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    Who are the NERD fund donors Mr Snyder?

    Raise the curtain.

    "Rule of Law" Should Be More Than Just A Slogan

    By The Wizard of Laws, Section News
    Posted on Thu Aug 16, 2012 at 03:25:09 PM EST
    Tags: Appeals, Colleen, courts, empathy, Jane, law, Markey, Michigan, O'Brien, rules, Supreme Court (all tags)

    Cross-posted in The Wizard of Laws.

    Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey.  Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien.  

    Continued below the fold

    As I wrote in 2010, "Judge Markey stresses her experience on the Court of Appeals. This is obviously a positive quality, but it should not be overstressed to the neglect of the quality of the decisions."  Since then, I have still not had the opportunity to argue before Judge Markey, but I have attended meetings at which she has spoken, and she seems like a nice person.  She describes herself as a "rule of law" judge, and, in a recent email, she stated:

    Judge Markey knows that a judge's role is to follow the plain text of our Constitutions and statutes. You can see that for yourself in almost two decades of decisions that demonstrate she is a consistent constitutional conservative. Only appellate court judges, and not state trial court judges, generate open, public, easily accessible, transparent records because their decisions are written and used statewide each day by attorneys and judges in all types of cases. Only Judge Markey has this crucial credential, i.e. proof she adheres to the Rule of Law.  (Emphasis in original).

    Sounds good, right?  Well, in the words of the immortal Lee Corso, not so fast, my friend.  In 2010, I wrote about Allen v Bloomfield Hills School District, which was anything but a "rule of law" decision.  And, unfortunately, since then, I have learned of more examples of Judge Markey's adventures in open field running, untethered by the law.

    One of the risks of touting your record is that people might actually read it.  

    The most glaring example of Judge Markey's departure from the law is her dissent from the majority decision in Progressive Michigan Insurance Company v Smith, a 2010 decision.  In that case, Smith drove his truck across the center line of the road and injured two other people. Since he had too many points on his record and no valid license, Smith had not been able to procure insurance for his truck, so his girlfriend bought it.  Smith was supposed to be excluded from coverage under the policy.  If excluded, the injured persons had no claim against the insurance policy and would be deprived of a potential source of recovery.  If not excluded, the insurance coverage would apply and potentially be available to those injured by Smith's negligence.

    There is a Michigan statute directly on point here, MCL 500.3009(2), which states:

    If authorized by the insured, automobile liability or motor vehicle liability coverage may be excluded when a vehicle is operated by a named person.  Such exclusion shall not be valid unless the following notice is on the face of the policy or the declaration page or certificate of the policy and on the certificate of insurance:  Warning -- when a named excluded person operates a vehicle all liability coverage is void -- no one is insured.  Owners of the vehicle and others legally responsible for the acts of the named excluded person remain fully personally liable.(Emphasis added).
    So, to exclude a person from coverage, (1) the person must be named as excluded and (2) the specified warning must appear on both (a) the face of the policy or declaration page or policy certificate, and (b) on the certificate of insurance.  In this case, Smith was named as an excluded person and the specified warning appeared on the declaration page, but the warning on the certificate of insurance was not identical to the specified warning -- the last word was "responsible" instead of "liable."  

    Thus, the policy did not comply with the clear requirements of the statute, and the Court of Appeals determined that Smith's exclusion was not valid, resulting in coverage for the injured motorists.  This was a 2-1 decision.  Both judges in the majority are of Republican heritage; Judge Markey dissented.  

    The majority reasoned:

    The Legislature did not merely set forth the substance of the required warning.  Instead, the statute mandates use of "the following notice," which notice is explicitly provided for insurers to use verbatim.  Further the Legislature did not merely state that this notice is required, without specifying the effect of noncomplicance.  If the required warning notice is not provided, the named person "exclusion shall not be valid."  The statute could not be clearer.

