Wednesday, April 22, 2015

HIS HONOR


His name is Mike Duggan. He is listed by Fortune Magazine among “The World’s Greatest Leaders.” I was surprised to learn that a number or my rather knowledgeable and sophisticated golfing buddies had never heard of him.

Mike Duggan is a graduate of Detroit Catholic Central High School – my alma mater. He attended the University of Michigan, both undergraduate and Law School.

Mike was active in Democratic politics in Wayne County. That helped him get a job after Law School as an Assistant Corporation Counsel for Wayne County. Eventually, he earned appointment as Deputy County Executive in 1987.

In 2000, Duggan was elected Prosecuting Attorney of Wayne County. With a year remaining on his term of office, he left the County to take on the challenge of managing the Detroit Medical Center, a municipal hospital which was in dire financial straights.

His executive skills made a difference. In eight years, he turned DMC around and it became a profitable enterprise which attracted a buyer from the private sector. Vanguard Health Systems purchased the Detroit Medical Center in 2010.

In 2013, at fifty-five years of age, Mike Duggan chose to resign from the hospital and take on a new challenge. He decided to run for Mayor of Detroit.

Mike and his wife, Lori, bought a gracious old home in Detroit and Mike filed as a candidate for Mayor. Unfortunately, he filed too soon. He had not been a resident of the City long enough to run. It was a careless mistake. Had he waited just another week or so, the filing would have been accepted.

As it was, the City Clerk refused to put Mike Duggan’s name on the Primary Election ballot. A hurried appeal to the courts was unsuccessful. The Duggans were now residents of the City, but Mike was not running for Mayor.

Undiscouraged, Duggan mounted a write-in campaign. It was a decision that most observers thought was utterly impossible. His candidacy seemed doubtful enough, considering that Detroit’s population is mostly black, and the last white Mayor was Ray Gribbs back in the 1970’s. But running as a write-in candidate? What was he thinking?

He was thinking that he knew the City and its people better that his critics. When the ballots were counted, Duggan was nominated with 52 percent of the Primary ballots. He went on to tally a solid 55 percent in the final election.

So who is Mike Duggan? He is the Mayor of Detroit. He has taken on a challenge that would be shunned by any corporation CEO in America, even if multimillion dollar executive compensation were on the table.

When I was elected Judge of the Common Pleas Court of Detroit in 1961, there were 1,800,000 residents of that city. Today, there are fewer than 700,000. To say that Detroit is a ghost town is no exaggeration. Whole neighborhoods that once teemed with children, schools, churches, businesses and block after block of single family homes, have been reduced to weed infested empty lots surrounding pitiful, boarded up buildings.

It’s a city that reflects all the challenges that plague urban life in America. Unemployment, racial tensions, decaying infrastructure, exodus of the middle class, failing schools, drugs, crime. You name it. Whatever is wrong in any city in America is doubly wrong in Detroit.

Why would a  successful hospital executive from Livonia want to take on such a job? And what are his prospects?

I know Mike Duggan. His wife is my my old law partner’s daughter. She grew up calling me Uncle Tom. The Duggans are good people. Mike is not a show boat politician. He is a hard worker with a lot of common sense and good instincts.

My golfing buddies haven’t heard of him because he keeps a low profile. I am sure there are some pundits around the country who think that a white man who can get elected as a write-in candidate in a black town ought to be a shoo-in for a Democratic Presidential nomination some day.


I wouldn’t bet against it. If anybody can revive Tiger Town, Hockey Town and Mo Town, it’s Mike Duggan.  

Friday, April 3, 2015

BURGER AND THE BITCHING BIRCHERS


Many of the folks who want to see an Article V convention called hail from the right side of the political spectrum. That’s largely because the most popular constitutional issue is the need for a balanced budget.

Even the biggest of the big spenders pay lip service to fiscal responsibility, though usually they would balance the budget by raising taxes.

Still, there are a great many conservatives who are torn between the need for fiscal reform and the possible results of calling a convention. Prime among these is the John Birch Society. Those constitution-loving patriots bitch incessantly about the failure of the national government to obey the constitution, but they get nearly spastic whenever an Article V convention is mentioned. It seems that their devotion to the Constitution includes everything but article V.

They make a fuss about a letter written by Chief Justice Warren Burger in which he insists that a convention would be a dangerous thing. They seem to forget that it was Burger who led the Supreme Court to issue its activist fiat in Roe V Wade, perhaps the single most unconstitutional opinion ever rendered by the high court.

Obviously, Burger didn’t want a convention that might undo that decision or disparage the legacy of the Burger Court.

I have spent a good amount of time trying to understand the reluctance of those Americans who agree that the government is dysfunctional and needs fixing, but adamantly oppose the very remedy that our Founders gave us.

The best rationale I can come up with goes like this: Article V requires a convention to be called by Congress on applications by two thirds of the state legislatures. Members of Congress and members of state legislatures are all politicians; they are all either Republican or Democrats. They are all beneficiaries of the existing system of politics, lobbying and favoritism.

