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HOW DOES A MICHIGAN TEXTUALIST DEFINE JUDICIAL ACTIVISM?

OR,FOR THAT MATTER,JUDICIAL RESTRAINT

I was reading Howard Fineman's recent (July 18,1009) Newsweek column on Judge Sonia Sotomayor's Senate confirmation hearings.  He is not a big fan of the hearing process, as indicated by the column's title, "Advise and Shut Up Already".  As a Michigan lawyer, having listened to claims of judicial restraint and accusations of judicial activism from political partisans of all stripes, I found this passage, near the end of the column, particularly interesting:

"...Similarly, no one professes to favor an "activist" judge, and Sotomayor dutifully denied that she was one.

Of course, Chief Justice John Roberts portrayed himself at his own hearing four years ago as a cautious and judicially modest dweeb. In the intervening years, he has become an Incredible Hulk of "activism." Democrats don't dare admit that they in fact hope Judge Sotomayor will undergo a metamorphosis, too. And she probably will. It's what judges do. In one way or another, all of them are activists, in that they have no choice but to apply the Constitution to a changing world.

 All nominees pledge allegiance to the principle of stare decisis (lawyer talk for legal precedent), but constitutional law evolves in response to new facts and social conditions. Conservatives claim to revere precedent but want to ditch Roe v. Wade, in part because of advances in prenatal medicine. Meanwhile, liberals have now embraced the virtues of "judicial restraint" as they decry decisions handed down by the Roberts court."

I agree with Mr. Fineman.  At any given time, the definition of judicial activism or judicial restraint is certainly a relative thing.  I am sure the self-proclaimed textualists, past and present, of the Michigan Supreme Court, would disagree. 

JUST FOR FUN--BETTY BOOP, JUDGE FOR A DAY

Been a while since a Just For Fun Post has been run.  Betty Boop Judge for a Day is a 1935 Max Fleischer cartoon, where Betty, a Court Clerk, finds herself alone in the Courtroom  She fantasizes and sings about imposing criminal penalties on various public pests that have plagued her existence.  At the end, the Courtroom is flooded with appreciative citizens who carry Betty off--their newly elected judge.

While the textualists might object to the judicial activism, the folks at American Courthouse would appreciate Betty being chosen by election as opposed to merit selection.

By the way, I have always found Max Fleischer's stuff very surreal, reminding meof several of the more vivid nightmares I have had over the years.  This one is pretty tame compared to most.  Max must have had a very active, if not diseased, imagination.  I don't know how Depression era audiences viewed these cartoons.

MICHIGAN OPEN AND OBVIOUS--AND POPE BENEDICT XVI

On July 17,2009 Pope Benedict XVI broke his wrist after falling in the bath of the Alpine Chalet where he was vacationing.  The fracture required surgical repair.

In 1992, some 13 years before he became Pope Benedict, the then Cardinal Joseph Ratzinger ended up in the hospital after slipping and banging his head while on holiday in Bressanone, Italy.

I will pray that  Pope Benedict will have a swift and complete recovery.  I will also offer up a prayer or two of thanksgiving that the Pope was not vacationing at the Grand Hotel in Mackinac when the fall occurred.  Not so far fetched an idea.  His predecessor, Pope John Paul II did visit Michigan in 1987.

I'd hate to see what would happen if the leader of the world wide Catholic Church, my Church, was required to come under the jurisdiction of Michigan premises liability law, particularly the "Open and Obvious Doctrine."  This "doctrine" is not to be found in any Michigan statute book, but has been created, virtually from whole cloth, by the Engler Judges and Justices of the Michigan Appellate Courts.

The Open and Obvious Doctrine holds that a premises owner owes no duty to warn or protect an invitee from dangers that are open and obvious.  A danger is open and obvious when an average person with ordinary intelligence would be able to discern the danger with only a casual inspection.  Richardson v Rockwood Ctr, 275 Mich App 244, 247.

