My MI Court

Anyone who is a sometime visitor to this site will note that not much has been happening in about the last year and a half. I assure you it was not from lack of interest. Instead, all my energies were going into a new book, Judicial Deceit: Tyranny and Unnecessary Secrecy at the Michigan Supreme Court. My co-author is Chief Justice Elizabeth A. Weaver, Michigan Supreme Court (retired).

I could not keep up a blog and write a book, at least, not about the same thing. …And certainly not if I was trying to keep it fairly quiet. Now it can be made known.

I think I’m done posting anything at this site. New revelations will likely appear at the site related to the book. I hope you’ll visit. I hope you’ll buy the book and find it worth your time. Seven-hundred-sixty-five pages, more than 15-hundred footnotes. Oh, it’s a great, fat book.

The whole purpose of the work of the last year and a half is to reform the court. Of course, that was the whole purpose of this site, too. Much remains to be done. The prospect, however, is not daunting while I recognize it appears impossibly large. It’s not. And don’t bet against reform. As one whom I hold dear used to say: “The future is unknowable.”

The Grand Rapids Press reports and attorney Rob Gaecke confirms that the U.S. Supreme Court denied leave in the Chandler lawsuit against Wackenhut (now G4S).  Jim and Glenna Chandler’s efforts to prove that the private security company played a role in covering up the murder of their daughter, Janet, now is at an end.

You can read the newspaper story by John Tunison here.

And the Michigan Supreme Court under then-Chief Justice Cliff Taylor gets the credit for the win for C4S when it made law in the Trentadue decision.

The U.S. Court of Appeals for the Sixth Circuit did not grant a rehearing in the Chandler lawsuit, so attorney Rob Gaecke has applied to the U.S. Supreme Court for a hearing.  Chances are slim, very slim, but he has carried this matter as far and as well as he has been able.

I have ben reviewing the Trentadue decision yet again and what the Michigan Supreme Court did in overturning the common law seems all the more a shame.

The appeal to the U.S. Sixth Circuit Court of Appeals has failed.  the word came this week that two of the three sitting on the appeal voted against it.  The third, Judge Martha Craig Daughtrey, affirmed the appeal in part and would have allowed the discovery to go forward.

The next step –if he takes it –will be for attorney Rob Gaecke to file for reconsideration. If that fails, there is always an appeal to the U.S. Supreme Court, but it seems unlikely that would happen.

The Circuit Judges come back, time after time, to the Trentadue decision rendered by the Michigan Supreme Court in 2007.  The judges in this case understand the horrific nature of Janet Chandler’s rape, torture and murder.  They get it.  But two of them — Judges R. Guy Cole, Jr., and John M. Rogers — find themselves constrained by their interpretation of Michigan law under Trentadue (Daughtrey sees a way around it).  All three of these judges are seekers after truth and upholders of the law.

…which is more than can be said of the Michigan Supreme Court when it opined in Trentadue.  Judge Cole put it this way:

When a federal court hears a case due to the diversity of the litigants, it must apply substantive state, not federal, law. As a general matter, this principle furthers justice by ensuring litigants the same outcome regardless of which court hears their claims. At times, however, this principle ties us to law we believe to be erroneous. Sadly, this is one such case.

Today, our hands are tied by a rope woven from the pages of the Michigan Supreme Court’s decision in Trentadue. To give James and Glenna Chandler their day in court, as they surely deserve, Michigan law requires us to find that Arthur Paiva’s actions were within the scope of his employment with Wackenhut. For the reasons stated in the majority opinion, I am unable to do so. I regretfully concur.

I’ve just come back from the Federal Appeals Court in Cincinnati.  The matter at hand?  A last appeal in the lawsuit initiated by Jim and Glenna Chandler against the former Wackenhut.  …Well, a next-to-last-appeal…if this fails there is the possibility for a request for reconsideration.

It was Wackenhut guards who in early 1979 raped and otherwise tortured the Chandlers’ daughter before those guards murdered her by strangulation.  Five of the guards are in prison for life along with a non-Wackenhut coworker–Janet’s roommate and purported friend, Laurie Ann Swank.  (Swank has been identified as the person who started the whole awful conspiacy–and they did conspire to abduct, torture and murder her.)

