Justice Robert Young video interview (via Freep.com)

Robert P. Young Jr.


It was only a matter of time before Weaver/Young bickering resumed

“You’ve got plenty of material,” Weaver says near the end of this story. But something tells us there’s still more to come.

LANSING (AP) – A Michigan Supreme Court justice running for re-election acknowledged Friday that he used the N-word during a private conference with other justices in 2006.

Robert Young Jr. responded after former Justice Elizabeth Weaver gave a speech this week saying he used the racial slur and that it shows why he doesn’t deserve another eight-year term on the court.

Young, who is black, told the Associated Press that he used the word during an “impassioned plea” to emphasize how someone was being treated “without rights, without dignity.”

“I’m sorry that I used the term. … Obviously I was very hot about this. That’s why I used the word,” Young said. “I remember the heat and the purpose for using it.”

When pressed for details, he couldn’t recall the case.

Young said Weaver’s actions were an “outrage.”

“This is despicable. Justice Weaver hasn’t been called (the N-word) or been treated like one, but she finds it politically expedient to use it politically,” Young said. “All of my family has experienced it including me.”

In her speech in Traverse City, Weaver said Young used the slur in the plural form and was referring to a judicial candidate. She read from a May 2006 memo that she wrote and sent to all justices expressing disgust at Young’s remarks and other “unprofessional” incidents.

“Perhaps everyone should imagine that the court’s conferences are being televised,” Weaver said. “The public would be appalled at how the court’s business is often conducted.”

She also said that in April 2006 Young suggested to another justice that he use the phrase, “you ignorant slut,” when addressing the State Appellate Defender Commission. It was a phrase used years ago in a popular “Saturday Night Live” skit.

Young told the AP he couldn’t recall saying that.

Weaver, a moderate Republican, and Young, a conservative Republican, regularly clashed on the court. She quit in August, allowing Gov. Jennifer Granholm to appoint a replacement that put the court in a solid 4-3 Democratic majority.

Weaver’s speech and memo were posted on http://www.delayedjustice.com. Reached by phone Friday, she said she was golfing and couldn’t comment further.

“They’re waiting for me,” she said of other golfers. “You’ve got plenty of material.”

Young said Weaver’s “rant” broke a rule that forbids disclosure of the Supreme Court’s private discussions.

“Justice Weaver never respected the conference privilege and that’s why we had to promulgate a rule,” he said.


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Autopsy shouldn’t take two tries

Macomb County’s medical examiner has some explaining to do.

After Macomb County Medical Examiner Dr. Daniel Spitz reported that an autopsy of banker David Widlak showed an apparent cause of death as drowning, the Oakland County Medical Examiner then, at the request of Widlak’s family, took a look and found a gunshot wound at the base of the neck.

Initially, Spitz said Oakland found the wound because of digital X-rays, but no, it was a visual examination that found the wound, said Oakland County Medical Examiner L.J. Dragovic.

The X-rays were used after the exam found the wound and pinpointed bullet fragments in the body.

So, what’s the explanation? You almost expect foul play in a scenario like this and would expect that a thorough — very thorough — exam would be done to rule out any eventuality.

Isn’t that what autopsies are for, after all?

Now, any autopsy in Macomb County that may have affected someone badly is subject to scrutiny. Shades of the Detroit crime lab all over again.

OK, so there won’t be many exhumations to perform new autopsies, but had the family not paid for a second autopsy, the police might still be befuddled about the cause of death, and may not now be investigating this as a homicide.

This is yet another shining example of why the public’s view of government has eroded to cynical and skeptical at best.

For the latest, read The Detroit News story.

MSC denies rehearing of U-M v Titan, says no error using ‘insanity’ and ‘incompentency’ interchangeably

The Michigan Supreme Court has denied a motion for reconsideration in Regents of University of Michigan v Titan Insurance Co., one of the decisions released at the end of its 2009-2010 term.

The court ruled in Regents that University of Michigan Hospital, as a state entity, was not bound by the No-Fault Act’s one-year back rule under a statute that says that state claims for medical bills have no statute of limitations.

