| The story here goes back to former Gov. John Engler, whose signature issue back in his days in the state Senate was so-called 'tort reform', which really means denying citizens access to the courts. After he became Governor, a convergence of circumstances allowed him the opportunity to appoint four justices who were closely aligned to his ideology - the 'gang of four', Chief Justice Clifford Taylor and Justices Maura Corrigan, Stephen Markman, and Robert Young, Jr. (a former insurance company lawyer). Being appointed to the Court meant that when they faced re-election, they did so with the golden ballot designation, "Justice of the Supreme Court" under their names - the only officials in our system to have this advantage (incumbent judges at other levels are designated "Incumbent" on the ballot).
From 1999, when Markman and Young were appointed, until 2008, when Chief Justice Taylor was defeated by Diane Hathaway, the gang of four, usually joined by Republican Justice Betty Weaver, systematically dismantled many long-established rights of citizens, all the while loudly proclaiming their allegiance to the rule of law and precedent.
Here's an example, the Kreiner v. Fischer case, discussed by Jesse Green, communications director for the Michigan Trial Lawyers Association:
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.
"They have radically changed Michigan law," said Ypsilanti attorney Doug Shapiro, at a forum on the Supreme Court sponsored by the Livingston County Democratic Party. "In 10 years, no one has won a case against an insurance company; if you are the plaintiff, you lose."
"Insurance companies once had to act in the best fiduciary duty to the insurance, not just make money," Shapiro said. "Not anymore."
The most important changes introduced by the gang of four have been draconian limitations on who has standing to sue in the first place. Here's another example:
In 2007, in the Nestlé Waters North America case, the court ruled that when the 1970 Michigan Environmental Protection Act said: "The attorney general or any person may" sue to protect "the air, water, and other natural resources ... from pollution, impairment, or destruction," the legislature did not really mean "any person", but rather a person who could show individualized harm from the pollution.
This was breath-taking legislation from the bench. The legislature had clearly given the right to protect our precious natural heritage to every Michigan citizen - and the Court stripped it away.
Also in 2007, Attorney Robert F. Garvey wrote an article published at Michigan Lawyers Weekly. In this article, the results of a bi-partisan blind survey done of both plaintiffs' and defendants' attorneys across Michigan showed the following:
Question 1: Do you generally agree that the decisions and opinions of the Michigan Supreme Court majority are the result of an agenda that is better left to the legislative branch?
Yes 83.7 percent No 16.3 percent
Question 2: Do you generally agree that the decisions and opinions of the Michigan Supreme Court majority suggest a pattern of bias that favors insurance companies and large corporate interests over those of ordinary citizens in civil litigation matters?
Yes 79.3 percent No 20.7 percent
Question 3: Do you generally agree that the decisions and opinions of the Michigan Supreme Court majority have resulted in a pattern of denial of the right to trial by jury in the State of Michigan?
Yes 80.5 percent No 19.5 percent
It is clear that all but the most ideologically committed lawyers are willing to admit to what is really going on. There are many, many other cases I could discuss to further show this trend, but this article is getting long as it is.
Over the last few years, the high water mark of the Engler Court has come and gone, and the radicalism has just begun to recede. First, Justice Weaver broke with her Republican colleagues on the tone of the Court, and in some cases on the substance, meaning that previous 5-2 decisions became 4-3.
Then, in 2008, Justice Hathaway was elected, making Justice Weaver the swing vote in the middle. Hathaway's victory is still fresh in our minds, and I won't rehearse it here, except to point out that before the election, not very many of us were willing to predict we would be successful - a lesson worth remembering now.
Earlier this month, in a case unrelated to Nestlé Waters, the Supreme Court overturned a 2001 decision and loosened the standard for standing in some civil lawsuits. Observers say this should also undo the Nestlé Waters prohibition on standing.
The court also has returned to previous precedent concerning personal injury lawsuits; now, as before, the court says the law "merely requires that a person's general ability to lead his or her normal life (after an accident) has been affected, not destroyed."
But this does not mean that we are safe from further bad rulings. In July, the Court decided that Michigan insurance companies can use credit scores to determine insurance premiums. In a 4-3 ruling, Justice Corrigan wrote that the state's Office of Financial and Insurance Services did not have the authority to ban the use of credit scores in determining insurance premiums.
Linda Teeter, Executive Director of Michigan Citizen Action, said that as a result of the ruling, "As an example, someone who has a DUI (Driving Under the Influence) or an OUI (Operating Under the Influence) and a good credit score can pay less than someone with a perfect driving record and a challenged credit history."
So it is clear that we still have a ways to go before the Court returns to standing up for real people, rather than fake people (corporations).
That brings us to this election. Two justices are up for re-election: Robert Young Jr., one of the gang of four, and Betty Weaver. Justice Young was so bitter about Justice Weaver's 'betrayal' of not voting in lock-step with the other Republicans that he declared the Republicans could nominate him or her - but not both. Justice Weaver has elected to run as an independent. It seems clear that the Republicans will nominate Young, and someone else to run against Weaver.
As we come up on our nominating convention at the end of this month, one of the decisions being pondered by party leadership is whether to nominate one, or two, candidates. Whether to concentrate our resources on defeating Young - or to also go after Weaver as well. The Justice Caucus of the Michigan Democratic Party, which I serve as a Board member, passed a resolution last Sunday urging the MDP to nominate for both of the openings on the Court. The argument is that Justice Weaver is still a Republican, who most often votes with the Republicans, defecting only in the most egregious cases. Also, our stalwart Democrats, Chief Justice Marilyn Kelly and Justice Michael F. Cavanagh, are approaching mandatory retirement age, and we need to take every opportunity to reinforce them while we can.
The counter-argument is that with limited resources, and no assurance that we can defeat even one incumbent, we need to concentrate on one goal - defeating the most radical of the gang of four. Also, there is the danger that a Democratic candidate running for Justice Weaver's seat would siphon away enough votes from her to elect the Republican candidate also running against her.
This decision is likely to be made at a higher level that any we have influence over.
The next question is who to nominate? The Justice Caucus has endorsed:
Judge Shelia Johnson
Judge Denise Langford Morris
Judge Deborah Thomas
It is a long-standing practice of the Caucus to endorse more candidates than are to be elected, if all of the endorsees meet the criteria of the Caucus, primarily that endorsees have demonstrated a sustained commitment to the progressive values of the Caucus.
All of these candidates have come to the Kalamazoo County Democratic Party to speak to us, Judges Johnson and Morris this year.
Then comes the most important question of all:
Regardless how many candidates we nominate, or who they are, what are YOU going to do to ensure that they win?
The Justice Caucus will be running a program called "Supreme Challenge 2010", to recruit volunteers across Michigan to go door-to-door for our candidate(s). We have just hired a coordinator to pull this project together. I will be recruiting Justice Caucus volunteers across the Sixth Congressional District, and representing this campaign to the Coordinated Campaign here in the Sixth and Kalamazoo.
Think about it - and give me a call. |
