My MI Court

It’s more than passing interesting.  When confronted, Justice Robert Preston Young, Jr., admitted he used racist language…but he did so in a fit of passion, defending some poor powerless person.  He apologized and said he felt bad.  When confronted with a transcript of what exactly he said he admitted it wasn’t in a fit of passion.  Instead he was making fun of another judge.  All this in the midst of the business of the court.  Hey, who cares, he says.  The apology is off the table; it was a JOKE.  He no longer feels bad.  But he is outraged that Supreme Court Elizabeth Weaver (retired) had the very nerve to make a recording and then offer the transcript: “She probably committed a felony!” he said.  In the same Associated Press story by Ed White, he quotes former Chief Justice Clifford W. Taylor:  “This rogue judge was a nightmare on the court the whole time she served on it.”

I imagine Justice Taylor’s sleep has been supremely troubled by rogue conduct, including, perhaps, his own.

The returning nightmare might be his predeciding cases even before the oral arguments have been heard:  In re: JK.  I don’t think this specter will go away no matter how hard he tries to dream of something else.  The case is chronicled in the little film we made in 2007 when Justice Weaver sat down and dropped the dime on the court.  It’s long and maybe kind of boring, not the stuff of must-watch TV, but it is revealing.

But at the heart of the In re: JK case is the premature drafting and singing on to it by Justice Taylor and then Chief Justice Maura Corrigan.

Here are the memos from April 7, 2003.   The oral arguments in the case were not heard until April 9th.

That’s pretty darned expeditious…have the opinion written and ready to go before you’ve heard the attorneys for all parties explain why their positions should prevail.

Is that fair?  Just?  Objective?  Impartial?

I have read and reread the Code of Judicial Conduct and this kind of behavior is expressly precluded.  You might want to read it yourself.

As for Justice Young complaining that he’s been outed, here’s Canon 2A: “… A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”

I would wish Justices Young, Taylor, and Corrigan untroubled sleep, but I fear that will come only with right doing.  None of this is about them personally…it’s about their conduct which I think is not above reproach.  They can do better, and I hope they will.

As for Justice Weaver breaking the law, our legal advisors say “No.”   But let this come out as it will.

Well, I just wanted to know, but I caught him unawares, so I’m not sure this is the final word.  Associated Press Reporter Ed White had interviewed Justice Robert Preston Young, Jr., last week about Justice Young’s use of the “N” word.  Justice Young has indicated that it was said during an impassioned plea.

Young, who is black, told the Associated Press that he used the word during an “impassioned plea” to emphasize how someone was being treated “without rights, without dignity.”

“I’m sorry that I used the term. … Obviously I was very hot about this. That’s why I used the word,” Young said. “I remember the heat and the purpose for using it.”

When pressed for details, he couldn’t recall the case.

With yesterday’s revelation through a transcript by Justice Weaver (retired) that Justice Young was laughing and joking about the bad acts and  misfortunes of another judge when the phrase dropped from his lips I wondered if the reporter had any sense that he’d been misused.  So, I called Mr. White.  I told him I wanted to interview him.  He was unaware of the further revelation that I had posted last night, had no idea who I was, or why I was calling.  “I have no response,” he said.  “My reporting speaks for itself.”  I wonder if he thought I was being critical.  I agreed his reporting DID speak for itself.  I thought it first rate.  But I was inquiring about this further revelation.  “I have nothing to say about anything.  Who are you?”  Mind you, I had given him my name and said “How do you do?”   It’s true I had not identified Delayed Justice.  Sometimes I’m not good at this…and what’s Delayed Justice anyway that anybody would know of it?   I clumsily rectified my affiliation.  He went on to explain: “When I interview people I tell them I’m Ed White and I’m a reporter and then they tell me….”  Uh-huh.  I heard a click on the line and wondered aloud if I was being recorded.  “This is a newsroom.  There’s lots of noise.  … I don’t record my telephone conversations.”  Just wondered.  Didn’t object if he wanted to, although I don’t think I’m necessarily worth all that bother.  And in retrospect it’s a little humorous considering the nature of the transcript.  Anyway, he said he doesn’t do that.  I assured him that neither do I.  Pretty close to the end of the conversation he reiterated that he didn’t have anything to offer, but by that time he’d hit the website.  Our conversation was concluded.

