Editor’s Note: We are making Justice Weaver’s dissent available for you to read as supporting material as we feel it is worthy of consideration and we couldn’t find it anywhere online.
M E M O R A N D U M
TO: Corbin Davis
cc: The Justices, Mike Schmedlen, Anne Boomer and Danilo Anselmo
FROM: Justice Elizabeth A. Weaver
SUBJECT: Dissent to Election of Chief Justice Clifford Taylor as Chief Justice
DATE: Friday afternoon, January 5, 2007
Weaver, J. (dissenting)
It is necessary that I dissent from the election of Chief Justice Clifford Taylor as Chief Justice of the Michigan Supreme Court. Chief Justice Taylor has proven that he cannot properly lead the Michigan Supreme Court at this time. The people of Michigan deserve to have a Chief Justice who will conduct the people’s business in an orderly, professional, and fair manner.
Let it be clear, my dissent is not motivated by ill will or resentmentâ€”I have none for any of my colleagues. Nor do I have any desire to serve again as Chief Justice myself.1 I strive to base in fact and truth my opinionsâ€”dissents and concurrencesâ€”and to state only what I believe is necessary that the public know. Facts and truth, and dissents and concurrences based on them, are not always pleasant information.
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 disorderly, unprofessional and unfair conduct in the performance of the judicial business of the Court.
Not one member of the majority of four has demonstrated an ability to lead this Court at this time. Thus, it is in the best interest of the State of Michigan and the Michigan Supreme Court for either Justice Michael Cavanagh or Justice Marilyn Kelly to serve as this Court’s Chief Justice. 2
There are many reasons for my position that not one member of the majority of four should serve as Chief Justice or lead this Court at this time. The following is an enumeration of reasons, some previously published3 and some revealed here for the first time, for my position regarding the selection of this Court’s Chief Justice.
I. Suppression of dissent by the majority of four
Chief Justice Taylor, and Justices Corrigan, Young and Markman, are unworthy to be Chief Justice of the Michigan Supreme Court because they have demonstrated their willingness and desire to suppress and/or censor divergent opinions by fellow justices.4 It is wrong for any majority of the Michigan Supreme Court to decide what they deem worthy or unworthy of publication, and to use their majority votes to silence, or attempt to silence, opinions with which they do not approve, as authorized by the majority of four’s hastily adopted Administrative Order 2006-08 (AO 2006-08).5 The majority of four used AO 2006-08 to order the suppression of my dissent in Grievance Administrator v Fieger, motion for stay. Such censorship is undemocratic and interferes with the censored justice’s constitutional duties. For the majority of four to adopt and use a “gag order,” over the dissenting voices of the remaining three justices on the Court, is wrong. The majority of four’s willingness to suppress or attempt to suppress dissension shows that no member of the majority of four is fit to lead as Chief Justice of the Michigan Supreme Court.
The majority of four’s last-minute reversal of the suppression order to the Clerk of the Court6, and the decision to let my dissent to the order on the motion for stay in Grievance Administrator v Fieger be published in the order on December 21, 2006 was the wise and correct decision. However, this action was conducted in an unprofessional and haphazard manner, unworthy of the Michigan Supreme Court. On Thursday, December 21, 2006, Chief Justice Taylor sent a memorandum to the justices and relevant Court staff claiming that the majority of four no longer supported the “preliminary directive” to suppress my dissent.
Ordering the suppression of my dissent by using AO 2006-08, the “gag order,” cannot truthfully be characterized as a “preliminary directive.” The truth is that fifteen (15) days earlier, on December 6, 2006, the majority had implemented the hastily adopted “gag order,” and directed the Clerk of the Court in the presence of the entire court to refrain from publishing my dissent. Thereafter, Justices Cavanagh, Kelly, and I formally voted against the majority’s decision to use the “gag order” to suppress my dissent. Given the formality of the votes on the question of whether to use AO 2006-08 to suppress my dissent, rescinding prior votes should also have been done within the formal setting of the Court’s conference.
Failing to properly rescind their formal votes and attempting to recharacterize the nature of their prior formal votes as a “preliminary directive” attempts to change the history of what actually occurred regarding the majority’s use of AO 2006-08. This manner of conduct is at a minimum, disorderly, unprofessional, and unfair, and is not an acceptable manner by which to conduct the people’s judicial business.
