The shoe is on the other foot

The “new minority” on the Michigan Supreme Court, Justices Maura Corrigan, Robert Young and Stephen Markman, is complaining that the “new majority,” Chief Justice Marilyn Kelly, and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway, is ignoring established precedent.

In an April 24 order, the MSC voted 4-3 to let stand the Michigan Court of Appeals decision in Juarez v. Holbrook, et al., which approved the trial court’s award of case evaluation sanctions to defendant based on attorney fees of $97.50 per hour – the discounted rate defense counsel charged the no-fault insurer in this case. Defense counsel complained the rate was too low.

Juarez was decided July 1, 2008. The next day, the MSC decided Smith v. Khouri, authored by then-Chief Justice Clifford Taylor. Justice Taylor was joined by Justice Young. Justice Corrigan, joined by Justice Markman, in large part concurred with the lead opinion’s clarification of calculating reasonable attorney fees:

[W]e review a trial court’s award of “reasonable” attorney fees as part of case-evaluation sanctions under MCR 2.403(O) calculated under some of the factors we listed in Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982), and Rule 1.5(a) of the Michigan Rules of Professional Conduct. We take this opportunity to clarify that the trial court should begin the process of calculating a reasonable attorney fee by determining factor 3 under MRPC 1.5(a), i.e., the reasonable hourly or daily rate customarily charged in the locality for similar legal services, using reliable surveys or other credible evidence. This number should be multiplied by the reasonable number of hours expended. This will lead to a more objective analysis. After this, the court may consider making adjustments up or down in light of the other factors listed in Wood and MRPC 1.5(a). In order to aid appellate review, the court should briefly indicate its view of each of the factors.

Justice Cavanagh, joined by Justices Kelly and Weaver, accused Justices Taylor, et al. of tinkering with something that wasn’t broken:

Today the majority says much, but changes little, in its attempt at “fine tuning,” ante at 11, our longstanding method for assessing reasonable attorney fees under MCR 2.403(O), which has remained unchanged since this Court unanimously adopted it 25 years ago in Wood v Detroit Automobile Inter-Ins Exch, 413 Mich 573; 321 NW2d 653 (1982). In fact, despite the majority’s attempt to aid appellate review and increase the consistency of reasonable attorney-fee awards, its new variation of the Wood-factors method changes little because, in the end, it still leaves the trial court with broad discretion in awarding reasonable attorney fees under the rule. Accordingly, I would not tinker with the Wood factors simply because in this case a contingency-fee attorney was awarded an hourly-rate fee that some on this Court would not have accepted had they been the trial judge. The Wood-factors method is not broken; therefore, I respectfully dissent from the majority’s attempt to fix it.

Armed with the 4-3 decision in Smith, the attorneys in Juarez appealed to the MSC, arguing that the justices should take a look at the trial court’s award of case evaluation sanctions.

Leave to appeal is denied, said the “new majority” in the April 24 order, because “we are not persuaded that the questions presented should be reviewed by this Court.

The “new majority” term was used by Justice Markman in his dissent, in which he claimed existing precedent was being ignored:

A remand to the trial court for compliance with Smith is clearly required here. See Young v Nandi (Docket No. 134799, order entered October 3, 2008). However, the majority’s disdain for Smith is apparently viewed as adequate justification for ignoring Smith. Rather than forthrightly overruling this decision, something the new majority is apparently loathe to do (perhaps because several majority justices repeatedly and loudly proclaimed fealty to stare decisis, and dissented, whenever the former majority overruled a precedent), it is increasingly becoming the modus operandi of this Court that relevant precedents simply be ignored. See, e.g., VanSlembrouck v Halperin (Docket No. 135893, order entered April 24, 2009), where the new majority ignored Vega v Lakeland Hospitals, 479 Mich 243, 244 (2007), Hardacre v Saginaw Vascular Services (Docket No. 135706, order entered March 27, 2009), where the new majority failed to follow Boodt v Borgess Med Ctr, 481 Mich 558 (2008), and Sazima v Shepherd Bar (Docket No. 136940, order entered April 3, 2009), where the new majority failed to follow Chrysler v Blue Arrow Transport Lines, 295 Mich 606 (1940), and Camburn v Northwest School Dist (After Remand), 459 Mich 471 (1999).

It wasn’t too long ago when the “old minority” (Cavanagh, Kelly and sometimes Weaver) was left to complain that the “old majority” (Taylor, Corrigan, Young and Markman) was busily overturning precedent left and right for no other reason than the “old majority” didn’t like the way the old cases had been decided.

The legal scholars will endlessly debate who, if any, has the most intellectually honest position: the “old majority,” the “old minority,” the “new majority” or the “new minority.” And the political operatives will furiously and superficially spin things to their perceived advantage.

But for right now, as far as the new minority is concerned, the shoe is on the other foot, and it is an apparently uncomfortable fit.

3 thoughts on “The shoe is on the other foot

  1. Like all bullies & thugs, Young, Markman & Corrigan could give it out, but can’t take it! These amoral corrupt activists have sold their souls and integrity to their political bosses, have soiled their offices, and our legal system. They deserve our contempt and disrespect, and they have it! They have proven that there is legal prostitution in Michigan! Hopefully,Honor of the law, by the new Honorable majority, will once again return to our legal system. Art Greenstone

  2. Art, get a grip on yourself. Justices Young, Markman and Corrigan are not thugs or bullies. They are principled jurists who believe that a responsible system of government includes a judiciary that will interpret and apply the law as it is written, rather than adjusting it based on personal or subjective views. For that matter, I know that Justices Cavanagh, Kelly and Weaver are also highly principled, and despite some differences in judicial philosophy, none of these people can fairly be called bullies or thugs, or maligned as being corrupt. While I have no personal experience with the newest Justice, I know her husband as an opposing counsel, and was singularly impressed with his integrity, and I cannot help but conclude that Justice Hathaway must share his values (although I have a hard time divorcing my opinion in that regard from the shameful soft money ads that falsely accused Justice Taylor of falling asleep on the bench).

    I don’t like the shift in the core judicial philosphy of the Court, but not for one minute would I stoop to calling any of the Justices names. Your comments simply are not objectively true, except to the extent that they reveal your emotional response to the prior majority’s attempt to impose predictability and judicial restraint as the touchstone for judicial decision-making. For those who see the judiciary as the place to go to get relief from the otherwise harsh consequences of the law as written or given, this change in the Court must be refreshing. But gloating is unbecoming, and a name-calling fit is less so.

  3. Jeez, Art, a little hyperbole? Is it just possible that these Justices actually believe what they write and, for instance, it’s different from what you believe. Many years ago, Justice Young (then on the Court of Apps), was my professor in law school for Pre-Trial Advocacy. I was shocked, shocked to learn that he wasn’t amoral political activist who had sold he soul, despite what I had been told. He actually believed what he said and said what he believed.

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