Extreme Court?

Anne Stanton 

Part one of a part-two story that looks at whether tort or lawsuit reform has hurt or helped the people who live in Michigan.

The showdown between the reigning majority on the Supreme Court and Traverse City’s own Justice Betty Weaver has hit the front pages and appears to be a clash of personalities.

But don’t be fooled. The conflict is deeper than personal differences. The untold story is that the state Supreme Court—even in the opinion of mainstream attorneys—has closed the doors of justice to thousands of ordinary people based on a political agenda, prompting Weaver to part company with her fellow Republicans.

And if Weaver’s allegations are to be believed, the majority has been engaged in behavior she has categorized as trading votes for favors, abuse of power, and bias.  According to Weaver, the rift on the court is about far more than a difference of opinion. It is about her loyalty to the integrity of the institution and her fight to make public the facts about this alleged wrongdoing.

Some of the issues are rooted in the legacy of former Governor John Engler who appointed the majority members of the state Supreme Court. Engler now works for the country’s largest manufacturing lobby group, the National Association of Manufacturers.

The state Supreme Court has dovetailed anti-tort legislation by issuing opinions that profoundly reduce a citizen’s ability to get into the courtroom door, said Jesse Green, communications director for the Michigan Trial Lawyers Association.

 

Here’s an interview with Jesse Green:

 

NE: You have called the Supreme Court justices “activists”—this sounds like a line right out of Rush Limbaugh.

Green: I think that the problems on our current Supreme Court have more to do with these allegations of wrongdoing, abuse of power and attempts to cover it all up through gag orders.  But there is no doubt that many believe the current court has been very activist for a number of years. In many cases, the Michigan Supreme Court has decided to create new words that never existed in the statute to support their rulings … where they’ve said, we’re going to create brand new language for what the legislators really meant.

But Justice Weaver won’t go there and dissents in many of these cases. There’s also the question of the court overturning precedent that’s been there forever and ever. Justice Weaver won’t go there either.

 

NE: So which cases have had the broadest effect on the general public’s ability to have their day in court?

Green: Here’s a good example. In the Nawrocki v. Macomb County Road Commission, the court ruled there is “no duty” for the road commission to maintain safe travel on roads. The ruling means that if you’re driving down the road and approaching a traffic light, and it’s green in all four directions, and a cement truck strikes you and wipes out the whole carload of passengers, the road commission and the government have absolutely no liability. Their liability is for the asphalt, not for the signs, the bridges, the guard rails, the stop signs. Asphalt is the only thing they’re responsible for.

So if you’re driving along and the stop sign is missing and has been missing for months, and the authorities were aware of it, and an accident has happened there before, they still have no liability. That’s a strange thing for the state’s highest court to say because we rely on these agencies to ensure safe roads. That one is unbelievable. (Weaver concurred with this opinion, citing the law that largely gives governmental unit protection from lawsuits.)

 

NE: Do you have another example?

Green: The Kreiner v. Fischer case. The background on this is we have this no-fault insurance in Michigan. It’s mandatory. You get a ticket for not buying it, so you expect to have certain coverage. When the Supreme Court came out with the Kreiner decision, they created brand new language that didn’t exist in the statute.

The statute said, folks who have serious injuries get their insurance benefits. We made them buy it, so they get the insurance. So injured people were filing claims and the insurance companies eventually went to the courts and said, ‘We need a way that we don’t have to pay as much.’

The Court ruled that in order to get coverage, the injuries must be of the type to affect the “course and trajectory” of your general life. That language never existed before! It wasn’t in the statute, it wasn’t the result of an academic study. They made it up and completely changed the law. (Weaver dissented in this case.)

Recent articles indicate that 90% of auto accident victims who face a so-called “Kreiner Motion” have their cases tossed out of court.  Those who are injured may lose their job as the result of their injuries, end up in the hospital, lose their car, and their insurance companies won’t pay for the benefits they have already bought and paid for.  So they’re forced into court. 

Potentially 90% of these people –already injured and who have had their lives devastated by an auto accident—are being tossed out of court based on this Kreiner ruling. It’s created a bar so high, few people reach it.

Let’s say a drunk driver hits you; you get a couple of surgeries, pins in your legs, permanent damage to your back, some hearing loss, and you lose a finger. The bad news is you go into your insurance company, and they say, ‘We don’t believe you’re seriously injured enough to collect.’ So you retain an “evil” trial lawyer to take it to court and they dismiss the case without listening to it, because, in the reasoning of Kreiner, ‘You still have your job, right? You’re still working, still living in the same house, you didn’t get a divorce. You’re still on the course and trajectory of your general life, so you don’t qualify for the benefits you were promised by the no-fault law and the policy you bought and paid for.’

