'Judicial Deceit': Former justice takes issue with state court

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 By Tom Kirvan

Legal News
 
Her motto is “Do Right and Fear Not.”
 
Critics of retired Michigan Supreme Court Justice Elizabeth A. Weaver may question her desire to carry out the former, but few if any would doubt her resolve in accomplishing the latter.

As proof, look no further than a book she co-authored last year with David B. Schock, a Ph.D. whose career includes work as a filmmaker, a newspaper reporter and editor, and college professor. Even for a self-published book, it’s hard to ignore the breadth of the title: “Judicial Deceit: Tyranny & Unnecessary Secrecy at the Michigan Supreme Court.”

Weaver, who served on the Supreme Court from January 1995 until her retirement in August 2010, has never been shy about voicing her opinion, a trait that has charmed some and infuriated others over the course of her career on the high court. In fact, in the opening chapter of the book, Weaver contends that an evil force held sway on the court during the early part of the new millennium.

“How do you hijack a state supreme court?” Schock asked in the opening line of the book. “In Michigan, it took a confluence of factors at the turn of the century (the 20th to the 21st), including the unchecked appointment powers of a Governor who was determined to control the courts (as he did the executive and legislative branches) and justices beholden to him who were willing to ignore the common law, the state Constitution, and common sense. 

Throughout the book, Weaver drives home that their acts often would be “deceitful” and “tyrannical,” and carried out in “unnecessary secrecy” to the detriment of the public trust.

“That took some doing,” Schock asserted. “After all, the justices usually arrived at the high court by the process of election. But in Michigan, when a justice resigns, the Governor steps in to appoint whomever he or she chooses. That happened three times — well, three and a half — in a span of two years in the last half of the 1990s.  The result was a stacked court. And a stacked court whose appointees were less than qualified — through lack of experience or judicial temperament — for their new jobs. Oh, they were plenty smart, but that wasn’t enough.

“It’s probably happened before in this state, certainly it has in others, but we might not know about individual stories that make up this larger narrative unless there was someone on the inside who was keeping track,” Schock wrote.
That person, of course, was Justice Elizabeth “Betty” Ann Weaver, a former state Court of Appeals judge who served as chief justice of the Supreme Court from 1999 to 2001. Weaver, who grew up in New Orleans, earned her bachelor and law degrees from Tulane University in the Crescent City. Following graduation from law school, Weaver took a job as a title specialist for Chevron Oil. But a desire to “broaden my horizons” led her to a job as a counselor and French teacher at the private Leelanau School in Glen Arbor, northwest of Traverse City.

Before long, the transplant from the Bayou would begin to call northern Michigan home, a place where she would combine a teaching and legal career en route to a run for a probate court judgeship in Leelanau County in 1974. In that race, in which she took on an incumbent, Weaver won by 400 votes, setting the stage for a 12-year stay on the county bench.

It would be the first of a series of election victories for Weaver, three at the county level and five more in state appellate court races. She is proud to say that she “was elected and re-elected — never appointed — by the people of Michigan to each judgeship.”

After serving for 8 years on the Michigan Court of Appeals, Weaver decided to run for the state Supreme Court in 1994 with the backing of Republican Governor John Engler and Lieutenant Governor Connie Binsfeld. As a candidate
from the sparsely populated northern region of the state, Weaver was considered somewhat of a long-shot in the race, which also included incumbent Supreme Court Justice Conrad Mallett Jr., and two well-known judges, Richard
Griffin, the son of retiring Justice Robert Griffin, and Donald Shelton, a circuit judge and former Eastern Michigan University regent. Despite the competition, Weaver captured one of two openings on the court, tallying the second
highest number of votes in the five-candidate race. She would be re-elected twice to 8-year terms in office.

The origins of the 28-chapter book can be traced to a documentary film that Schock was making about “You and the Courts.” 

“Most people don’t know what the various courts do,” Schock said. “District? Circuit? Probate? How to convey the differences among the courts to an audience?

“Videographer Phil Blauw and I took to the sidewalks to informally survey people about their perceptions,” Schock related. “The results were interesting and often hilarious. The most notable supposition was that a probate court was the place that set the terms of your probation. The most knowledgeable subject was a former state prisoner. He’d been through it all.”

In the 2006 film, then Justice Weaver helped set the record straight, delivering the “overview of the courts,” according to Schock, who in his spare time plays trumpet in a Dixieland jazz band called the “River Rogues.” She was not his first choice for the commentary role. Schock thought the then chief justice of the Michigan Supreme Court, Clifford Taylor, would be the logical choice. An adviser suggested otherwise, recommending he work with Weaver instead. 