Still, I wonder what his internal reaction to all that might be.  I’ll probably never know.  But I do wish him well.

Later:  Mr. White called me this time.  I told him I’d appreciate a quid pro quo.  I’d answer his questions and he would at least consider answering mine.  Nope, he said: “I am a reporter and not a participant in this story.  I have nothing to say to you.”  I tried to explain that such was my work as well, but it didn’t prosper.  He wanted to let me know that this all was very serious…the power to put something on the internet can have grave consequences.  I agreed; any reportage can have serious consequences.  Then his questions: “Is this report authentic?”  “Did Justice Weaver give you this and ask you to put it up at your website?”   I had to explain that I believe to the best of my knowledge this is authentic.  Justice Weaver did share this with me but she didn’t ask me to put it up.  I told her that was my intention.  I did get in a question: “Don’t you think this is newsworthy?”   He indicated that he WAS looking into it.  Next question: “Did you hear the tape?”  I said I neither heard any tape nor saw any tape.  I told him that I thought his most important job would be to seek corroboration from someone else at the conference.  I thought he’d have better luck with that than I would.

Now, as for the other questions that I had, at the top of my list was this: Of all the stories he could have pursued from Justice Weaver’s revelations, why pick up exclusively on that one…the use of bad language.  Yes, it’s egregious and unfortunate, but what Justice Young has said is nowhere near as serious as what he’s done on the bench. (As an aside, in Justice Weaver’s transcript, did you note how he changed his vote on the Moxon V Moxon to accommodate himself to then-Chief Justice Clifford W. Taylor?  The result meant the difference between a Deny and a Remand [a kind of beneficent judicial do-over for the judge].  Interesting.)

I suspect that the answer is that it’s a fairly easy story to report…much more simple, say, than a piece explaining Justice Young’s take on the Common Law (he’s agin’ it).  Either Justice Weaver was right that he’d said the “N” word or she was wrong.  He admitted he said it.  And now either she’s right about when, where, and how he said it or she’s wrong.  Yes or no.

Most of the other stories are much more detailed…except for the one about Judge Mary Beth Kelly, who during her tenure as Chief Judge of The Third Circuit Court (Wayne County) earned herself a contempt citation that wouldn’t go away, even after she appealed it to the Court of Appeals and the Supreme Court.  Even Justice Young had to agree that she’d been playing outside the law.

But I didn’t get the chance to ask that question, either.

I am sure Mr. White is doing his best. I trust that he will dig out this story and plenty of others relating to it.  But his assertion that he is not a participant in this story is risible.  As soon as you touch a story you become a participant.  I touched this story first in 2007 when I sat down with Justice Weaver and she revealed much that I thought of as bad behavior at the Court.  In particular, In re: JK revealed that we had Justices (including a Chief Justice) who were signing on to opinions BEFORE oral arguments were heard in cases.  (I have copies of the memos if you need them.)  Against the law?  Don’t know…the Justices get to make the laws.  But I think their actions violated all kinds of parts of the Code of Judicial Conduct and do not inspire confidence that any case I’d have before the Court would get an open and fair hearing.

Mr. White’s reporting brought this story to hundreds of thousands of readers.  It has a much larger impact because he decided to touch it.  He will in some small or large way change the course of history.  I’m very glad he did take this up and I hope he doesn’t regret it, either.  Yes, he’s a participant, and we have no reason to think that he’ll be anything other than as thorough, as objective, and as truthful as possible.

Let us assume that Associated Press reporter Ed White got it down correctly.  …That Michigan Supreme Court Justice Robert Preston Young, Jr., has acknowledged that he uttered the dread N-word–that remnant of racism–in a moment of high passion.  According to Mr. White:

Young, who is black, told the Associated Press that he used the word during an “impassioned plea” to emphasize how someone was being treated “without rights, without dignity.”

“I’m sorry that I used the term. … Obviously I was very hot about this. That’s why I used the word,” Young said. “I remember the heat and the purpose for using it.”

When pressed for details, he couldn’t recall the case.

How about if I help him refresh his memory?  Michigan Supreme Court Justice Elizabeth A. Weaver (Retired) remembers clearly what, where, when and how he said it.  Here is her response to Justice Young’s assertions.

