Tuesday, August 07, 2012

From Our ‘Judges Aren’t All the Same’ Department

If you’re any kind of court watcher there’s something to be learned from last week’s Michigan Supreme Court ruling that ordered a petition for the November ballot to repeal the emergency-manager law be certified (“Stand Up for Democracy vs. Board of State Canvassers, et al.”). The opinion shows the clear distinction between the reasoning of conservative judges who adhere to the rule of law on the one hand, and activist judges on the other who reduce their judicial duties to further a political ideology. The ruling also contradicts the media myth that the Supreme Court’s conservative justices are little more than tools of the Republican Party and the powerful corporate interests.

This is the way Karen Bouffard at the Detroit News, who is sold out to the myth, explains the opinion:

In a ruling that surprised many on both sides of the issue, [Michigan Supreme Court Justice Mary Beth] Kelly sided with the panel's three Democrats in voting to place petitions on the ballot to repeal a law that was passed by the Republican-controlled Legislature at the bidding of Republican Gov. Rick Snyder. (“Republican-backed justice decided emergency manager case”).

Two things: First, Kelly did not side with the three Democrats. They sided with her on one of the opinion’s two holdings; as can be seen from their concurring opinion, they couldn’t have cared less what Kelly’s reasoning was, as they were just happy that the ruling gave a victory to their side in the dispute.  Second, Bouffard shares the one-dimensional view of all liberals that all three branches of government are strictly political.  In her version, a Republican governor got a Republican legislature to pass the EM law, and so naturally it was unexpected when a “Republican” justice ruled partly in favor of the plaintiff in the case.  It’s more accurate that it would only have been surprising to Democrats who can’t imagine a judge sworn to uphold the rule of law who might actually apply that rule in spite of some perceived political disadvantage to his party.

The media’s cartoon version of this case is that the petition to place the repeal of the emergency-manager law on the November ballot was rejected by the Board of Canvassers on the phony “technicality” that it failed to comply with the statutory requirement that the all petitions shall have a “heading . . . ‘printed in capital letters in 14-point boldfaced type . . . .’”  Supporters of repeal yelped that thwarting the will of “the people” (i.e., the people who signed the petition) over a few stupid fractions of an inch was, pure and simple,a direct attack on democracy and on “the people’s right to vote.”

Notably, on the standard of “substantial compliance,” which Kelly and the conservative majority reversed, the court’s three Democrats, Michael Cavanagh, Marilyn Kelly, and Diane Hathaway, didn’t side with Kelly at all.

Observe the contrast in the opening sentences of Justice Kelly’s opinion for the majority, and the overheated squawk of Justices Cavanagh, (Marilyn) Kelly, and Hathaway’s partial dissent. Justice Kelly:

Although we colloquially call ourselves a “democracy,” we are not. We are a constitutional republic in which we, as Michigan citizens, elect our representatives to local and state legislative bodies to enact our laws. This republican form of government is guaranteed to us in the United States Constitution.

In Michigan, we have enacted into our State Constitution an exception: The right of the people by initiative or referendum directly to enact laws or to repeal those validly enacted by our Legislature. Thus, as plaintiff seeks here, it is possible for a small minority of citizens to suspend a validly enacted law and require that that law be voted on in a general election. This case well demonstrates that tension between constitutional interests: the right to a republican form of government versus a constitutional process that allows a small minority to suspend the enactments of that government.

In the very constitutional provision creating this right of petition by initiative and referendum, the Legislature is required to prescribe the rules by which such petitions may validly be made. It has done so, and one such provision is the mandatory 14-point boldfaced-type requirement that is challenged here.

It would be hard to improve on that with any comment I might make.  But now see if you can find all the clichés and buzzwords in Cavanagh, Kelly, and Hathaway’s partial dissent:

[The majority’s] decision to depart from 30 years of precedent by abandoning the substantial-compliance doctrine throws Michigan’s electoral process into chaos and disenfranchises citizens from one of the most basic rights of democracy: the right to vote.

The holding of these justices that a mere clerical technicality—which has not and cannot be shown to create any harm whatsoever—could have prevented a referendum vote from taking place, in the face of more than 200,000 citizens who signed the petition to place the referendum on the ballot, is unprecedented and highly disturbing.

The majority opinion is rooted in the Constitution and the rule of law. Even if you don’t agree with Kelly on how type size should be measured, there’s no doubt she’s working quite hard to do her job and come up with the right decision. Even the partial dissents of fellow conservatives Robert Young, Brian Zahra, and Steven Markman are notable for their probity and logic.  Can anything like that be said for Cavanagh’s partial dissent, which shows the lazy bias of jurists who bring nothing to each case but a stubborn purpose to force the law to comply with their ideology?


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