Justice Elizabeth Weaver on the Michigan Supreme Court: the agenda should be justice

Justice Elizabeth Weaver and David Schock join us to discuss her book, Judicial Deceit: Tyranny & Unnecessary Secrecy at the Michigan Supreme Court.

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My take on the book:

When you mention Betty Weaver’s name to a lawyer, you will get an immediate and strong reaction. The retired 16-year veteran of the Michigan Supreme Court is among the most polarizing figures in recent court history.

Her supporters see her as a champion fighting the big-money excesses of the Engler/Taylor/Young court, during which judicial activism supported the interests of insurance companies and large corporations at the expense of the people of Michigan. Her detractors see her as an angry and perhaps unhinged scold, unable or unwilling to accept any legal outcome that didn’t conform exactly to her standards.

Weaver’s newly published memoir provides both sides with plenty of ammunition. The title sets the tone: “Judicial Deceit – Tyranny & Unnecessary Secrecy at the Michigan Supreme Court” (Peninsula Press).

The 765-page tome’s theme is that Michigan’s Supreme Court is broken, an institution crippled by an expensive and highly partisan selection process which obliterates judicial objectivity.

Weaver notes a 2008 study of state courts by University of Chicago law school researchers which labeled Michigan’s Supreme Court the most ineffective in the nation based on three criteria: productivity (40th), influence or opinion quality (42nd), and independence (dead last).
While disagreeing with the first two assessments, she spends most of her book championing the lack of independence. She documents the explosion of secret money funneled into court political campaigns, primarily through the Michigan State Chamber of Commerce and the two major political parties. And she traces the growth of John Engler’s control the court through judicial appointments that resulted in Supreme Court majorities beholden to him.

Almost nobody who came in contact with Justice Elizabeth A. Weaver is spared in her book, but the bulk of her disdain is aimed at her Republican colleagues.

She recalls having a spaghetti dinner at the home of Cliff and Lucille Taylor (whom she considered close friends) the night Taylor believed he would be appointed to the court. Her reaction to the possibility: “Cliff didn’t have any particular qualifications for the job. If he weren’t friends with John Engler, he wouldn’t have gotten appointed.”

On Justice Stephen Markman, when his named was mentioned as a possible Engler appointee to succeed Justice James Brickley: “Whenever Markman’s name was mentioned (as a possible court appointee), I was totally negative on him… He’s odd, to say the least. I just didn’t think he needed to be at the Supreme Court.”

That is just the beginning. Her harshest and most frequent jabs are at the judges she called the “Engler Four”: Taylor and Markman, along with Robert Young and Maura Corrigan. Along the way, however, she manages to take shots at just about everyone else. Two of her colleagues are the exception to the rule. She speaks in glowing terms of Dorothy Comstock Riley (whose resignation led to Taylor’s appointment) and Brickley (who had also served as William Milliken’s Lt. Governor).

She also writes favorably of her working relationship with Chief Justice Conrad Mallett Jr. (a Democrat), but hints of behind-the-scenes incentives helped pave the way for Mallett’s unexpected resignation from the court which gave Engler the opportunity to appoint Young, which flipped control of the Court to Republicans. The suspicion of incentives directed towards Mallett is the one part of the book where Weaver provides no evidence, but just suspicion.

It would be easy to write off Weaver’s book as the rantings of a bitter old lady, except for her thorough (and sometimes excessive) documentation of her specific allegations of bias, judicial activism, personal cruelties and excessive partisanship.

Betty Weaver could easily qualify to appear on A&E’s reality series “Hoarders.” She seemingly saved every piece of paper over her career, not just memos and decisions, but scraps of paper with random notes, newspaper clips and occasional recordings of phone conversations.

The most entertaining tidbit in her collection came from Taylor. According to Weaver, Justices Taylor and Young often traded frat-brother jokes during court conferences and by passing notes during oral arguments. Weaver writes that, while searching for an earring she dropped, she happened upon a note from Taylor to Young (discarded and lying next to the waste basket) which noted the arrival of a longtime capitol reporter at oral arguments:

“The Weasel is here! [Tim] Skubick is in back.”

Weaver documents at length court decisions and deliberations to demonstrate the court majority’s unswerving bias towards business and, especially, insurance companies at a time when those same interests were the major financiers of the election campaigns of those judges. (Her overall conclusion of a tilt towards insurance companies and businesses has been backed up by surveys of Michigan lawyers conducted periodically by Michigan Lawyers Weekly.)

