With Victory Comes Responsibility

For decades, although voting Democratic for the President and, more often than not, for the governor, Michigan has been a Republican-dominated state. Governor Granholm had a Democratic majority in the State House for only the past two years. Even with that, Senate Republicans stymied any meaningful Democratic initiatives. Assuming there were any....

One of the frustrations of living in Michigan is seeing the dearth of ideas for "fixing" the state's problems. Things started to go south before many of the state's sitting politicians were born, and have been on a serious downward track for decades, but it often seems like there's been no change in state "policy" - wait long enough and things will get better on their own. Yes, Michigan is attempting to subsidize its way into being a new home for TV and movie production, but even if that effort succeeds it will do little for the state's economy as a whole.

Now, with the 2010 election, Michigan has a Republican governor, a Republican House, a Republican Senate with a supermajority, and will have a Republican-dominated state Supreme Court. A friend lamented this state of affairs, and the inevitable gerrymandering that will soon occur to try to cement a Republican advantage into the state's electoral districts. And yes, if you're a Democrat, I can't say there's much to cheer in any of that.

At the same time, victory - and victory of a magnitude that it can really be called ownership - carries responsibility. I know that many Congressional Republicans hope to shirk that responsibility, sabotaging the Senate and the White House such that the government seems ineffective and they can gain additional power in the next election. But Michigan's Republican Party has no scapegoats, and is pretty close to maximum power. If it does not deliver, it is safe to say that it cannot deliver.

If the recession continues, or if Michigan remains in recession while the rest of the nation recovers, it will be perfectly reasonable for voters to hold the state's Republican Party responsible. After all, unless they're going to throw up their hands and admit that they have no solutions to the state's problems, they are implicitly responsible. And if they do make such an admission I'm not sure that it helps them, as it would effectively be an admission of incompetence. That is to say, in two, four, six years... however long it takes... if the Republicans don't deliver something they're likely to experience what G.W. Bush and the Republicans went through during the 2006 and 2008 elections. Gerrymandering may be enough to get some of their seats back if things don't immediately get better (as we just saw, nationally, with Democrats losing most Republican-leaning seats won during the prior two elections) but it won't save a party from a backlash against its ineffectiveness.

My friend asked, "But what if the Republicans succeed?" Um... well, then, no backlash. But I'll take a vibrant state economy over either the ineffective governance of the past decade, and certainly over the type of yo-yo elections that effectively just held the President responsible for his predecessor's incompetence. (Which isn't to say that, particularly in retrospect, there aren't a lot of things the President and the Democrats, particularly a self-serving, party-sabotaging faction in the Senate, couldn't have done differently to potentially avoid or diminish this outcome.) In simple terms, when you control everything there's nobody for voters to blame but you.

Giving Credit Where Credit Is Due....

And I think it is due. This is the type of case which can easily be deemed to "small" for a Supreme Court's attention, yet the Michigan Supreme Court stepped in and did the right thing. You may recall my earlier rant about this case:

Many years ago I worked with a highly ethical manufactured home community, such that I was never asked to interpret the boundaries of this statute. But if asked, I would have indicated that to me the immunity extended only to damage incidental to the execution of a court's order. That is, nobody in his right mind would confuse an order of eviction with a court's grant of permission to trash a tenant's property, but if something were accidentally dropped, dinged, dented or damaged during the eviction process the landlord would be safe from a lawsuit. With a manufactured home, that would include damage incidental to the removal of the home from its foundation and utilities hookups, and which might occur during transport due to the contents being unsecured.

Boy, would my advice have been excessively cautious. You see, as it turns out (albeit by the terms of an unpublished and therefore non-precedentially binding decision) the landlord and his agents would enjoy absolute immunity for any damage they caused to the tenant's property, even if resulting in the total loss or destruction of the property.