The Chandlers didn’t file suit in a Michigan circuit court and went instead to a Federal District Court because the Michigan Supreme Court–in a split decision–ruled in Trentadue v Buckler Automatic Lawn Sprinkler Company. that such lawsuits were precluded; the case was too old.   Trentadue involved the rape and murder of Maragret Eby in 1986 at her home in Flint.  The case was unsolved until 2002:

…when deoxyribonucleic acid (DNA) evidence established that Jeffrey Gorton, an employee of his parents’ corporation, the Buckler Automatic Lawn Sprinkler Company (Buckler), which serviced the sprinkler system on the grounds, had committed the crime.  Gorton pleaded no contest when charged with the murder and was sentenced to life imprisonment for Eby’s rape-murder.

Eby’s daughter, Dayle Trentadue, sued the corporation.  The trial court found for Trentadue and the Court of Appeals upheld the verdict.  But when the matter wound up at the Michigan Supreme Court, then-Chief Justice Clifford Taylor led the majority (although Justice Maura Corrigan wrote the opinion), in effect abandoning the common law discovery provision that made sense: when you find out who did it, you could initiate suit.  Nope. The new law would follow a state provision that would allow a three-year maximum to bring a claim.  The majority at the court read the law in conflict with the common law provision for discovery and the court made its ruling for the three-year provision…what is called a tolling period. That means that even if you didn’t know who had raped and killed your mother or your daughter,  you needed to initiate suit within that tolling period.  Well, certainly, the Chandlers had not done that by 1983, so the new interpretation in 2007–the same year Janet Chandler’s killers finally faced justice–barred them from seeking to hold Wackenhut in some way responsible for their daughter’s death.  Hence the move to a Federal District Court where there was the possibility of an appeal to a broader reading of the statutes and an approach to the matter on the grounds that Wackenhut fraudulently concealed matters in its own self interest.  If guilty of that, the corporation might have actively worked against solving the case.

The effort was shot down by Federal District Judge Janet Neff in Grand Rapids.  In doing so, the Chandlers’ attorney, Robert Gaecke, contended that Neff was making a finding of fact (that’s the job of a jury, he contend) and he appealed.

At bout the same time, there was another case that came before the Michigan Supreme Court–Connie Colaianni v Stuart Frankel Development Corporation, Inc.–and there was the possibility that the state high court might have overturned the Trentadue decision (Justice Diane Hathaway’s election to the court in 2008 [replacing Taylor] meant that the balance of the court had been altered.)  It’s of some interest that one of the amicus briefs filed in the case was from the Michigan Maufacturers Association.  John Engler, the former governor who appointed so many of the Justices of the Michigan Court, heads the National Manufacturers Association.  The oral arguments had been heard and the decision was probably ready when the parties announced they had settled.  The challenge to Trentadue evaporated.  Perhaps the insurance company that was behind Frankel saw the handwriting on the wall and decided the more expeditious course would be to settle.

But back to the Federal Appeals Court.

Gaecke had to craft an argument that made several fine distinctions.  He is relying on the court’s interpretation of Michigan Fradulent Concealment Statue, MCL 600.5855,

To the casual observer, this might seem the splitting of hairs…looking at one statute or another.  To those involved and interested, it was the matter of finding the right way to put the matter before a jury, the only way Wackenhut could face the possibility that it bore some responsibility in the matter.  The Chandlers and I sat and heard the arguments…they ran on for far more than the allotted 15 minutes.  Judges Martha Craig Daughtrey, R. Guy Cole, Jr., and John M. Rogers poked and prodded the issue.  They displayed knowledge of the case, asking questions based on the brief before them.  Whatever their findings, they were certainly paying attention.

And now we wait.  If they deny, it’s pretty much all over except of the pro-forma request for reconsideration.  If they find for the Chandlers, the case takes on new life.

For those of you who do not know and who may wonder, my interest in all tis stems from having made a film about Janet’s murder.  That happened in the winter of 2004.  At the time I was teaching at Hope College and I invited students in a documentary class I was teaching to walk with me as I made a film.  They were excited about the possibility but took a pause when they found out the topic.  Then there was a little hesitation…but just a little.  A few wanted to check with their parents.  In the end all of them were on board, and they worked mightily researching, helping with shoots–carrying and setting up lights and cameras, scanning photographs, digitizing audio, preparing name bars, researching, researching, researching.  These students were the best of the best and they gave everything they had to telling this story.  And mind you, all this was in addition to the three films they were each making that semester!  At any rate, the film premiered and people started talking…talking enough so that the State Police and the Holland City Police joined in a cold case team.  It took 18 months of nonstop effort, but the team cracked the case.  Eventually, it all wound up on Dateline.  You can read more about it here.