 The Michigan Open and Obvious doctrine has been most recently applied to a slip and fall in a hotel bathroom in the case of Shattuck v Hotel Baronette, decided in February of 2009.  In applying the Open and Obvious doctrine to throw out the plaintiff's case, the Court held: 

"In addition, “a reasonable person in [plaintiff’s] position would foresee the danger” posed by stepping out of a bathtub of water with wet feet onto a hard tile step or floor, or a hard interior bathtub step in a wet bathtub without waiting for the bathtub to fully drain or drying oneself off, or placing a towel or other apparatus in place to absorb the water. Hughes, supra at 11."

("Hey, Marge, I just spilled some coffee.  Can you render to me an apparatus of high moisture absorbing characteristics that I might place it over the spill and thereby dry  or otherwise eliminate any danger, current or possibly residual. Thanks so much.")

Now, it is a basic tenet of the Catholic Church that the Pope is infallible.  Now, defining the word "infallibility" might be difficult even for those Michigan judges who worship at the altar of the Textualist religion.  It has been defined, however, in various sources as "inability to err".

CAP'N CRUNCH LAWSUIT-WHY HASN'T AMERICAN COURTHOUSE BEEN ON TOP OF THIS?

I am a firm believer in the right to civil trial by jury, but I recognize that every claim filed should not survive to the jury trial phase.  There are some stupid suits.   Where I part company with tort reformers is that most of them don't want any claims to make it to trial.  They want a system that somehow will stop the cases before they get to the clerk's office.  Don't quite know how that might be done.

But I have found a really stupid suit that has been recently dismissed by a Federal Court in California.  It seems a woman, through an attorney by the way, sued Pepsico, owner of the Cap'n Crunch cereal brand, because she had been led to believe that the Crunchberries in that version of the cereal were actually real fruit.  So deceived, she ate the cereal for its perceived health benefits, for four years.

Wow.  I need to get this woman at my next poker game.  Now the attorney firm involved had previously filed a similar suit against Kellogg's for Froot Loops, for God's sake.  Intelligence alert, there is a reason they spell Fruit, Froot.  Additionally, people allergic to chocolate probably can safely eat any product advertised as "Chocolatey".

The Federal Court dismissed the case, early on, without oral argument on the dismissal motion, and without giving the Plaintiff an opportunity to amend the complaint.  Here is the decision.  The Court employed remarkable restraint, I thought.  I don't think I could have resisted.  Maybe now the law firm can work on its suit against Kraft alleging Cheez Whiz caused calcium deficiency in a client who thought is was real cheese.

You see the system is equipped to  take care of such suits.  Dan Pero and American Courthouse think there should be a way to mandate that such suits be stopped before they are filed.  I don't think that can be done consistent with the US Constitution.  That document won't prevent the tort reformers from trying.  After all there higher values.  Corporate profits.

And before American Courthouse makes the argument that this is another example of the greed of trial attorneys trying to make a quick buck at the expense of the noble corporation, remember business v business litigation is far more prevalent that personal injury litigation.  For instance, this meritorious corporate claim, where Jessica Simpson, a paid jeans endorser was sued for 100M for naming a different brand of jeans as her favorite.  Not sure what happened with that.  I know Jessica's career isn't going so awfully well.  That and the Tony Romo thing going south.

GREAT INSURANCE COMPANY ADS 7

I skipped the consecutive numbering for a while but our latest edition is lucky number 7.

Lincoln Insurance commercials are uniformly cheesy.  There are a half dozen or so of them available for viewing on the Web.  They are tasteless, sexist, racially lacking in sensitivity and on and on.  This guy thinks the novelty glasses with the ping-pong ball eyes on springs are hilarious.  They are featured in every commercial. 

It is interesting that both the Lincoln commercials and the Eagle Insurance commercials come from Illinois.  the insurance system there must be a real laugh riot. 

