I recently received an anonymous email criticizing Bill Schuette for certain decisions on the Court of Appeals. The email was so ludicrously awful, I almost deleted it immediately, but then I thought again -- it's an election year, and people who aren't familiar with the law might accept this as some sort of authority. Hence, we set the record straight here, by reposting my emailed response:
I join with Joan Fabiano in condemning this ridiculous attack on Bill Schuette. While everyone has a right to his or her opinion, no one has a right to be wrong on the facts. The anonymous person who attacked Judge Schuette for decisions in three cases involving criminal sentencings clearly does not understand the law or criminal procedure. These decisions show that Judge Schuette understands and applies the law as it is written. Moreover, the anonymous sender completely mischaracterizes the decisions themselves.
Case: People v. Olman, docket no. 268464 (2007)
Facts: The defendant was convicted of sexual assault on a four-year old girl and sentenced to 2-15 years in prison. He appealed his conviction and sentence.
Anonymous said: "Bill Schuette joined with a Granholm appointee (Servitto) and a Blanchard appointee (Jansen) in taking the rare view that the trial court judge actually abused his discretion in applying this sentence and sent the case back for re sentencing more in the range of "at most 12 months in jail, and probation" or a better explanation."
The Truth: The Court of Appeals panel affirmed the conviction and remanded for resentencing. They did not reduce the sentence or order it reduced.
Michigan law provides that a "court may depart from the appropriate sentence range established under the sentencing guidelines . . . if the court has a substantial and compelling reason for that departure and states on the record the reasons for departure." Also, "A substantial and compelling reason must be an objective and verifiable reason that keenly or irresistibly grabs the court’s attention, is of considerable worth in deciding the length of a sentence, and exists only in exceptional cases. . .'The court shall not base a departure on an offense characteristic or offender characteristic already taken into account in determining the appropriate sentence range unless the court finds from the facts contained in the court record, including the presentence investigation report, that the characteristic has been given inadequate or disproportionate weight.'
The trial court had exceeded the sentencing guidelines, and did so based on factors that were already counted in the sentencing. Effectively, the trial court was counting the same factors twice. Under the law, the Court of Appeals had no choice but to remand for resentencing. To do otherwise would have been to do exactly what liberals do -- make up decisions based on their own feelings, not the law.
Case: People v. Prophet, docket no. 278184 (2008)
Facts: The defendant was convicted of criminal sexual conduct. He was sentenced by the trial court, and the Court of Appeals vacated the sentence and remanded for resentencing. After remand, he was given the same sentence he had received originally and he appealed again. The Court of Appeals again remanded for resentencing.
Anonymous said: "Bill Schuette rejected the trial court sentence that was a slight 14-month upward departure from the guidelines because, though the Defendant violated "a position of authority and trust" it was not clear that the Defendant "defendant exercised control over the entire household" which would have allowed for the upward departure."
The Truth: Again, the sentence was a departure from the sentencing guidelines prescribed by law. Departures are allowed, but they must be supported by substantial and compelling reasons. Under Michigan law, "Such reasons must be objective and verifiable, must keenly or irresistibly grab the court’s attention, and must be of considerable worth in deciding the length of a sentence. They only exist in exceptional cases."
Here, the trial court cited the fact the victim was a child as support for the departure. This factor was already taken into account in scoring the offense under the guidelines and therefore could not be used again. As for the other factors used by the trial court, the appeals court said: "The trial court’s remaining reasons for departure were not objective and verifiable. Although the victim’s mother was supportive of defendant, there was no evidence that she reacted in this manner due to fear of or submission to defendant. Thus, it is not clear that defendant exercised control over the entire household. Moreover, substance abuse was simply never addressed and accordingly, its role or lack thereof is not verifiable. Since these two factors could not properly be relied upon to depart from the minimum guidelines range, the factors adequately taken into account by the guidelines could not be considered, and it is not clear whether the trial court would have departed from the guidelines absent these reasons, this case must therefore be remanded for resentencing."
Again, the appellate panel -- which included Brian Zahra, whose conservative credentials are unimpeachable -- could not have reached any other conclusion. The law dictated the result, not the other way around.
