Beware of Calls to Change Michigan Judicial Elections
July 22, 2010
A recent Lansing State Journal editorial called upon Michigan voters to “junk” state Supreme Court elecitons.
Michigan Supreme Court Justice Robert Young has weighed in with an excellent commentary taking issue with the LSJ and others who advocate eliminating democratic judicial elections such as George Soros and former US Supreme Court Justice Sandra Day O’Connor.
I recommend reading Justice Young’s piece in its entirety, but here are a few gems: Read more
More On Michigan Case: “Who Knew Carbon Monoxide Kills”?
May 26, 2010
Walter Olson at Overlawyered links to a great piece by Daniel Fisher of Forbes. (I blogged on this earlier this week).
Fisher’s piece, “Who Knew That Carbon Monoxide Kills?”, concerns the lawsuit over the death of a Michigan man by carbon monoxide poisoning. The man, an experienced mechanic, died while repairing his car inside his closed garage while the engine idled. His family charges the muffler repair kit manufacturer with failing to warn about the dangers of repairing mufflers indoors.
The trial judge dismissed the case for reasons, Fisher notes, “that should be obvious to anyone born in the 20th Century.” Namely, running an engine inside a closed garage is dangerous! Read more
Michigan Court Overturns Common Sense
May 24, 2010
A Michigan man with experience as a mechanic and a history of repairing engines died of carbon monoxide poisoning after letting a car run in a closed garage while trying to repair a muffler. The man’s family sued the manufacturer of the muffler repair kit for failing to warn about the dangers of repairing mufflers indoors. A Michigan trial court originally threw out the case, but the Court of Appeals reversed the ruling and the suit will now go to trial. Writing for the minority (and for common sense), Judge Kirsten Frank Kelly noted:
“In my view, defendants had no duty to warn of the dangers associated with another manufacturer’s product. Further, assuming for the sake of argument that such a duty existed, running the engine of a car in a small, enclosed space, such as a garage, is an obvious material risk to a reasonably prudent product user and would be especially obvious to a person like the decedent whose employment involved servicing and repairing engines.”
Judge Kelly also pointed out that it is “undisputed” that the muffler repair kit did not create the carbon monoxide poisoning; rather it was the man’s “misuse of the vehicle in an enclosed space” that caused the harm. It will now be up to a Michigan jury to decide whether justice and common sense still apply in the state.
Thus Spoke Justice O’Connor
February 10, 2010
Former U.S. Supreme Court Justice Sandra Day O’Connor has been a longtime public servant and for that she deserves the thanks of a grateful nation. But her crusade to abolish voter participation in judicial selection and turn the process of picking judges over to a cabal of elites is verging on crack-pottery.
Her latest outburst came in Michigan where she appeared at a forum sponsored by Wayne State University Law School and the Michigan chapter of the American Board of Trial Advocates. Among the honored guests were Democratic party hack Mark Brewer, Michigan’s deeply politicized unions, and the state’s powerful trial bar – the same crowd that tried unsuccessfully to hijack Michigan’s Constitution by unseating elected judges and gerrymandering legislative districts to suit their ideological ends.
It’s sad that Justice O’Connor would lend her considerable prestige for use as cover to a gathering of such rank political partisans. Even so, her arguments deserve to be taken seriously, so let’s have a look.
“There has to be one safe place in our system of government where decisions are based on the law and people can be fair and impartial,” said Justice O’Connor.
Does she really mean this? Does she not know that the elected officials of Michigan’s Executive and Legislative branches are all bound by exactly the same oath as Michigan’s Judiciary – the oath to “support the Constitution of the United States and the constitution of this state?” Is she really implying that Governor Granholm and Michigan legislators are operating outside the law? Or that their duty to Michigan’s Constitution is somehow less important?
“In order for judges to dispense law without prejudice, they need to be certain they won’t suffer political retribution,” said Justice O’Connor.
So are all elected judges in the U.S. – who presumably face possible “political retribution” every time they go before the voters – unable to “dispense law without prejudice?” Do we really want any public servant in a democratic society to be “certain” that his or her actions are so completely insulated from public accountability that he or she can’t be removed from office?
“Being right has to be more important than being popular,” said Justice O’Connor.
Very true, Justice O’Connor. But who gets to decide what is “right?” Here we get to the heart of the matter. Justice O’Connor and her allies in the “merit” selection campaign believe elites should be making this decision, not voters. They want citizens to give up their right to vote for judges and trust that the whole affair will be better handled by elites, by which they basically mean elite lawyers.
I don’t doubt Justice O’Connor’s sincerity, but unfortunately her comrades in arms at that Michigan symposium are not so public-spirited. They have strongly partisan, deeply ideological agendas. For many, the ends truly justify the means – even if the means require doing away with a basic democratic right like voting. And if a distinguished jurist like Sandra Day O’Connor is willing to help them further their political ends, they’re happy to oblige her.
CA Supreme Court On Recusal: “Mere Appearance of Bias” Not Enough
January 26, 2010
“Merit selection” supporters, treading water in many states in their attempt to eliminate democratic judicial elections, are looking to open a new front in the fight for America’s courthouse. Their latest strategy is to target judicial recusal standards — turning recusal into a back door way for special interest groups to limit the influence of citizens over judicial selection and shape the court to their own ideological ends.
