Editorial

For order in the court

Friday, December 29, 2006

One of the responsibilities of the Michigan Supreme Court in the coming year will be to tone down the backyard bellowing that currently passes for discussion on the court -- especially between Justice Elizabeth Weaver and the four justices who comprise the court majority. The way to do that, however, is not to simply throw blankets over people, which is the effect of the recent order forbidding disclosure of the court's internal debates. Nor should the court majority otherwise attempt to keep the shrill remarks of one justice, Ms. Weaver, from reaching public ears.

The court's dignity and influence have been impaired in recent years by the loud echoes of judicial combat. The starting point seems to have been 2001, when six justices, contrary to tradition, unanimously denied Justice Weaver a second term as chief justice. The acrimony increasingly has been between her and the four justices who comprise a philosophical majority on the court: Chief Justice Clifford Taylor and Justices Maura Corrigan, Robert Young and Stephen Markman.

At the center of this latest fracas is a Weaver dissent to an administrative order issued by the majority. The order stipulated that the justices' internal discussions and correspondence relating to cases are confidential and that justices are obligated to keep them within the court. Justice Weaver has accused the majority of imposing a "gag order" on her and said the majority justices are trying to hide "unprofessional conduct and abuse of power." Support for Justice Weaver's overall complaint of being abused is not at all clear. Also, courts do need to keep some of their work private. Justice Marilyn Kelly, for one, points out the need to prevent parties in a case from knowing the court's thinking before an order is issued. In the short term at least, the majority four should know that they erred in trying to suppress the Weaver dissent. The four did remove the hold eight hours after imposing it, but the incident exposed a need for the court to better explain and define its practices. Also, the majority four have to set a better standard of restraint in responding to Justice Weaver.

This latest court quarrel is part of a larger snarl over cases pending before the court involving attorney Geoffrey Fieger. Ms. Weaver this month dissented to a court refusal to delay a reprimand given by the Attorney Grievance Commission to Mr. Fieger. Mr. Fieger sought the delay while he appeals his case to the U.S. Supreme Court. The reprimand resulted from remarks made by Mr. Fieger on a Detroit radio program. He compared three Court of Appeals judges to Nazis and described how they should be sodomized. Ms. Weaver also dissented last summer from the majority's support for the reprimand. The case is part of a tangle of legal actions involving Mr. Fieger and courts at the state and federal levels.

In its own way, the Fieger behavior and the related legal rumpus are hurtful to the Michigan bar's traditions of civility and professionalism. The court majority mustn't add to the harm with over-the-top actions of its own. The clamps put upon Justice Weaver, if only briefly, were in that category.

Fumigation can't come too soon after Justice Weaver's charges

January 7, 2007

BY RON DZWONKOWSKI  FREE PRESS COLUMNIST

Justice Elizabeth Weaver threw a real stink bomb into the halls of the Michigan Supreme Court just before Christmas, accusing four of her fellow justices of unethical behavior and violating her right to free speech. It's going to take some doing to clear the air, but let's get the fans running soon.

Not surprisingly, attorney Geoffrey Fieger has the instigator's role in this unfolding drama, which could and probably should expose some internal court workings that its conservative majority would much rather keep among themselves. The state's other lawyers and judges, who can be a gossipy bunch, will form a rapt audience for every detail that comes out. But the public, which elects the Supreme Court and depends upon it to set a statewide standard for our justice system, ought to pay attention as well. If Weaver is given a forum to air her charges against the court's philosophical majority, the judicial ethics of those four justices become suspect. If Weaver is discredited, somebody may have to figure out how to get her off the court before her term ends in four years, for she could not be this wrongheaded about something and still capable of deciding complex legal issues in the requisite collegiality with the other justices, could she?

Weaver lashed out last month at Chief Justice Clifford Taylor and Justices Maura Corrigan, Stephen Markman and Robert Young in a heated dissent to an order that all the court's discussions, memos, e-mails and correspondence relating to a case must remain confidential. Weaver called it an "unscheduled and abrupt" and unconstitutional "gag order" to keep her from exposing the goings-on at the court, things she said the public that elected her has a right to know. The order, Weaver indicated, effectively suppressed her dissent against the majority in a case involving disciplinary action against attorney Fieger.