According to Titan’s attorney, Mark D. Sowle of Anselmi & Mierzejewski P.C., the decision created a problem that may not have been intended: in ruling as it did, the court overturned its own decision in Cameron v Auto Club Ins. Cameron held a minority/insanity tolling statute didn’t apply to the one-year back rule.

But the majority continuously used the terms “insanity” and “incompetency” interchangeably, which could open the door for a whole new class of plaintiffs to avoid the one-year back rule.

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Sowle explained the scenario in August:

“Let’s say I was in a car accident 10 years ago and I claim I had a head injury, and therefore, I’m covered under the insanity provision,” he said. “Under this decision, I can theoretically file suit against my no-fault carrier and say, ‘Hey, you underpaid me for attendant care $1 an hour for the last 10 years.’ All of the sudden, I have a million-dollar lawsuit and I’m not bound by any statute of limitations. That’s the real danger here.”

Sowle filed a motion of reconsideration, which is still pending in the Michigan Supreme Court. His biggest concern, he said, was the Court using the term “incompetent” 15 times in place of the term “insane.”

“When you look at the dictionary definition of ‘incompetent,’ it’s a whole lot broader than the dictionary definition of ‘insane,’” he said. “On top of that, the statute defines the word ‘insane.’ It doesn’t define ‘incompetent.’”

Chief Justice Marilyn Kelly explained why she decided against reconsidering the case on the “incompetency/insanity” issue:

I write also to address our opinion’s use of the word “incompetent” rather than “insane” in discussing MCL 600.5851(1). This was not improper nor was it intended to expand the scope of MCL 600.5851(1). Indeed, I would not hesitate to vote to grant rehearing if I thought there was a need for clarification on this point. However,  there are several reasons why the opinion’s use of “incompetent” in place of “insane” is not a basis for granting rehearing. First, the legally recognized definition of “incompetent” is consistent with the statutory definition of “insane” in MCL 600.5851(2). Both terms contemplate persons who are unable to comprehend their legal rights. Second, there is nothing novel about using these terms interchangeably. The United States Supreme Court and numerous other courts, have done so for years.

Finally, it is pure speculation to predict the economic consequences of our decision. Defendant claims that it will inevitably lead to higher insurance premiums for Michigan drivers. No one is omniscient regarding when or why insurance companies choose to raise or lower premiums. However, the practical effects of our decisions generally do not dictate this Court’s reading of statutory language. This is a point with which at least one dissenting justice agrees.

One of those dissenting justices is Maura Corrigan:

In overruling Cameron v Auto Club Insurance Association, 476 Mich 55 (2006), the majority inaccurately described the class of individuals protected by the tolling provision in MCL 600.5851(1). The statute protects a person who “is under 18 years of age or insane at the time the claim accrues.” The majority distorted this clear language by repeatedly using the term “incompetent” interchangeably with  insane.” Whereas “insane” is statutorily defined as “a condition of mental derangement” that prevents a person from comprehending his rights, the term “incompetent” includes persons who are not properly qualified, capable, or legally fit to make a decision. MCL 600.5851(2);
Websters II New College Dictionary (2005). Thus, the term incompetent” has a potentially far broader reach than “insane,” thereby expanding the class of protected persons beyond those suffering from insanity.

The practical ramifications of the majority’s error in overruling Cameron include potentially higher premiums for all Michigan motorists who must by law purchase nofault automobile insurance. Defendant has documented that from 1978 through 2009, the Michigan Catastrophic Claims Association received a total of 24,533 claims, nearly half of which involved a brain injury, the type of injury most likely to trigger the tolling provision in MCL 600.5851. By expanding that provision beyond the reach of its plain language, the majority permits a new universe of claims for accidents that occurred decades ago, claims that will ultimately be paid by the public through increased premiums.