She accuses the Engler Four of the ultimate judicial sin: activism, in which the court rewrote law rather than simply interpreting and enforcing the law and the state constitution. She sees that activism as the end result of Engler’s political philosophy, quoting and endorsing a Michigan Lawyers Weekly article by U.P. attorney Richard Clark:

While he was Governor, John Engler – now CEO of the National Association of Manufacturers – announced war against lawyers who represent individuals against corporations and insurance companies. As part of his war he appointed and supported the election of judges that would rule against these lawyers. Mr. Engler’s strategy worked.

It was one of those business-liability cases which drove the biggest wedge between Weaver and her fellow Republicans on the court: Gilbert v Daimler-Chrysler. A trial court had found in favor of Linda Gilbert who alleged ongoing sexual harassment of the millwright, and awarded her $21-million. The verdict was unanimously upheld by a three-judge Appeals Court panel (in an opinion written by Republican William Whitbeck), but overturned on a 4-3 vote of Supreme Court.

Gilbert moved to disqualify five justices, including Weaver, from the case because of significant bias against Gilbert’s attorney: Geoffrey Fieger. Weaver issued a written opinion refusing to disqualify herself. The Engler Four also refused to step aside, but did not explain why. The case touched off a years-long controversy over standards for disqualifying justices from cases which irreparably destroyed the working relationship between Weaver and the Engler Four. Weaver was insistent that 1) her colleagues did, in fact, give the appearance of bias against Fieger, and 2) had an obligation to publicly explain their decision to stay on the case.

(Not surprisingly, the relationship between Fieger and the court is a significant part of the book. There were multiple efforts to destroy his law practice through both the state disciplinary process and a federal investigation for campaign finance fraud. Ultimately Fieger survived all of it.)

In addition to her major treatises on her colleagues’ peccadillos, Weaver shares a variety of inside-the-court stories of varying significance, including

  • Markman’s insistence on being allowed to carry a concealed gun inside the very secure Hall of Justice and even into the courtroom
  • An offer to Weaver conveyed through Taylor, but apparently originating with Engler, to have Weaver appointed to the federal Sixth Circuit Court of Appeals if she would resign from the state Supreme Court
  • An allegation of Taylor’s failure to disclose an apparent conflict of interest involving the high-profile divorce case of Dart Container heir Robert Charles Dart
  • Direct political contribution appeals at a fundraising event by Justices Taylor, Markman and Young in violation of the Judicial Canons
  • The growth of the Court’s public information operation from a part-time assignment to a three-person public relations staff
  • Conflicts of interest created by Attorney General Mike Cox when he hired the wives of two justices as assistant Attorneys General
  • Repeated attempts by the Engler Four to censor Weaver’s frequent dissents
  • Unsuccessful efforts by the Engler Four to have her sanctioned by the Attorney Discipline Board and the Judicial Tenure Commission; and a vote by the Court to censure her after she had resigned

Weaver also is highly critical of the ever-shrinking Capitol press corps for inadequate oversight of the Court. She takes note of the highly publicized Democratic Party “Sleeping Justice” ad that resulted in the defeat of Chief Justice Cliff Taylor, pointing out that no reporters bothered to examine any of the available evidence on the issue and relied instead on third-party statements. (She also notes that Taylor never released a sworn affidavit denying the snooze during oral arguments. The plaintiff in the case has signed a sworn affidavit stating she saw Taylor nod off.)

At one point in one of her battles with other justices, she says the press corps simply failed to act:

“As for laying out her [Weaver’s] proofs, all any of the members of the media had to do was read what she’s written and follow up on it. Not one did.”

Weaver’s book constitutes a 700+ page legal brief, sometimes rambling but undeniably detailed, in support of a seven-step reform plan to make the Court less political:

  • end political party nomination of justices
  • limiting justices to a single 14-year term
  • provide public funding for campaigns, to eliminate what now amounts to campaigns funded exclusively by big-money interests
  • establish a non-partisan nominating process
  • require full transparency and accountability in campaign finance reporting
  • elect justices by district
  • eliminate unnecessary secrecy and require transparency in the Supreme Court

The book could have benefited from a little editing.Weaver and co-author David Schock reprint numerous documents in full which could/should have been summarized. A good editor could have shed 200 or more of its 765 pages.

But the end result is a well-documented call for reform from a lawyer who is very committed to the belief that Michigan desperately needs to take steps to remove some of the politics from its highest court, and instill public trust in the court’s fairness and objectivity.

In the interests of full disclosure, I was Assistant Executive Director-Media of the State Bar Association from 1997 through 1999. The State Bar is supervised by the Supreme Court. In my role at the Bar and in subsequent years I worked with many of the people mentioned in this article, including Justices Weaver and Taylor. I was not directly involved in any of the controversies cited by Justice Weaver in her book.

Walt Sorg
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