Fight for the soul of Michigan’s highest court

Michigan Supreme Court Chief Justice Cliff Taylor (photo: CliffTaylor.com)

According to some, Michigan’s Chief Justice Clifford Taylor is the leader of the finest court in the nation. According to others, he’s a tool of big business who has led a destructive attack on laws protecting consumers and the environment, and his court is the worst in the nation in terms of bowing to political pressure.

What is certain is that Taylor’s seat is the highest statewide position up for grabs in this November’s election — and that this little overlooked race at the bottom of the ballot is the one most likely to actually affect people’s lives.

Supporters say he is crucial for the 4-3 decisions upholding pro-business laws passed by Michigan’s Republican Legislature under former Gov. John Engler. Many of the most controversial recent decisions by the seven-member court have been issued by a Taylor-led, four-vote conservative majority.

The combined forces of the Republican Party, the DeVos/Prince family, chambers of commerce and insurance companies are building a record-setting $1.5 million war chest to try to keep Taylor in power. Along with industry interests hoping to expand their power and bottom lines, Taylor enjoys the support of another constituency: some on the religious right.

Citizens for Traditional Values, a statewide group devoted to promoting religious values in government, is organizing “ Clergy for a Conservative Court“ and is urging pastors to mobilize their congregations in support of Taylor.

Satisfied with the socially conservative approach of the current court, this group states that it is important to re-elect Taylor because the court is expected to address parental rights, personal responsibility and sexual orientation lawsuits.

“Although often overlooked, the Courts in America have been responsible for many horrible decisions including legalized abortion, the proliferation of obscenity, and homosexual ‘marriage’ just to name a few,” CTV President James Muffett said in a letter to supporters. “We are blessed to have one of the best State Supreme Courts in America that has consistently upheld traditional, family and Judeo-Christian values. However, we may be only one vote away from a major ideological shift in the Court!”

Conservative linchpin

Weaver has said publicly that Taylor does not conduct the people’s judicial business in an orderly, professional and fair manner and accuses him of name-calling, suppression of dissent and blatant partisan behavior.

“I think you could argue that he is kind of the conservative linchpin of the court, much like (Antonin) Scalia is on the U.S. Supreme Court,” Bill Ballenger, editor of Inside Michigan Politics, said of Taylor in a 2005 interview in The Flint Journal.

“There’s no question that his reputation … has been as kind of a doctrinaire conservative,” Ballenger said. “His rulings come right out of the Federalist Society.”

Taylor’s behavior as justice has drawn opposition from state Supreme Court Justice Elizabeth Weaver, a moderate Republican from Traverse City who publicly opposed the move by the majority to appoint Taylor chief justice.

Weaver has said publicly that Taylor does not conduct the people’s judicial business in an orderly, professional and fair manner and accuses him of name-calling, suppression of dissent and blatant partisan behavior.

“His court nearly always favors insurance companies,” Brennan told Michigan Messenger. “They favor large corporations over Michigan citizens who are victims of consumer fraud, workplace injury, health care malpractice and accidents.”

For example, Weaver wrote that when she disagreed with the majority’s preference for a judicial appointment in 2006, Taylor launched a personal attack, comparing her to a child and suggesting that she begin a hunger strike.

Taylor and the “majority of four” resort to bullying and suppression of dissent, she said.

Taylor is also under attack from environmentalists and lawyers, and one study said his court is the worst in the county when it comes to judicial independence.

Fran Brennan is a volunteer with the Democratic Party’s Justice Caucus, which focuses on promoting progressive values in government and the legal profession. Brennan, spokesperson for the caucus, characterized Taylor as an ultra-conservative Republican activist who entered public service by appointment after failing in four bids for public office, and she pointed out a dozen cases in which she said Taylor led the court to rule in the interests of big business.

“His court nearly always favors insurance companies,” Brennan told Michigan Messenger. “They favor large corporations over Michigan citizens who are victims of consumer fraud, workplace injury, health care malpractice and accidents.”

The Michigan Supreme Court ranked last in the nation for judicial independence from political pressure, according to a University of Chicago study released in June.

Engler appointee, business above all

Clifford Taylor, originally from Flint, was admitted to the bar in 1968 and was an assistant prosecuting attorney in Ingham County. He was unsuccessful in campaigns for the U.S. House in the 6th District in 1974 and 1976, as well as in bids for the University of Michigan Board of Regents and for attorney general. In 1992, Gov. John Engler appointed him to the Michigan Appeals Court where he was later re-elected. In 1997, Engler appointed him to the state Supreme Court. He has been re-elected twice and since 2005 has served as chief justice.