Justice Robert P. Young, Jr. echoed Corrigan’s dissent as well as Justice Stephen J. Markman’s dissent from the original Regents decision:

And so, in this case, on an issue of the majority’s own creation—an issue not even related to the case at hand—the majority has inexplicably attempted to rewrite MCL 600.5851(1) by broadening the class of individuals covered from those who are insane to those who are merely incompetent. There is perhaps no clearer example than this case of
this majority’s demonstrated indifference to the actual words of a statute and the legislative process that considers, debates,  compromises, and ultimately selects those words. Neither the author of the majority’s opinion nor the justices who today sanction that opinion by denying rehearing deign to explain why it is appropriate for this Court to substitute a new protected category of persons for the one the Legislature actually chose. Once again in Michigan, judicial preferences trump legislative ones.

The wisdom of crowds

If anything was made clear by a report on how voters feel about the Michigan Supreme Court and its role, it was that jurisprudence is a little like art. Even if you can’t define it, you know what you like.

the polling company inc., on behalf of The Federalist Society, polled 500 likely voters in Michigan during the first week of October. Pollsters asked respondents about their knowledge of the Michigan Supreme Court, its rulings and different forms of jurisprudence, said the polling company CEO Kellyanne Conway in an Oct. 20 conference call.

Astonishingly, participants were comfortable with admitting they don’t know much about the Court — 36 percent said they were just a little bit familiar with the Court and 20 percent admitted to being “not at all” familiar. Five percent said they were very familiar and 38 percent said they were somewhat so.

But they know they don’t like the Court. Just 1 percent of participants said the Court’s performance is excellent, and 22 percent said performance was “good.” Forty-seven percent said the Court’s performance is “fair” and 8 percent said poor. Those who were familiar with the court were even more critical, with 32 percent of them calling the justices’ performance excellent or good, and 63 percent judging them as fair and poor.

“This is a real indictment of the judiciary,” Conway said. “To know about the Court was to be not necessarily pleased with the Court.”

The voters might have forgotten that they have indeed chosen those justices that they’re not too happy with, and they want to keep on selecting them.

According to the survey results, 72 percent of respondents said that Michigan voters should continue to have the greatest input on who is selected to serve as a Justice on the Court. Nine percent said that power should rest with the legislature, 7 percent said the Governor should appoint justices and 6 percent said lawyers should select them.

And once the justices get to the Hall of Justice, they should leave their personal viewpoints at the courtroom door, responded 74 percent of the likely voters.

The respondents indicated that they don’t necessarily believe that our justices have exercised judicial restraint (though most of them admitted they didn’t know what that meant – 67 percent said that they didn’t know what judicial activism is, and 63 percent said the concept of judicial restraint was new to them).

But when it came to voter opinions about Court opinions since 2008, when the majority of court shifted away from the conservative leanings of former Chief Justice Clifford Taylor, voters tended to think the Court has made some poor decisions in overturning precedent.

Pollsters described the McCormick v. Carrier case this way:

When the Michigan State Legislature passed a no-fault automobile insurance law, they agreed that the only people who could sue for non-economic, “pain and suffering” damages were people who sustained serious impediments of a bodily function. The Michigan Supreme Court upheld this in 2004. However, this summer, after a new judge was elected and the ideological composition of the court changed, the Michigan Supreme Court reversed the Court’s six-year-old decision and ruled that people who have only sustained temporary impairments are able to sue in order to receive pain-and-suffering damages.

Fifty-five percent of the participants said that the decision was a bad one, and 35 percent deemed it a good decision.

Pollsters asked about the impact of the Court’s recent plaintiff-friendly opinions, and two in three respondents said that they are harmful to the state economy, and have created an environment in which it’s easy for lawyers to make money by filing lawsuits on behalf of their clients.

A lamentable state of affairs (take two)

If you want to operate a complex piece of equipment, you should at least have a passing familiarity of what’s in the instruction manual. Otherwise, you could get hurt.

Consider the Constitution as part of the operating manual for running the government. Now, check out CNN’s account of a debate at a Delaware law school between Republican Senate candidate Christine O’Donnell, who is also backed by the Tea Party, and Democrat Chris Coons.

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