STATEMENT BY MICHIGAN SUPREME COURT JUSTICE

ELIZABETH A. WEAVER (RETIRED)

 October 25, 2010

Last week, on Oct. 19, 2010, in a speech now on the internet (www.delayedjustice.com , YouTube, and my personally funded websitewww.justiceweaver.com) I shared with the public that Justice Robert P. Bob” Young, Jr. and Judge Mary Beth Kelly, and their media supporters are repeatedly misleading and deceiving the voting public with incorrect assertions about their performance, temperament, and character as judges. 

 As examples, I publically shared seven (7) facts–not fictions–about Justice Young.  The first was that Justice Young used at least one racial slur while performing the business of the court during the regular Court Conference of May 10, 2006.  I read from my May 19, 2006, memo to the Justices concerning the unprofessional, disrespectful, undignified, almost juvenile and locker-room behavior that occurred much too often while doing the judicial business of the people in regular Supreme Court conferences.

 The memo stated:

 At the May 10, 2006, conference, Justice Young’s use of the N” word (n—–s”) when commenting on an announced candidacy for a judgeship during the Court’s discussion of Commissioner Report cases confirmed the need to share the following:”

 And I then went on to lay out other examples of bad conduct.  You can read the entire memo at the two websites.

 Justice Young, in an interview with Associated Press reporter Ed White, confirmed that he had used the N” word.  Unfortunately, he didn’t stop there.  He attempted to deceive the reporter and the public by saying that he used it during an ‘impassioned plea’ to emphasize how someone was being treated ‘without rights, without dignity.’”  Justice Young continued that Obviously I was very hot about this. That’s why I used the word.  … I remember the heat and the purpose for using it.”

 The article stated that, When pressed for details, he [Justice Young] couldn’t recall the case.”

 Below are the details and the truth–not the fiction–about the case and the conduct of Justice Young during the case while the Court was holding its regular weekly conference to discuss the status of pending cases.  He used the N” word with disdain and jocularity…he was laughing.  And so were others.  His statement was made during the business of the Court. The justices were in the middle of item number seven (7) on the May 10, 2006, court conference agenda: 130592 Moxon v. Moxon.  The trial judge in the case was Judge Antonio Tony” Viviano.  The Justices had been discussing whether to deny appeal in the case, hear it, or remand it.  The Justices turned from the case before them to bring up that Judge Tony Viviano’s son, David, might run for a judgeship in Macomb County and that might put him in the running against a former judge, Andrea Ferrara.  The Supreme Court had removed Judge Ferrara from office in Wayne County in 1998 but there was talk of her running for another judgeship in Macomb County in the 2006 election.

 Below is exactly what the Justices said, from my notes and from a transcript of a recording I made of that conference.  I share these facts for the voting public to judge for themselves whether Justice Young is fit to continue to serve on the Michigan Supreme Court:

 7.130952 STELLA A MOXON V JACK R MOXON –

 Chief Justice Clifford W. Taylor (CWT): I’M QUICK TO SAY THE JUDGE ALWAYS HAS THE RIGHT TO CHANGE THINGS WITH REGARDS TO THESE KIDS.”

 Justice Marilyn Kelly (MK): I THINK SO TOO EVEN THOUGH THAT WAS A SEPARATE…”

 Chief Justice Clifford W. Taylor (CWT): ..BUT I JUST WANT  TO REMAND THIS FOR FURTHER FACT FINDING CAUSE I DON’T THINK HE HAD ENOUGH IN THERE TO JUSTIFY DOING WHAT HE DID.”

 Justice Robert P. Young (RPY): THE SALE WAS PENDING…”

 Justice Michael F. Cavanagh (MFC): VIVIANO’S SON WAS RUNNING…”

Chief Justice Clifford W. Taylor (CWT): …ANDREA FERRARA.  ISN’T THAT A SCREAM? … YES, THAT’S WHAT SHE SAID.  MOVING ON…”

Justice Robert P. Young (RPY): WATCH OUT FOR THOSE N—–S  OUT THERE. (Laughter)  REALLY . . .”

Chief Justice Clifford W. Taylor (CWT): …WE DIDN’T DO THE DEATH PENALTY…”

Justice Michael F. Cavanagh (MFC): SHE HAS TO MOVE FROM DOWN RIVER OUT TO MACOMB.”

Justice Robert P. Young (RPY): SHE DID.”

