  I quote:

 "Emails obtained by the Michigan Democratic Party show that Sleeping Judge Cliff Taylor has been using the state email system to explore the possibility of a 2010 gubernatorial run."

The complaint is based entirely on his writing the emails from his work email address.

Oh, my God.  Believe me, I have my issues with Mr. Taylor, but writing emails, for whatever reason, using his work email account is not one of them.

The link to the Party's "news" release is here:

"Sleeping Judge" Cliff Taylor Using State Judicial Resources for Personal and Political Purposes. Taylor's Abuse of Power Spreads Beyond Exploitation of Taxpayer-Funded Car."

If the sending of those emails from a state email account is an ethics violation, then all state employees should think twice before providing their work email address to their children's school, in case their kids get sick.  Better they should be slumped on a couch in the principal's office.  Don't give the email address to the kid's soccer coach in case practice needs to be called off.  Make him/her call everyone, though calling the state employee at work might be a violation.  Better you should drive to practice or the game to find out, when no one else shows, that something is changed.  And by all means, don't email your spouse telling him/her that you will be home late, because you are busy working on state business.  Better he/she should not know and wonder whether you were in a car accident.

God knows it is easier to take pot-shots at those in power, when you don't have it, than to get the tasks of government accomplished.  But, this stunt by the Democratic Party cheapened the many valid complaints against the job done by Cliff Taylor on the Supreme Court.   I understand some political partisans believe that there is no such thing as bad negative publicity at the expense of the opposition.  Maybe the citizens of our beleaguered state would be better off if these same folks could stop being party members first, and could try to work together to solve our problems for a change.

CLIFF TAYLOR, THE SLEEPING JUDGE AND MGTV

One of the ads run in the recent Michigan Supreme Court Election was the "Sleeping Judge" ad.  I have written previously on this site that what most upset me about Chief Justice Clifford Taylor was what he did to justice in Michigan while he was awake.

However, Cliff has continued to deny the allegation that he fell asleep during oral arguments as alleged in this ad.  Here is the ad, which is still to be found on YouTube:

And while Cliff shut down his campaign website before AM on November 5, he still has his own channel on YouTube. He has uploaded 6 videos. And I was frankly surprised to see his Favorites page. I wouldn't have expected that Cliff was a Snoop Dog fan. Okay, that was a joke. He has no favorites, probably because he is so impartial.

But, on his Profile page , I learned that Mr. Taylor lists his age as 58. Now, I won't blame Cliff too much for this, as he wouldn't be the first person to falsify his internet profile to appear more attractive. But he may wish to update the profile soon as the very YouTube screen name: ChiefJusticeTaylor will be a trifle inaccurate before too long. But what led me to this channel in the first place was my recollection of the ad denying the "Sleeping Judge" allegation. It was on Cliff's channel, and here is is:

The ad is poorly put together on a variety of levels. But given the content of the ad, and the continued denials by Mr. Taylor, I feel compelled to address the portion of the ad beginning at :27. It states: "And you're to believe a sleeping actor when every minute of every Supreme Court meeting is on Michigan Government TV (MGTV.org),free! (I think Justice Weaver would disagree with the statement that all Supreme Court meetings are televised. I believe the admen meant to say "hearings".)

To paraphrase a favorite line of Mr. Taylor, as an average voter of ordinary intelligence, I must conclude that then Chief Justice Cliff Taylor means me to believe that MGTV video footage shows that he was awake during the entire hearing at issue. If so, where is the footage? Cliff is a resourceful guy. He has friends in high places. If the footage will show that he was awake, show it to the voting public to persuade them that your continued denials are based on fact. With Cliff's extensive financial backing by the Republican Party and the Chamber of Commerce, certainly any expense entailed in obtaining the video could be paid.

Truth is, their is no such video footage. But Cliff and his handlers will continue to claim that there is, continue to call the McDowell mothers liars, and continue to claim that the Wall Street Journal found the Michigan Supreme Court, "the finest in the nation." (:38, quotes appear in ad). That is not true, either. See Letter to the Cliff Taylor Campaign.

One of the many things that concerns me about, what will be for at least the next two years, former Chief Justice Cliff Taylor, is that he portrays himself as an impartial jurist, when he is, in fact, a politician, first an foremost. He is concerned with his legacy only so far as it will affect his next campaign.

And,I believe, the strategy for that campaign has already been hatched. The citizens of Michigan should remain vigilant.