As a result of the Taylor court’s move to uphold the 1995 state law that blocks people from suing pharmaceutical companies, Michigan is the only state where people cannot sue pharmaceutical companies if they are harmed by FDA-approved drugs. Some call this the Michigan Pharmaceutical Shield Law.

Taylor calls himself a “judicial conservative” who strictly interprets the state laws and constitution and he’s said that upholding tort reform — limiting the ability of injured people to sue — is among his proudest accomplishments.

It is something that’s earned him continuing support from John Engler, who is now president of the National Association of Manufacturers (NAM), an industry association focused on “shaping a legal and regulatory environment conducive to U.S. economic growth.” Dan Pero, Engler’s former chief of staff and campaign manager in Michigan, now heads the American Justice Partnership, a NAM affiliate pushing pro-business legal causes.

“The legal reform successes achieved in Michigan are widely viewed as the definitive model for legal reform at the state level,” Pero wrote in an endorsement for Taylor. “A loss for Taylor would create a neverending succession of court challenges to Engler’s successful reform legislation. … Every CEO with operations in Michigan should make sure that employees understand that Cliff Taylor’s re-election to the Supreme Court is essential to maintaining the type of fair legal climate in which companies can retain and expand jobs. Taylor needs the support of rule-of-law advocates starting now.”

As a result of the Taylor court’s move to uphold the 1995 state law that blocks people from suing pharmaceutical companies, Michigan is the only state where people cannot sue pharmaceutical companies if they are harmed by FDA-approved drugs. Some call this the Michigan Pharmaceutical Shield Law.

“The attitude of the court majority toward doing justice is equivalent to the Bush administration’s view of the Geneva Convention — that justice is a quaint and outdated concept,” personal injury attorney Doug Shapiro of Ann Arbor told Michigan Messenger.

“Cliff Taylor is a radical right-wing activist judge, his opinions lack careful or thoughtful analysis and are almost always directed at a result of favoring corporate interests,” Shapiro said. “People don’t get the benefits they pay for because the Michigan Supreme Court essentially does the bidding of insurance companies.”

Insurers a favorite constituency

Shapiro said that under Taylor, “The court doors have flung open for insurance companies. [The Court is] saying, ‘Bring us your wish list, bring us what you were embarrassed to put on your wish list.’”

Robinson noted that the four-person conservative majority on the Supreme Court reversed an appeals court decision requiring $30 million in fines from Daimler Chrysler after receiving $98,000 in campaign contributions from the company. Cases like this erode confidence in the fairness of the system, he said.

Some cases in point: The Taylor court narrowed the time frame for bringing a case against insurance companies that won’t pay claims, making it much easier for companies to avoid paying medical expenses by employing tactics such as stalling or negotiating in bad faith. Shapiro said that Michigan residents, thanks to the Taylor court, cannot sue insurers until they have incurred expenses, so those who can’t afford to pay medical costs upfront are barred from the court.

Historically under Michigan law, a person injured in a car accident could seek compensation from the at-fault driver if he sustained “serious and significant” injuries. Under a decision made by the Taylor court, the injury must now be “catastrophic.”

The money in the race worries court watchers

The accusation that Taylor is not fair in his rulings is especially troubling to court watchers who note that the Michigan Supreme Court lacks some typical safety measures. It doesn’t have rules telling judges when to disqualify themselves from a decision because of a conflict of interest. The court also does not require financial disclosure from justices, and Michigan has no reporting requirements for spending on television issue ads.

It’s been widely reported that spending on the Michigan Supreme Court race is expected to reach a record-setting $20 million this year.

Rich Robinson, director of the Michigan Campaign Finance Network, recently testified to the state House Judiciary Committee:

According to a study by the National Institute on Money in State Politics, throughout the decade of the 1990s, 86 percent of the cases that were heard by the Michigan Supreme Court involved at least one campaign contributor to at least one of the justices. Many of those contributions were small and relatively inconsequential; others were large and should be cause for concern.

Robinson noted that the four-person conservative majority on the Supreme Court reversed an appeals court decision requiring $30 million in fines from Daimler Chrysler after receiving $98,000 in campaign contributions from the company. Cases like this erode confidence in the fairness of the system, he said.

See the most recent list of contributors to Taylor’s campaign.

Taylor’s opponent

At their statewide convention in Lansing over the weekend Michigan Democrats nominated Wayne County Circuit Judge Diane Hathaway as their candidate for state Supreme Court.

With many voters unfamiliar with the Supreme Court race, observers say Hathaway will have a tough time defeating incumbent Taylor.