Case: People v. Givhan, docket no. 269500 (2007)
Facts: Defendant was convicted of felon-in-possession of a firearm, and felony-firearm. This was his second trial on these charges, the convictions arising from his first trial having been reversed. Following the second trial, he was given sentences greater than those imposed following his first convictions. The defendant appealed his sentence.
Anonymous said: "Bill Schuette again joined with a Granholm appointee (Servitto) and a Blanchard appointee (Jansen) in overturning the sentence because it was longer than the one given in the first trial and he didn't feel that the trial court judge [sic] enough reason for the second sentence being longer than the first."
The Truth: Michigan law provides that "A presumption of vindictiveness arises when a defendant is resentenced by the same judge and the second sentence imposed is longer than the first." The US Supreme Court has held: “Due process of law . . . requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” In order to overcome the presumption of vindictiveness, the trial judge must articulate reasons based on new information for imposing a longer sentence.
In this case, the trial court stated that it was relying on the defendant's history with firearms, but that history was not new. The trial court also said it was basing the increased sentence on the fact that the defendant fired his gun at a woman's house. There was no evidence of this, however. As the court noted: "The prosecutor concedes that no new information was available to the trial court at defendant’s sentencing following his second trial than was available following his first trial. The trial court’s assertion that defendant admitted firing shots at Diane’s house during his second trial was erroneous and therefore could not constitute new information justifying an increased sentence. Accordingly, the trial court’s reasoning did not overcome the presumption of vindictiveness."
This was another decision which complied in every respect with the law. These three cases were not judgment calls, where the decision could have gone one way or the other. The rule of law compelled the Court of Appeals to rule just as they did. To do otherwise would have violated the principles we all hold dear.
There may be reasons to oppose Bill Schuette, just as there may be reasons to oppose Mike Bishop. But the sort of disingenuous slop offered up by the anonymous poster is not reasoned, not logical, and not helpful. Whoever created this, shame on you. We need to condemn these tactics and remember what we are fighting for and why. Anonymous prevarications serve no purpose whatsoever other than to embarass the prevaricators and the candidates they support.
Wednesday, August 25, 2010
Tuesday, August 17, 2010
Making Sense of the Michigan Supreme Court Race
Party delegates to the August 28 State Republican Convention will face the formidable tasks of selecting candidates for Secretary of State, Attorney General, and governing boards of Michigan State University, Wayne State University, and one other whose name escapes me (I think it's in the People's Republic of Ann Arbor).
At least as important as these tasks is the responsibility to select two nominees for the Michigan Supreme Court. Justice Robert Young is running for reelection, and he deserves our unanimous, unwavering support. Justice Young is an extraordinary legal talent with a first rate mind, unshakable integrity, and incredible vision.
The other nomination is between Wayne County Circuit Court Judge Mary Beth Kelly and Court of Appeals Judge Jane Markey. Both are well-qualified. So, how does one distinguish them?
Judge Markey stresses her experience on the Court of Appeals. This is obviously a positive quality, but it should not be overstressed to the neglect of the quality of the decisions. Also, Judge Kelly, as the former Chief Judge of the Wayne County Circuit Court, was often called upon to sit as an appellate judge, either in appeals from a district court or on motions to recuse her fellow judges. The cases are different, but the process and the decision making are similar.
I have appeared before Judge Kelly on numerous occasions, and I know her from our work together on the State Bar Civil Procedure Committee. She has an excellent mind and judicial temperament. She carefully applies the law as she finds it -- there is no legislating going on from her bench. Given the current tidal wave of reversals emanating from our current Supreme Court, understanding the proper role of a judge is crucial. Mary Beth Kelly gets it, and she lives it every day on the bench.
Although Judge Markey has been on the bench a long time, she sits on the west side of the state, and I cannot recall appearing before her, nor do I recall ever meeting her, so she is something of an unknown quantity to me. Absent this personal contact, I decided to look through some of her published decisions, and I ran across one that made me pause.
In Allen v Bloomfield Hills School District, a 2008 decision, the plaintiff was a train operator who was involved in an accident with a school bus. He sued the school district to recover noneconomic and excess damages under the no-fault act. The circuit court judge granted the school district's motion to dismiss the case. Writing for the 2-1 majority, Judge Markey reversed the trial court and reinstated the case.
