With a bundle of newly passed, business-friendly laws tucked in its vest pocket, corporate Michigan looked across the political landscape in the mid-1990s and saw what it considered an ominous cloud darkening an otherwise golden-hued horizon: the state Supreme Court.
With Gov. John Engler firmly in control of the executive branch, there was no need to fear a legislative assault overturning a string of victories guaranteed to protect the bottom line of insurance companies, manufacturers and the health care industry. Even if the House and Senate were to fall to the Democrats, the governor's veto pen would be ready to protect "reforms" of tort, liability and malpractice law passed earlier in the decade.
No, what sent a chill through corporate board rooms and the offices of small businesses was the specter of liberal justices on the Supreme Court deciding that some of those laws were unconstitutional, wiping out hard-fought political victories.
So a decision was made to elect a pro-business majority to the court, no matter what the cost.
"The business community got tired of winning fights in the Legislature only to lose in the judiciary," explains Chuck Hadden, vice president of government affairs for the Michigan Manufacturers Association.
" What woke us up more than anything else was Illinois, which had passed sweeping tort and product liability reform. We were in awe of them, and then their Supreme Court stepped in and wiped it all away. That was the wake-up call. We saw the same thing could happen to us."
A word of explanation is required at this point: Michigan Supreme Court justices are officially elected on a nonpartisan basis. When voters go to the polls, they see candidates' names without party affiliations. But to get on the ballot, a Supreme Court candidate must be nominated by a party or perform the daunting task of gathering petition signatures. So the nonpartisanship is essentially an illusion that has become increasingly hard to maintain as the costs of campaigns have escalated.
Prior to the awakening Hadden described, Supreme Court races were relatively low-key affairs. From 1990 through 1994, candidates spent an average of about $260,000 on their campaigns.
And though unions and trial lawyers directed money into the coffers of liberal judges, business interests were able to keep a semblance of balance. For the decade prior to 1996, the court was made up of three Democrats, three Republicans and one independent.
In '96, the cost of getting elected to the Supreme Court tripled, hitting $750,000. And with Engler leading the charge, all pretense of nonpartisanship was stripped away. In one press release Engler attacked Democratic candidate Bill Murphy as a "wolf in sheep's clothing."
"On the outside he looks like a conservative," chided the governor. "But on the inside, he's a liberal."
The gloves were off.
Detroit attorney Andrew S. Doctoroff, an advocate for reforming the way judges are selected, commented at the time that such partisan attacks may provide short-term benefit, but in the long run could do considerable damage to the legal system as a whole.
"Those who demonize one candidate while extolling the virtues of another," wrote Doctoroff, "threaten the public perception that judges are fair, neutral and evenhanded, eroding the judiciary's legitimacy."
They proved to be prophetic words.
Despite their best efforts, Engler's Republican Party and the state's business interests came up short in '96. When the votes were counted, Democrats held a 4-3 majority. But they didn't hold the advantage for long. By 1998 the right was more focused than ever on capturing the state's high court.
Money poured in. Aside from the nearly $1 million raised by each of the two leading conservative candidates, special interest groups across the state turned up the heat. They left no doubt what was at stake, and where support should go. Elect the right judges, they declared, and the outcome of important cases will be assured.
A newsletter from the Michigan Doctors' Political Action Committee to physicians across the state minced no words: "To preserve the laws that you have worked hard to support — liability reform and tort reform already have been challenged in the courts — it is imperative that Justice (Cliff) Taylor and Judge (Maura) Corrigan sit on the Michigan Supreme Court."
Money flowed directly to candidates. Special interest groups made endorsements. And Michigan Lawsuit Abuse Watch (M-LAW) came onto the scene, billing itself as a grassroots organization battling frivolous lawsuit.
In reality, M-LAW began with seed money from the American Tort Reform Association, an organization representing, tobacco interests, insurance companies, chemical manufacturers and others. M-LAW rated judges on how business-friendly their rulings were — an ostensibly non-partisan voter education effort that managed to promote the interests of Republicans without being counted as an official campaign contribution.