On Friday, the Michigan Supreme Court held,

On order of the Court, the application for leave to appeal the June 13, 2006 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE that part of the judgment of the Court of Appeals that found the defendants immune from suit under MCL 600.2918(3) because "plaintiffs' allegations unquestionably directly arose as a result of the eviction performed by Hometown America and its agent." Slip op, p 5. The plain language of MCL 600.2918(3) provides immunity only for actions undertaken pursuant to an order of eviction. Accepting the plaintiffs' well-pleaded factual allegations as true, and construing them in a light most favorable to the plaintiffs, certain of the defendants' actions, including the conversion and destruction of plaintiffs' property in a manner that was neither necessary to effect the eviction nor incidental to the process of eviction, cannot be said as a matter of law to be within the scope of the July 7, 2004 order of eviction, and hence, may not have been undertaken pursuant to that order. Thus, the circuit court erred in granting summary disposition to the defendants under MCR 2.116(C)(7). We REMAND this case to the St. Clair Circuit Court for further proceedings not inconsistent with this order. The application for leave to appeal as cross-appellant is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

I remain wary of the Supreme Court's tendency to reverse cases without hearing, and certainly don't always agree that justice results. But they got this one right.

It's Unbridled Activism May Not Get Much Attention....

... But the Michigan Supreme Court's continuing problems with civility are getting quite a bit of attention.

Attention Fans And Foes Of Fieger

Appellate Law and Practice has the latest on Geoff Fieger's continuing legal battle with the Michigan Supreme Court.

A Michigan "What If"?

What if a school bus driver got tired of the kids in her bus, pulled over on the inside shoulder of I-94 without turning on her overhead red flashing lights or extending her stop sign, told the kids to "get off and cross the road", then sat on the shoulder blocking oncoming traffic from seeing the children. The kids, intimidated by the many lanes of high speed traffic, wait for a while before one finally tries to cross. Would the school district or bus driver have any potential liability if that child was struck by a car - the driver of which could not see the child prior to impact because his line of sight was blocked by the school bus? According to the Michigan Supreme Court... absolutely not.

The school district would enjoy governmental immunity. Although there is a motor vehicle exception to governmental immunity, the exception would not apply because there was no direct physical contact between the bus and the vehicle that hit the child, nor was there direct contact between the child and the bus.

The bus driver would be deemed grossly negligent for such an act - that's obvious - and normally an act of gross negligence would prevent a claim of governmental immunity. But it wouldn't be "the one most immediate, efficient, and direct cause preceding" the child's injury. The child's "decision to cross the street at the moment when she did" would be "the immediate, efficient, and direct cause of her injury." Thus the school bus driver would also be immune from liability.

Note, the school bus driver in the actual case did not stop on the highway - she stopped at an intersection and, with her overhead lights off, told a child to get off the bus and cross the road. The dissenting judge in the Court of Appeals, after expressly reciting the rule that the facts in a summary disposition case are to be taken in the light most favorable to the non-moving party, observed that there was "testimony indicat[ing] that [the child] failed to immediately heed this instruction". This appears to reference testimony from a witness who was not even at the scene, and was applied to somehow free the court to ignore witness testimony that the child immediately crossed. The I-94 scenario is not an exaggeration - this decision would grant immunity given those facts.

Just ask the folks at "Overlawyered" where you are unlikely to read about this case - as long as the atrocity favors the defendant, atrocious outcomes in tort cases are fine. Right? (Helfer v Center Line Public Schools - Court of Appeals Decision; Supreme Court Reversal)

Judicious Application of a Trial Tax

The Michigan Supreme Court, in a split decision, reversed a trial court's rather explicit imposition of a "trial tax" when sentencing a defendant who chose not to plead guilty:

We do not quarrel with the Court of Appeals finding that this crime was extremely brutal. However, the sentencing judge stated that she did not believe that defendant was entitled to the same sentence as his accomplices, “who were able to step up to the plate and say what they did and to admit their guilt,” while defendant subjected the victims to “having to testify.” A sentencing court, cannot, in whole, or in part, base its sentence on a defendant’s refusal to admit guilt. People v Wesley, 428 Mich 708, 711 (1987); People v Yennoir, 399 Mich 892 (1977). Nor can a defendant be punished for exercising his right to trial. United States v Jackson, 390 US 570; 88 S Ct 1209; 20 L Ed 2d 138 (1968); People v Courts, 401 Mich 57 (1977).

