Seinfeldian bottle return caper no laughing matter

About a year ago, The Michigan Lawyer told you about an alleged beverage container-deposit fraud scheme involving out-of-state empties being cashed in under Michigan’s 10-cent deposit law. Over $1.5 million, and millions and millions of cans were involved.

Life was imitating the madcap art of a Seinfeld episode in which Kramer and Newman had the same idea, on a not-quite-so-grand scheme, but they were ultimately thwarted by a golf club once owned by President John F. Kennedy. Huh? Click here for a recap.

In real life, law enforcement officials charge that smuggling rings were collecting and crushing cans in Ohio, where there is no deposit law, and selling the resulting chunks to Michigan store owners who then redeemed them for cash. The Associated Press reports that 12 individuals were charged and the trial starts today.

Meanwhile, state lawmakers are considering measures that would make it a lot tougher to redeem non-deposit cans and bottles. From the Associated Press:

“Under bipartisan bills pending in the Legislature, each can and bottle sold in the state would have to be marked with a special dot, symbol or other code. Reverse vending machines would then be retrofitted to scan and recognize the dot to ensure that non-Michigan containers get no refund.

“Stores also could limit customers to $5 a day in bottle refunds or $25 per day if the retailer has return machines. Fines and jail time would increase.”

MSC appointment flap: Weaver says Taylor’s conduct ‘unprofessional, improper, unfair’

Michigan Supreme Court Justice Elizabeth Weaver has accused Chief Justice Clifford Taylor of mishandling the court’s recent appointment of Judge John Chmura as chief judge of the 37th District Court.

Weaver, the lone dissenter to the order appointing Chmura, says Taylor “effectively interfered with the chief judge appointment process.”

Both Chmura and Judge Jennifer Faunce, the 37th District Court’s chief judge pro tem, sought the chief judge appointment. Here’s what happened next, according to Weaver:

“On October 7, 2008, State Court Administrator Carl Gromek sent a copy of Judge Faunce’s fax, dated October 7, withdrawing her name from consideration for the chief judge position. Based on this information, I telephoned Judge Faunce’s office on October 7 in the late afternoon to inquire about her withdrawal. She was not available at that time, so I left a message for her to call me if she would like to discuss the matter.

“The following morning, October 8, at approximately 9:15 a.m., Judge Faunce returned my call. When I inquired as to why she withdrew, she told me that she was informed that she did not have the votes to be appointed. Therefore, she withdrew her name from consideration. I expressed to her that I had planned to vote for her and would continue to do so at the administrative conference. …

“At the October 8, 2008 administrative conference at approximately 10:20 a.m., Chief Justice Taylor announced that there was only one candidate remaining for the Chief Judge position. At that point, Justice Kelly asked if anyone knew why Judge Faunce had withdrawn. Chief Justice Taylor explained that he was of the view that there were four (4) votes for Judge Chmura, and that he had decided to call Judge Faunce to inform her that there were four votes for Judge Chmura and that Judge Faunce was welcome to withdraw or stay, but that he did not want her to be embarrassed because there were four votes for Judge Chmura and she would lose. Chief Justice Taylor related that Judge Faunce told him that she would withdraw her name and she did so.”

Weaver didn’t mince any words when explaining her view of the chief’s explanation:

“Chief Justice Taylor’s action of telling Judge Faunce that there were four votes for Judge Chmura and that Judge Faunce was welcome to withdraw or stay, before the justices had ever met to discuss and vote on the chief judge appointment, is another example of his unprofessional, improper, and unfair conduct as chief justice. [footnote omitted]

“Chief Justice Taylor’s actions effectively interfered with the chief judge appointment process because what he told Judge Faunce during his telephone call caused her to withdraw her name before the justices of this Court had even met to discuss the appointment.”