They call this the “drunk driving protection law,” because a lot of folks who cause these accidents are drunk drivers, and this law works to protect them by tossing the victims out of court, in favor of the drunk drivers.  That is not only crazy, it is just plain wrong.

 

NOT A JOKE

There’s a case downstate, and it’s going to sound like a joke, but this is not a joke. A drunk driving illegal immigrant was driving home from a bar, ran into a guy in a wheelchair, caused massive and serious damage, and the case gets thrown out of court. You know why? According to the reasoning of the Supreme Court in Kreiner, he’s already handicapped, so how much worse could his life be? Since he was already in a wheelchair, he couldn’t work, didn’t have a job, and he wasn’t an athlete, so his “life trajectory” wasn’t changed. Yet he had spent months and months in the hospital, almost died, and had multiple surgeries. I’m not sure that trial decision is going to hold up in appeal, but this is an example of a decision that is freakin’ nuts.

It’s gotten so bad in Michigan right now, that the many in the legal community, and even in the legal newspapers—who have nothing but respect for the institution of the Michigan Supreme Court—consider the current majority the laughing stock of the country. People feel free to laugh and joke about our current Supreme Court majority because it’s beyond ridiculous.

 

NE: Do you have another example?

Green: Yes, a case called Apsey.Medical malpractice litigation can be very, very controversial. Lawsuits are incredibly expensive to bring and to defend. They are nasty, lots of emotions, very controversial, very high profile. So there are many checks and balances put into place, and only the good cases get to court.

There are already incredible hurdles to jump through—facts, depositions, subpoenas, document requests. In addition to this, you now have to find a doctor in the exact same specialty to concur with the plaintiff’s expert to say, I’ve looked at every bit of evidence, and it looks to me that you can say it’s medical malpractice, and I am willing to sign an affidavit of merit. Michigan law says we have to have that. Some might say it’s a little extreme, but it’s okay. It is another check and balance.

After another couple years, another hurdle is created by the current Supreme Court. An affidavit of merit has to be notarized. It seems a little silly to have something that profound notarized, but it’s still okay. Yet another check and balance.

Then the Apsey case brings it to over the edge of ridiculous. Now, according to this archaic law they found still on the books from the 1800s, you have to obtain from a county clerk a certification form that says the notary that signed the doctor’s certificate of merit is, in fact, a notary. There are a lot of reasons that this is ridiculous.

In many counties, clerks don’t certify notaries... Louisiana doesn’t even have counties, neither does Washington D.C. In some states -- county clerks are prohibited by law from certifying notaries. Our Supreme Court has created a law that says something is necessary that’s unlawful or impossible in some states. That’s bizarre! The obstacles were already on the edge of ridiculous, and the Michigan Supreme Court just pushed it over the edge.

 

NE: Where is this coming from?

Green: This really started with John Engler. He came on board like a freight train. Tort reform was one of his favorite talking points when he was in the state Senate. He’s been riding this particular train for a very long time, and a lot of the more egregious stuff started with him… We have a decision from this court that has upheld complete and utter immunity for the drug industry. Even if you’re standing in front of 100 people in a court room, take Vioxx and explode, and there’s no doubt it’s from the Vioxx, there is still nothing you can do.

The beauty of our system is that a legislative body or a court or an elected governor with an extreme agenda can’t get very far unless there’s some cooperation with the other branches of the government. The purpose of our high court is not to make law, not to change public policy, but to look at the laws and decide if they are constitutional. Many of the laws—like giving immunity to drug companies—would be declared unconstitutional in any other state.

What happened in our state is because of the dynamic that was created with Engler, a three-term governor. He had the opportunity to appoint Supreme Court justices who are very, very, very closely aligned with him ideologically.

 

NE: But I thought Supreme Court justices were elected.

Green: In almost all cases they are appointed when another justice can’t fill out their term. Say a sitting judge has to step down because of health issues. So the governor appoints a person and that has the effect of being a lifetime appointment, and let me tell you why.

If you’re appointed as a Supreme Court justice, you fill the rest of the term, and then you run on the ballot. You are designated as an incumbent, and an incumbent Supreme Court justice has never lost in Michigan. So you’re in it, as long as you want to stay. They can just sit there until mold grows on them, but keep in mind that a justice cannot run for re-election once they’ve reached the age of 70.)

