Michigan Justice Under Attack By Michigan Supreme Court

Decades ago, Americans were warned of the potential for abuse of
power. The warning involved the foreseeable dangers of the rising
influence of the military industrial complex:

Perhaps
more interesting than the quote itself, however, is its author. The
quote is taken from a speech to the American people by our 33rd
President, Dwight D. Eisenhower, at the conclusion of his presidency.
President Eisenhower was a graduate of West Point and the Supreme
Commander of Allied Forces in Europe during the Second World War. He
was a moderate Republican, an insider, who knew what he was talking
about when it came to war and its costs.

I was reminded of this speech recently while reading about the unusual events taking place in the Michigan Supreme Court.

Supreme Court Justice Elizabeth Weaver, in her published dissents,
has been openly criticizing her Republican bench mates for abusing the
power invested in them and for bias in their decisions. The justices
she has concerns about are Justices Taylor, Young, Markman and
Corrigan. All of these justices were appointees of Governor John
Engler. Justice Weaver, by comparison, was elected to the probate
court, the Court of Appeals and the Supreme Court by the voters.

Justice Weaver is a Traverse City Republican. She is known to be a
moderate in the tradition of Michigan Supreme Court Justice James
Brickley and Governor William Milliken. These Republicans managed to
balance the rights of everyday people with the rights of corporations.

As lawyers and citizens of this great State, we ignore Justice
Weaver’s concerns at our peril. We need to be aware of what is going on
in our highest court. We need to be sure that the power entrusted to
our highest judicial officials is not abused for the benefit of a few
special interests to the detriment of this state’s citizenry.

The four justices who regularly vote as a block have characterized
Justice Weaver’s attacks as purely personal in nature. However, as
lawyers, schooled in the art of analysis and cognizant of the
importance of precedent, we have the tools necessary to arrive at
reasoned conclusions with respect to these serious allegations. The
claims by Justice Weaver are serious and warrant follow up and
analysis.

In our system of government it is permissible and in fact expected
that the legislature will have a political agenda. However, the only
permissible "agenda" of our highest court is the adherence to precedent
and the protection of constitutional rights of its citizens.

An analysis of the opinions of this Court should put the issue to
rest one way or another. The analysis should begin with a few simple
questions.

First, to what extent has this Court respected the concept of stare
decisis? The role of precedent in the judicial branch distinguishes it
from the legislative and executive branches. The concept of stare
decisis discourages the influence of political agendas.

Second, to what extent have the opinions of the Engler appointees
preserved the constitutional right to jury trial? Judges with an agenda
disfavor trusting decision-making to everyday people.

Finally, do the opinions of these appointees overwhelmingly favor a
particular class of litigants or particular special interests?

Our oath as lawyers compels adherence to the Constitution, to the
concept of trial by jury and to the concept of stare decisis. An
independent, fair judiciary is a crucial element in a functioning
democracy. The public has a right to expect that as officers of the
court, we will have open and honest dialogue where issues of
impropriety or undue influence surface in our highest court.

It may be that Justice Weaver’s "personal attacks" are without
substance. It may also be that Justice Weaver’s observations and
criticisms are well-founded. As lawyers, we have the intellectual tools
and the public responsibility to investigate these serious charges.

Sincerely,

Robert F. Garvey

Attorney Robert Garvey is President-Elect of the Michigan Chapter of
the American Board of Trial Advocates whose goal is the preservation of
the right to jury trial. He is also an Adjunct Professor at the
University of Detroit School of Law and a recent recipient of the
Michigan State Bar Association’s President’s Choice Award for his
support for the Access to Justice Program.