attorneybutler.net

LET'S MEET UNDER THE KERN'S CLOCK

When I started this site, it was to be a hobby split, more or less equally between not so sophisticated (or astute) legal commentary, and Detroit history.  Well, it has turned out that, what with our frolicsome Michigan legislators and judges, I have devoted all of my very modest talents to the legal end of things.  I haven't written about Detroit history since June of 2008. 

For over a year the home page picture of this site was of the "Kern's" Clock, now shown under the headline of this piece.  The Kern's clock has been a Detroit landmark for generations.  It first appeared over the entrance to the Kern's Department store, built in 1929 on Woodward and Gratiot next to the downtown Hudson's.  Part of the city skyline, including Kern's is shown below.  The company was established in 1883.  The 1929 building was the final Kern's building on the site, the original having been built in 1900. 

 

Back when downtown shopping districts thrived, arranging to meet "under the Kern's clock" was common for many after a day of shopping, dining or movie-going (my parents' families included).  

Alas, the massive downtown department stores declined as metro areas expanded and Kern's closed its doors in 1959.  The store was torn down in 1966 along with old Detroit City Hall in the current home page picture.  What to do with the "Kern Block" was a common question for the city of Detroit through the Seventies and Eighties, when Hudson's, Kern's old neighbor, came down.

When Compuware eventually built its headquarters on the site of both stores, an area few knew was once called Campus Martius, the clock came back to its current location, on street level outside the Compuware Building.

While I had never been downtown while Kern's was standing, I always loved the idea of the Kern's clock, kind of like something out of a Forties romantic comedy.

The history of the Kern's clock really was something from a generation earlier than my own.  I have always had some trouble explaining it to folks my own age, much less anyone younger.  So, I was greatly surprised and pleased when I picked up my local paper last week to find in the "Engagements" section, a picture of two young "To Be Weds" under the "Kern's Clock".

So, I now have irrefutable proof that one of, if not the greatest, of Detroit's romantic traditions has passed on to another generation.  Thanks to those young 'uns, thanks to my folks who passed the story of the Kern's clock to me, and thanks to those who saw to it that the clock survived to take its place back in the life of the City.

WHY WE NEED JUDGES--NOT TEXTUALISTS

AIG, BILLS OF ATTAINDER AND THE BOSTON STRANGLER

Some current and former Justices of the Michigan Supreme Court (Robert Young, Stephen Markman, Maura Corrigan and Clifford Taylor), proudly adhere to a doctrine they have named "Textualism".  Simplistically put, textualists say they merely follow the plain meaning of words contained in laws passed by the legislature.  It's apparent simplicity gives it some simple-minded appeal.  Textualists simply believe this doctrine will appeal to voters.  The textualists say:  " In all cases, look at the law, look at a dictionary, and, bingo, there is the right answer."   After all, they also say, "We have to follow what the legislature passed.  The legislature is always right."  (What the textualists don't tell us is that there are, in fact, a lot of dictionaries.  So, in reality, textualists can fiddle with the words, and while they fiddle, Michigan citizens often burn.)

If, as the textualists preach, judges shouldn't exercise judgment, but should just look at a statute book and look at a dictionary, soon judges may be replaced by a computer program called "Blackstone's Law Dictionary 8.0."  Given some of the folks still on the Michigan Supreme Court, no small loss.

While I don't want rogue justices rewriting state's law rather than following it and throwing out case precedent instead of following it, (Hey, wait a minute.  A quick check of Michigan legal history shows that the "textualists" have been doing precisely that for the last dozen years.  I am confused.), I don't think our legislators always think things out before they act.  In some cases, sound judicial reasoning might be called for.

Take recent developments involving the US economy, AIG, and our Congress.  My family and friends are part of the first, I am no fan of the second, and I watch, with apprehension, the antics of the third. 

HIGHWAY DEFECT?--NO PROBLEM HERE

 

"Additionally, we hold that the state or county road commissions have no duty, under the highway exception, to install, maintain, repair, or improve traffic control devices, including traffic signs. Rather, the state and county road commissions' duty, the breach of which invokes the highway exception, is limited exclusively to dangerous or defective conditions within the actual roadway, paved or unpaved, designed for vehicular travel." Nawrocki v Macomb Twp. 463 Mich 143 (2000)

Good luck, Michigan citizens.  You're on your own.