I came to know the Chandlers well and to love them and to want the best for you.  They have had a measure of justice in the criminal courts, but there is no doubt in their minds that Wackenhut  (now G4S) bears some responsibility in the recruitment, hiring and training of its guards, their actions in this situation, and a possible coverup after the fact.  we hope a jury will have an opportunity to decide whether or not that is truly so.

May God bless this nation on this special day and every other.  Please.

One of the most precious pledges of this land is our stated intent to live under the rule of law, fairly intended and administered.  It is this rule of law that gives us some assurance that we will not be mere pawns in the machinations of the powerful.  The individual in this land has–in theory–paramount consideration under law.

So, while we celebrate our nation’s birthday, we also give pause to consider the relief from tyranny of Justice Elizabeth A. Weaver (retired).  She was the target of disciplinary and punitive efforts by at least one of her former colleagues, Justice Maura D. Corrigan (retired).   Justice Corrigan most recently sent her to the Attorney Grievance Commission.  If you’ll look back through the posts on this site you’ll see the unfolding story, fully open to your scrutiny.

The result?  This past week the AGC  wrote to justices Corrigan and Weaver that there was no cause of action.  Here’s the letter:

Dismissed.

All along Justice Weaver has been describing this as a baseless complaint and a tyranny.  Further, she has said, the AGC didn’t even have authority in the matter.

Here is the complaint that Justice Weaver first received this spring in this most recent matter.

You’ll note that it is dated April 28, 2010, and is the SAME complaint that had been filed by justices Corrigan, Steven Markman, and now-chief Justice Robert Preston Young, Jr., with both the AGC and the Judicial Tenure Commission April 28, 2010.  That complaint was dismissed by the JTC last summer.

In a phone interview we learned from AGC Grievance Administrator Robert Agacinski that when the April 28, 2010, complaint was activated Justices Markman and Young decided not to join in.  (The AGC checks to make sure complainants still want to act,  Mr. Agacinski said, when it processes a complaint.)  Only Justice Corrigan wanted to go forward.  And remember, by March 15 she was well well away from the Supreme Court and  ensconced in her new labors as director of the Department of Human Services.

At the time it seemed that the complaint had just been sitting around at the AGC since 2010 and the AGC had just decided to take it up.

But maybe not, because we now know something from the most recent letter dismissing the complaint: that complaint was filed by Corrigan March 15th of this year.

Now, where is the March 15, 2011, written complaint?

The AGC stipulates that in order to be accepted, complaints must come in physical form.  Here’s the language:

Anyone may file a Request for Investigation against an attorney licensed by the State Bar of Michigan, or otherwise permitted by a court to practice in the state, by completing and signing the AGC’s Request for Investigation form or by sending in a signed letter. THE FORM OR LETTER MUST BE SIGNED AND SUFFICIENTLY DESCRIBE THE ALLEGED MISCONDUCT (INCLUDING APPROXIMATE TIME AND PLACE). The Request for Investigation may include copies of any relevant documents or transcripts. A Request for Investigation must contain an original signature therefore, Requests for Investigation are not accepted electronically or by facsimile.

So, where’s the copy of the March 15, 2011, complaint the most recent AGC letter references?  Justice Weaver says she hasn’t seen it…just the recycled April 28, 2010, letter, the one signed by the three justices.

Is it remotely possible Justice Corrigan simply phoned it in?  Is there some other explanation?

That’s something that would be good to find out.

And, what about the motivation behind the complaint?  That complaint had early on been dismissed by the JTC and it had no business being put before the AGC.   A learned and intelligent supreme court justice should recognize that.  Is this an effort to stir up trouble for Justice Weaver?  (In one sense it caused more than enough trouble…it takes time and effort to answer baseless accusations.)  Is this a payback?  After all, both justices were off the court, there was nothing pending or impending before them.  But there had been bad blood, at least bad blood on the part of Justice Corrigan: she had expressed her outrage on several occasions that Justice Weaver would dare to speak about decisions made at the high court after matters there had been concluded.  Justice Corrigan was a part of the majority force that passed a gag order to silence communication about what happens at the court.  That gag order flies in the face of the Michigan Constitution and the Code of Judicial Conduct that says Justice WILL explain their actions.