JUSTICE CLIFF TAYLOR AND THE PARABLE OF THE DISHONEST STEWARD

Chief Justice Cliff Taylor has not yet left the Michigan Supreme Court bench after his November 4 election loss.  However, in the opinion of this humble reporter his 2010 election bid has already begun.  Cliff's target, Justice Elizabeth Weaver.

How else does one explain the recent decision to close the Supreme Court's branch offices in Traverse City and Detroit.  The State of Michigan Hall of Justice opened in 2005.  Pictured here, in an unaltered photo, the building has always reminded me of something out of Gotham City in one of the early Batman movies.

 

The Hall of Justice opened in 2005.  Apparently, there was a non-binding state House resolution in 2002, calling for the Justices to close the regional offices and move to the Hall of Justice after it opened.  The building opened in 2005.  So, why does the motion to close the offices come in 2008, one week after Justice Taylor is defeated for re-election?  Why does it happen with barely three days notice?  Why does the vote come in at 4-3, with all of the "Engler Four" voting for the measure?

Here is the answer.  Despite all the pious platitudes about standing above the fray, about being an impartial "umpire" calling balls and strikes, about having no agenda, about merely revealing the plain meaning of the text of our laws, the reality is that Cliff Taylor is all about playing at politics and setting the stage for his next election bid.

You see, Justice Young makes the motion, and Cliff votes for it, before leaving office, making it look like he is for saving the Michigan taxpayers' money.  Justice Weaver, for a good many valid reasons, votes against it.  Of course, the closing of the offices won't take place until the end of the Court's budget year next October.  Justice Diane Hathaway will come on board in January, and the decision may well be reversed.  So, when Cliff runs again in 2010, quite possibly against Justice Weaver, he can run ads saying that he was for saving the taxpayers' money, while Elizabeth Weaver and Diane Hathaway were against saving the state money in these tough economic times.

This could only be accomplished by pushing this through while Cliff was still on the bench and could go on record as voting for it.  I would be willing to bet that if Cliff had won the election on November 4, this measure would never have been proposed, much less passed.  Why do this now, on 3 days notice, 5 days after the election, when Cliff never proposed closing the branch offices during his "reign".  Because Cliff, having now been spurned by the voters, needs to do something, needs to have a "hook" for his next campaign.

By the way, how much money do you save the taxpayers by moving offices from a half vacant Cadillac place, owned by the state, to a differen state owned building in Lansing.  Not much, I think.

Which brings me to the title of this piece.  Thinking about the motives behind this whole closing the regional offices scenario reminded me of a gospel passage from the Gospel according to St. Luke, Chapter 16.  It goes like this:

Scripture: Luke 16:1-8

1 He also said to the disciples, "There was a rich man who had a steward, and charges were brought to him that this man was wasting his goods. 2 And he called him and said to him, `What is this that I hear about you? Turn in the account of your stewardship, for you can no longer be steward.' 3 And the steward said to himself, `What shall I do, since my master is taking the stewardship away from me? I am not strong enough to dig, and I am ashamed to beg. 4 I have decided what to do, so that people may receive me into their houses when I am put out of the stewardship.' 5 So, summoning his master's debtors one by one, he said to the first, `How much do you owe my master?' 6 He said, `A hundred measures of oil.' And he said to him, `Take your bill, and sit down quickly and write fifty.' 7 Then he said to another, `And how much do you owe?' He said, `A hundred measures of wheat.' He said to him, `Take your bill, and write eighty.' 8 The master commended the dishonest steward for his shrewdness; for the sons of this world are more shrewd in dealing with their own generation than the sons of light.

The voters have found Cliff Taylor's stewardship wanting, so now he is trying to adjust his account so as to endear himself to the citizens when he runs again.  This passage also seems timely in view of government bailouts of the insurance and banking industries.

Dan Pero, in his American Courthouse blog has been all over this.  Dan's wife Colleen was, and probably still is, Cliff's campaign manager.  Though professing to be national in scope, Dan has written at least 5 pieces about the Michigan Supreme Court since November 4, almost to the exclusion of everything else.  Perhaps he should rename the blog "Cliffy's Courthouse".  He has vilified Justice Weaver in his last two posts.  You see, Dan doesn't want an independent thinker like Justice Weaver on the bench.  He wants a political partisan who sticks to an agenda.  He certainly has one in Cliff Taylor.

While many may believe that the Michigan political scene will soon see the last of Cliff Taylor, don't you bet on it.