The fact that Judge Markey reversed the trial court, in and of itself, means nothing, since there are dozens of reasons why the Court of Appeals would reverse a trial court. It is her reasoning, however, that is troubling.
First, some quick background. The school district is a public entity and therefore enjoys immunity from most tort (personal injury) claims. There is an exception to this immunity for motor vehicle accident claims if the plaintiff suffers "bodily injury." That's the nub of this case.
The plaintiff was operating a train and approaching a crossing at about 65 miles an hour. A school bus tried to drive around the lowered gates, and the train collided with it. It took the train a half-mile to stop, and the plaintiff ran back to the scene of the accident. There were no children on the bus, but the bus driver was severely injured.
So, who sued? The train operator! What for? Post-traumatic stress disorder!
The Supreme Court has previously defined "bodily injury" under the governmental immunity law. In a case called Wesche v Mecosta County Road Commission, the Court held, quite sensibly, that " 'bodily injury' simply means a physical or corporeal injury to the body."
Reversing the trial court in Allen, Judge Markey held that PTSD constitutes "bodily injury." Her conclusion was based on a PET scan of the plaintiff's brain that showed he was "clearly different in brain pattern from any of the normal controls." In other words, the plaintiff witnessed the accident and was so upset by it that his PTSD caused his brain to function differently. The plaintiff's expert psychiatrist testified that PTSD "causes significant changes in brain chemistry, brain function, and brain structure."
There was no evidence of any "physical or corporeal injury to the body." The plaintiff's "injury" was purely psychological, indistinguishable from heartache, depression, or that feeling Michigan fans get after Michigan plays Michigan State in basketball. Whatever the plaintiff had, it was not a "bodily injury," and any discernible effect was not caused by the accident.
The dissenting judge made the point perfectly, quoting from a New Jersey federal decision that assessed, in another context, whether PTSD constituted "bodily injury." The New Jersey district court reasoned:
This case brings the Supreme Court race into sharp focus. Either we will have a court that believes in and applies the rule of law, enforcing the clear meaning of the laws enacted by the people through their elected representatives, or we will continue to have the kind of court we have now, driven purely by ideology and a desire simply to undo all that was accomplished during the ten years in which the conservatives were in the majority.
Conservatives believe in clear rules and standards so that citizens can rely on the law and behave accordingly, and so that trial courts and the intermediate appellate courts will know what the law means and what is expected. The current majority on the Supreme Court is engaged in a reckless, headlong effort to reverse any decision they don't like, regardless of whether it was rightly decided. Put another way, the current majority's test for a decision's "rightness" is whether they agree with it. Justice and predictability have nothing to do with their approach.
Against this backdrop, the Allen decision is extremely troubling. It reflects an unsettling willingness to disregard clear language in the law in favor of an inexplicable intent to reach a desired result. In Allen, the result drives the law, instead of the other way around.
These are precarious times for the Supreme Court, for Michigan law, and for the citizens of our great state. We cannot afford the result-driven approach of the current Supreme Court majority, and, based on the Allen decision, I am very concerned about Judge Markey's decision making.
Accordingly, for me, it will be Justice Young and Judge Kelly. I hope you will join me.
At least as important as these tasks is the responsibility to select two nominees for the Michigan Supreme Court. Justice Robert Young is running for reelection, and he deserves our unanimous, unwavering support. Justice Young is an extraordinary legal talent with a first rate mind, unshakable integrity, and incredible vision.
The other nomination is between Wayne County Circuit Court Judge Mary Beth Kelly and Court of Appeals Judge Jane Markey. Both are well-qualified. So, how does one distinguish them?
Judge Markey stresses her experience on the Court of Appeals. This is obviously a positive quality, but it should not be overstressed to the neglect of the quality of the decisions. Also, Judge Kelly, as the former Chief Judge of the Wayne County Circuit Court, was often called upon to sit as an appellate judge, either in appeals from a district court or on motions to recuse her fellow judges. The cases are different, but the process and the decision making are similar.