In the end, though, all the turmoil with the AGC redounds upon the originator: Maura D. Corrigan.  She looks less learned and intelligent, certainly less wise.  She looks like she’s seeking revenge.

All along I have been asking if this apparent desire for vengeance is in the nature of the character of Maura D. Corrigan.  I don’t know.  But were I Governor Rick Snyder I would want to keep a close eye on an appointee who might have a penchant for settling scores.  That can cause troubles when and where you least expect or want them.

You might want to read this, I’m thinking: Justice Sandra Day O’Connor on the Michigan Supreme Court.

Justice O’Connor is an advocate of an appointed court.  She is coming to speak tomorrow as a part of the Michigan Judicial Selection Task Force, an event scheduled at the Wayne State University Law School.  That task force was put together by Michigan Supreme Court Justice Marilyn Kelly and Judge James Ryan, retired, of the U.S. 6th Circuit Appeals Court.  That task force is to look at possible reforms.  Interesting to note that the ONE person who has gone about this state with a plan for reform at the high court has NOT been invited as a panel participant.  In fact, so far there has been no seeming notice taken of the reforms offered by Justice Elizabeth Weaver.  If you’ve visited this site before, chances are that you have stumbled across them.  Hers is a fairly simple, direct plan that retains elections but offers the chance to remove some of the dirty politics for which this state has become known.

Until the Task Force is willing to take a look at all that’s available, it’s a sham and an unfortunate one.  There are enough good minds coming to Wayne State to make a difference, but they probably won’t know what they’re missing.

Okay, here it is, Justice Elizabeth Weaver’s response to Patrick McGlinn of the Attorney Grievance Commission.  (And all this is available at her own website, www.justiceweaver.com.)  I have a couple of observations and questions at the end.

Justice Elizabeth A. Weaver

5545 W. River Road

Glen Arbor, MI  49636

Senior Associate Counsel Patrick K. McGlinn                                        June 6, 2011   Attorney Grievance Commission                                                                                             Marquette Building, 241 West Congress, Suite 256
Detroit, Michigan 48226-3259

Re:  Hon. Maura D. Corrigan as to Hon. Elizabeth A. Weaver    File No. 0665-11

Dear Mr. McGlinn:

I have received by regular mail two (2) more letters from the Attorney Grievance Commission (AGC): one unsigned AGC letter dated May 11, 2011; the other signed by you, Mr.McGlinn, dated May 20, 2011.

The two (2) sentence May 11, 2011, AGC letter states: Dear Judge Weaver: The above-referenced file [Hon. Maura D. Corrigan as to Hon. Elizabeth A. Weaver File No.0665.11] has been reassigned to Senior Associate Counsel Patrick K. McGlinn to investigate.  Any correspondence you send to the agency should be addressed to Senior Associate Counsel Patrick K. McGlinn and should indicate the above-referenced file number.”

The four (4) paragraph May 20, 2011, AGC letter begins: Dear Justice Weaver: Your letters have been forwarded to me.  The May 2011 letter from this office incorrectly indicated that Associate Counsel Kim Uhuru was assigned to this matter.  I am assigned to this matter, and any and all future correspondence should be directed as such.”

Within the last three (3) months, there are now seven (7) letters (4 from the AGC and 3 from me) in this matter.   They are:

• AGC letter dated March 15, 2011, signed by Senior Associate Counsel Ruthann Stevens requiring a full and fair accurate response within 21 days to the Request for Investigation enclosed and dated April 28, 2010;
• My six (6) page letter dated April 4, 2011, fully, fairly and accurately responding to AGC Senior Associate Counsel Stevens;
• AGC letter dated April 26, 2011, unsigned assigning for investigation the matter to Associate Counsel Kimberly Uhuru and requiring my current and accurate address and phone number and any response to her;
• My two (2) page letter dated May 10, 2011, responding to AGC Counsel Uhuru;
• AGC unsigned letter dated May 11, 2011, reassigning the matter to Senior Associate Counsel, Patrick K. McGlinn;
• AGC letter dated May 20, 2011, signed by Senior Associate Counsel, Patrick K. McGlinn requiring response to him;
• This, my five (5) page June 6, 2011, letter to you, Mr. McGlinn, AGC Senior Associated Counsel responding to AGC May 11 and your May 20, 2011 letters.