There was also pressure from the governor and other top-ranking Republicans. In the days preceding the election, it was reported that the head of the Northern Michigan Trial Judges Association, Republican circuit court judge Kurt Hansen — was under heavy fire because his group had endorsed three Democrats for the state's top court.
"We specifically said we didn't care if a candidate was liberal or conservative, didn't care about their philosophy of law," Hansen told a reporter. "We cared about their positions on partisanship and on the independence of the courts."
Hansen added that he was "increasingly alarmed by attempts to politicize the judiciary by political organizations, interest groups and the executive branch."
Engler denied he and his political cronies threatened the political careers of the judges who made the endorsements, but never denied that calls were made.
Of course, the fact that Judge Corrigan was hitching rides on Engler's campaign bus didn't help the governor much when trying to dispel accusations that he was indeed politicizing a race intended to be nonpartisan.
In the end, the campaign shredded any pretense that judges were being selected to be fair and impartial.
And the Republicans were the clear winners, walking away with a 4-3 majority. A month later, when Chief Justice Conrad Mallett Jr. resigned, Engler appointed staunch conservative Robert Young Jr. to fill the vacancy, giving the right a solid 5-2 grip on the court. The recent appointment of Stephen J. Markman to replace retiring Justice James Brickley preserves that edge.
The impact was immediate.
As the Michigan Manufacturers Association boasted in one of its Weekly Report newsletters earlier this year, "During 1998-99, MMA-PAC contributions swayed the Supreme Court election to a conservative viewpoint, ensuring a pro-manufacturing agenda, and helping to promote a healthy economic business environment for businesses."
Hadden says now that the newsletter boast is a bit of "hyperbole" designed to boost the PAC's coffers.
Critics from the left say that such statements are not hype at all. If anything, they understate just how dramatic the shift has been since the new court took over in January.
"The speed of the change is truly breathtaking," asserts Detroit attorney Mary Ellen Gurewitz, general council to the Michigan State AFL-CIO. In a piece she wrote for the federation's newspaper, Gurewitz suggested that the "way to understand this Court's work, and to predict how it will decide cases in the future, is not to analyze or explain the law as lawyers are trained to do, but simply identify the litigants. ... The principles which appeared to underlie the Court's decisions are these: unions lose, personal injury plaintiffs lose, civil rights plaintiffs lose, workers' compensation claimants lose, criminal defendants lose, insurance companies win, corporations win, Republicans win."
Then she added, "An analysis of the 57 opinions issued by this court between February and August demonstrates the accuracy of this depressingly cynical assessment."
According to the evaluation, in 20 cases pitting private citizens against insurance companies and corporations, the court decided against the individuals 19 times.
By comparison, during the previous year, when liberals held a 4-3 majority, the results in 45 cases had individuals winning 22 times and corporations 23.
It doesn't help defenders of the court's integrity that special interests continue to crow about the influence they wield and what a good investment supporting a conservative judiciary proved to be.
For example, when the court this summer upheld the constitutionality of legislation that made it more difficult for plaintiffs to bring in expert witnesses in malpractice cases, the Michigan Doctors' Political Action Committee announced in a fund-raising letter that "This landmark decision would not have been possible without the efforts of the Michigan Doctors' Political Action Committee and the physician membership!"
Neither does it help that both the Engler administration and the justices themselves continue to lend their support to efforts that show how overtly partisan the judicial selection process has become. For example, the Grand Rapids Area Chamber of Commerce in September issued a press release announcing a fund-raising event featuring Engler as the guest of honor and including all five conservative justices.
"The event is needed to raise the business community's awareness of the critical importance of next year's elections, particularly the judicial races. ...," declared the press release. "It is imperative that the business community not only seek to elect pro-business legislators, but also elect pro-business judicial officials as well."
With the Republican justices almost always voting in a bloc, Democrats Cavanagh and Kelly dissented in what Gurewitz called an "astounding" 33 of the 57 opinions issued. In addition to deciding in favor of insurance companies and corporations, the justices consistently issued decisions that favored the policies of Gov. Engler. They also reduced the rights of criminal defendants.