Chief Justice Clifford W. Taylor (CWT): OH, I’M SURE SHE DID.”

Justice Robert P. Young (RPY): I THOUGHT SHE LIVED IN…”

Chief Justice Clifford W. Taylor (CWT): SHE MOVED ACROSS 8 MILE, BOB.”

Justice Robert P. Young (RPY): I THOUGHT SHE LIVED IN THE POINTS.  HER FAMILY LIVES OVER THERE.  MAYBE THERE’S A FERRARA DOCTOR THAT’S HER DAD I THINK…”

Chief Justice Clifford W. Taylor (CWT): …LET’S SEE WHERE WE ARE HERE.”

Justice Robert P. Young (RPY): ALL RIGHT (laughs).  I’M A DENY.  STEVE, I DIDN’T HEAR FROM YOU.”

Justice Stephen J. Markman (SJM): I DON’T THINK TONY (Judge Antonio Viviano) EVEN INVOKED MCR 2.612.  I’D FEEL A LOT MORE COMFORTABLE IF WE REMANDED, HAD THEM AT LEAST GO THROUGH THE STEPS.”

Chief Justice Clifford W. Taylor (CWT): I GUESS MAURA (Justice Maura D. Corrigan (MDC)) …”

Justice Elizabeth A. Weaver (EAW): WHAT WAS MAURA’S VOTE?”

Chief Justice Clifford W. Taylor (CWT): SHE WAS A DENY.”

Justice Elizabeth A. Weaver (EAW): SO, THAT’S FOUR, RIGHT?”

Identity of speaker unclear: THERES A SPECIFIC COURT RULE AND THE COURT JUST TOTALLY IGNORED IT, MARILYN.”

Justice Marilyn Kelly (MK): I’M WILLING TO DO THIS . . .”

Chief Justice Clifford W. Taylor (CWT): IT’S A FACT QUESTION. I MEAN THE FEDERAL…”

Justice Elizabeth A. Weaver (EAW): RIPPY (RPY), I THOUGHT YOU WERE A DENY.”

Justice Robert P. Young (RPY): I AM.”

Justice Elizabeth A. Weaver (EAW):  SO, IT’S YOU, MYSELF, MK, AND MDC, RIGHT?”

Justice Robert P. Young (RPY):  RIGHT.”

Chief Justice Clifford W. Taylor (CWT):  BUT I THINK PEOPLE ARE STILL THINKING ABOUT IT.”

Justice Elizabeth A. Weaver (EAW):  I DIDN’T KNOW.”

Chief Justice Clifford W. Taylor (CWT):  SO, DO YOU WANT TO TALK ABOUT IT ANYMORE?”

Justice Marilyn Kelly (MK):  I’M DONE.”

Chief Justice Clifford W. Taylor (CWT): SO IT’S A DENY.”

Justice Robert P. Young (RPY):  I’LL REMAND.”

Justice Elizabeth A. Weaver (EAW):  3-4 to deny.”

——————————————————————-

That’s the conclusion of Justice Weaver’s Statement.

At a seminar earlier this month, a speaker reflected on the career of scholar/teacher/editor George Panichas.  Panichas is the author of many books, including The Courage of Judgment and the Modern Age.  Here’s what the orator said: The courage of judgment, the willingness to call things by their right names, is desperately needed.”

And what shall we call this?

Indeed there is.  Justice Elizabeth A. Weaver (Retired) took questions from the audience after her prepared remarks.  The audience at the 9/12 meeting in Traverse City, Oct. 19, 2010, had lots to ask her…about the election, the candidates, the behind-the-scenes activities at the state’s Supreme Court.  Now, it doesn’t make compelling video to show a shot with nobody in it, but had I followed Justice Weaver as she went out into the audience I’d have been showing a lot of faces of people who didn’t necessarily want to be camera fodder.  I wanted to respect their right to remain as private as possible.  Those were the ground rules and I accepted them even before I showed up.

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

This column picks up where yesterday’s leaves off: with Michigan Supreme Court Justice Robert P. Young, Jr., at a Q&A session of the Muskegon Tea Party meeting, September 28, 2010.

Others asked questions about ways he’s suggest to vet lawyers with ACLU leanings, his stand on gun laws, and his thoughts on the U.S. Supreme Court.  Justice Young answered with care, and, for the most part, to the approbation of his audience.