Copies of all seven (7) letters are on my website: www.justiceweaver.com.

I write to you, Mr. McGlinn, as required to note and respond as follows:

First, as stated in each of my previous letters, I adamantly deny the allegations and intimations of misconduct stated in the materials dated April 28, 2010, and submitted by former Justice Corrigan and Justices Young and Markman attached to AGC Senior Associate Counsel Stevens’ March 15, 2011, letter.

All seven (7) letters concern the now over one year old April 28, 2010, letter to the AGC, significantly inaccurate and politically motivated, alleging and intimating misconduct by me and signed by then-Justice Maura D. Corrigan (now Governor’s Snyder’s Director of the Department of Human Services), then-Justice Robert P. Young, Jr. (now Chief Justice), and remaining Justice Stephen J. Markman.   As the AGC has known for more than eight (8) months, the same Request for Investigation” by the same justices was dismissed last September (2010) by the Judicial Tenure Commission (JTC) without any recommendation of a sanction.

The March 15, 2011, AGC Stevens letter begins: Enclosed please find a recent Request for Investigation received by this office.  Honorable Maura D. Corrigan is complaint.”  (Emphasis added.)  The enclosure is dated April 28, 2010.

Your May 20, 2011, letter states: …a Request for Investigation is not a determination of misconduct.  This office is tasked with the duty and obligation to proceed with due diligence in investigative matters so that the Commission may properly determine how to conclude.” (Emphasis added.)

Also, your May 20 letter states: You inquire [in my April 4 letter] why Director Corrigan is the only listed complainant.   After Director Corrigan departed the Court, she asked to be treated as a complainant.”  Since Justice Corrigan had to depart the court after noon January 1, 2011 (or Governor Granholm rather than Governor Snyder would have had the right to appoint the vacancy left by her departure), as requested in my April 4, letter exactly what date did Justice Corrigan ask to be treated as a complainant”?   Was it written or oral?  Was it before or after she assumed her office of Director of the Department of Human Services?   Governor Snyder announced her appointment January 6, 2011.   (I also note no one from the AGC in any of the AGC letters to me has answered my April 4 questions: Have Chief Justice Young and/or Justice Markman communicated with you or the AGC about me and/or this Request [for Investigation] since April 2010?  If so when and what?”  I again request the AGC answer.)

Regardless of whether former Justice Corrigan reasserted in January, February, or even March  2011 her old April 28 2010 allegations and insinuations letter as a complaint, it defies common sense and common justice to characterize the same old April 28, 2010, as a recent” Request for Investigation  or to characterize the proceeding in this matter as due diligence.”

Further, I do not believe it appropriate for you, Mr. McGlinn, to investigate this matter.   According to a memorandum sent in the Brady case (486 Mich. 997 [2010]) by Justices Corrigan, Young, and Markman to all the plaintiffs in that case, their complaint against me–which was dismissed by the Judicial Tenure Commission–is based on what those justices characterized as a most revealing document drafted by you, Mr. McGlinn.  Obviously, therefore, an investigation by you will require you to compare your own memorandum with my and Jon Muth’s recollections of our conversation (all supplied to the JTC and AGC in 2010 and found on my website: www.justiceweaver.com) and Judge Servaas whom you quote as quoting Mr. Muth quoting me,  (second- and third-hand hearsay) in your memorandum and you will have to assess your own accuracy to decide which version is correct.   Only somebody else can do that.

Furthermore, because your memorandum is the basis of the complaints against both me and Mr. Muth, those complaints cannot be investigated and assessed by the Commission or any of its staff.   Just as you will have to assess yourself, the Commission will have to assess one of its own staff members, not as an investigator but as a witness.  Therefore, if this matter is to be pursued, independent counsel must be appointed as authorized by MCR9.109(C)(2).  But then there are the further questions of how the Commission could then review and act on whatever that counsel recommends when a Commission staffer is a witness, and how the Supreme Court could review this matter, whatever the recommendation to it, because a majority have already judged me in televised statements at the May 12, 2010, administrative hearing and by their unconstitutional November 17, 2010, written censure without any recommendation by the Judicial Tenure Commission (as required by the Constitution), signed by 5  of the 7 justices, all cited in my April 4, 2011, letter to Ms. Stevens and the AGC.

