In Muskegon, Supreme Court Justice Robert Preston Young, Jr., stood before the group of Tea Partiers this week, laying out his lament of justice gone wrong.
First, he lauded fellow Republican nominee for the high court, Judge Mary Beth Kelly, Chief Judge for the Third (Wayne County) Circuit Court. She is without doubt, he said, the best qualified candidate (we’re assuming outside of himself) for the Supreme Court. He characterized Alton Thomas Davis–the newly appointed Justice who is filling out the last four months of Elizabeth Weaver’s term–as a partisan judge given to agenda-driven decisions. And that’s bad, very bad.
Then he went on to speak about the dangers of Rogue Judges: “Rogues do not find themselves bound by the law.” The framers of the Constitution intended, he said, for the judiciary to have no real power. Further, he said, it’s only been during the last fifty years that courts have taken on power, cloaked in the robes of interpretation…and enough power to control social, political, and economic direction. (We dispute his legal history. Take for example, Wilson’s appointment of Louis Brandeis to the U.S. Supreme Court in 1916. Or Grant’s of Morrison Waite in 1874. This really has been going on a long longer than 50 years. Each judge, each Justice tempers the law.)
He went on to speak about what the Framers had in mind…the sanctity of our tradition of law and the dangers of neologists who interpret black as white, red as green: “That’s the power of the court.” The best court, he said–the court Ronald Reagan would have liked best, anyway–was the court headed by Cliff Taylor, the court with a solid Republican majority…not counting Elizabeth Weaver. (Of her he said: “She was a conservative Justice until she veered off the path.” More about that soon.)
The bulk of his hour-long talk was questions and answers. This audience was instinctively conservative…the three guiding principles of the Tea Party movement are these: fiscal responsibility, constitutionally limited government, and free markets. Overall, that makes sense to me, too; but then, I’m an instinctual conservative as well. But not a member of the Tea Party. The questions and the answers were important to this audience, and Justice Young was telling them what they wanted to hear.
But I really wanted to know something. So I asked a question. (Now, understand I did not have a recorder going so this cannot be guaranteed as a verbatim record. But as a former reporter and editor, I think it’s pretty darned close.) I started off by making sure I’d understood his definition of a Rogue Judge:
DBS (me): “‘Rogues do not find themselves bound by the law.’ Do I have that right?”
RPY (him) “They don’t feel themselves bound by the law,” he said.
DBS: “And it’s a serious matter when they don’t?”
RPY: “Very Serious.”
I went on to posit some of the bad things that judges could do and what the sanctions might be…when judges don’t rule according to the law they might be found in contempt? “And would this be a serious matter, to be found in contempt?”
RPY: “It could be.”
DBS: “Just ‘could be’?”
And then the penny dropped:
RPY: “This is about Mary Beth Kelly, isn’t it?”
DBS: “It is. Here you have someone the Republicans have nominated for the Supreme Court and someone you have lauded in this meeting, and yet she’s someone who fits your very definition of a Rogue Judge…she was found in contempt of court in her work as a judge, appealed that decision against her at the appeals court, had it denied, and then appealed to the Supreme Court where YOU and the other members of your Court upheld the appeals court decision by denying leave to hear the case. In effect, you found her guilty of contempt of court.”
Now, what’s this all about? Simple. Judge Mary Beth Kelly ran afoul of a labor agreement entered into by her own court. It has to do with court referees, contracts, service agreements. Judge Kelly violated it and kept on violating it. She was sued and lost and her continuing violation earned her and her a contempt of court citation, no small manner for the then-chief judge of the Third Circuit. You can read the denial of the appeal by the Supreme Court here. It’s well worth your time.
Now, this denial to hear her case took place under the Taylor Court, December 2007. So, while they upheld the lower courts’ decisions, the majority did manage to set aside the penalties; they more or less took the sting out of the judgment. Justices Cavanagh and Kelly also dissented but Justice Elizabeth Weaver not only agreed wholly with the denial, but also wrote to explain why she didn’t see how Judge Mary Beth Kelly could get a pass on the penalties:
I dissent from the majority’s decision declining to immediately impose the sanctions ordered by the trial judge and instead conditioning the imposition [*3] of sanctions on whether the plaintiff initiates compliance with this Court’s order by April 15, 2008. In effect, years after the plaintiff was found in contempt of court and sanctions were ordered, this Court is providing the plaintiff with yet another chance to avoid sanctions for its deliberate disobedience in refusing to abide by the arbitration agreement and a court order to do so.
The majority ruled. The finding of contempt stood but the penalties could be waived.
And now Mary Beth Kelly was a judge Justice Young thought fit to sit along side him?
RPY: “She made a mistake.”
She did that all right.
Tomorrow: The NEXT (and last) question.
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Copyright©2010 David B. Schock