JUSTICE ROBERT YOUNG-MEMORIES OF WAYNE STATE LAW SCHOOL

My recent experience as Judge for the Wayne State Law School Mock Trial Program made me think back on the last time I had visited the law school.  In the late winter of 2008 I learned that Michigan Supreme Court Justices Maura Corrigan and Robert Young were visiting the Law School to speak to its Federalist Society chapter.  Wanting to see how the other half lived, I attended.  I don't really remember much of Justice Corrigan's speech.  She is the widow of Joseph Grano, who was my favorite professor while I was at WSU.  I took every class he taught, though he scheduled them all at 8am, to screen out the less dedicated students.  I only remember that she mentioned his name many times.

I do, however, remember quite well the presentation of Justice Young.  He started out by making a rather crude drawing on a blackboard.  A couple of parallel chalk marks appeared to represent a road.  The other figures were harder to figure out until Justice Young explained them.  For instance a little triangle at the end of a curved line was meant to represent a street light, to be distinguished from a traffic control device.  Other figures represented road shoulders, and other features most of us have come to associate with our roadway and highway system.

Justice Young pointed to, and named all the figures in the drawing.  Excluding the two parallel lines, Justice Young asked who believed that the other figures represented parts of the improved portion of the highway designed for vehicular travel.  I, and a few others, raised their hands.  I flatter myself that Justice Young looked at me as he said,  "Then you would have agreed with my predecessors", and then proceeded to explain how those Justices that came before Justice Young and I were wrong.

You see, Justice Young, being a textualist, defines the highway exception to governmental immunity, as set forth in MCLA 691.1402, according to its plain meaning don't you know.  The statute states, in pertinent part, as follows:

"Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel…The duty of the state and the county road commissions to repair and maintain highways, and the liability therefore, shall extend only to the improved portion of the highway designed for vehicular travel and shall not include sidewalks, crosswalks, or any other installation outside of the improved portion of the highway designed for vehicular travel."

Cases decided by the Michigan Supreme Court have, since 2000, overturned prior precedent and have determined that “the improved portion of the highway designed for vehicular travel” refers only to the actual roadway surface.  

You see, if the Michigan Legislature wanted a more expansive definition of defect, Justice Young said, they would have or should have written it into the statute.  I guess that means that the Michigan legislature would have intended that a different result occur if a governmental agency painted the word "Go" on all four road surfaces leading into an intersection, than if it, instead, left a traffic signal stuck on green in all directions at the same intersection.  Sure, they did.

And I think I can guess Justice Young's ruling on a negligence claim based on this occurrence:

Best of luck, there, citizens.  Hope this didn't happen in the fair state of Michigan, or if it did, you settled before Nawrocki was decided in 2000.  You see, the problem there wasn't caused by a defect in the road surface.  End of story under current case law.  Simple, isn't it?  About as simple as a set of stick figures on a blackboard.

JUSTICE ELIZABETH WEAVER'S PROPOSALS FOR JUDICIAL ELECTION REFORM IN MICHIGAN

COMPREHENSIVE PLAN TO CHANGE HOW MICHIGAN GOVERNORS SELECT AND MICHIGAN CITIZENS ELECT SUPREME COURT JUSTICES

The current system of selection and election of Michigan's Supreme Court Justice is in serious need of evaluation and repair.  The current system has some obviously weird features.  For instance, the elections are nominally non-partisan, but candidates are nominated by political parties (though party designation does not appear on the ballot).  Also, judicial incumbents are so listed on the ballot, though incumbent candidates in the other two branches of government (executive and legislative) are not so designated. 

The current system also allows the Governor unchecked discretion to fill Supreme Court vacancies, always with party loyalists, but often party loyalists without any judicial experience.  Witness our current Michigan Supreme Court for verification.

Lately, our Supreme Court elections have become expensive partisan blood-lettings, most recently featuring the "Sleeping Judge" ads on the one hand and the "Diane Hathaway-Vacationing on the Issues" ads on the other. 

As bad as the current system is, it has defenders.  Usually, and obviously, the most ardent supporters are members of the political party of the incumbent Governor.  The filling of vacancies "perk" is a valuable one.  The opposition doesn't want to lose its turn to benefit from a bad system when it inevitably regains power, either.  There is not a lot of support for reform within the political parties, major or minor.  (The abortive attempt at a reform ballot initiative for the 2008 election notwithstanding). 

Then there are folks like Dan Pero and the American Justice Partnership.  They oppose judicial election reform.  In my opinion, this opposition is based simply on the belief that more money wins more elections under the current arrangement, and that AJP sponsors like the National Association of Manufacturers and the Chamber of Commerce have more money.

Advocating necessary reform in this area is not a fast track to advancement for any political partisan.  Judicial reform advocates are subject to attack from all sides.