That dissent was later released and in it Weaver declared it was "inappropriate" for Taylor, Corrigan and Markman to sit in judgment of Fieger. "It cannot be disputed," she wrote, "that the decision-making process of the Michigan Supreme Court is seriously flawed when a justice who is, or appears to be, biased or prejudiced against a party participates in a case. An unbiased judge is essential to the due process guarantee." The implication is that certain justices are out to get Fieger and will look for ways to reverse every verdict he wins. Fieger is now in the federal system trying to have the four justices in the philosophical majority disqualified from hearing his cases. He recently won a decision from the 6th U.S. Circuit Court of Appeals that he can challenge state rules about who determines when a justice ought to be disqualified. Fieger wants to put the justices under oath and ask them what they think of him. He could start by asking Weaver what she knows.

If these justices do have it in for certain lawyers, that's a concern for all lawyers and the public. If they don't, they'll have to do more explaining than they have so far about what Weaver calls efforts to gag her from exposing them. A layer beneath all this is the fact that Weaver's colleagues on the court replaced her as chief justice after she served just one two-year term, in 1999-2000. Justices customarily remain chief for two terms. Is Weaver bitter about the way she was treated?

The Michigan Judicial Tenure Commission, which is charged with protecting public confidence in the courts by holding judges accountable for misconduct, certainly has enough reason in Weaver's dissents to begin an inquiry. But where does the commission take its findings for action? Usually, that would be the state Supreme Court. If the JTC starts proceedings, the court will have to abdicate its supervisory role for the process to have any integrity.What cannot happen, seems to me, is nothing. Weaver has laid out some serious issues. If these charges were made about any other court in the state, there would be at least an investigation. Either some justices of the Supreme Court have problems or Weaver does. Either way, something doesn't smell right.

RON DZWONKOWSKI is editor of the Free Press editorial page. Contact him at dzwonk@freepress.com or 313-222-6635.

BY BRIAN DICKERSON   DETROIT FREE PRESS COLUMNIST

If you ran into Betty Weaver on a street corner and didn't know she was a Michigan Supreme Court justice, you might mistake her for a bag lady. Dowdy and unbrushed, with a conversational style that might charitably be described as rambling, Weaver can, in her most distracted moments, leave casual observers with the impression that she has temporarily lost her moorings in time and space. So it is tempting for her embarrassed colleagues on the state's highest court to dismiss Weaver's latest criticism of that august institution as the ravings of a lunatic.

Chief Justice Cliff Taylor seemed to be experimenting with that approach Tuesday when I asked him straight out if Weaver was psychologically competent. "I think I probably shouldn't answer that," Taylor responded. "I'm not a person with training in areas of diagnosing what is going on with her, and I probably shouldn't speculate." Weaver, the only one of five incumbent Republican justices who did not reach judicial office via John Engler's appointment, has spent the last month lambasting the integrity of the court's GOP majority in vitriolic dissents to a series of 4-3 rulings.

In a pair of opinions issued before Christmas, she criticized her Republican colleagues' refusal to disqualify themselves from a disciplinary case against Southfield lawyer Geoffrey Fieger and objected to a hastily imposed so-called gag order in which the GOP majority sought to bar Weaver from disclosing the court's internal discussions.

Taking the offensive

Last week, she renewed her attack in a 17-page opinion dissenting from Taylor's re-election, by a 4-3 vote, as the court's chief justice. "I dissent because the majority of four has misused and abused the judicial power by suppressing, or attempting to suppress, dissent and has engaged in repeated disorderly, unprofessional and unfair conduct," Weaver wrote. Her dissent (which had not been posted on the court's Web site as of Tuesday afternoon but is available on the home page of the privately financed justiceweaver.com) cited several cases in which she said Taylor and his colleagues had ridiculed her or attempted to muzzle her. She quoted from an internal memo in which Taylor suggested that Weaver go on a hunger strike, a remark Taylor said Tuesday he regretted.