Then, I was accorded the opportunity to query the Justice one more time.

DBS: “You’ve gathered that I’m somewhat critical of your practice.”

RPY: “Well, I figured as much.  You’re sitting next to my severest critic.”

Oh, did I mention that I was seated next to newly retired Justice Elizabeth Weaver?  She was just sitting, observing, taking notes.  At no time did she say anything to Justice Young or the group at large.  But that didn’t hold Justice Young back from repeated castigations of her work.  And at no point in the evening did anyone in the audience or at the leadership table think to ask her if all he was saying was true.

But back to my one more question.  Justice Young had been speaking at length about the sanctity of the law, how its foundations are being eroded.  I just could not square all that with something he’d written in 2004 concerning our tradition of common law.  Now, that law is what’s been handed down to us.  Most often we cite the English Common Law as the beginnings of our own.  And always, it’s based on precedence…what’s gone before.  Oliver Wendell Holmes, Jr., (later Justice) in his The Common Law (1881) put it this way:

The life of the law has not been logic: it has been experience.  The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rule by which men should be governed.  The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. (1)

This is common law, and the law of other wrongs including fraud, acts of malice, contracts, successions…pretty much of what our courts deal with on a day-to-day basis.

At any rate, Justice Young in an article published in the Texas Review of Law and Politics (Tex. Rev. Law & Pol. 299, Spring, 2004. 299-) had much to say about our common law.  I want to make sure I haven’t taken things out of context, so please read it for yourself, here. Here’s how he sets up his argument:

I am therefore simply  going to take as my starting point the proposition that the established common-law tradition, with any number of dodges and sleights of hand, allows judges to “discover” or make common-law rules that address evolving social concerns. (301)

He goes on to characterize the common law this way:

…I tend to think of the common law as a drunken, toothless ancient relative, sprawled prominently and in a state of nature on a settee in the middle of one’s genteel garden party. Grandpa’s presence is undoubtedly a cause of mortification to the host. But since only the most ill-bred of guests would be coarse enough to comment on Grandpa’s presence and condition, all concerned simply try ignore him.

Like the attendees at my imaginary garden party, common-law apologists have spent centuries denying that Grandpa was actually in attendance or, if so acknowledged, vigorously asserting that he was actually clothed and sober. Indeed, some jurists like Justice Cardozo actually celebrate Grandpa and his condition and enthusiastically urge all of us to relax, undress, and join Grandpa in his inebriated communion with nature.

As is the case with young children unschooled in social niceties, legal realists have been pointing and making a regular fuss about the fact that there is a frightening, drunken old man laying about with no clothes on. And like that child, I too acknowledge that this modern conception of the common law that authorizes jurists to discover, create, or modify common-law rules – or policy – is entirely inconsistent with normative constitutional policies and principles, according to which prerogatives of policymaking are given to other branches of government.  (302) (I have deleted the footnotes from the above but you can read them at the linked article.)

I’m not even sure that I entirely disagree with Justice Young.  We’ve seen that the law can be used as a sword instead of a shield.  I think he’s used it as such.  What strikes me, though, is the way this is said, the rhetoric.  It brings to mind a thought: who among us that professes filial piety–the respect for our parents, grandparents, ancestors–would leave our drunken Grandpa sprawled naked?  Would we not try to clothe him in a blanket and cover his nakedness?  Would we not do everything in our power to restore him to wholeness, even if it means waiting while he sobers?  If we had any respect for him and all he represents would we not keep him from censure and mockery?

This also brings to mind the Genesis story of Noah and his drunkenness (9:18-27).  I think Justice Young might profit from being reminded of what happened in the case of the son mocking his drunken father: Ham called down slavery upon his son Canaan and all his descendants.

So, does the rhetoric really matter all that much?  I THINK so, but I wanted to clarify it with the author of the screed.

DBS:  You have talked about the importance of the tradition of law, yet didn’t you write a passage about the common law?  Something characterizing it as a drunken grandfather lying sprawled naked…?

RPY: “‘…in the middle of one’s genteel garden party.'”

He actually picked up the quote and finished the phrase.  He knows these words.

And he explained there have been many cases where he has found the common law worth upholding.  It was a lengthy answer.  But what I was driving at and what I  really wanted to know was the motivation for such disdain for this unwieldy common law.  It’s problematic to be sure, but drunken naked?  Well.