Bills target insurance firms that drag feet on legit claims

In the July 14, 2009 edition of the Detroit Free Press, Chris Christoff writes the above-entitled article about a group of bills introduced by Michigan House Democrats to help protect citizens against insurance companies that drag out or deny legitimate claims.  This is a group of 12 bills that could impose civil penalties, and in some case criminal penalties against insurance companies and execs. who encourage the wrongful denial of claims.  One would hope that if the bills pass (don't hold your breath), wording a little more specific than "encourage" is used in the law.

Well, I don't believe all insurance adjusters are evil, or that the every action of an insurance company is dishonest, unethical, and possibly or soon to be criminal.  But, the companies are in business to make a profit, and employees are expected to work to maximize those profits, and that, simply put, means paying out as little as possible on claims.  The ideal customer is one who continues to pay for coverage and never makes a claim.  There are not too many industries wherein the seller hopes the customer doesn't use the product he buys. Purchase of the product begins, rather than ends the the commercial relationship. Use of the product costs the seller money.  Use of the product purchased reduces the seller's profit.

There is a conflict inherent in the insurance business.  Say what they will about fiduciary relationships between insurers and insureds, the reality is that the insurance companies are sorely tempted to act only in the their own financial self interest, which is, really by definition, contrary to the interest of policy holders.  That is natural.  The insurance companies also hold more power than an individual policy holder, and can bring a great many resources to any dispute with an insured or insurance claimant.

Some scrutiny of the industry is called for, not only because of the unique and conflicted relationship, but because the purchase of insurance is often required by state law (eg. auto and worker's comp).

The insurance industry has come out against the new bills, not surprisingly.  It has invoked a few of its favorite buzz phrases, "frivolous lawsuits", higher insurance rates", are the two specifically mentioned in the article.  When the industry pulls out these phrases it generally expects to get the same response Bob Hope did when he yelled out "Brooklyn!", at a World War II USO show.

The article mentions Jo Anne Katzman, who quit Allstate Insurance Co. because she and other adjusters were pressured to deny legitimate claims. The article quotes Katman, "I could not look someone in the face and say I'm denying their claim when I know it was legitimate," Katzman said. "It's a huge problem in Michigan."Here is a YouTube clip featuring Ms. Katzman, which appears to have been very recently posted.

We'll see what happens with these bills in the legislature. I haven't read the proposals. 12 bills certainly sounds like a lot. And I am not sure that criminal sanctions against execs is a spectacularly good idea. But, in a state where existing consumer protection laws have been gutted since their enactment by courts preaching against judicial activism, some review of the industry's practices may be in order. The state of affairs described by Ms. Katzman, are if true, a genuine matter of concern for all of us.

PARTISAN ANALYSIS (POOR)--FROM BOTH SIDES

I receive email newsletters from several organizations/blogs, among them:  American Courthouse (Dan Pero), Wolverhampton Wanderers (English Premier League), the Michigan Democratic Party.  Most I remember joining.  All in fact, except the Michigan Democratic Party list.  I am not a party member.  I have a theory how I was put on the list, but that is not the point of this piece.

I can say with confidence that American Courthouse and the Michigan Democratic Party represent polar opposite points of view.  They do share one talent.  Both will ignore facts and issues when trying to score points off the opposition.

Two prime examples were supplied to me within the last 24 hours.  First from American Courthouse in a piece entitled: "Obama’s Auto Task Force Fails To Protect New GM From Tort Lawyers".  This was followed by a piece from the Michigan Democratic Party:  "Justice Young Devalues a Mother's Role."

I have close friends and closer relations who work for all of the Big Three and I am desperate to seem them all survive and prosper.  And those regular readers of this site (both of them) know that Michigan Supreme Court Justice Robert Young is not my favorite jurist.  Both pieces angered me, but not for the reasons intended by the respective authors.  I assume Mr. Pero and Mr. Mark Brewer, chairman of the Michigan Democratic Party, felt that factual analysis is not necessary when unquestioning adherence to the party line is what is expected, nay, demanded.