I have appeared before Judge Kelly on numerous occasions, and I know her from our work together on the State Bar Civil Procedure Committee. She has an excellent mind and judicial temperament. She carefully applies the law as she finds it -- there is no legislating going on from her bench. Given the current tidal wave of reversals emanating from our current Supreme Court, understanding the proper role of a judge is crucial. Mary Beth Kelly gets it, and she lives it every day on the bench.
Although Judge Markey has been on the bench a long time, she sits on the west side of the state, and I cannot recall appearing before her, nor do I recall ever meeting her, so she is something of an unknown quantity to me. Absent this personal contact, I decided to look through some of her published decisions, and I ran across one that made me pause.
In Allen v Bloomfield Hills School District, a 2008 decision, the plaintiff was a train operator who was involved in an accident with a school bus. He sued the school district to recover noneconomic and excess damages under the no-fault act. The circuit court judge granted the school district's motion to dismiss the case. Writing for the 2-1 majority, Judge Markey reversed the trial court and reinstated the case.
The fact that Judge Markey reversed the trial court, in and of itself, means nothing, since there are dozens of reasons why the Court of Appeals would reverse a trial court. It is her reasoning, however, that is troubling.
First, some quick background. The school district is a public entity and therefore enjoys immunity from most tort (personal injury) claims. There is an exception to this immunity for motor vehicle accident claims if the plaintiff suffers "bodily injury." That's the nub of this case.
The plaintiff was operating a train and approaching a crossing at about 65 miles an hour. A school bus tried to drive around the lowered gates, and the train collided with it. It took the train a half-mile to stop, and the plaintiff ran back to the scene of the accident. There were no children on the bus, but the bus driver was severely injured.
So, who sued? The train operator! What for? Post-traumatic stress disorder!
The Supreme Court has previously defined "bodily injury" under the governmental immunity law. In a case called Wesche v Mecosta County Road Commission, the Court held, quite sensibly, that " 'bodily injury' simply means a physical or corporeal injury to the body."
Reversing the trial court in Allen, Judge Markey held that PTSD constitutes "bodily injury." Her conclusion was based on a PET scan of the plaintiff's brain that showed he was "clearly different in brain pattern from any of the normal controls." In other words, the plaintiff witnessed the accident and was so upset by it that his PTSD caused his brain to function differently. The plaintiff's expert psychiatrist testified that PTSD "causes significant changes in brain chemistry, brain function, and brain structure."
There was no evidence of any "physical or corporeal injury to the body." The plaintiff's "injury" was purely psychological, indistinguishable from heartache, depression, or that feeling Michigan fans get after Michigan plays Michigan State in basketball. Whatever the plaintiff had, it was not a "bodily injury," and any discernible effect was not caused by the accident.
The dissenting judge made the point perfectly, quoting from a New Jersey federal decision that assessed, in another context, whether PTSD constituted "bodily injury." The New Jersey district court reasoned:
Given that all human thoughts and emotions are in some fashion connected to brain activity, and therefore at some level "physical," to accept Plaintiffs' argument would be to break down entirely the barrier between emotional and physical harms[.]
This case brings the Supreme Court race into sharp focus. Either we will have a court that believes in and applies the rule of law, enforcing the clear meaning of the laws enacted by the people through their elected representatives, or we will continue to have the kind of court we have now, driven purely by ideology and a desire simply to undo all that was accomplished during the ten years in which the conservatives were in the majority.
Conservatives believe in clear rules and standards so that citizens can rely on the law and behave accordingly, and so that trial courts and the intermediate appellate courts will know what the law means and what is expected. The current majority on the Supreme Court is engaged in a reckless, headlong effort to reverse any decision they don't like, regardless of whether it was rightly decided. Put another way, the current majority's test for a decision's "rightness" is whether they agree with it. Justice and predictability have nothing to do with their approach.
Against this backdrop, the Allen decision is extremely troubling. It reflects an unsettling willingness to disregard clear language in the law in favor of an inexplicable intent to reach a desired result. In Allen, the result drives the law, instead of the other way around.
These are precarious times for the Supreme Court, for Michigan law, and for the citizens of our great state. We cannot afford the result-driven approach of the current Supreme Court majority, and, based on the Allen decision, I am very concerned about Judge Markey's decision making.
Accordingly, for me, it will be Justice Young and Judge Kelly. I hope you will join me.
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