According to an analysis by Gurewitz, decisions included:
· A ruling that allowed evidence to be introduced in a criminal case even though it was obtained during a search in which police violated constitutionally required "knock and announce" procedures when they broke into a person's home in the middle of the night.
· Rejection of longstanding precedent when the court decided police did not have to advise a woman of her rights before asking her to provide a blood sample when she was in the hospital after a car accident.
· Ruling the governor had the authority to transfer the powers of the elected state board of education to the appointed superintendent of public instruction.
· Weakening the judiciary's own authority by determining it was not a violation of separation of judicial and legislative powers for the Republican Legislature to establish qualifications for medical experts in medical malpractice cases.
· Deciding the state's Public Service Commission, which is supposed to protect consumers, could not order Consumers Power Company to institute a form of power distribution that was favorable to the public.
Defenders of the current court, on the other hand, say what's really partisan is the current attack on the justices.
"In my view this is a great court," observes Stephen J. Safranek, a lawyer at the conservative Thomas More Center for Law and Justice in Ann Arbor. "This is probably the brightest court we've had in who knows how long. They don't find for their buddies, they find as the law tells them to find."
Part of what's occurring, he says, involves a fundamental split in judicial philosophy. Liberals support an "activist" court that will readily overturn laws passed by the Legislature.
Conservatives, on the other hand, advocate a judiciary that is more "restrained," and will uphold legislation. "They are there to do what the Legislature tells them to do with the law," argues Safranek.
A basic premise held by the conservatives is that laws are made in the open by a deliberative body elected by the public at large. Because there are many more legislators, it is more representative of the public at large. It is dangerous, Safranek argues, to have a court eager to use its power to subvert the democratic process by ignoring the will of the Legislature.
The problem with that sort of thinking, say critics, is that courts are needed to rise above the fray of politics and seek the high ground to which politicians, more susceptible to the whims of voters, may be unwilling to climb.
A frequently cited example are state laws upholding segregation, which might still be on the books if the courts hadn't been willing to go against the public grain and strike them down.
And although the current court claims to be restrained and opposed to judicial activism, some legal observers consider it more radical than any state Supreme Court in memory.
"This is an extremely activist court," says Robert Sedler, a constitutional expert at Wayne State University School of Law. "Look at the way they treat precedent."
In at least 10 cases decided this year, the conservative majority disregarded previous court decisions.
The overruling of established case law has come at an "unprecedented pace," contends attorney Doctoroff. By contrast, between 1989 and 1997, the court overruled previous decisions at a rate of about one per year.
"Judges should be very reluctant to overrule existing case law unless that case law has proven to be anachronistic," says Doctoroff. "It's important because a legal system can't sustain itself if what one person thinks is the law today ends up not being the law tomorrow. The public needs to have a clear and well-defined idea of what the law is in order for the system to seem predictable and reliable and not subject to change overnight without any expectation that its going to change."
Looking at the conservative majority's eagerness to make new law, Justice Michael Cavanagh, the state's longest serving Supreme Court member, this summer issued what Gurewitz called a "stinging rebuke" of his conservative colleagues.
Cavanagh, a Democrat, wrote: "Since January 1, 1999, the date marking the ascendancy of the majority herein, we have seen overruled at least 10 prior cases of this Court. Faced as we are now, with a solicitation from the Court to invite the overruling of three more cases, spanning some 23 years, I can only leave to others to assess whether the efforts of the majority in this but half a term amount to restraint or activism. While there is an effort at making the current order appear judicious, there is no restraint in it whatsoever."
Why whine now?
The high court has been getting hammered recently in the press. Gurewitz's analysis was widely circulated, sparking a flurry of editorials and guest commentaries.
Supporters of the court, such as the manufacturing association's Hadden, blame the Michigan Trial Lawyers Association. Because they represent the individuals often locked in lawsuits with insurance companies, corporations and doctors, the trial lawyers have much to gain by discrediting the court and tarring the conservative justices as a pack of radical right-wingers.
As Hadden points out, there wasn't much complaining from trial lawyers about politicization a few years ago when their large contributions to Democratic judges kept conservatives in the minority.