    Dissenting, Judge Markey began with words that will echo throughout her campaign, but are belied by numerous opinions she has authored:

    I too strongly adhere to the philosophy that it is this Court's function to apply the law as plainly written.  It is not our job to modify, amend, or read into a statute something that is not there; such legislating from the bench is simply improper. Legislating belongs to the Legislature.

    These are laudable sentiments, but they would be more persuasive if Judge Markey did not then immediately violate the philosophy she professes to share.  Judge Markey stated that she would have found the insurance company complied with the statute and excluded coverage for Smith, and she did so under the banner of "common sense":

    Must we as strict constructionists abandon "common sense" and render a decision not only remarkably hyper-technical legally but also profoundly unjust and jarring to what I will presume to say is the average person's sense of justice and fair play?  I think not.
    It is thus apparent that Judge Markey will apply the rule of law except where she believes it is not consistent with "common sense" or "the average person's sense of justice and fair play."  Under this standard, there is no standard -- she is free to rule as she wishes, without regard to the law, as long as she can fit her ruling under the unlimited umbrella of "common sense" or "fair play."  

    The case was appealed to the Michigan Supreme Court, but the application ultimately was denied.  Still the denial afforded an opportunity for the justices to weigh in, and the Chief Justice did so, with his customary directness:

    The dissenting opinion of Judge Markey in the Court of Appeals, although professing an adherence to the philosophy of interpreting the law as plainly written, nevertheless ignored the statutory language[.]  (Emphasis in original).

    The Chief Justice described Judge Markey's opinion as "a shocking departure from the rule of law," and noted:

    All Michigan citizens should be extraordinarily troubled by any judge who advances the notion that the rule of law must be enforced unless a judge finds an outcome in a particular case to be one of which he personally disapproves.  In a constitutional republic, judges have no such authority, and the rule of law crumbles where a constitutional, validly enacted mandate can be ignored simply because it offends a judge's sensibilities -- even if on "rare occasion[s]."  (Emphasis in original).
    As if that wasn't clear enough, the Chief Justice kept the pedal to the metal:

    With all due respect to Judge Markey, our judicial oaths require judges to enforce the Legislature's policy choices, even when we may personally find the outcome in a given case "unjust," "inequitable," "jarring," "hyper-technical," or contrary to what we intuit an "average person's" sensibilities to be.  As this Court has stated, it is a mere "caricature" of judicial restraint for a judge "to assert that her common sense should be allowed to override the language of the statute."  (Emphasis in original; footnotes omitted).

    It's pretty simple -- "rule of law" is a standard to be applied in judicial decision-making.  It embraces the notion that the people speak through the Legislature and that clear and unambiguous statutes -- like the one involved in the Smith case -- are to be enforced as written.

    When a judge decides that a statute, despite its clarity, must be interpreted in a way that comports with "common sense" or her notion of "justice and fair play," her opinion becomes unmoored from the law, and the result becomes a function of her feelings.  This removes important, perhaps the most important, characteristics of law itself -- the ability to know what the law is and to rely upon it.

    In a just and ordered society, commercial and personal interaction depend upon our ability to rely on others' behavior.  For example, roads and motor vehicles are useless without traffic laws, and without laws enforcing contracts, people cannot rely on their agreements, even if written.  In this way, the rule of law promotes freedom because it produces a common understanding of what the law means and how it applies to us.  In other words, we can play the game because we know the rules.  

    In Judge Markey's world, and in the world of the so-called "empathy judges," there really are no rules, since even crystal clear statutes must always pass the "feelings" test, and there will always be cases in which a judge simply doesn't like the result the law compels.  At that point, she resorts to vague notions of "common sense" or her individual concept of "justice and fair play."  A judge taking that approach ceases to apply the law and forfeits her right to proclaim herself a "rule of law judge."  She has instead become simply another legislator, imposing her personal viewpoint on the parties before her and on anyone else affected by her decision.  Her standard for decision-making is no standard at all.

    More to come.