The Average Citizen has no confidence that politicians can or will fix the system. Therefore, if Article V is intended to enable state and national politicians to reform our government, it just won’t work. The average citizen just doesn’t want politicians fooling around with the Constitution. It’s as simple as that.

Of course, they ignore the fact that Congress already has the power to propose constitutional amendments. Since Congress rarely does it unless there is a major public uproar, most folks don’t worry too much about it.

But a convention called for the very purpose of proposing amendments, just sounds a lot more activist and potentially dangerous.

The call for a convention is addressed to 308 million Americans who live in a frenetic communications milieu, talking, tweeting and texting at billions of words per second. Information trumps knowledge, feelings trump analysis, and the sound bite has replaced the essay.

In 2015, what a thing sounds like is a lot more persuasive that what it really is.

What a convention really is is a constituent assembly, a gathering of the people of the fifty states, or their representatives, for the purpose of doing what was declared in the Declaration of Independence: expressing the consent of the governed to the form and manner of their government.

It is the embodiment of the idea so eloquently expressed at Gettysburg: government of the people, by the people and for the people.

So the first question to be answered is this: How are the people to be represented in an Article V convention? Do the politicians in Congress decide who is to represent the people? Do the politicians in the State Legislatures decide who is to represent the people?

Or do the people themselves decide who will represent them?

A convention is a law unto itself. It makes its own rules and decides upon its agenda. And most pointedly, a convention is the final judge of the credentials and qualifications of its members.

The framework for such a grass roots effort already exists. It can be found at www.conventionusa.org.




  

Tuesday, March 31, 2015

THE SILLY SEASON


Gerhart Mennen Williams was a colleague of mine on the Michigan Supreme Court. He often referred to an election year as “the silly season.” He certainly knew a lot about elections. Nicknamed “Soapy” because of his family’s  toiletry business, Williams was elected Governor of Michigan six times, back in the days when the term of office was two years.

Seems like these days the silly season starts earlier and earlier. The modern phrase is ‘election cycle.’ It surely goes round and round. No sooner has a new set of officeholders been sworn in than the pundits begin speculating on the next batch of candidates and campaigns.

Like everything else in America, the process of electing the President has become incredibly burdened by bureaucratic regulation. The Federal Election Commission’s 167 page book of rules mandates that anyone who runs for President must register and provide detailed reports about how much money is raised and spent, and who gave what.

Anyone who raises and/or spends more than $5,000 is required to report, and failure to do so is punished by heavy fines.

A waltz through the FEC’s web site is enlightening if not amusing. There are already more than thirty-seven candidates of the Democratic Party and twice as many Republicans. More than sixty Independents and dozens of ‘No Party’ candidates along with a bevy of independent, would-be Third Party candidates make for a total field of more than 200 wannabees.

The FEC has a simple way to separate the wheat from the chaff. They have decreed that only candidates who raise or spend more than $200,000 are regarded as ‘serious.’

In addition to the expected names like Jeb Bush, Chris Christy, Ben Carson,  Ted Cruz, and Lindsey Graham, there are some obviously synthetic monikers like President Emperor Caesar, and Sydneys Voluptuous Buttocks.

There are also a goodly number of literally anonymous folks, who are apparently serious about wanting to lead the nation, but have no realistic notion about what getting to the White House entails.

There’s a young woman in Texas who has a full time clerical job and spends every other waking hour pursuing her dream of becoming the first woman President. Her web site insists that her campaign  will accept donations from no one.

Cherunda Lynn Fox lives at 17145 Gable Street in Detroit. She has two committees, Fox for President and Friends of Fox. Both committees are headquartered at 17145 Gable Street. Ms. Fox seeks the nomination of the Republican Party. So far she hasn’t raised a dime.

If the Federal Election Commission is keeping its eye on Presidential candidates, it virtually keeps political parties under a regulatory microscope. Its ‘helpful’ 159 page booklet of do’s and don’t’s starts out with the good news that any group which raises or spends more than $1,000 must register and heed its warnings.

Despite this draconian regulatory oversight, there are more than forty political parties in the United States, in addition to the BIG TWO. There are half a dozen Socialist parties, an American Communist Party; two or three Christian Parties, two Green Parties, the American Nazi Party, and Parties dedicated to Peace, Justice, Reform, Prohibition and Marijuana.

There are parties for Workers, Families, Veterans, and  Whigs. There’s a Light Party and a Tea Party, a Justice Party and a Third Party.

Being a student and devotee of the Constitution of the United  States, I was particularly intrigued by the Constitution Party, so I poked around to learn more about it. Here is what they say:


The seven principles of the Constitution Party are: 1) Life: For all human beings, from conception to natural death; 2) Liberty: Freedom of conscience and actions for the self-governed individual; 3) Family: One husband and one wife with their children as divinely instituted; 4) Property: Each individual's right to own and steward personal property without government burden; 5) Constitution: and Bill of Rights interpreted according to the actual intent of the Founding Fathers; 6) States' Rights: Everything not specifically delegated by the Constitution to the federal government, nor prohibited by the Constitution to the states, is reserved to the states or to the people; 7) American Sovereignty: American government committed to the protection of the borders, trade, and common defense of Americans, and not entangled in foreign alliances.  

