October 21, 2010 — Young and Kelly…fit to serve?

Michigan Supreme Court Justice (Retired) Elizabeth A. Weaver speaks out at the 9/12 meeting in Traverse City, October 19, 2010, on the fitness of Justice Robert Preston Young, Jr., and Third Circuit Court Chief Judge Mary Beth Kelly. Both are seeking seats on the state’s highest court.

Oh, here’s the memo:

If you want to peruse the “Gag Order” to which she refers, you can read it here: Administrative Order 2006-08

And a significant portion of the High Court’s finding that upheld Mary Beth Kelly’s contempt finding is here.

And here is the text of the above speech:

Our Founding Fathers–Washington, Adams, Jefferson, Madison, and Franklin–knew that our freedoms and our Republic would not endure without an accurately informed electorate.  And, that government of, by, and for the people” would perish unless rooted in rotation in office, checks and balances, and a minimum amount of secrecy in the conduct of government business.

Needless secrecy in Supreme Court Justices’ performance in the business of judicial government allows and encourages the abuse of the judicial powers of interpretation and discretion.  That can lead to violation of the rule of law and the unjust, unprofessional, unfair, and disorderly performance of the Justices’ duties. 

Because Mary Beth Kelly and Bob Young and their media supporters are repeatedly misleading the voting public with incorrect assertions about their performance, temperament, and character as judges, regretfully it is necessary that I share with the public facts–and not fictions–that I learned while serving as a Justice of the Michigan Supreme Court during the last 15-plus years.  I ask that you listen and then decide for yourselves whether Bob Young and Mary Beth Kelly are fit to serve as Justices of the Michigan Supreme Court.

The facts about Bob Young are:

1) Justice Young has used at least one racial slur and vulgar language while performing the business of the court during regular court conferences.  I do not make that statement of fact without support.  I’ll read the following memo that I sent to all the Justices after his outbursts. In May 2006, this memo was sent only to the Justices although staff members also were present at the conferences.  Here’s the memo dated May 19, 2006.      

(SHOW AND READ MEMO) 

There was no response or objection to this memo that I sent to the justices. 

2) That happened in the spring of 2006.  What’s happened since? 

In December of 2006, Justice Young along with Chief Justice Taylor and Justices Corrigan and Markman–with Justices Cavanaugh, Kelly, and myself dissenting–adopted a Gag Order”…an administrative order (AO 2006-08).  Here’s what it said.  This is the first page of it.  I have all this documented.  It’s all on my website, justiceweaver.com (personally funded).  This is the Gag Order”:

(SHOW AND READ Gag Order” AO 2006-08)

The purpose of this Gag Order” was to keep me quiet, to keep from sharing with you how we conduct the court’s business.  The state’s Code of Judicial Conduct says that judges MAY speak about matters decided by the court.

3) On January 17, 2007, a public hearing was held on whether the Gag Order” should be retained or amended, because the order had been adopted without following and given proper notice to the public as required by court rules.  Testimony both for and against the Gag Order” was heard.  The Justices met after the hearing in private conference and did not vote to retain or amend the order and the matter was passed to an undetermined time in the future.

4) Beginning in 2008, Justice Young stated that he would no longer approve or disapprove of any minutes of the Court.  This is what Justice Young said for the minutes of May 21, 2008, he Abstains and refuses [Justice Young] to approve any minutes until one of us [either Justice Weaver or Justice Young] leaves the court… .”  For the next two years and four months he abstained from voting on the official minutes of the court.  He didn’t resume voting on the minutes until this year’s September administrative meeting, after I was gone.

5) In March of this year 2010, Justice Young refused to participate in disqualification matters before the court.  He had a duty to participate and he refused to do so.  He did it again in June of this year.

6) From April 21st through May 11th 2010, Justices Young, Corrigan and Markman refused to attend four consecutive regularly scheduled conferences of the court because I would not agree to abide their Gag Order”.  Remember, this was a Gag Order” that had not been retained.  As a result of this behavior to refuse to personally attend the conferences there was additional work for the staff and the Justices that needed to be done then, and decisions were unnecessarily delayed in some matters.

7) Justice Young asserts he is a rule of law” Justice.  Judge for yourself.  In particular, look at the following cases:  Lee v Macomb (a 2001 case),  Cleveland Cliffs v. National Wildlife (a 2004 case), Michigan Citizens for Water Conservation v. Nestle (a 2007 case) in which Justice Young either authored or joined the decision.  Those cases had to be applied by the lower courts in the most recent case of Lansing Schools Education Association, et al. (teachers) v. Lansing Board of Education.  Teachers had been denied rights to seek protection from assaultive students because the Lansing School Board refused to follow the law passed by the Legislature that said assaultive students must be automatically expelled.  (One teacher had a chair thrown at him.  Another teacher was hit by a student.  And, there were others.)  The lower courts found against the teachers because they–the lower courts–were required to follow the law created by Justice Young’s and the majority at that time’s cases.  Four judges at the Supreme Court this July–those not appointed by former Governor Engler–reversed and followed the rule of law, i.e. the law passed by the legislature. Justice Young was not among us.

You should decide for yourselves whether Justice Young is fit to serve on the Supreme Court.

As for Judge Mary Beth Kelly, here are the facts:

1) She is a former law partner of Justice Bob Young.

2) She is from Wayne County.  Should she and Justice Young be elected, all seven justices would be from the Detroit-Lansing beltway.  That’s 3 counties that cover about 40 percent of Michigan’s population.  That leaves 60 percent of the population in 80 other counties with no representation on the Supreme Court.

3) Most important, it’s plain that as the Chief Judge of the Third Circuit Court (Wayne County), Judge Mary Beth Kelly acted contemptuously and violated the rule of law, and her intentional contempt caused the whole circuit court to be found in contempt.  She knowingly violated the rule of law, and testified to that effect in the trial court.  The contempt decision was confirmed by the Court of Appeals and the Supreme Court, itself. Even Justice Young acknowledged that she made a mistake.” 

I share these facts with you as you decide whether these are the kinds of Justices you want to sit on the Michigan Supreme Court, our state’s highest court–the one that should be the most professional, the most trustworthy, the most open, the most fair, the most dignified.  Will they fulfill your expectations of an open and fair court?  Would they fulfill the intentions, expectations, and the hopes and faith of our Founding Fathers?  That’s for you to decide.

Copyright © 2010

Elizabeth A. Weaver