Therefore it is not really surprising that a comprehensive plan for reforming the current system comes from Michigan Supreme Court Justice Elizabeth Weaver.  A Republican, Justice Weaver has demonstrated admirable independence during her time on the bench.  Being a good Justice first may benefit the citizens of Michigan, but does not help the value of your stock with the Republican Party.  (Or get you many invitations to lunch with Cliff Taylor, Robert Young, et al., which may not be a bad thing.)

Justice Weaver's Proposal to Reform Michigan's Dual System of Election and Appointment of Supreme Court Justices  was sent on to the Governor, Attorney General, Secretary of State and members of the Michigan House and Senate on March 5, 2009.

JUST FOR FUN-THE OFFICIAL WWW.ATTORNEYBUTLER.NET THEME

Every great enterprise needs a great theme, and this won does as well.

Mindful of the lofty principles and the even loftier mission of this site, I considered many possible themes. Anthems like Queen's "We Are the Champions", Bruce Springsteen's "Born in the USA", and Spike Jones "Cocktails for Two" were all in the running.  But, when I came upon this theme, from my youth, the competition ended.  It is so right, on so many levels.

So, ladies and gentlemen, I give you the official theme song of www.attorneybutler.net :

MICHIGAN SUPREME COURT VOTES TO KEEP BRANCH OFFICES OPEN-WHAT WILL JUSTICE ROBERT YOUNG DO?

On March 5, 2009, the Michigan Supreme Court voted to retain its Detroit and Traverse City branch offices.  This 4-3 decision, reverses a 4-3 vote, taken in November, 2008, to close those same offices.  The November motion, made (quite suddenly) by Justice Robert Young, came in the immediate aftermath of the election defeat of Chief Justice Cliff Taylor.

This issue has been discussed previously on this site (JUSTICE CLIFF TAYLOR AND THE PARABLE OF THE DISHONEST STEWARD). 

Personally, it was always my belief that this was a totally political, posturing move by Justice Young and the Engler Justices, to make it appear that they were in favor of cost savings and that the evil, non-textualists on the court wanted to squander the Michigan taxpayers' money.  I think Justice Young knew that any attempt to close the branch offices (including his in Detroit), would be reversed by the new Court in 2009.  Therefore, he could look noble and self-sacrificing, and, in addition have a great issue for his 2010 re-election campaign.

MICHIGAN'S DRUG IMMUNITY LAW- LET'S THINK OF OUR VIAL AS HALF-FULL

In 1996, the Michigan Legislature enacted MCLA 600.2946(5), which reads, in pertinent part:

" In a product liability action against a manufacturer or seller, a product that is a drug is not defective or unreasonably dangerous, and the manufacturer or seller is not liable, if the drug was approved for safety and efficacy by the United States food and drug administration, and the drug and its labeling were in compliance with the United States food and drug administration's approval at the time the drug left the control of the manufacturer or seller..."

This statute, which has come to be commonly known as Michigan's Drug Immunity Law, is unique in the United States.  None of the other 49 states have followed Michigan's lead.

The issue of drug company immunity from suit for FDA approved drugs was decided this past week by the US Supreme Court in the case of Wyeth v Levine.  In the Wyeth case, the pharmaceutical company appealed a 6.5 Million dollar verdict in favor of Diana Levine, who lost her arm, after an injection of ant-nausea drug Phenergan.  In a 6-3 decision, the US Supreme Court turned away Wyeth's claim that federal approval of Phenergan and its warning label should have shielded the company from lawsuits like Levine's.

As stated in a March 4, 2009 Detroit Free Press op-ed piece by University of Michigan Professor Henry Greenspan:

"Indeed, the entire premise of Michigan’s 1996 drug industry immunity law is that FDA authority overrides the right of citizens to bring suit. It cedes to FDA a power that the full spectrum of the justices — from liberals like Ruth Bader Ginsburg to conservatives like Clarence Thomas — rejected as 'meritless,' 'untenable' and 'without reasoned explanation.'"

A bill to repeal the Michigan statute has been passed by a wide margin by the Michigan House.  However, passage has been blocked in the Michigan Senate by Republicans Wayne Kuipers and Mike Bishop ( you may remember him as the Senator blocking a Senate vote on the Kreiner Fix Bill).  Remove drug company immunity, they argue, and Michigan business will suffer (Michigan led all other states into the current recession,notwithstanding), and drug companies will leave the state (Pfizer closed a Michigan factory in 2007, notwithstanding).

Another bill to repeal the drug immunity statute has already been introduced in the Michigan Senate after the Wyeth decision.  However, notwithstanding the opinions of the US Supreme Court and the legislatures of 49 US state legislatures, I believe that Senators Kuipers and Bishop feel they know what's best for Michigan, and that they will oppose any new attempt to change a bad law.