I'm inclined to learn more about those folks. Stay tuned.

Wednesday, March 11, 2015

THE LIVING CONSTITUTION


Couple days ago I had the privilege of speaking to a group of students at  Saint Leo University who are studying Criminal Justice.

The subject was the Miranda warning; that rote recitation of rights which were the usual finale of Jack Webb’s famous Dragnet TV series.

I took the occasion to explain to the students that Judges do not pass laws; they make decisions. Wise decisions become precedents. The Latin phrase is stare decisis which means, “let the decision stand.”

Precedents are valuable because they tell us what the court did and why they did it. When another case comes along, which presents the same reasons for doing the same thing, the courts will typically apply the same rule and come to the same conclusion.

But a precedent only has value because it records what the court actually did. Later courts follow precedents when they do what the previous court did. In the Miranda case, the United States Supreme Court in effect said to the lower courts: “don’t do what we did, do what we said.”

Putting it another way,  appellate courts rule by example not by decree.

In the Miranda case, the Supreme Court reversed the conviction, saying they did it because no warning was given. That is what they did. But what they said was that their ruling was not to be a precedent. They didn’t want lower courts doing what they did.

Had the rest of the courts followed the decision in Miranda, by doing what the Supreme Court did, thousands of convicts would have been released. The Supreme Court reversed the Miranda conviction, then promptly said their decision was prospective only.

Bottom line is that the Warren Court knew darn well that the Miranda conviction didn’t violate the Constitution. If it had, then all other similar convictions were also invalid. The Warren Court was well aware that they were proclaiming a new rule of law, unrelated to the federal constitution.

That explanation prompted a vey bright student in the back of the room to pose this question, “Isn’t the Constitution supposed to be a living document?”

I sensed that she was advancing the familiar defense of an activist judiciary: Times change; the Constitution was intended to last for a long time, therefore it was intended to change with the times.

That familiar proposition is true, of course. But it doesn’t answer the question of how the constitution is supposed to be changed. George Washington made it clear: the constitution is obligatory unless and until it is changed by the explicit and authentic act of the whole people.

The pronouncement of an unelected nine member Supreme Court is not the explicit and authentic act of the whole people.

The constitution is the compact between the people and their government. It expresses the consent of the people to be governed in a certain way by leaders chosen in a defined manner. It is fair to say that a constitution deals with the who and the how of government. Legislatures decide the what.

It is inconceivable that the people of the United States have knowingly tolerated the usurpation of power that has tainted the decisions of the Supreme Court during my lifetime. The only explanation is the dumbing down of  public knowledge about our constitution.

The current court is a virtual cartoon of self aggrandizing elitism. All nine member of the court are graduates of only three law schools; Harvard, Yale and Columbia.

Think about it. There are over 200 accredited schools of law in the United States. The mathematical probability of all nine justices being educated at only three of those schools is something like 0.0000585 to one.

That august body has become a good old boy and girls club. It’s time for  change.



Saturday, February 14, 2015

OPEN LETTER TO UCLA

February 14, 2015

Dean Brad Sears
The Williams Institute
UCLA School of Law
Los Angeles, CA 90095-1476

Dear Dean Sears:

I received an email today describing the work being done by the Williams Institute at UCLA. As a result, I visited your very impressive and comprehensive web site.

It appears that through the generosity of Mr. Williams, the University has been able to recruit a formidable staff of scholars, researchers, writers and speakers which has been diligently and effectively training 3,000 judges throughout the United States.

In reviewing your web site, I was impressed with both the similarity and the contrast between the work of the Institute and the famous Brandeis Brief filed in the 1908 case of Muller v Oregon on behalf of the defendant State of Oregon by Louis Brandeis, who was later appointed to the Supreme Court.

The Brandeis Brief, you will recall, was a ground breaking effort to persuade the court, not so much with historical precedents as with scientific knowledge and other evidence not introduced in the lower courts, such as testimony by medics, social scientists and male workers who argued that long working hours had a negative effect on the health, safety, morals and general welfare of women.

It became a model for many other presentations before the Supreme Court of the United States, a practice which has encouraged the Court to eschew the historic function of adjudication in favor of an activist role as arbiter of the national welfare and culture.

It would appear that the work of the Williams Institute constitutes a massive and exhaustive Brandeis Brief in favor of the LGBT cultural agenda. In the interest of fairness, would it not be desirable to inform the public and all potential litigants of the names of those 3,000 judges who had the benefit of your intensive instruction and attitude training?

I should think that litigants currently before the court debating the marriage issue should be informed which, if any, of the current Supreme Court Justices are among those 3,000 judicial graduates of the Williams Institute.

Sincerely, 



Thomas E. Brennan
Former Chief Justice of Michigan
Founder of Thomas Cooley Law School