The sentencing court also commented on the “excessive brutality, violence, and terrorism” to which the victims were subjected. But the 50-point score defendant received on Offense Variable 7 already accounted for these circumstances. A sentencing court may base a departure on a characteristic already taken into account by the sentencing guidelines only if the court finds that the characteristic was given inadequate or disproportionate weight.

I think Justice Corrigan, concurring in part and dissenting in part, hopes to educate the trial judge on how to properly engage in upward departure from the Michigan sentencing guidelines on remand. But then, it was a particularly nasty crime.

Judicial Activism, or Asleep On The Bench?

The Greatest American Lawyer takes on the Michigan Supreme Court.

Maybe He Doesn't Get Out Much

Commenting on Roe v Wade, Charles Krauthammer huffs,

Set aside for a moment your thoughts on the substance of the ruling. (I happen to be a supporter of legalized abortion.) I'm talking about the continuing damage to the republic: disenfranchising, instantly and without recourse, an enormous part of the American population; preventing, as even Ruth Bader Ginsburg once said, proper political settlement of the issue by the people and their representatives; making us the only nation in the West to have legalized abortion by judicial fiat rather than by the popular will expressed democratically.

Why doesn't the Canadian Supreme Court decision, R. v. Morgentaler, Smoling, and Scott, [1988] 1 S.C.R. 30, 79-80, count?

Krathammer also suggests that when legislators ask about stare decisis, they aren't concerned with the outlawing of racial quotas or the right of the Boy Scouts to exclude gay scout leaders. Curiously, though, he doesn't mention desegregation. Not curiously, really... if he were to put Brown v Board of Education or Loving v Virginia into the mix, he would have to explain why (despite his being a supporter of legalized racial integration) those issues don't properly lie with the state legislatures, consistent with the long-standing practices and precedents they overturned. Or, conversely, he would have to explain why they do.

But then, perhaps Krauthammer is a "cafeteria federalist", and thus doesn't recognize an inconsistency.

Differing Philosophies

The Michigan Supreme Court has, in recent years, been paring back the ability of lower courts to interpret statutes beyond constructing their plain text. Following Scalia's writings, for example, the Michigan Supreme Court has all but eliminated the ability of state trial and appellate courts to interpret statutes to avoid absurd results.

Our Supreme Court has since criticized and substantially limited, if not eviscerated, the "absurd result" rule, agreeing "with Justice Scalia's description of such attempts to divine unexpressed and nontextual legislative intent as 'nothing but an invitation to judicial lawmaking.'" People v McIntire, 461 Mich. 147, 156 n 2; 599 N.W.2d 102 (1999), quoting Scalia, A Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton University Press, 1997), p 21. Thus, whether the plain meaning of a statute may be avoided because its literal application results in an absurdity remains an open question in Michigan.

McGhee v Helsel, 262 Mich App 221, 226; 686 NW2d 6, (2004).

But while Scalia rules the day in Michigan, his philosophies are finding a less receptive audience among his peers. Today in Koons Buick Pontiac GMC, Inc. v. Nigh, the majority rejected the notion that the Court has no role in providing a reasonable interpretation to a carelessly drafted statute, leaving Scalia as a sole dissenter arguing for strict construction divorced from Congressional intent and predecessor statutes.

Some might view this as hair-splitting, with the majority of Justices arguing that where the language is unambiguous, it is inappropriate to correct a drafting error by Congress, but it was nonetheless appropriate to look to extrajudicial sources in the instant case because the statute was ambiguous. Scalia is much more textual in his legal interpretations, statutory or Constitutional - except... well, when he isn't. Like in his preference for the expansion of sovereign immunity, a concept strangely absent from the Constitution. But I guess "that's different". [Insert Emerson Quote Here?]

In any event, should Scalia ever tire of his brethren, I'm sure he can get a job clerking for Chief Justice Corrigan. ;-)