In a telephone conversation late Tuesday afternoon, Weaver chuckled at Taylor's insinuation that she is not all there and repeated her assertion that she has been targeted for "bringing the majority's abuse of power to the public's attention." "My written work is there for the public to see, and I think it's pretty rational," she said. "There are serious problems in how the court is being run, and I can document them and will at the appropriate time." But Weaver agreed with Taylor that none of her allegations merit an investigation by the State Police or the FBI. "This is about the abuse of power," Weaver said. "It's not criminal, in my judgment, and the only people who can correct what's wrong with the court are the voters."

Contact BRIAN DICKERSON at bdickerson@freepress.com.

.Comm

Tygrrr10

Pursuant to the Michigan Rules of Court (State) Rule 7.302; Application for Leave to Appeal, (C) When to File, wherein, the language clearly states "(a) after the Court of Appeals clerk "mails" notice of an order entered by the Court of Appeals" is when the computation of a litigants time begins to run. However, the Michigan Supreme Court has clearly "ABUSED THEIR AUTHORITY" when it denied the litigant an opportunity to proceed with the meritorious cause of action, because the Michigan Supreme Court stated it will not accept the Leave of Appeal pleading, because the order was "signed" 14 days before the Court of Appeals Clerk "mailed the Order".
Thus, procedurally barring the litigant his entitled 14th Amendment Right to pursue the litigant's legal claims. Justice Weaver, along with other extremely frustrated litigants (Attorney Fieger, myself, etc.) are simply appalled at the "arrogance" and "outright abuse of power" that has continually been displayed by some of our judges.  And to add 'insult to injury' our Judicial Tenure Commission is very much aware of the current tyranny that is being displayed by some of our justices and they (Commission) have completely failed to intervene.
Thus, I will continue to support any individual who properly applys the statutes and provisions that our legislation has passed. Thank You Jusitce Weaver for, at least, "attempting" to bring the culpable conduct being illustrated by some of our judiciary to the unaware and probably unsuspecting "public's attention"

GOD BLESS & "Be Sweet" - - Tygrrrrrr !!!!!!!

Posted: Wed Jan 10, 2007 5:45 pm

CourtInfo

The Court's oral arguments have been televised on Michigan Government Television since 1996. For more information, go to http://mgtv.org/.

Posted: Wed Jan 10, 2007 2:37 pm

savannah

I'm not sure how quoting from internal memos and recounting dicussions can be vague. And I'm not sure how accusations of bias complete with citations to specific instances of conduct can be character smears. But anyway. You criticize her for having a website? She's a public servant for godsake! She allows people access to her & provides information to the people she serves! Somehow that is self-serving. . .whatever.

If the accused didn't want to have the whistle blown on them, they shouldn't have engaged in the shady behavior she describes. No point in shooting the messenger.

Posted: Wed Jan 10, 2007 2:32 pm

Zumkopf

I *have* read Weaver's dissents. They are nothing but vague character smears. Dickerson pressed her for specifics; her response was "I'll get you, my pretty! And your little dog, too!" Weaver is a publicity hound. She even has her own website. But getting famous by self-promotion and smearing others without evidence only goes so far, and like her role model, it's damaging the very institution she sits in. It's high time a modern-day Joseph Welch asked, "Have you no shame? At long last, have you no shame?"

Posted: Wed Jan 10, 2007 2:17 pm

Edward

This is exactly the reason all court proceedings should be televised. Let the public see the true lunacy of the judicial branch. From circuit courts to the Supreme’s; the public would be appalled at the waste of taxpayer money and time. Televise the Sessions!!

Posted: Wed Jan 10, 2007 12:25 pm

January 17, 2007

By DAWSON BELL                              FREE PRESS STAFF WRITER

Michigan’s fractious Supreme Court heard testimony from other judges and the public today about their feuding. And, like the court itself, opinion was divided. Most of the nearly two dozen people who testified at a public hearing In Lansing supported a court rule to bar the disclosure of the seven-member court’s internal communications, calling them essential to ensure frank discussion and good decision-making.