In my required response April 4 letter to AGC Senior Counsel Stevens, I pointed out:

I also note that the JTC declined to take action on the complaint sent to it by former Justice Corrigan and Justices Young and Markman.  By letter dated September 27, 2010, it dismissed” their Request for Investigation.   MCR 9.116(B) dictates that the AGC may not take action against a judge unless and until the Judicial Tenure Commission recommends a sanction.”   Obviously, the JTC did not recommend a sanction.  It dismissed the grievance.  The AGC has known this since September 2010, more than six (6) months ago.   Therefore the AGC may not take action” against me.  The dictates of the subrule could not be clearer.

Your reference to MCR9.116(B) as if its application  might change the above clear assertion that the AGC cannot take action against” me under the facts of this matter is puzzling and mistaken.

The same Request for Investigation was made to both the JTC and the AGC on the same date over a year ago April 28, 2010, when I was still a serving as a Justice.   The JTC dismissed the Request and, of course, without recommending a sanction.

Thus, I do believe that MCR9.116(B) does preclude any action by the Commission against me.  That subrule says in so many words that the Commission may not take action against a judge unless and until the Judicial Tenure Commission recommends a sanction,” which the JTC declined to do on former Justice Corrigan’s, Justice Young’s, and Justice Markman’s complaint to it.  That subrule applies to this matter even though I have retired from the Supreme Court.  The reason?  Chapter 9 of the Michigan Court Rules, and MCR9.201(B)(3 ) which applies to that Chapter, defines judge” to include former or retired judges against whom a grievance was filed with the JTC while that individual was in office or which relates to conduct in office, both of which occurred in this case.

I take your directive to account[ ] for MCR9.201(B)(3)” to focus on that subrule’s final clause and to ask why it does not allow the Commission to process this case despite MCR9.116(B).  The former does not have that effect because if it did, its last clause would render nugatory the very beginning of the rule which says that it applies to this chapter,” which is Chapter 9 of the MCR and plainly includes MCR9.116.(B).  Rules and statutes cannot be read that way.  A single rule cannot say both yes and no.

The final clause of MCR9.102(B)(3), read as I believe it must be read, is fully compatible with MMCR9.116.(B).  When a grievance to the AGC replicates a grievance to the JTC about conduct related to a former judge’s office or which was filed while a former judge was still in office, the AGC can proceed only if the JTC has recommended a sanction, although the AGC need not wait until the Supreme Court imposes discipline.  If, however, a grievance is filed against a former judge after he or she leaves the bench and is not with respect to conduct related to the office, the AGC is allowed by MCR9.201(B)(3) to proceed without need of any input from the JTC.  (I note I was already 8 years a justice on the Supreme Court when amendments to Chapter 9.201 were adopted and I certainly did not vote to adopt the nugatory meaning you seem to imply.)

As you requested enclosed herewith is a copy of the JTC’s dismissal of Justice Corrigan’s, Justice Young’s, and Justice Markman’s Request for Investigation of me.   Of course there was no recommendation of a sanction against me.

Finally, as stated in my previous letters detailed with specific fair and factual answers and law, I continue to hope the Attorney Grievance Commission will now dismiss this old and baseless Request for Investigation and cease to be a part of this injustice–this tyranny–the misuse and abuse of Supreme Court power by my former colleagues, who attempted to stifle my free speech as a justice and now attempted to stifle it as a retired justice in letting the people know what I believe they need to know about the Michigan Supreme Court and its justices, its offices, commissions, and boards.  It is unworthy of my former colleagues, unworthy of the office of Supreme Court justice, and unworthy of the Attorney Grievance Commission.

Sincerely yours,

Elizabeth A. Weaver

Enclosure

cc:  Robert L. Agacinski, AGC Grievance Administrator for himself and all nine members of the AGC  Governor Rick Snyder

Hon. Maura D. Corrigan
Hon. Steven Servaas
Mr. Jon Muth
my website:  www.justiceweaver.com

So, FIRST it seems her contention is that the AGC doesn’t have authority in the first place…the matter–if there was any fault to be found (and there wasn’t)–was dealt with at the Judicial Tenure Commission:

SECOND, she argues, even if the AGC had authority in this case, it couldn’t proceed because as an arm of the Michigan Supreme Court any recommendation for discipline against her would wind up before a court that had already judged her in its botched censure.  These folks can in no way be considered objective; their opinions already are on record.