Taylor has a tendency to play things close to the vest, and that is not good, according to Weaver:

“Harmful to the proper functioning of the justice system is Chief Justice Taylor’s inclination to act secretly, not openly and transparently with respect to the administrative business of this Court. Administrative appointments of chief judges – judges who are elected public officials – constitute public administrative business, not personnel matters. Judges are not employees of the Michigan Supreme Court. They are elected officials of their counties or jurisdictions and are effectively only employees of the people of their counties or jurisdictions within the state of Michigan. This inclination toward secrecy also deprives the people of the information they need to properly make judgments on the justices’ performance of their duties. The Supreme Court should not be a secret club run for the benefit of justices and judges.”

Weaver’s solution is to publish administrative conference agendas at least three days before each conference and to prepare “draft proposed minutes” no more than three days after each conference.

These items would be available on the court’s website if Weaver had her way.

And as for the actual conferences? Those would be televised live unless personnel matters were involved.

Who do they like? Dailies weigh in with MSC endorsements

With two weeks to go before the election, editorial boards at some of the state’s daily newspapers are weighing in on the Michigan Supreme Court race.

As one might expect, the Detroit News is solidly in Chief Justice Clifford Taylor’s corner:

“Taylor should be retained on the court.

“Taylor will relinquish the chief justiceship next year, as is the court’s custom, but he has been careful with the public’s money as chief justice and sought reasonable ways to contain costs. He led the justices and appellate judges in relinquishing their cars. In a time of tight economic resources, he asked the State Court Administrative Office, which through the Supreme Court has oversight responsibilities for all state courts, to examine whether the number and jurisdictions of some lower court judges should be reallocated or reconsidered. It was the right kind of question for the court to be asking.

“The chief justice is one of a group of jurists who have in recent years changed the direction of the court – mostly for the better. Individual rulings can always be questioned, but the overall movement of the court has been to return to the concept that liability must have a relationship to fault.”

Less expected was the Detroit Free Press‘ decidedly lukewarm endorsement of the chief justice.

The Free Press noted Taylor’s aversion to courts making public policy from the bench and his view “that courts have narrow but important roles. What a statute says is what it says. What the Constitution says is what it says.”

Here’s the Free Press’ editorial rejoinder:

“That mission may sound good to those who agree with Taylor that courts in Michigan had gone too far for too long. But it’s an agenda nonetheless. It’s judging cases through the prism of a specific, long-term policy goal.

“Even worse, Taylor — the only justice up for election this year — and his conservative colleagues have taken their philosophy far beyond mere textual readings of the law or the Constitution to a point where they are, in fact, making policy as much as any of the former justices they’ve criticized.”

“Taylor is enough of a problem on the high court to warrant endorsing nearly anyone as an alternative.”

But there’s an issue, according to the Freep:

“Unfortunately, state Democrats have chosen Wayne County Circuit Judge Diane Hathaway as their candidate. Despite a solid record on the Circuit Court, Hathaway, 54, demonstrates no better grasp of the role of high court justice than Taylor, and can’t even articulate a judicial philosophy that she’d bring to the court. …

“What Hathaway says about how she would simply ‘follow the law’ is not unlike what Taylor says about his philosophy. But in an interview with the Free Press editorial board, Hathaway could not say why she would arrive at different decisions from Taylor, only that she would. She would likely be out of her depth on the high court, and not much more than a reliable, but unexplained, vote that’s the opposite of Taylor’s. That’s not reason enough to put her there.”

The Detroit Free Press concluded by scolding Hathaway’s backers:

“It’s one thing for Democrats, liberals and trial lawyers to complain about the state Supreme Court. It was quite another, apparently, for them to find a credible candidate to challenge its chief justice this year.

“Justice CLIFFORD TAYLOR should be retained Nov. 4 on the Michigan Supreme Court, but voters really deserved a better choice.”

The Bay City Times views the high court election as a choice between two extremes:

“On the conservative end, we have Chief Justice Clifford Taylor. On the liberal side, we have Diane Hathaway, Wayne County Circuit Court judge for 16 years.
Both are seasoned jurists, yet each would bring a very different philosophy to Michigan’s highest court. …

“Do you throw out one extreme for the other? Perhaps. But Hathaway hasn’t made a compelling case for such drastic action in this campaign.”