So I raised my hand again and the Justice turned toward me and said something.  Because of a slight defect in my hearing I thought he said “Your turn.”  “Wow!,” I thought, “maybe he will enter into a discussion about this.”

I started to respond was stopped.  Arm extended and finger pointed at me, he thundered:  “You’re DONE!”

DBS: I am?

He nodded and asked for other questions.  Well, I suppose he’s correct that we could have stayed at it for a little while, and he had to leave to get to another event.  So, while I continued to raise my hand, I wasn’t picked.

Today, I again went over his 2004 article.  I find his writing lucid, persuasive, grandiloquent.  There is no doubt at all that he has a tremendous intellect and many gifts.  But, I pause when he writes:

Indeed, it is hard for me, a jurist of the 21st Century, to consider that the common law is “law” in any conventional sense. (303)

In what sense could common law be law of any sort other than by convention?

At any rate, his talk ended, he was thanked mightily, and he exited to a standing ovation.

Note to Harvard:  Even though Justice Young attended there  as both an outstanding undergraduate and a law student, you might want to hold off on funding appeals; I don’t think you’re going to get anything.  Of you he said: “I am a recovering Harvard Law student.  That’s ground zero Sodom and Gomorrah.”  I sure hope he wasn’t there on a scholarship; “How sharper than a serpent’s tooth….”

This column (and all other materials at this site) are under coyright and may not be used without permission.

Copyright©2010 David B. Schock.

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.

This column (and all other materials at this site) are under coyright and may not be used without permission.

Copyright©2010 David B. Schock

Not likely.  Even with Supreme Court Justice Betty Weaver’s leaving the Court, it’s not likely that things will calm down.  After all, it’s election season and Justice Robert P. Young is up for his eight-year encounter with voters.  And Justice Weaver’s appointed replacement, Alton T. Davis, is not likely to put up with the kinds of guff Justices Young, Markman, and Corrigan have been sending out to anyone who dares to disagree with them or call them on their facts.

I have been out of the land, watching from afar, as all this unfolded last week.  So far the most notable response has been that of the Republican organization.  Understand that the Governor has the authority and constitutional duty to reappoint Justice Weaver’s successor…something, by the way, that Justice Weaver–excuse me, FORMER Justice Weaver–says needs to changes (all this outlined in her court reform plan; see her personally funded website, www.justiceweaver.com).  At any rate, the response has been baffling.  Jennifer Hoff, who is described as a Republican Party spokeswoman is quoted in all kinds of sources describing Justice Davis as a “partisan hack.”  Wow, that’s quite something to say of a judge who served on a circuit court for 21 years.  It’s true he was appointed by Governor Jennifer Grandholm to the Court of Appeals, but John Engler–when he was governor–appointed Justices Young, Markman, and Corrigan–oh, and former Chief Justice Clif Taylor, too, to the various courts…Appeals and Supreme (and some to both).  Does that mean they were/are hacks as well?

Perhaps the better question would be Who is Jennifer Hoff?  Her Linked In profile indicates that she is the Director of Communications and Research for the Michigan Republican party, something she began in 2009.  Before that (there’s a three-year lapse in her employment history here) she was working for the DeVos for Governor campaign in 2006.  And before that she served as a Public Relations Coordinator/Press Secretary fot the Michigan House of Representatives–Republican Communications Services.   And before that we assume she was in school at Western Michigan University.  She indicates that she is a member of the PRSA (Public Relations Society of America) the Leadership Institute, SSI (??), and, of course, the Republican Party.  She says she’s interested in career opportunities, getting back in touch, and consulting.  But she calls Justice Davis a political hack. ???  Perhaps this excess comes as a result of youthful enthusiasm gone badly awry.

I’m thinking the Republicans having to do with the Supreme Court are in a lot of trouble and haven’t the wit to see their way out of it.  Why else would you turn loose this public relations neophyte?  You don’t start by gratuitously denigrating someone who is of the opposite party.  You don’t insult people needlessly.  Even a public relations tyro knows that.  And you do not call someone with a stellar record on the bench for more than two decades a “hack.”  Jennifer owes Justice Davis a public apology.  But heck, Justices Young, Markman, and Corrigan owe the same to former Justice Weaver for their untruths, half-truths, and pure spite (and all of it is on record).

