Monday, February 22, 2010

Appellate Practice

The Michigan Supreme Court has been wracked by partisan divides over many issues as highlighted by last week's decision in a medical malpractice case reported by  We saw evidence of the open contempt of the Michigan justices for one another--in the Geoffrey Fieger decision from last year.  The new decison a 4-3 opinion dealing with procedural deadlines in medical malpractice cases also breaks along poitical party lines although one Republican justice crossing the partisan divide to side with the Democratic majority opinion.  Usually in these sorts of opinions the cliche` charge in the dissent accuses the majority of invading the province of the state legislature.  The response in "tort reform" cases is that the legislature has already invaded the province of the judiciary and the applicable constitutions to deprive the citizens of the equal protection of the laws, in the medical malpractice arena to throw up undeserved protections for certain classes of defendants against lawsuits from persons they injured. 

Likewise, Wisconsin's Supremes are dealing with the election of the guy in the picture, Justice Gableman who defeated a sitting justice, (Justice Louis Butler, Jr.) a singular act of the electorate in tossing a sitting justice that constitutes the first time in something like +40 years.  The election of Justice Gableman followed a lot of campaign money and television advertising characterized by alleged misrepresentations from both sides.  The problem for the Wisconsin Supreme Court, Gableman's advertsing (which you can see on You Tube) took on Justice Butler for a case the Justice handled as a public defender in the years before he became a Supreme Court Justice; and, the commercials implied that Justice Butler was soft on crime with the result that a child molester was freed to molest again.

Maybe you see, the problem, can Justice Gableman be trusted to be fair and impartial in cases and controversies involving criminal defendants?  The implication of his campaign for Justice Butler's job was that he would never vote to reverse a criminal conviction.  Cool, huh?  Not if you were wrongly convicted, not if you were innocent!

So the Wiscosins have been boxed into a partisan divide over how to deal with motions to disqualify Justice Gableman, which they dealt with last week by adopting a rule by a 4-3 vote holding that Justice Gableman can hear and vote on the criminal cases pending before the court. 

Now this all gets us back into the wisdom of election of judges a recurring theme of this blawg, but to some extent it raises another question--what is appellate law about and why would the voters toss out a good Justice based on misleading commercials?  Let's address the latter question first--voters should never reject a justice purely over an appellate decision they disagree with unless they have a reason to believe that the decision or opinion is corrupt or procured through bribery or the maybe the product of incompetence.  Voters can, of course, properly decide to vote out a justice for philosophical reasons but I'm always surprised that where a lay person views a disqualifying philosophy in one Judge, if they were the litigant the person they disagree with is usually precisely the Justice they would want to hear their case.  The appellate decisions are a thicket in any case, often maddenly so. 

You see, one appellate justice is not deciding the case before the court being afterall, just one vote among, in the case of the Wisconsin Supreme Court, seven. Appellate judges deal with controversies that are both fact-driven but policy-derived.  At the Supreme Court level in most jurisdictions the decision to hear an appeal may be discretionary and those Courts look for cases that present interesting or important public policy decisions.  Great appellate practioners learn the art of contouring their petitions to be heard in such a way as to catch the interest of this or that Justice.  It is an art form to be heard by an appellate court. 

So when voters do what was done to Justice Butler, toss his ass out because someone ran commercials that falsely portrayed him as unleashing child molesters on the populace, and elect someone to take his place who suggests that he will never fairly decide a criminal case brought before him--you have to ask:  what the hell!  Good luck with that Wisconsin.

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