Two weeks ago, the Wisconsin Supreme Court stopped such an effort in its tracks when it refused to adopt a rule that proposed automatic recusal in any case in which a litigant had made a $1,000 campaign contribution. The Wisconsin court wrote:
“[campaign] donations, endorsements or independent spending around elections are not enough to force judges off cases.”
And last week the California Supreme Court added its voice to Wisconsin’s. Law.com has the specifics of the case - here’s the money quote from the article:
“…Following an ‘exhaustive review’ of ‘a delicate realm of constitutional law,’ the justices said that ‘while a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient…”
When fuzzy “appearance of bias” standards are used for recusal decisions it’s an invitation for unscrupulous trial lawyers to do whatever it takes to remove judges they fear might be unsympathetic to their cases.
Want proof? Look to Michigan. The supreme court there recently abandoned century-old recusal standards in favor of vague disqualification rules based on “appearances,” not facts. Just weeks later, trial lawyer Geoffrey Fieger demanded the state supreme court kick off three justices from the appeal of a case.
Kudos to California and Wisconsin for standing firm.
Democrats vs. Michigan Health Care Jobs
December 3, 2009
Today’s Detroit News ran a commentary piece I wrote, putting the spotlight on Michigan Democrats’ efforts to help their trial lawyer buddies at the expense of Michigan jobs. You can find the piece here.
Michigan Court Power Grab
November 19, 2009
Today’s Detroit News published an article I wrote to shine the light on the latest power grab attempt by Michigan’s liberal Supreme Court justices. You can read it here.
Activists On Michigan Supreme Court
August 18, 2009
Once again, it matters who sits on a state’s Supreme Court.
This AP story (printed in the Chicago Tribune) notes that Michigan drivers will have to pay about $20 extra this year just to pay for a recent decision of the Michigan Supreme Court.
As the story notes,
The court last month voted 4-3 to force the Michigan Catastrophic Claims Association to fully reimburse insurance companies for two brain-damaged men’s round-the-clock nursing care.
The association of no-fault insurers, which was created in 1978 to spread unlimited medical and rehabilitation expenses for severely injured crash victims among all motorists, compensates insurers once claims exceed $460,000.
* * *
Republican Justice Robert Young Jr. and two other GOP dissenters called the ruling “an expensive mistake for which every policyholder in Michigan will pay.” The MCCA said it raised the yearly assessment on motorists from $104 to $124 in anticipation of the decision — a 19 percent increase instead of what would have been a 4 percent jump to $109.
So what does this have to do with judicial elections?
As writer David Eggert noted, “The decision is an example of the importance of last November’s state Supreme Court election, when Democrat Diane Hathaway unseated Republican incumbent Clifford Taylor. Two days before leaving the bench, Taylor joined in a 4-3 ruling in favor of the MCCA. When Hathaway took over, the court reconsidered the case and ruled the other way.” In the minds of many of us here, Hathaway’s election marked a victory for judicial activists.
But the basic point is that it matters who sits on a state’s Supreme Court. And that’s why the people, rather than the trial lawyers, should get to decide who does.
Obama’s Auto Task Force Fails To Protect New GM From Tort Lawyers
July 9, 2009
In today’s editorial pages, the Wall Street Journal reports that Obama’s Auto Task Force tried to keep the new General Motors from having liability for future tort claims. Chrysler was succesful in securing such an arrangement, “[b]ut 11 state Attorneys General and a group of tort lawys creid foul.”
Here’s an excerpt:
In its original reorganization plan, the Administration even proposed to leave behind in the old GM all tort claims arising from cars manufactured before bankruptcy. That would have meant that all past, present and future claims related to cars GM produced before June would have had next to no chance of meaningful recovery, as they would have had to stand in line with every other unsecured creditor of the bankrupt firm.
Read the full editorial here.
Making Michigan A “Very Dangerous Place” To Do Business
April 1, 2009
Will more lawsuits turn Michigan’s economy around? The Democrat-controlled Michigan House of Representatives seems to think so, after approving legislation last week making it easier for trial lawyers to file abusive lawsuits against pharmaceutical and bioscience firms. These companies support around 12,000 jobs and drawing $355 million in R&D investment into Michigan, according to a Manhattan Institute study. That makes them the one bright spot in Michigan’s otherwise dismal economy – and a juicy target for fee-grubbing personal injury lawyers.
Why have pharmaceutical/bioscience companies invested in Michigan? Back in 1996, Michigan adopted a “drug shield” law that protects them from litigation against products that have been approved after rigorous testing by the U.S. Food & Drug Administration (FDA). That law made Michigan a model for states competing to attract high-paying bio-tech jobs.
As the Detroit News recently editorialized, repealing the law “would tell all prospective investors that Michigan is a very dangerous place in which to do business.” That’s exactly the message the Michigan House is now sending at exactly the wrong moment.
The Michigan Senate can put a stop to this madness. They should tell the trial lawyer lobby to take their abusive litigation elsewhere. Michigan needs more jobs, not more job-killing lawsuits.