THIRD–and perhaps most important (and in Justice Weaver’s own words), “this is an abuse of the process.”

Here are some questions:

Is this really what the AGC should be doing?  Mr. Agacinski and all his staff might find themselves between the retired justice who now heads one of the state’s largest agencies and a retired justice  who is intent on court reform even if it means that she needs to reveal the inner workings of the court.

In pursing the matter, what is the Honorable Maura D. Corrigan revealing about herself?

If the matter moves forward, is it possible that the matter will wind up in a federal court?

If so, is it possible that all the machinations of those now and recently at the Supreme Court will be exposed?

Or will Justice Weaver be exposed as relating anything less than the truth?  It hasn’t happened yet, and you can bet those working against her would love nothing more than to discredit her.  They’ve worked at it for years.  As for their record with the truth…well, we know with certainty that Chief Justice Robert Preston Young, Jr., is willing to lie for the sake of his own convenience.  And a majority of the court elected him to serve as their leader.

Here is the latest in the continuing saga of the Atttorney Grievance Commission matter against Justice Elizabeth A. Weaver (retired) at the behest of Justice Maura D. Corrigan (retired and drafted to head the Department of Human Services):

And you might think..okay, this matter is being handed off from one associate counsel (Kimberly Uhuru) to another (but senior counsel), Patrick K. McGlinn…and you’d be right.  But if that’s all you thought, you might be missing something.

Mr. McGlinn has been deeply involved in all this since BEFORE the complaint against Justice Weaver went not only to the AGC but also the Judicial Tenure Commission.  That was April 28, 2010.  In fact, in this October 29, 2009, memo, Mr. McGlinn outlines a conversation he had with Judge Steven Servaas on Oct. 26, 2009.  In it he reports a third-party conversation that he alleged impugns Justice Weaver and Servaas’ Grand Rapids attorney,  Jon Muth.

This memo was much of the substance upon which her fellow Supreme Court Justices Steven Markam, Maura D. Corrigan, and Robert Preston Young, Jr., hung their assertions that Weaver had done wrong and deserved discipline.   You can read the entire file here at Justice Weaver’s own website.

Never mind for the moment that Justice Weaver has called Mr. McGlinn’s third-party report flat-out wrong, does this sound like a good idea to have this staffer–who already is so deeply involved in the process–heading up the AGC investigation?  Is this a bit like having the prosecutor also serving as the star witness in the case?

Sounded like time for another conversation about a hypothetical case with AGC Grievance Administrator Robert L. Agacinski.

“The facts of the case would be determinative in the decision process as to how to proceed,” he said.  “If a staff member has a role in a case, it would depend.  It’s my judgement call.  The staff members investigate, they don’t provide evidence or testimony.”

But didn’t Mr. McGlinn already do that for the Supreme Court and before the JTC in the form of his memo?

Is there ultimately the appearance of a conflict of interest with Mr. McGlinn heading up the investigation for the AGC–whether or not it exists in fact?

And with eleven other counsel members, why was this taken from Ms. Uhuru and assigned to Mr. McGlinn?

“It’s really my call if there is some concern whether my staff have formed an opinion,” said Mr. Agacinski.  “It’s really a function of whether the Grievance Commission is supervised properly.  We haven’t had issues in the eleven years I’ve been heading the office.”

I suggested that there might be an issue in a non-hypothetical sense.  “I think I know what you are alluding to,” he said.

A day after our conversation Mr. McGlinn sent a confirmation of his assignment to Justice Weaver:

Justice Weaver promises her response in the near future.

…That’s what Bill Ballenger of Inside Michigan Politics called the continuing push by The Honorable Maura D. Corrigan in her drive to punish the Honorable Elizabeth A. Weaver.  Both of them are former Michigan Supreme Court Justices.  Justice Corrigan is listed as the sole complainant listed in the matter now before the Attorney Grievance Commission.  What happened has been chronicled here.