Do you think we’re going to see such an event?  An apology?  No, I don’t think so, but the future is unknowable.  It COULD happen.  So could a return to civility on the court.  But I think the only time that could occur would be after Justice Young was voted off and Justices Corrigan and Markman took time to humble themselves.  Will that happen?  The future is unknowable.  It COULD happen.

You can now watch last week’s debacle at the Michigan Supreme Court.  It’s well worth the time to look at this and to realize that the court not only does not act by its own rules but that it blows off the doors to the Code of Judicial Conduct, too.

Justice Betty Weaver has posted this footage from the Michigan Government Television (is not available on line from that organization) on her own privately funded site (via YouTube).  You might pay particular attention in the hour-long smack down the role that Justice Diane Hathaway plays: She lets the court know they are not playing by their own rules.  As Justice Michael Cavanaugh puts it, the law means what he wants it to mean when he wants it to mean it. To heck with procedures.  And from the three, to heck with the Code of Judicial Conduct.  And the three, Justices Markman, Corrigan, and Young state again and again how deeply shocked they are, how devious Justice Weaver has been, how she’s compromised the Court, and how dreadfully mortified they are.  Meanwhile, they all state for the record that, yes, they each signed the letter to the Judicial Tenure Committee asking for an investigation into Justice Weaver’s conduct.  Justice Marilyn Kelly appears to want everybody to just get along.  It’s not going to happen.

Here’s the deal: once you get the idea that Justice Weaver is not lying, is not not trying to save her own reputation or job, you begin to realize that somebody else is not telling the truth.  …Or somebodies.  This is not a simple disagreement over an interpretation and this is more than shading the truth; this is a flat-out assault with no bad behavior held back.  

For the most part, people in the State of Michigan have regarded all this as a tempest in a teapot.  If you’re in the teapot it’s raging.  And those who are doing the raging have orchestrated this to result in what they hope will be a great embarrassment.  I think they have badly miscalculated their target, but I do think it will be an embarrassment.  

Why does this matter?  If the highest court in this state is compromised by partisan politics or animosity what chance does the average person have how approaches the bench in the hope of a just resolution?

Well, time will tell.

Well, if given a choice, would you choose to know why people who are in authority make decisions for or would you prefer to be left in the dark?  Michigan Supreme Court Justice Betty Weaver finds herself on the outs with five of the seven about that.  And she’s on Double Secret Probation with her Republican colleagues on the bench: Justices Markman, Corrigan, and Young.  I have written about them here before and this time I think they’ve gone way over the edge.  …Might be politics, or it might be that they simply cannot abide Justice Weaver’s commitment to letting the people of Michigan know what’s really going on.

The three have decided to send her to the JTC, the Judicial Tenure Commission, for what they say is a breach of ethics…speaking about a case AFTER it was concluded.

This is bad?  Apparently so, and yesterday all of them with the exceptions of Justices Weaver and Hathaway pushed through another version of their gag order: can’t talk about anything at any time.  How’s this square with the past?  Not so well if I read aright.

Here’s the language adopted by the Michigan Supreme Court in the Canons or the Michigan Code of Judicial Conduct…what it sees as ethical behavoir:

Canon 3A6

A judge should abstain from public comment about a pending or impending proceeding in any court, and should require a similar abstention on the part of court personnel subject to the judge’s direction and control. This subsection does not prohibit a judge from making public statements in the course of official duties or from explaining for public information the procedures of the court or the judge’s holdings or actions.

As long as the matter is not pending or impending…the judge may speak and write.  And you can bet that Justice Weaver knows what that means.  What she’s been about from the beginning is “explaining for public information” and letting people know what’s gong on.  So far not too many people have paid any attention…it’s the Supreme Court, it’s law, it’s dull.

It may be that we owe a debt of gratitude to the remaining Engler Three  (all appointees of the former governor) for bringing this all into the light.  I’m sure it wasn’t their intention to be the subject of their own inquiry…but you never know; it may turn out that way yet.  Clif Taylor thought he was being awfully smart, too, in attacking Justice Weaver.

It’s no surprise that people under authority aren’t eager to have their every jot, tittle, and utterance available for public scrutiny.  But, really, that’s too bad; they are acting on my behalf, I have a right to know.  You do, too.

And as Justice Weaver so often say: “Do right and fear not.”