But others sided with Justice Elizabeth Weaver, who has rendered increasingly sharp criticism of four of her colleagues in recent months. Weaver accuses Chief Justice Clifford Taylor and justices Maura Corrigan, Stephen Markman and Robert Young Jr. of acting unprofessionally, running the court in a disorderly manner and attempting to stifle dissent. Weaver, Taylor, Corrigan, Markman and Young are all Republicans. Weaver called the rule, enacted by the court majority in December, a gag order.  But Richard Suhrheinrich, formerly a judge on the U.S. Court of Appeals, said maintaining confidentiality of judicial deliberations is essential to good judicial decision-making and public respect for the judiciary. Without it, “the focus will be on the decision-maker, not the decision,” he said. Both those testifying today and the justices seemed to agree, however, that even if the rule is sound policy it may well be impossible to enforce.

The long-running feud came to a head last year in a bitter disagreement over whether the four justices, who often form a majority on the seven-member court, should be disqualified from hearing cases involving Southfield lawyer Geoffrey Fieger, a frequent and vocal critic of the four justices. In December, Weaver released a 70-page dissent to a decision related to a disciplinary action against Fieger. She later issued a scathing, 18-page dissent to Taylor's reelection as chief justice.

The memorandum of dissent reiterated many of the earlier charges about alleged attempts to silence her and cloak the court's operations in secrecy, adding that she had revealed "only the ‘tip of the iceberg' of the misuse and abuse of power and repeated disorderly, unprofessional and unfair performance and conduct … by the majority of four."Taylor has said the allegations are "totally unfair."

Contact DAWSON BELL at dbell@freepress.com or 313-222-6604.

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Sue Schwartz

There are several serious inaccuracies in this article, the first and foremost is that a federal judge is NEVER former. Judge Surheinrich is a sitting 6th circuit court of appeals judge--Secondly, a GAG order is exactly what it was and goes on to say that if a judge is aware of impropriety, etc, that they may take it to the proper authorities. Under the first amendment, the press, in this case, is the proper authorities.

Lastly, we should be offended that Justice Taylor quelled visitors first amendment rights when he said "There'll be no more of that" to folks in the chamber applauding. This was NOT court, but rather a public hearing that clearly was for administrative purposes for the public. Clifford acted the playground bully.

While it is appropriate for judges to have confidentiality when deliberating--when Justices express bias against a party, integrity of the court dictates their disqualification even if the law says "Judge" and not "Justice"--Justice Weaver did the right thing by exposing not only the arrogance of the court, but the lack of integrity of several members.

Posted: Thu Jan 18, 2007 2:54 pm

7520MetroDetroit

Many of the persons at the hearing – which was standing room only, were not legal professionals yet drove long distances because this amendment is important to them.

This proposal called a 'gag order' by the press was an amendment enacted to curb discussion on an attorney misconduct matter. This is not a criminal or civil matter, nor does it concern national security, civil rights etc. Seemingly this was a very mundane matter yet required the Court to respond in an extraordinary manner. Why? Was the question and the ‘majority of four’ did not care to provide an answer at the hearing.

What we now have is an overtly broad Michigan Court Rule. It does not seem reasonable or prudent measure by the Court to respond with such a 'broad stroke'. The judges who spoke against this amendment were retired judges. A retired law professor was ‘grilled’ by Justices Markham and Young, yet the professor stood steadfast in opposition. To often the judge on the bench evaluates Court Rules by the criteria ‘what is good for me”, but a good judge away from the bench his priorities expand to look at the larger picture ‘what is best for the bench AND for the community”.

The overkill this amendment provides to a relatively small matter violates the public trust. I am a citizen grievously harmed by an attorney who embezzled money from me and then in Court proceedings subsequent judges allowed their professional peer to be exempt from criminal charges. In all matters of attorney misconduct the public should ABSOLUTELY have access to the information why charges are either leveled or dismissed against a judge’s professional peer.