ANOTHER GREAT DAY FOR THE LEGAL PROFESSION

Even while visiting our son over the Fourth of July holiday in Kentucky, I could not escape the continuing local news coverage of an attorney, who had been found by his neighbor, asleep, in the neighbor's garbage can.  This is one of the actual police photos taken at the scene:

The neighbor, who didn't recognize (understandably) attorney Larry Wilder from that part of his anatomy that was visible, called 911 at about 7am.   Here is an excerpt of the  call:

DISPATCHER: Jeffersonville police. CALLER: I've got a ... and don't laugh ... I've got a man halfway in my garbage can, the garbage is turned over and there's man in it ... laying in it. I don't know if he's drunk or what. DISPATCHER: OK. DISPATCHER: He's going to start for 3503 Elk Pointe Boulevard. There's a subject in this guy's trash can, he's drunk and he's half in and half out. DISPATCHER: Did you put him in the trash can sir? CALLER: No Ma'am.

Excellent.  Even better, Mr. Wilder later stated that he didn't remember anything about the incident.  As you may guess, there was some drinking involved.  The article from the local Times-Herald-Picayune-Gazette-Intelligencer:

Lawyer found in trash can remembers nothing of incident

Mr. Wilder, in addition to having something of a private practice, is--or I should say, was, the attorney for the Jeffersonville City Council. 

Another great day for the legal profession.  Too bad Larry doesn't remember the incident.  I am dying to know under what circumstances crawling into anyone's garbage can seems like a good idea.

I feel bad for larry--and also for Dan Pero.  It doesn't appear that Dan can claim this man is a trial attorney.  Too bad.  If he was,I am sure Dan could have made some nice superficial, over broad generalizations in American Courthouse with ammo like this.

I LIKE IKE FOR PRESIDENT-CURRENT POLS TAKE NOTE

Over the holiday weekend, it is nice to crank down my personal Michigan civil justice defense alert level from Defcon 2 to Defcon 4 for a few days.  I couldn't get away from my TV news fix, or my YouTube fix, however.

I have seen how, time and again, political partisanship gets in the way of solving the serious problems that beset the state of Michigan and the USA.  And it is never enough to say that your opinion may differ slightly from the folks in the other party.  And you can never say that the other fellow's point of view may have some small amount of validity.  Preserving the party's power base is the prime, if not only, objective.  Vilify the opposition.  Give them credit for nothing.  Secure shows on various cable networks and have a parade of ex-sportscasters, ex-comedians, ex-disk jockeys, ex-beauty pageant contestants label all members of the opposing party as fascists, or traitors.  These well-reasoned and well-substantiated opinions were, no doubt, fashioned and tested in the crucible of public service, and national crisis.  Well, no they weren't. 

Rather a large and long digression there.  But, not really.  The previous paragraph just sets the stage for a ad I found on YouTube, while looking through the "Recommended For You" selections.  A 1956 Eisenhower advert was featured(though it sounds like one from '52, as it doesn't say to re-elect him), and is set forth below.  Now, Ike was not a career politician. But certainly his experience was on the largest stage; and he played for the highest stakes with the most expensive capital (American lives) of anyone of his generation.  During the Fifties, the Cold War was in high gear, the fear of nuclear war was real, and the Korean War ended during his first term.

So, one might forgive him if his ads had a bit of a strident tone.  The issues were important, and he had walked the walk for many years.  So, here is the ad:

Oh, the hyperbole! Oh, the histrionics! Oh, the demonization of the Democrats! (Don't blink, you'll miss the 3 second reference.) Darn effective ad. For an hour after I watched, I went around chanting: "Ike for President. Ike for President. Ike for President. Ike for President." Fortunately, my kids are used to such flights of lunacy from their old man.

The political process might be better off if we concentrated on why people should vote for us, rather than why they should vote against the other guy. And, Ann, and Al, and Rush and Keith, perhaps we might solve some of our problems if we tried working together for the people rather than for the power of our Party.

 "Ike for President. Ike for President. Ike for President. Ike for President." Damn fine ad.