The Oakland Press opined that:

“It is certainly true that Michigan’s court has a reputation as conservative, but whether such terms as liberal or conservative are helpful in discussing a judicial contest is highly debatable. It seems that impartiality would be a better standard. Why is the plain and simple wording of the law subject to such philosophical interpretations?”

The Oakland Press’ editorial board said that once one puts the philosophical debate aside, what’s left is court administration:

“On this score, [Taylor’s] record is impressive.

“Taylor says that for the last 10 years, the state’s Supreme Court has delivered certainty, clarity and stability in the law. He says this has resulted in a dramatic drop in the filing of frivolous lawsuits throughout the Michigan state court system. In fact, he says the caseload has dropped so much that appellate judicial vacancies should not be filled in areas where court filings are down.

“He also asked all judges receiving a state car as a result of their compensation package to return it to the state for auction, resulting in a savings of more than $420,000.

“He has supported jury reform, backing proposals aimed at giving jurors more information and helping them render fair, impartial verdicts. He also would allow jurors to take notes and to ask proper questions of witnesses. …

“Hathaway is a well-qualified candidate, but on an objective basis, there is no compelling reason for voters to make a change.”

But the Lansing State Journal had no problem urging a change of personnel:

“The most important vote a Michigan resident can cast this fall is to oust Chief Justice Clifford Taylor from the Michigan Supreme Court.

“The direct beneficiary of this decision will be Diane Hathaway, the Democratic nominee. The LSJ endorses Hathaway’s candidacy as a way to protect the rights of Michigan residents against the assaults of the Taylor-led court.

“John Engler put Taylor on the Supreme Court. And huge amounts of money from business interests with business before the high court have kept him there.

“While there, Taylor and his political allies on the court have again and again put the people’s interests last.”

MSC campaign cash: A bit short of $20M

Michigan Supreme Court Chief Justice Clifford Taylor has a 10-to-1 campaign contribution advantage over challenger Wayne County Circuit Court Judge Diane Hathaway, according to the latest filings with the Secretary of State.

Taylor reported more than $1.5 million in contributions so far. Hathaway reported just under $150,000 for the period between Sept. 3 and Sept. 26.

These are not trivial sums, but both are a far cry from $20 million. Michigan Supreme Court Justice Robert Young speculated last fall that’s how much it might take to re-elect Taylor. And that’s how much Michigan Democratic Party Chair Mark Brewer said he would spend to defeat Taylor.

With less than a month before the election, it’s not realistic to expect either candidate will come close to raising $20 million in campaign contributions.

But will $20 million actually be spent on Taylor and Hathaway’s behalf?

Not likely, says Michigan Campaign Finance Network Executive Director Rich Robinson.

If that kind of money is spent on the supreme court contest, “it will come from soft-money issue ads. These can appear out of nowhere,” said Robinson.

Robinson said in the last election for governor, Jennifer Granholm and Dick Posthumus were spending $2 million per week in the closing weeks of the campaign, and “that was for total saturation of all the markets.”

If a similar “food fight” (Robinson’s phrase) were to erupt in this year’s MSC campaigns, there simply isn’t enough time left before election day to spend $20 million, according to Robinson.

Robinson said that MCFN recently “made the rounds” at television stations across the state.

“Taylor has ads cued up to go over the last three weeks of the campaign,” he said. The ads will begin to air Oct. 16 in the Detroit area, Lansing and Grand Rapids.

Robinson said that he didn’t see any Hathaway media buys when MCFN conducted its research.

Robinson said that the Judicial Confirmation Network has bought some time as well. There’s no telling what the JCN might run but its website currently features an attack ad against Barack Obama.

Supreme sniping about Pavlov and textualism

“Call me a textualist if you will, but I believe this Court should hold to its policy of strict application of statutes.”
Michigan Supreme Court Justice Michael F. Cavanagh, dissenting from the court’s denial of a motion to rehear Boodt v. Borgess Medical Center.