Regardless of the majority of four’s reversal of the suppression order it appears that the majority has no intention of abandoning its reliance on bully tactics7 and suppression when faced with dissent or concurrence. One need look no further for proof of this than the majority of four’s December 20, 2006 order placing on the January 17, 2007 public hearing agenda the majority’s hastily adopted “gag order.” The majority of four’s “gag order,” AO 2006-48, states that the majority is “particularly interested” in witness testimony regarding the following question:
Where a Justice violates or threatens to violate Administrative Order 2006-8, what means of enforcement and/or sanctions, if any, are properly adopted by the Court?8
The majority is looking for punishments for justices who violate, now and in the future, the “gag order,” and is apparently uninterested in first considering the constitutionality of AO 2006-08, regardless of the fact that no Michigan case law, statute, court rule, or constitutional provision supports its position, as explained in my dissent to AO 2006-089.
Other examples of suppression by the majority of four, in addition to AO 2006-08, the “gag order,” are:
1) The majority of four continues to effectively suppress my dissent to the majority’s March 1, 2006 vote to adopt an Internal Operating Procedure (IOP). The majority intended for the still unpublished, secret IOP to govern justice disqualification decisions. Because the majority’s March 1, 2006 vote was a final vote, and not a straw vote, my dissent to the adoption of the IOP by the majority of four should have been made publicly available attached to the minutes for the March 1, 2006 administrative conference. However, the March 1, 2006 minutes have never been approved, now over ten (10) months later. Thus, what occurred on March 1, 2006 during the Court’s conduct of the people’s business remains a secret from the public as it has yet, as of this writing, to be made available to the public in the Clerk of the Court’s office.
2) The majority of four has effectively suppressed my dissent filed September 28, 2006 to the action taken at the September 7, 2006 conference by the majority of four’s closing of the Justice Disqualification administrative file, ADM 2003-26. There have never been any proposed minutes for recording of the action taken on September 7, 2006, now nearly four (4) months later. (See Weaver dissent to denial to motion for stay in Grievance Administrator v Fieger for discussion and history (over three (3) years) of the Justice Disqualification administrative file, ADM 2003-26.)
II. Disorderly, unprofessional and unfair conduct in the performance of the Court’s judicial business by the majority of four
Chief Justice Taylor, with the support of Justices Corrigan, Young, and Markman, illustrated his capacity to act unprofessionally during this Court’s consideration of the administrative docket concerning the appointment of the Chief Judge of Probate for Kent County in July 2006.10 I articulated substantial grounds for my disagreement with the appointment made by the majority. In response to my dissent, which was my duty to provide, I became the target of personal attack. Chief Justice Taylor prepared and circulated to the justices and court staff a draft concurrence to the appointment, which stated:
This Court, by a vote of 4 to 3, has appointed Judge Paul J. Sullivan as Chief Judge of the Kent County Probate Court. Justice Weaver, having unsuccessfully urged we appoint Judge Patricia Gardner, has filed a dissenting statement.
Behaving like a petulant “only child” Justice Weaver is, more or less, “holding her breath” until she gets her way: Judge Gardner as Chief Judge of the Kent County Probate Court. She hopes, as a child engaging in a tantrum, that one of the adults will given [sic] in and allow her to dictate their chief judge vote to save Judge Gardner’s reputation. While I would like to spare Judge Gardner from this (in fact, ever the conciliator, I even suggested Justice Weaver use a hunger strike as a vehicle as it seemed to have the potential for everyone to be a winner) we cannot give Justice Weaver this power to bludgeon her colleagues by threat of outrageous statements needlessly embarrassing to third parties.
It is a sad situation Justice Weaver has made here, but with apologies to Judge Gardner, our decision to approve Judge Sullivan will go forward.
Chief Justice Taylor’s response to my difference of opinion in my dissent regarding the appointment in Kent County is unworthy of a Chief Justice. Such discourse in the conduct of the people’s judicial business is unprofessional and unfair and illustrates bias and prejudice.11
Other examples of disorderly, unprofessional, and unfair conduct that make it impossible for me to support either Chief Justice Taylor or any other member of the majority of four (Justices Corrigan, Young and Markman) for Chief Justice include:
1) Only after I informed Chief Justice Taylor, all other justices, and appropriate staff by memo on December 14, 2006 that Administrative Order 1997-11 required that the “gag order,” AO 2006-08, be placed on the January 17, 2006, public hearing agenda by no later than December 20, 2006, was the matter so placed. The justices and relevant court staff received a memorandum from the court administrative counsel on December 15, 2006, advising that Chief Justice Taylor did not believe that AO 1997-11 required that AO 2006-08 be placed on the January 17, 2007 public hearing agenda, but that he was willing to add it to the agenda if a majority of the Court believed it was necessary. On December 20, 2006 all justices voted to place AO 2006-08 on the public hearing agenda and it was added as administrative file, ADM 2006-48.12
On December 20, 2006, after placing AO 2006-08 on the January 17, 2007 public hearing agenda, Chief Justice Taylor, at the conclusion of the Court’s conference, suddenly announced that Grievance Administrator v Fieger would be discussed by telephone conference the next day, December 21, 2006.13
On December 21, 2006, speaking for the majority of four, Chief Justice Taylor announced that the majority would not suppress my dissent, but would instead publish Grievance Administrator v Fieger that same day. This was an abrupt and disorderly departure from the usual Court procedure regarding the disposition and publication of cases.