Schock said “her answers went a little long — not a surprise to anyone who knows her; she is voluble,” but she also is “ brilliant” and “articulate,” and can explain difficult concepts with relative ease. At a dinner following the filming, Schock heard Weaver tell of the “smothering of dissenting voices” on the Supreme Court, of “backstabbing, character assassination, and intrigue.” In the back of his mind, he must have been thinking “all the makings of a great book.”

Several years later their thoughts would converge in a decision to write the book, an 18-month project that took on a life of its own, Schock indicated.

“The book developed in a way I’ve not experienced before in a writing project, but it worked,” Schock said. “First, we discussed the scope of the book . . . the stories we’d tell. Next, I put Elizabeth on camera for lengthy interviews, and then that was transcribed. Then I started deeper researching; always there was documentation and contextual matter needed. 

“Many of the documents I cited came from her treasure trove of cases and correspondence — she has saved everything, including some really inflammatory e-mails from other justices. Others had to be found elsewhere, some in obscure places.”

Then, as Schock related, “came the writing,” where he would submit a draft and then send it to Weaver for editing.

“Some of the chapters have had 30 revisions; she’s a very fine editor and not heavy handed,” he said. “She was pretty clear about where she stopped and I started in terms of the voice of the book — and there are two distinct voices.”
Indeed there are, with Weaver supplying her take on things in italics throughout the book, alternating with Schock as if it is written in Hollywood script form. And even those who might object to Weaver’s view on certain matters will have to admit that the book is well written and offers a lively look at the inner workings of the court.

It has been well documented that Weaver was at odds with the four Republicans on the court at the time, Chief Justice Taylor and Justices Robert Young Jr., Maura Corrigan, and Stephen Markman. Each has a special place or two in the book, and the authors are more than ready to supply a road map in the “Note to Readers” at the beginning of the opus.

Turn to Chapter 8 to learn about a certain justice’s “unconscionable treatment of subordinates, or his need to bring a gun to work,” the authors relate. Or to Chapter 11 “to understand the arbitrary treatment of support staff at the court.” To Chapter 15 “to learn about how the Michigan Supreme Court created law (which is not its job) in child adoption.”

Readers, the authors contend, can sift through “chapters 15, 16, 21 or 24 to learn how long-serving and diligent local judges were threatened and punished by various justices of the Supreme Court.” Conversely, they write, “consult chapters 13, 23, and 28 to learn of instances when local judges were nearly allowed to get away with smoking pot, were allowed to retire with honors after pleading guilty to petty theft, or who had allowed perjured testimony and were not held up for public scrutiny.”

Weaver, not surprisingly, has been harpooned by many for her outspokenness, as Schock acknowledged. 

“She’s also been called a bag lady, mentally ill, terminally ill, and — perhaps most eloquent of it all — ‘implacably evil,’” Schock wrote in the Introduction to the book. “She is none of those things,” he said. “And for all that she speaks her conscience, she also is a careful and discerning listener.”

Despite the criticism that she has faced, Schock said that, “She tried never to take it personally. And she never launched into character criticism of these people who had set themselves against her.”
Her focus, instead, has been on a seven-point plan for court reform, including a proposal to dispense with political party nominations for candidates in favor of prospective justices earning a spot on the ballot by petition. She also calls for a 14-year limit on the bench, while urging that justices be elected by district for the sake of “geographic diversity.” 

In addition, she recommended that public funding be provided for Supreme Court campaigns through a tax check-off system, and that we “require transparency and accountability in campaign finance reporting” to eliminate “secret or unnamed contributors.” Finally, she called for the need to “eliminate unnecessary secrecy and require transparency in the Supreme Court,” prohibiting “any attempt to keep any justice from communicating to the public forever about the decisions, performance, and operations of the court.”

 Weaver, who has a home on the Crystal River near Glen Arbor, said in a phone interview this week that she has been heartened by the public’s response to the book, which cost her more than $100,000 to publish.

“I felt a sense of duty to bring the truth to light about the court and its operation, and it has been gratifying to receive so much positive feedback from those who have read the book,” Weaver said. “This is not a tell-all book. It’s more in the frame of what in ‘The Wizard of Oz’ Toto and Dorothy did in pulling down the curtain to reveal deceit and tyranny. I’ve always believed that if you are a steward of something, such as the judiciary and the public trust, and you see a danger, then you have a duty to give warning or you are to be held responsible for the outcome.”

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