    < The Heartbreak Of Thomas Edison | Enough With The Circular Firing Squad Already! >

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    There is no Rule of Law anymore (none / 0) (#1)
    by Corinthian Scales on Thu Aug 16, 2012 at 04:14:01 PM EST
    Howza 'bout having zero claim to your money if invested in the stock market or have a bank account?

    Full Sentinel Ruling Link
    Posted by Ann Barnhardt - August 12, AD 2012 6:51 PM MST

    A reader with a Westlaw subscription downloaded this and then emailed it to me. Many thanks for that, as it is NOT published on the internet. Until now. Mwah-ha-ha-ha.

    CLICK HERE for the Sentinel Federal Appeals Court Ruling of August 9, 2012

    This commentary came from the fellow who sent this to me. I think it is spot-on.

    Miss Barnhardt,

    I thought you might be interested in reading the actual opinion of the In Re Sentinel Group case, which I have attached in PDF. It was very hard to find for some reason, and I had to access my Westlaw account in order to get it. I think it would be well worth your time to read it, as I am afraid that it appears to confirm what you have been saying.

    The entire case reads like an after-the-fact rationalization of a predetermined conclusion. Years ago when I was with a different firm, I worked on numerous major institutional fraud and auditing cases, and I cannot recall a ruling even remotely similar - let alone from a federal court of appeals.

    Please pay particular attention to the section on equitable subordination, on pages 6 through 8. Unbelievably, the court acknowledged in that section that even though some of the bankers  lied under oath during the trial, that fact did not prove "sufficiently egregious" actions on the part of the bank.

    I will quote the opinion: "Instead of finding that their testimony [i.e. their lies] justified a finding of egregious bank behavior, the district court essentially found that the bank officials were such artless liars that they couldn't have been concealing deliberate wrongdoing." See page 7, column 2.

    So in other words, a U.S. Court of Appeals has found that if a banker lies under oath during a trial, that fact proves that the bank was innocent of any misconduct with respect to the subject matter of those lies. Did we get transported to bizarro world without knowing it?


    There is no Rule of Law anymore.

    OABTW, Wiz...

    I have appeared before Judge Kelly on numerous occasions, and I know her from our work together on the State Bar Civil Procedure Committee. She has an excellent mind and judicial temperament. She carefully applies the law as she finds it -- there is no legislating going on from her bench. Given the current tidal wave of reversals emanating from our current Supreme Court, understanding the proper role of a judge is crucial. Mary Beth Kelly gets it, and she lives it every day on the bench.

    Mary Beth Kelley sucks too.

    A question, Wizard: (none / 0) (#5)
    by Kevin Rex Heine on Sat Aug 18, 2012 at 10:50:14 AM EST
    You have, in the space of two election cycles, selected a grand total of two cases from Judge Markey's nearly 18-year tenure on the Appeals bench.  (She was originally elected in 1994 and her current term expires January 1, 2015, which puts her somewhere between sixth and ninth in seniority.)

    Out of the 28 judges on the Michigan Court Of Appeals bench, I'm told that Westlaw Review ranks Judge Markey as the third-strictest rule-of-law judge on that bench; not perfect, but not bad either.  (I'm still tracking down paper-trail proof of this, so feel free to not take my word on it.)

    Here's my question:  As a percentage of Judge Markey's caseload while on the COA bench, how often has she has gone "off the reservation" with regard to rule-of-law decisions?

    I'm curious as to your answer.

    • Not sure by The Wizard of Laws, 08/18/2012 04:16:39 PM EST (none / 0)
      • But, of course by Corinthian Scales, 08/19/2012 11:57:45 AM EST (none / 0)
      • My misspeak . . . by Kevin Rex Heine, 08/19/2012 05:29:40 PM EST (none / 0)
        • Actually... by jgillmanjr, 08/20/2012 09:32:10 AM EST (none / 0)
    • 2010 by InksLWC, 08/19/2012 02:00:20 AM EST (none / 0)
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