Grievance Administrator v Fieger was not on the December 20, 2006, Court conference agenda for discussion. The next day, on December 21, 2006, Justices Cavanagh, Kelly, and Weaver were given just a few hours, until 4:00 p.m., December 21, 2006, to prepare their dissenting statements for publication. Grievance Administrator v Fieger, motion for stay, had been in this court for months.14 To suddenly announce that all justices had less than a day to prepare the case for publication was disorderly, unprofessional, and unfair.
2) On October 23, 2006, Chief Justice Taylor directly proposed an improper trade for votes. He stated that he might change his vote and grant the stay in Grievance Administrator v Fieger if I would not release my dissenting statement and “never again” attempt such a dissent. While legislators are known to trade positions for votes, justices are supposed to judge each case on its merits and not “deal.”
3) During the September 7, 2006 conference, Justice Young resorted to a personal attack on my character to support the closing of an administrative file, and with the concurrence of the other members of the majority of four, said that he would “never publish the proposals” on justice disqualification and would “not give [me] any more power.” The majority of four then voted 4 to 3 to close the file on justice disqualification. Further, the fact that the file was closed and that I dissented has not been recorded in the Court’s publicly available minutes. I filed my dissent on September 28, 2006, over three (3) months ago.
4) Chief Justice Taylor led and held, with the support of Justices Corrigan, Young and Markman, two (2) conferences on the Court’s business while excluding three (3) justices who would not agree to the majority’s “gag rule.”15 The two (2) conferences excluding Justices Cavanagh, Kelly and Weaver, who would not agree to the “gag rule,” were held on November 13 and November 29, 2006.
On the first occasion (November 13, 2006), Chief Justice Taylor said the conference was moving to his office, and the majority of four left the room. On the second occasion, again, Chief Justice Taylor, and Justices Young and Markman left the conference room, and Justice Corrigan, who was conferencing by telephone, hung up. Justices Cavanagh, Kelly and Weaver remained in the conference room and continued to meet with the Clerk of the Court and cast their votes on cases. Apparently, after Justices Cavanagh, Kelly and Weaver had left the room, three of the majority of four (Chief Justice Taylor, and Justices Young, and Markman) met later that day in the conference room (Justice Corrigan perhaps joined by telephone or later sent in her votes). Court staff had the extra work of two different sets of justices meeting at two separate times on the same business. The Clerk of the Court sent out later that day his collation of the votes for the minutes to which I sent my additions and corrections by memo dated November 30, 2006.
I cannot support Chief Justice Taylor or any member of the majority of four to serve as Chief Justice at this time. I would support either Justice Michael Cavanagh or Justice Marilyn Kelly.
This dissent to the election of Chief Justice Taylor as Chief Justice reveals only the “tip of the iceberg” of the misuse and abuse of power and the repeated disorderly, unprofessional and unfair performance and conduct of the people’s judicial business by the majority of four, Chief Justice Taylor, and Justices Corrigan, Young, and Markman.
I believe it is my duty and right to inform the public of repeated abuses and/or misconduct.16 The majority of four’s suppression of dissent, and attempts to suppress dissent, mishandling of administrative duties, and repeated disorderly, unprofessional, and unfair conduct are matters of legitimate public concern.
Over the past year and longer, the majority of four has advanced a policy toward greater secrecy and less accountability. I strongly believe that it is past time to let sunlight into the Michigan Supreme Court. An efficient and impartial judiciary is “ill served by casting a cloak of secrecy around the operations of the courts.”17
I urge the majority of four, Chief Justice Taylor, and Justices Corrigan, Young, and Markman, to reconsider the election of Chief Justice Taylor as Chief Justice and cast their majority votes for either Justice Michael Cavanagh or Justice Marilyn Kelly. The election of either Justice Cavanagh or Justice Kelly to the Chief Justice position would be a beginning step toward putting the Michigan Supreme Court on a path of earning back the public’s trust and confidence that this Court presently does not deserve.