"They're whining now that it's politicized, but why wasn't it politicized before?" asks Hadden. "What's the difference between trial attorneys putting money into a judge's campaign and a trade association doing the same thing?"
What has changed is the make-up of the court. As a result, liberals have gone on the attack.
"We're playing more defense than offense at this point," says Hadden. "I think the trial attorneys are laying the groundwork for a radical (liberal) court by depicting this as an evil court."
Safranek makes a similar observations, saying, "The job of the court is to interpret law, not make it. In that view, we have an outstanding court, probably the best ever. That is why they are being attacked so savagely."
"To some extent, the perspective that one takes in deciding how well the Supreme Court is functioning is a matter of who's ox is being gored," says Lawrence Dubin, a professor at the University of Detroit Mercy School of Law.
But there's more to it than that.
"The issue of whether the (judicial selection) process has become too politicized in this state is a real concern," says Dubin. "Judges are not supposed to be predisposed by their own political philosophy in deciding cases and controversies brought before them. Rather, justices need to be fair and impartial to both sides of a case in applying the applicable law."
One of those calling for reform is Kalamazoo attorney Jim Ford, who, to use Dubin's phrase, had his ox gored big time by the current court.
Ford represented the estate of a man killed when he was hit by a truck. The driver was insured, but the company truck he drove was not. The family wanted the driver's insurance company to pay.
The court, in a 4-3 ruling, declared the insurance company was not liable. Following the decision, Ford told the publication Lawyer's Weekly, "Until widows and orphans can donate as much money as insurance companies (to judicial campaigns) we'll continue to see these types of decisions."
That comment generated a formal complaint to the Attorney Grievance Commission from Eric Doster, general counsel of the Michigan Republican Party. Doster wanted Ford sanctioned, claiming: "If attorneys are allowed to make outrageous public comments about the judiciary, the inevitable loss of respect for judges will necessarily lead to deterioration of the legal system."
In late October the complaint against Ford was dismissed.
"It always appeared to me that this (complaint) was politically motivated, with the most probable intent to try to send a message to lawyers to keep quiet before next year's election," Ford says, "so that the public would not be aware of what's going on in Lansing. If you can keep lawyers quiet, it will be difficult for the public to be informed about this court's agenda."
Which, as Ford sees it, is the real point.
"The issue, to me, has always been the Supreme Court rather than the grievance itself. I was confident the effort to stifle lawyers from exercising their First Amendment rights would not succeed.
"But the Supreme Court has a major problem, both in regard to its political agenda, and, in a larger sense, the way we select Supreme Court justices. We now have a system in which money and politics are able to control who sits on the Supreme Court. When you have that, I think you have an inherently corrupt system.
"The one odd thing that has come out of this case and the grievance I've been through is that it seems to have generated a great deal of interest among lawyers and the press. I can only hope we can continue the momentum to try to fundamentally reform the system and try to return the court to the independent status I think we need if the system is going to work."
The trouble, admits Ford, is that it's "a lot easier to see the problem than to see the solution."
There are a number of reform possibilities being discussed. One is basic campaign finance reform of the sort being pushed for national political races. That would involve some sort of public financing as a way to get the special interest money — from both the right and the left — out of the process.
Another, being advocated by Doctoroff and others, would create an independent panel that would evaluate prospective justices and then offer a short list of qualified people for the governor to choose from.
Ford says support is building, but no one expects the system to change before Nov. 2000, when three conservative judges will go before voters in an attempt to hold onto their seats. It is considered an especially crucial election because the court that emerges will in all likelihood be called upon to settle partisan squabbles over the legislative redrawing of district lines that will occur as result of the upcoming census. The outcome will affect the course of Michigan politics for a decade.
What should be encouraging to those concerned about a functional democracy is the attention next years' Supreme Court race is guaranteed to generate as a result of the controversy stirred by this court.
"There's going to be a lot of awareness in the 2000 election," predicts Wayne State's Sedler. "Voters have elected these current judges. And we've seen much more media reporting on what this court is doing than in previous years. The next election is going to be a referendum on what they are doing."