Thus endeth today's Scripture service.  And to paraphrase the poet Burns:  "From ghoulies, and ghosties and long-leggedity beasties, and Cliffs that may run in 0-Ten, Lord deliver us.  Amen.

SIR WILLIAM S. GILBERT

November 18 marks the birthday of Sir William Schwenck Gilbert (1836-1911), the librettist/lyricist of the famed operetta composing team of Gilbert and Sullivan.  I was probably the first and only G and S fan on my block, or in my extended family, or that I know.  That's too bad.  The music is delightful and the song lyrics are intricate, witty, and were very politically topical for the time.  Many current productions try to update the lyrics with current political references, to the delight of modern audiences.  Though I could never carry a tune, I memorized a couple of the the longer "patter songs" from Iolanthe and The Pirates of Penzance, purely for fun.

Sir William is a hero of mine, not the least because he died at age 74 attempting to rescue a drowning woman.

Much of the topical references in Gilbert and Sullivan plays, especially as to matters legislative, remain valid today.  Here are two from Iolanthe.  MPs are Members of Parliament, and the House of Peers most closely resembles our Senate.

"When in that House M.P.’s divide,

If they’ve a brain and cerebellum, too,

They’ve got to leave that brain outside,

And vote just as their leaders tell ’em to."

 

And

 

"When Britain really ruled the waves,

(In good Queen Bess’s time)

 The House of Peers made no pretence

 To intellectual eminence,

 Or scholarship sublime;

....

     

      

When Wellington thrashed Bonaparte,

As every child can tell,

The House of Peers, throughout the war,

Did nothing in particular,

And did it very well."

                                   

 

For more on Sir William Gilbert, click here.

 

 

HYPERBOLE-IT'S NOT JUST FOR TORT REFORMERS

I feel a little sorry for Dan Pero over at American Courthouse these days.  His wife Colleen's client Cliff Taylor lost his re-election bid, which I am sure came as quite a surprise.  He was an incumbent, he had the backing, financial and otherwise of big business, big insurance and big money.  He didn't have an opponent until 60 days before the election.  He was willing to take the low road in the campaign (Diane Hathaway portrayed as soft on terrorism.  Though I am not entirely sure I buy the "sleeping judge" ad myself.).

At the same time as this is happening, "Rule of Law" (Dan's euphemism for Republican) US Senators oppose aid to Michigan based auto companies.  How much more big business can you get than GM and Ford.  How does the American Justice Partnership (founded by John Engler and the National Association of Manufacturers), where Republicans are always right and Big Business is always right deal with this issue.  it ignores it, apparently.

If this was not bad enough, AIG gets a government bailout, recently increased to $150,000,000,000 (just had to write it out), to save itself from its own bad, greedy business decisions.  Business executives take huge bonuses while the companies they have led down the path to ruin, come hat in hand to John and Jane Q. Taxpayer for salvation.

Rule of Law Senator Ted Stevens ("I haven't been convicted of anything") is still fighting for the right to go back to the Senate.

It seems big business really has no idea how to make the economy run.

Getting pretty hard for "Old Dan" to hit on his favorite themes of "The Plaintiff bar is destroying American Business", and "Judicial Elections in their current form are the only way to select judges", given recent events.

But, even a stopped clock is right twice a day, and Dan did come up with an interesting post about none other than trial lawyer Gerry Spence.

In his post,Dan refers to a speech made by Mr. Spence to the Consumer Attorneys of California Convention.  Some very good and valid points were made during the speech, which of course Dan Pero ignored.  Gerry said:  "There is no other profession in America that fights for freedom, that fights for what America is about, that fights for justice for ordinary people."

True enough. An even better point was made by convention attendee Benton McKnight:

"Trial lawyers speak out for people who don't have a voice in our society, whether that's through their race, through their economic status or through their lack of education," McKnight said. "The different insurance companies and large businesses have self-interest in attempting to demonize trial lawyers, and they have the funds and the ability to do so."

Unfortunately, Gerry got caught up in his own eloquence and made this observation:

"I want to ask you which would be more important: If all of the doctors in the country somehow disappeared or all the trial lawyers in America somehow disappeared?" he asked. "We can live without medical care, but we cannot live without justice."