Posted: Thu Jan 18, 2007 12:21 pm

Battle on state's highest court continues

Thursday, January 18, 2007

By Peter Luke

Lansing Bureau

LANSING -- A new Michigan Supreme Court rule barring justices from revealing internal communications was designed to address conflict on the high court. But so far it's just revealing more of it. Testimony during Wednesday's public hearing on the rule, approved 4-3 on Dec. 6, was as divided as the court. Backers, among them other appellate judges, said the rule was necessary to preserve the court's integrity. Critics called it overly broad and unnecessary. Left unresolved was how the rule should be applied and what the response should be to a justice who violates it.

The rule is primarily aimed at Justice Elizabeth Weaver of Glen Arbor, an outspoken critic of current court operations. Her fellow Republicans on the court say she's abusing court privilege. She says she's protecting the public interest. Weaver and her main adversary on the court, Chief Justice Cliff Taylor of Laingsburg, sit next to each on the bench. But there was no hint during the hearing of the personal rancor between the two that has spilled out in opinions, orders and dissents issued by the court in recent weeks.  Justice Marilyn Kelly said in a press release issued after the hearing that "public conflict among justices is damaging the court." She urged that a three-member outside panel be formed to investigate and verify Weaver's claims that a court majority led by Taylor is abusing its power. That way the court could end the controversy and "return to normal business," she said.

It was anything but normal Wednesday in a courtroom where deference to authority reigns. Taylor sat impassively as Cheryl Gore Follette, an attorney from Traverse City, blasted him for calling Weaver "sad, angry, petulant and childish." Weaver, by the way, has said Taylor is unprofessional and unfit to be chief justice.  Follette, who said she has known Weaver for two decades, called Taylor's comments "mean-spirited and malicious." She said as elected officials, justices are obligated to make the court transparent. "I want to know what goes on behind those closed doors," Follette said. "When I vote for you, I want to know what I'm getting."

But a half-dozen judges on the Michigan Court of Appeals testified that courts should be judged by their decisions, not scrutinized on how they are reached.  Judge Christopher Murray said appellate judges who jointly decide cases can't be candid in their discussions if those closed-door talks are made public. Absent candor and confidentiality, he said, an appellate court can't "render the most complete and accurate decision." The internal dynamics of a the court, moreover, would be "blown to smithereens" if private disagreements on the law were laid bare, said Judge Bill Schuette.

No justice Wednesday directly addressed what a court majority has said in writing: that Weaver has improperly disclosed the inner workings of the court by publishing proposed rules on judicial disqualification that the majority had shelved. Weaver calls the court a "secret society." At least one of her colleagues expressed frustration over being bound by confidentiality not to respond. In court Justice Robert Young referred to Weaver saying, "One of our numbers has said, `I reserve the right to tell everyone my version'" of events. Young is a member of what Weaver calls a "majority of four," which in addition to Taylor includes Justices Maura Corrigan and Stephen Markman. Weaver reserved that right to comment once again after the court session by having an informal press conference in the back of the Supreme Court's spacious courtroom in the Michigan Hall of Justice. And on Friday morning, Weaver is to be the featured guest on the PBS political program "Off the Record."

Richard McLellen, a longtime Lansing attorney who argued for confidentiality, said the Michigan Constitution gives the court broad leeway to set its own rules. And he said the court "must have some internal means to enforce its rules or the rules are meaningless."

But former Circuit Judge Kurt Hansen of Gladwin called the rule on court confidentiality overly broad, saying it shouldn't apply to administrative issues.

Kelly's proposed three-member panel would include two lawyers or judges and someone who is not an attorney. The group would have 90 days to report its findings on whether the four-member majority had indeed abused its power. "I am convinced that extraordinary measures are needed to address this extraordinary problem," Kelly said.