“Although I am heartened by Justice Cavanagh’s newly found receptivity to ‘textualism,’ he has, I fear, a ways to go before he fully gets the hang of it.”
Michigan Supreme Court Justice Stephen J. Markman, concurring with the majority in Boodt.

In Boodt, a medical malpractice case, the issue was whether plaintiff’s notice of intent to sue met statutory requirements, so that the subsequent filing of the complaint and service of process would have tolled the statute of limitations. In the original decision, the majority, citing Roberts v Mecosta Co. Gen. Hosp., 466 Mich. 57 (2002) (Roberts I), ruled that plaintiff’s notice of intent was defective and did not toll the statute of limitations under MCL 600.2912b(4).

Cavanagh, in his dissent, argued the notice was sufficient and if not, under MCL 600.2301, any error should be disregarded because the defendant-doctor’s “substantial rights” were unaffected. The doctor had notice of the suit and acknowledged in a deposition that he knew what the suit was about, Cavanagh argued.

On rehearing, Cavanagh said that the statute of limitations was tolled under the version of MCL 600.5856(a) that was in effect when plaintiff filed her case. Under that version, Cavanagh said, tolling commenced when plaintiff filed her complaint and served process.

According to Cavanagh:

“Section 5856(a) says nothing about compliance with the notice-of-intent statute.

“Justice Markman’s Pavlovian concurrence misses the point. The issue here is tolling. The most specific statute on this issue is § 5856, the tolling statute. The applicable section of the statute, § 5856(a), does not require compliance with § 2912b. Former § 5856(d), the statute at issue in Roberts I, did require compliance with § 2912b, but § 5856(d) applies ‘[i]f, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose….’ That is not the case here. Plaintiff timely filed her notice of intent and her complaint. [Footnote 2: This is the critical factual distinction between this case and Roberts I]. Thus, § 5856(a) applies and the statute of limitations for plaintiff’s action was tolled when she filed her complaint and a copy of the summons and complaint was served on defendant.”

Cavanagh said that the court should “hold to its policy of strict application of statutes,” and if that means he is a textualist, so be it.

“This Court’s ruling in this case violates that policy by adding words to the statute requiring compliance with § 2912b. Section 2912b is not a tolling statute. It says nothing about whether a statute of limitations has or has not been tolled. To suggest that it does adds language to the statute.”

Markman fired back that:

“[A] more seasoned ‘textualist’ would not have overlooked the language of MCL 600.2912b(1), which states that a person ‘shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.’ (Emphasis added.) Nor would a more seasoned ‘textualist’ have overlooked the language of MCL 600.2912b(4), which states that the ‘notice given to a health professional or health facility under this section shall contain a statement of at least all of the following . …’ (Emphasis added.) Thus, a more seasoned ‘textualist’ likely would have concluded that a plaintiff cannot commence an action before he or she has filed a notice of intent that contains ‘all’ the information required under § 2912b(4), and until this is done, he or she cannot file a complaint tolling the period of limitations.”

Markman concluded his lesson with these observations:

“Moreover, such a ‘textualist’ would also have recognized that more specific statutory provisions control over more general statutory provisions, and thus the specific requirements of § 2912b(1) regarding ‘commenc[ing] an action alleging medical malpractice’ prevail over the general requirements of MCL 600.1901 regarding the commencing of civil actions. Such an analysis admittedly would be partially premised upon the plain language of the law, partially upon logic, and partially upon rules of interpretation dating back several centuries, but, of course, no one who is not intent on caricaturing ‘textualism’ would doubt that all three of these considerations are among the tools of a ‘textualist.'”

And what about Cavanagh’s characterization of Markman’s concurrence as “Pavlovian?” Markman replied in a footnote:

“If by reference to a ‘Pavlovian concurrence’ my dissenting colleague intends to characterize this statement as a predictable and expected response to a judicial display of disregard for the language of a statute, then I suppose that his is an accurate characterization.”