Now, both my parents would probably disagree with Mr. Spence's statement.  I have been a "trial attorney" for many years.  On several occasions during that time, I have received late night calls from my parents concerning serious, emergency medical situations.  In those situations, they always call the ambulance first.  They never ask me to take them to take them to Wayne County Circuit Court, nor do they ask me to find a cure in the Michigan Compiled Laws Annotated.  They especially refrain from asking me to read from recent Michigan Supreme Court decisions.  My dad has high blood pressure already.  Though once I did suggest reading him some of Cliff Taylor's opinions.  After all, laughter is the best medicine.

So, Gerry, perhaps a little restraint in the rhetoric department might be advised.  I understand the importance of the struggle for justice.  However in today's economic climate, I don't think GM retirees would be willing to give up their health care benefits in exchange for pre-paid legal services. 

Your points have validity, but when put that way, they won't be understood by those whose understanding is most important.  Your remarks just provide fodder for the likes of Dan Pero, whose powers of analysis are limited as it is. Leave the hyperbole, overstatement and demonization to the tort reformers.  The fallacy of their arguments have been exposed by current events.

However, maybe I can get a bunch of my brethren to file some class actions against the Big 3.  That way big business, the Chamber of Commerce and the Republican Party can unite against the real enemy, the trial lawyers.  Perhaps then we can start working our way out of this mess.

 

JUDGE AVERN COHN ON THE "ENGLER JUSTICES" OF THE MICHIGAN SUPREME COURT

I reprint here, in its entirety, a letter to the editor written by US District Court Judge Avern Cohn, which appeared in the Detroit News on Tuesday, November 11, 2008, exactly one week after the historic result in the Michigan Supreme Court election which saw Judge Diane Hathaway unseat incumbent Chief Justice Cliff Taylor (some redundancy in that sentence, but it sounds so good).

Extremely well put.

Link

Engler justices' precedents 'built on sand'

The editorial on the election of Wayne County Circuit Court Judge Diane Hathaway to replace Chief Justice Clifford Taylor on the Michigan Supreme Court, expressing interest in how strongly the members of the minority adhere to precedent if they gain control of the court ("Shift on state high court will be dramatic," Nov. 6), displays an uncharacteristic naivete.

In the years the so-called "Engler justices" -- those initially appointed by former Gov. John Engler: Taylor, Maura Corrigan, Robert Young and Stephen Markman -- comprised the majority of the court, precedents meant nothing. Almost wholesale, they regularly overturned decisions of the past in an effort to establish their conservative jurisprudence as the law of Michigan.

Surely a new majority has the right to review decisions of the past to ensure that they carefully reflect the law and are not simply a reflection of a particular view.

A precedent should stand only if it has a solid foundation and is not simply reflective of the view of a transient majority. The Engler justices' jurisprudence, in the view of many, has been just that, and its decisions have been built on a bed of sand.

Avern Cohn

Federal judge

 

OPEN AND OBVIOUS IN MICHIGAN-THE STATUTORY ARGUMENT AGAINST

Judges nod their heads a lot in agreement.  They smile.   They say things like:  "Very interesting argument", "Extremely inventive", "It's an attractive argument", and "I agree with you." (I won't mention the quizzical:  Did you come up with this?" comments.)  Anyway, the former comments generally are made before the judge says he/she is bound by precedent and my motion is denied, though without prejudice.  I do point out the section of my brief wherein I describe the current deference to precedent among the reviewing courts of this state.  More smiles.

The motion referred to is a statutory attack on the "Open and Obvious" doctrine (the term "doctrine" is used here is its loosest possible sense) in Michigan. To summarize, the challenge is based on the enactment of statutory comparative negligence in this state as part of the "tort reform" legislation of 1996.  MCLA 600.2958 establishes comparative negligence as a matter of statute and precludes elimination of a cause of action based on the contributory negligence/fault of a plaintiff. MCLA 600.6304 describes fault in some detail.  Using a sound textualist analysis, the motion states the application of the doctrine cannot withstand application of the statute.

To the argument that the "Open and Obvious" doctrine goes to the duty element of a cause of action and if there is no duty there is no negligence.  The response to that argument, is that cases interpreting the "open and obvious" doctrine inevitably resort to an analysis of the plaintiff's subjective knowledge and conduct (the "life long" resident of Michigan, familiar with Michigan winters cases), and do not focus on the objective nature of the hazard.  Reference is made to the Kenny and Kelliher cases in this regard.  In an objective analysis of "open and obvious", then, the hazard should define the duty.  It does not.  The subjective knowledge and conduct, that is negligence, of the individual plaintiff is always the standard used by the courts. 