State Supreme Court justice’s theatrics bury valid

BY KYLE MELINN
Wednesday, 17, January 2007

It’d be easy to call Michigan Supreme Court Justice Elizabeth Weaver “crazy” and be done with it.
Here’s a woman who two years ago announced that she was stepping down from the bench only 25 months into her final eight-year term as a statement against Michigan’s term limits law. Of course, Weaver didn’t step down as promised. Rather, the Republican judge used her threatened resignation as political leverage to get the Republican-controlled Legislature to put a term limits reform proposal in front of the voters in the 2006. She figured the GOP wouldn’t want to give Democratic Gov. Jennifer Granholm a free appointment so the Legislature would do what she wanted. She figured wrong.  At best, Weaver is an iffy fifth conservative vote on a seven-member bench, making her presence fairly expendable among Republicans. They ignored her.

Now Republicans probably wish they’d have taken her up on the offer. Instead of safely parking her airplane in a hanger and going away, Weaver ignited her craft into a ball of flames and pointed it toward the Hall of Justice. Weaver has found herself at odds with her colleagues before, particularly after she wasn’t reappointed chief justice in 2001. She often sides with the court’s two Democratic-nominated justices on split decisions. The cover blew off the kettle last month when the majority didn’t slam brakes on a disciplinary case against flamboyant Southfield attorney Geoffrey Fieger, whose latest shenanigans include calling a trio of Court of Appeals judges “jackasses” who need to change their names to Adolf Hitler and have a large plunger stuck up their backsides. Weaver thought the majority of four went out of their way to make a political-based decision against an old nemesis. It’s no secret Fieger spent an unhealthy amount of television advertising money to oust one of the four in the 2004 election.

But when the majority told Weaver they weren’t going to print her 70-some page dissent to the Fieger order, her Kamikaze mission took off. The justices fueled the flight by proposing a rule change that all “correspondence, memoranda and discussions regarding cases or controversies” within the hallowed court were forever confidential unless somebody was doing something “unethical, improper or criminal.” Since then, Weaver can’t stop talking about how the majority has “misused judicial power by suppressing dissent” and has “engaged in repeated disorderly, unprofessional and unfair conduct.” Her Web site links users to her lengthy dissents, including her vicious reaction to Justice Clifford Taylor’s reappointment as chief justice earlier this month.

An embarrassed Taylor is frantically trying to shoot Weaver from the sky. He issued a statement saying if Weaver thinks the court is abusing its power, she should report her proof to the Judicial Tenure Commission as soon as possible. If Weaver had anything other than her anger, maybe she would. But Taylor is calling her bluff and hopes the whole goes away before voters start getting the message about how dysfunctional this court really is. As I said, it would be easy to call Weaver crazy and be done with it. And while her techniques are unconventional to say the least, she is shining a light on the fact that this Michigan Supreme Court is the court everybody fears the President Bush-picked U.S. Supreme Court will become.

This is a constructionist court put together by former Gov. John Engler to crack down on what he viewed as frivolous lawsuits. For us, that means the man who severely hampered our ability to sue drug companies was responsible for a court that has practically ended “slip and fall,” product liability and medical malpractice suits. An activist court that is floating in a direction of less access to the courts and fewer personal freedoms is unraveling 30 years of precedents and decisions. It’s a road voters overwhelmingly said they didn’t want to travel down just three months ago. Outside of the legal community, few realize the difference. Supreme Court candidates don’t appear on the ballot as Republican or Democrat; they appear as “Justice of the Supreme Court” or “candidate.”

Barring fireworks and neon signs, no voter thinks twice about supporting an incumbent Supreme Court justice. Why would they? If there were a problem with a Justice, there would be fireworks and neon signs, right? Well, Weaver is lighting the wick and plugging in the signs, two years away from Taylor’s own re-election bid in 2008.  It’s like her failed term-limits reform platform of 2005. Few in Lansing disagree that legislative term limits are too short and judicial term limits are too long, but even the media was too caught up in conjecturing on Weaver’s alleged replacement to notice her true intentions.  Once again, Weaver is making a point in drawing attention to the overly constructionist court — but that message gets lost when she allows herself to be framed as a hot-headed nut.

(Kyle Melinn is the editor at the MIRS newsletter. He can be reached at melinn@lansingcitypulse.com. This email address is being protected from spam bots, you need Javascript enabled to view it )