But, I have always been more of a "vial half-full", rather than a "vial half-empty" kind of guy.  Right now, we are thinking small. Up till now,  Sens. Kuipers and Bishop have merely  tried to protect Michigan businesses by taking away the rights of Michigan citizens hurt by bad drugs.  Let's think big.  Let's see if we can't get Michigan out of this recession by taking this drug immunity thing national.

The little state of Delaware is home to thousands of huge corporations, who have organized there because of the state's business friendly corporation laws.  Michigan could do the same thing with drug companies.  It is simple really.  Drug companies that would move their headquarters and manufacturing operations to Michigan could then include the following warning on medication vials:

This medication is to be taken pursuant to MCLA 600.2946(5).  See photo.

Think of the new Michigan manufacturing jobs, the factory construction, the office construction, the white collar jobs.

Michigan has lost countless jobs when companies out sourced to southern states, Mexico, India and other countries with more favorable business climates (that is, no regulations at all).  Let other states start out-sourcing to Michigan for a change.  Let's bring the benefits of bad drugs and forsaken victims to all of America.  And, in the process, Michigan, the state that led the country going into the recession, can lead the country coming out.

Come on, Wayne, Bish.  Be innovative, think big.  Look forward.

I can see it now.  Michigan, no longer the automotive capital of the world.  Soon it can be Michigan....

 

 

 

SHAMROCK BAR ASSOCIATION

 Since its founding in 1928, Detroit Catholic Central High School has helped educate generations of young men, many of whom have gone on to serve the Detroit area and the state of Michigan as lawyers and judges.

However, it was not until the Winter of 2008 that a group of attorneys and judges from the Class of 1968 decided to try to get these men together.  The result was the first meeting of what has now become known as the Shamrock Bar Association. 

The keynote speaker at the first meeting was Oakland County Executive L. Brooks Patterson.  Though Mr. Patterson is not a CC alum, he did serve on the faculty.

In addition, at the first meeting two Distinguished Lawyer Awards were presented to CC alumni Robert Larin and David Christensen.  Pictures from that meeting can be found here.

Last October, the Association held its second meeting, with the Honorable Sean Cox, US District Judge for the Eastern District of Michigan, and the Catholic Central Class of 1975 as the featured speaker.

Our next meeting will be Tuesday, May 12, 2009, beginning with Mass at 6pm at Catholic Central High School, located at 27225 Wixom Rd. Novi Mi, 48374.  Dinner will follow the Mass.  Our speaker for this meeting will be the Honorable Robert J. Colombo, Jr.(Class of 1968), of the Wayne County Circuit Court.  Judge Colombo has presided over many high profile cases while on the bench, from the DeLisle murder case, to the 2008 City of Detroit text message case.

The Association will also recognize two Distinguished Lawyers, and will discuss the formation of a Mock Trial Program at Catholic Central.

Membership in the Association is open to all CC alumni lawyers, and judges, fathers and mothers of CC students and alumni, all friends of Catholic Central High School, and all those interested in the Michigan legal system. 

Anyone interested in the Association can contact Mike Butler (Class of 1971) at mbutler@twmi.rr.com.

WAYNE STATE LAW SCHOOL MOCK TRIAL PROGRAM

On Saturday, February 21, 2009, I had the pleasure and honor to act as a presiding judge for one of the Wayne State University Law School Civil Mock Trial sessions at Frank Murphy Hall of Justice in Detroit. All of the student litigators, witnesses, scorers and organizers were intelligent, well-prepared, and pretty fast on their feet, considering their level of experience. We can never have too many skilled advocates, and these young men and women are off to a fine start.

I was a little disappointed that judicial robes were not provided. I had to go back to my car to get the black Snuggie I keep in the trunk in case I get stranded on a lonely highway. See it modeled by our president, below. Worn backwards, it worked out quite well.

I might have taken my role as judge a bit too seriously. When one of the students requested my permission to leave the podium and move about the court during his opening, I asked him if he had any case law that would support his request. (Weak humor alert.)

 

All seriousness aside, as Steve Allen used to say, I understand that it is sometimes difficult to get enough judges for these events. I would direct anyone interested to contact:

David R. Moss Director of Clinical Education

Assistant Professor of Law (Clinical)

Office: Room 3384 Telephone: (313) 577-3970

E-mail: david.moss@wayne.edu

Special thanks to 3rd year Wayne State Law student Kiana Franulic, who is volunteer coordinator for the project. She made it very easy for me to participate. And even better, she volunteered herself to help me start and develop a mock trial program at my old high school, Detroit Catholic Central.

Thanks, Kiana. That is certainly above and beyond the call of duty.