Back in 2000 and 2002, we had the most expensive Supreme Court race in the nation, which was also regarded as the nastiest and most partisan, and it involved all the Engler appointees. A total of $16 million was spent on state Supreme Court races, an unbelievable sum, the same that used to be spent on a gubernatorial race, and the end effect was that all the incumbents won.

 

NE: Does the ballot show which political party they belong to?

Green: No, they don’t show up as Republicans or Democrats. These folks are actively partisan in every other area. Their support and funding are very closely tied to the state political parties. Formally, they are not, but informally they are nominated at party conventions where candidates are nominated and the platforms are adopted. But when voters go to the ballot, they don’t get to know those things. All they get to know is whether they are an incumbent.

 

LOCK STEP

For years, there was a 5-2 majority on the Supreme Court. Five Republicans and two Democrats, and all five of the Republicans for many years voted in lock-step. There’s been a lot of talk lately of 4-3 votes, but that’s because Justice Weaver broke rank with the other four Republicans. This is my opinion, but it appears she broke rank in the cases where the majority opinion has gone over the brink of ridiculousness.

There are important differences between Justice Weaver and the other four Republicans. She is the only justice who was not appointed through the ranks, but ran and won on her own merit. I think she’s very proud of the fact that she was elected into office. She went to the voters and was elected all the way from up north. It’s amazing and it gives her credibility. She’s been on the bench for 32 years and has by far the most judicial experience of any justice in the GOP majority. She worked her way up the ranks. She’s like the general who everybody talks about because she started by carrying the machine gun, love her or hate her.

The other difference is that the Engler appointments are all active members of the Federalist Society, which has an interesting pedigree coming out of the law and economics ideology from the University of Chicago. It’s very neoconservative. Justice Weaver is a Federalist, but not really active. She’s an old school conservative from northern Michigan, who votes fiscal responsibility, judicial restraint, but she has no agenda. She’s conservative in the way folks way back said they were conservative.

This is not a new battle for Justice Weaver.  For years the opinions among the justices have been filled with accusations and name-calling and subtle finger-pointing and accusing each other of conspiracy theories. Sometimes this stuff gets to be 150 pages long, but no one reads this stuff except for lawyers, and it has been going on for years, not just a couple of years ago.

The majority in the court has been doing strange and questionable things—not just making bizarre decisions, but showing really questionable behavior. Back in 2005, 2006, they had a procedural coup that really set off the current crisis. The Supreme Court has traditionally required a super majority for certain kinds of decisions. So the four justices on this ideological majority got together and issued an order that said, ‘We four have decided to revise the rules on the supermajority, and now the supermajority means four instead of five.’ And they didn’t require a super majority to make the new rule and could now do anything they wanted to. And on one outside the legal community noticed because no one follows the court.

 

The four justices in the current majority are Chief Justice Taylor and justices Maura Corrigan, Stephen Markman, and Robert Young, Jr. (counsel for AAA Michigan before appointed to the court).

 

 

If she would just… shut up!

Last month, the majority of four justices moved to suppress a dissent written by Supreme Court Justice Betty Weaver (they abruptly reversed course when it hit the media). On Wednesday the justices will consider a “gag” rule that bans the Supreme Court justices from speaking or writing about any case, even those that are closed. On her website, Justice Weaver writes an 18-page dissent to this administrative order.

Here are excerpts:

Weaver charged that Supreme Court Justice Chief Clifford Taylor behaves inappropriately and should be replaced as chief justice. As proof, she excerpts one of his draft court opinions (below). The topic involves an appointment to the Kent County Probate Court. (Weaver wanted Judge Gardner and Taylor wanted Judge Sullivan.) Unprofessional? You decide:

 

“Behaving like a petulant “only” child, Justice Weaver, more or less, is “holding her breath” until she gets her way …. She hopes, as a child engaging in a tantrum, that one of the adults will give [sic] in and allow her to dictate their chief judge vote. … ever the conciliator, I even suggested Justice Weaver use a hunger strike as a vehicle as it seemed to have the potential for everyone to be a winner …

 

Here, she explains that she ran for a second term to prevent former Governor Engler from politicizing the court. She said that Gov. Engler, along with his legal counsel, Chief Justice Taylor and Taylor’s wife, pressured her to do a political campaign advertisement for Justice Taylor. “I refused and never did, believing it to be inappropriate.”

 

If you’d like to offer your opinion about the gag rule, you must first call the Michigan Supreme Court clerk at 517-373-0120. The January 17 hearing will cover many other issues, and runs 9:30 a.m.-11 a.m., at the Hall of Justice, 6th floor, in Lansing.