When judges decide whether a defendant has a duty to the plaintiff by analyzing the conduct and knowledge of the plaintiff (and not the acts or omissions of the defendant), judges are finding facts and making determinations of negligence, which invades the province of the jury, and is contrary to law.  To say that "open and obvious" goes to the duty element of a negligence case is to make a plaintiff prove his case twice, once to a judge and once to a jury.  The "duty" analysis is flawed, and is an additional requirement, entirely judicially created, added to a prima facie negligence case.  As practitioners in Michigan know, our reviewing courts do not like judicially created additions or exceptions to statutes.  See the recent Rowland case.

This has been a very short summary of the the motion, which is not fact specific to a particular case.  It is entirely a legal challenge, and is filed pursuant to the Summary Disposition Court Rule.  It has been filed right after receiving the responsive pleadings and not as a response to a defendant's motion for SD.  I also throw in a challenge to the assertion of the defense under the requirements of the Affirmative Defense Court Rule.

Judges have been reluctant to "pull the trigger", on this motion, trying to give some deference to precedent, though I don't think that the reviewing courts of this state have dealt with this issue on this basis.  Perhaps it needs to get to the Court of Appeals sooner rather than later.

The motion, though not the brief, and be found here.  Anyone who thinks there might be some validity to this approach, and would like to discuss it, can contact me through this website.  I am sorry, but I will not respond to "Please send me your brief." requests.  I will respond to anyone with a serious desire to correct bad law.  I will share the brief with them and perhaps it can be improved or the approach changed.  Going into court on an SD motion filed by a defendant and saying:  "Gee, Judgie, this ain't fair", ain't working.

CAB CALLOWAY AND THE NICHOLAS BROTHERS

With the election over, I can get back to balancing this site with a little more in the Historic Detroit and Special Events areas.  At least until the next election cycle starts, which should be sometime next week.

Tuesday, November 18, marks the 14th anniversary of the death of Cab Calloway, who was born Christmas Day, 1907.  Thanks to YouTube, you can get a glimpse of this man's talent, long before he did a guest shot on Sesame Street and sang "Minnie the Moocher" in the Blues Brothers in 1980.

Cab rocks.

In this clip, he and his band are featured in the 1943 film "Stormy Weather".  This number spotlights the spectacularly talented Nicholas Brothers.  It is well to remember that this movie was made a generation before CGI made the physically impossible seem mundane.  This dance number is truly amazing.

This may be the best movie musical number I have ever seen, and I am a musical fan from way back.

By the way, another of Cab's hits is called "Reefer Man, High Quality".  Look for it on YouTube.  Yikes.

Hi-De-Ho, all you Hep Cats.

WWW.JUSTICEWEAVER.COM

Today, this site adds the website of Michigan Supreme Court Justice Elizabeth Weaver, www.JusticeWeaver.com to the Law Links list in the left hand column of the page.

Justice Weaver, though nominated as a Republican, has exercised independence on the Supreme Court, and has refused to act as a political partisan.  In fact, recent post election newspaper articles have suggested that this very independence may incline the Republican Party not to nominate her when she is next up for election in 2010.  A sad commentary on what partisanship has come to mean in our impartial, independent judiciary.

Justice Weaver's judicial philosophy has brought her into conflict with the four Republicans on the bench, led by recently defeated Chief Justice Cliff Taylor.  These issues involve not only the content of Supreme Court decisions, but the methods by which our state's highest Court administers justice.  A statement issued by Justice Weaver after Judge Diane Hathaway sheds some light on her hopes for the new Justice and the new Court.

"I am grateful for the opportunity to work with Justice-elect Diane Marie Hathaway. I believe that with Judge Hathaway the people of Michigan have chosen a fair and independent judge, who brings much needed trial judge experience to the Michigan Supreme Court. I am hopeful that with the addition of Judge Hathaway we can bring about reform of the operations and activities of the Supreme Court by, among other things, replacing secrecy with transparency, working to reform the selection of justices and establishing disqualification rules for justices, and helping the Supreme Court deserve the people’s trust and confidence."

The statement can be found on the homepage of Justice Weaver's site.  In the right top corner of the homepage is a quote from Justice Weaver that I especially like:

"What we in the judiciary most need is patience, meekness, compassion, and courage to 'Do Right and Fear Not.'"

Qualities that were often lacking in the Taylor Court.  The citizens of State of Michigan have cause for hope.