Day on Torts

Most of us know judges who from time to time have disagreements with their colleagues and know other judges who simply don't like a judge they have to work with every day.  There is nothing unusual about this - judges are people and it is unrealistic for anyone to expect that the day a person puts on a robe he or she is able to silently accept the human failings of others (or not have failings of their own).

But in Tennessee those disagreements rarely find their way to the public eye.  Indeed, I have no memory of ever reading a Tennessee court opinion in which one judge criticized the intellect or integrity of another judge.  We simply don't do that "down here."

Things are a little different in Michigan - an "up there" state.  Those of you who love the law (or lack a real life) already know that the Supreme Court in Michigan is polarized.  But I admit that I had no idea that it had gotten downright ugly, as reflected in this memo dissenting from the election of the chief justice.

Just one example: "I dissent because the majority of four of this Court has misused and abused the judicial power by suppressing, or attempting to suppress, dissent, and has engaged in repeated, unprofessional and unfair conduct in the performance of the judicial business of this Court."

The immediate response by folks "down here" would be to condemn the writer.  And, to be sure, I cannot imagine such a document being written by any judge on any of our appellate courts.

Then again, she makes some very serious charges about the way the administration of her court.  I urge you to read the document and ask yourself this question:  If what this judge says is true, and her concerns have not been adequately addressed internally, does she have a duty to speak out?  

Thanks to Appellate Law and Practice for bringing this to my attention.

Mr. Day,

I have enjoyed your blog for some time now, but with the best of intentions, I haven't had time to post any comments or at least say thank you for the excellent information you provide. So, thank you.

This issue caught my attention for two reasons. First, it is an interesting and novel question. Second, while I am barred in Tennessee, I lived and practiced law in Michigan for a short time as an in-house attorney. Obviously, as an in-house attorney, I didn't have much experience with Michigan's court system. However, I did have a great deal of experience with the people in legal, business and personal contexts.

Your observation regarding the way things are done in Tennessee, that is, "down here", and the way they are done in Michigan, "up there", is spot on. It's one of the reasons I chose to move back to Tennessee (I love Tennessee; so, I admit my bias--at the same time there is a reason for my bias).

As most attorneys know, there aren't just bare facts, opinions or truths. These things are always clothed in how they are presented, who they are presented to, when they are presented and why they are being presented. These considerations are often more important than the content of the message itself, and they require the presenter to think about them in determining whether he or she will present a certain message or not.

Perhaps Justice Weaver failed to take those considerations into account when she wrote and presented this memo. The sad thing is that her memo has not only disparaged the "majority of four", it has also disparaged the Michigan Supreme Court, Michigan's court system and, at least to some extent, America's judicial process.

Someone reading this memo, might say, "Gee, if a state's Supreme Court Justices can't reasonably handle their own disputes and disagreements, they can't handle my dispute or claim." Additionally, you have to wonder whether Justice Weaver's judicial position in a case has been or will be the result of careful, objective analysis of the law or of a motivation to disagree with the "majority of four".

Further, from my reading of the memo, she made all of these charges with little or no evidence. She did refer to some cases with her dissenting opinions and other documents to support some of her charges, but from what I can tell, all of the documents she referred to are opinions, which require interpretation and analysis. To me, they don't seem to qualify as "evidence" for the charges she is making. In a situation like this, she should have her evidence in hand. In the court of public opinion, there is no formal discovery process, and often, the indictment IS the judgment.

With respect to your question, if these charges are true and she has tried to address them within the Supreme Court itself, I believe she has a duty to take her charges to the established, legal body that has the authority act in this type of situation. Does the Michigan Legislature have jurisdiction in a situation like this? Has she gone through the established procedures for charges of this type? In other words, she has a duty to go to the proper authorities for matters of this type and to go through the proper procedures for matters of this type.

If her charges are legitimate and have not been addressed by the appropriate authorities and procedures, the LAST authority for her bring her charges is the public. The voters are the ultimate boss, whether the Justices are elected or appointed (the ones doing the appointing are elected by the public). If this is the only remaining option, great care must be taken. First, bringing charges of this type to the public should only be done as a LAST RESORT, meaning all other legitimate actions to resolve the matter have been attempted and have failed. Second, legitimate evidence, not opinion, must be provided in support of the charges. Revealing a matter to the public to prompt a resolution is not the equivalent to filing a claim in court. Claims made in court require a thorough discovery process. Claims made to the public do not. She should have provided her evidence when making the charge to the public. Finally, (and this goes back to the difference, perhaps, of the way things are done "down here" and the way they are done "up there") Justice Weaver should have considered how she made her charges, to whom she made them, when they were made and why they were made. The unspoken rules of decorum, decency and basic respect should be followed when making charges like this, especially to the public. Instead, Justice Weaver chose a different approach. That's not the way we do it down here.