At the time Justice Weaver revealed the notice of investigation, April 4, 2011, Ballenger suggested that it be dropped.  It hasn’t been, and, in fact, is moving forward:

Justice Weaver has now posted her response at her website www.justiceweaver.com.  It reads thusly:

“They should drop it and forget about it,” said Ballenger.  “But I don’t know if they feel they can’t because some future justice could engage in something like this.”

The “this” is Justice Weaver speaking out, of telling Michigan citizens what she thinks they should know about operations at the court…in her words, “no more and no less.”

That matter of attempting to force compliance is still well in place, said Ballenger: “As far as I’m concerned the Gang of Four is still in control, only in place of [Cliff] Taylor now you have [Mary Beth] Kelly.”  And, presumably, Brain Zahra…all of whom have been recipients of the political largess in the form of appointments by Governor John Engler.

The same was true of the original “Gang of Four,” a term that originated with Justice Weaver to describe the efforts of then-Chief Justice Cliff Taylor and Justices Corrigan, Robert Preston Young, Jr., and Steven Markman to stiffle her speech.  They even passed what she calls the “illegal Gag Order” that seems to fly in the face of the state constitution and the state’s Code of Judicial Conduct.

“I don’t see what good this is doing,” said Ballenger of the continued AGC complaint.  “There is nothing coming the other way [from Justice Weaver] that I know of.”

Justice Weaver has continued to speak out about excesses at the Court as an effort to secure support for reform.

“Yeah, but this is a free country and she can say anything she wants.  She’s not going after Corrigan.  [Gov.] Snyder ought to get to her [Justice Corrigan] and say ‘Get off this.’

“I don’t think it serves the justices well. […]  This is unseemly–their continuing to flail around in the cesspool.”

And one of the signatories on the letter of complaint, Justice Markman, is up for reelection in 2013.  This may not play well.

And that initial complaint letter of April 28, 2010, is well worth examining because it lists THREE Justices: Corrigan, Markman, and Young.  And yet the letter from the AGC lists Justice Corrigan and the sole complainant.  Is that the way things are done, to just list the first signatory?  Or…?

It was worth a call.

Robert L. Agacinski is the Grievance Administrator for the AGC and he got on the phone quickly after I dialed.  There was no hesitation.  He was cheerful, forthcoming…but strictly in a hypothetical sense.  We discussed NO SPECIFICS.

A case, he explained, could come either from a complaint or complaints.  Or the AGC might hear something from someone about an attorney, whose conduct was worthy of investigation.  The AGC possibly could even learn of actions from the news media, and take it upon itself to act.  In such a case, the complaint would be signed by Mr. Agacinski.  “In those cases we decide to act on our own authority,” he said.  And that authority is as a licensing agency…whether or not an attorney gets to keep her or his law license.

In cases where his office hears from multiple sources that action should be taken, it may list one or all complainants on the notification…but only after contact with them by the AGC’s office.  “The AGC would have to see if they wanted to be complainants.”

So, it’s theoretically possible that you might have three people who signed a letter.  Each one would then be contacted to see who–if any of them–want to stand as the complainant.  If none did, the matter might go forward under Mr. Agacinski’s authority if he thought it warranted.  Or there might just me one of the three.

“Yes,” he said.  Nor would he necessarily convey to the person being complained about the matter of such contact. “That generally would not be known unless the matter goes forward,” he said.  “We do not reveal who all we talk with.”

The length of our hypothetical investigation seems long, especially because the AGC lists its resolution time…complaint to finding…at an average of six months.  This hypothetical has been holding fire for more than a year, and it yet may be early in the investigation.

“Yes,” said Mr. Agacinski, “that could seem like a long time.  But as a licensing agency we try not to affect cases where there are criminal proceedings or elections.  There are reasons for when we start our investigations.”

Part of it may depend on when  judge is no longer sitting.  “We do not have judicial authority over a sitting judge,” he said.

That belongs to the Judicial Tenure Commission, the JTC.  [This is from me, not Mr. Agacinski: That’s the organization that dismissed the non-hypothetical allegations by the three justices last spring.  They filed charges with both the JTC and the AGC, a kind of scattergun approach.]

“But once she’s not a judge we have jurisdiction,” Mr. Agacinski said.

And the problems that might come from a hypothetical target of a hypothetical investigation revealing all?

“That makes it really awkward,” he said.  “It’s tough when everybody knows what’s going on.  The parties can talk about it if they want, but we can’t.”

No, indeed.  And he didn’t.