Catch-22

Bleakley Image aMichael J Talbot ImageAttorney Thomas H. Bleakley (P23892) has to be feeling a lot like Captain John Yossarian, the harried protagonist of Joseph Heller’s great satirical novel Catch-22. Chief Judge Michael J. Talbot of the Michigan Court of Claims dismissed Attorney Bleakley’s Helen Moore et al v. Rick Snyder [16-000153-MM] lawsuit challenging the constitutionality of the Legislature’s passage of the DPS bail out on August 4th, in an order published on August 8th.

The Michigan Court of Claims was moved from the Ingham County Circuit Court to the Michigan Court of Appeals by PA 164 of 2013 to:

MCL 600.6419 Court of claims; exclusive jurisdiction; exceptions; claims less than $1,000.00; powers and jurisdiction; counterclaims; res judicata; setoff, recoupment, or cross declaration; writs of execution or garnishment; judgment as final; no jurisdiction of claim for compensation under MCL 418.101 to 418.941 and MCL 419.101 to 419.104; jurisdiction of circuit court over certain actions and proceedings; “the state or any of its departments or officers” defined.

Section 6419(1)

(a) To hear and determine any claim or demand, statutory or constitutional, liquidated or unliquidated, ex contractu or ex delicto, or any demand for monetary, equitable, or declaratory relief or any demand for an extraordinary writ against the state or any of its departments or officers notwithstanding another law that confers jurisdiction of the case in the circuit court.

But, according to Judge Talbot, not the constitutional claims pleaded in Helen Moore et al v. Rick Snyder

Catch-22 CollageThe Catch-22? Judge Talbot dismissed Helen Moore et al v. Rick Snyder citing MCL 380.389, which just happens to be entirely new language created by PA 192 of 2016, one of the six DPS bail out laws whose constitutionality Attorney Bleakley was challenging in Helen Moore et al v. Rick Snyder:

MCL 380.389 Formation of community district; presumption of validity.

Sec. 389.

The validity of the formation of a community district shall be conclusively presumed unless questioned in an original action filed in the court of appeals within 60 days after the community district is created under section 383. The court of appeals has original jurisdiction to hear an action under this section. The court shall hear the action in an expedited manner. The department of treasury is a necessary party in any action under this section.

Let’s be very clear about what Judge Talbot just did last Thursday. He dismissed a lawsuit challenging the constitutionality of a Legislative statute citing the very language within that same Legislative statute.

Circular Reasoning ImageJudge Talbot’s order is a spectacular perversion of legal logic. Totally circular reasoning. Attorney Bleakly was challenging six different laws amounting to 53 pages in total. These laws did create one community school district, but they also did far more. Attorney Bleakley was challenging the unconstitutional Legislative rules which were applied to assure their passage. Judge Talbot took it upon himself to reconstruct the the stated goals of Attorney Bleakley’s lawsuit so he could use the very law being challenged to dismiss that same lawsuit.

Catch-22: “a problematic situation for which the only solution is denied by a circumstance inherent in the problem or by a rule.”

It gets even better. Judge Talbot is also the Chief Judge of the Michigan Court of Appeals, where Attorney Bleakley’s suit would be headed if the PA 192 60 day window wasn’t just about gone. This statutory time limit expires on the 19th, so Attorney Bleakley will likely have to appeal Judge Talbot’s Catch-22 circular logic to the Michigan Supreme Court. This will probably go no where; Judge Talbot’s legal chutzpah suggests the fix is in.

While we are on this subject; since when do the Legislature and the Governor get to set a 60 day window on constitutional challenges, by statute?  Constitutional challenges are the purview of Michigan’s ‘one court of justice’. The Governor and Legislature are specifically prohibited from usurping the authority of this third branch of government by Article III of our 1963 Constitution:

Article III

§ 2 Separation of powers of government.

Sec. 2.

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

The Legislature and Governor could establish a one minute time limit for filing constitutional challenges in the future if this usurpation of court powers is allowed to stand. The Michigan Constitution of 1963 is being reduced to the status of toilet paper.

Speaking of which, the Michigan Court of Claims was established in its current form by PA 164 of 2013. Judge Talbot is acting as if it is a distinct court of limited jurisdiction established under Article VI, Section 1 of the Michigan Constitution. Note that this section of our constitution requires a two-thirds vote of the members elected to and serving in each house to establish such courts.

Article VI

§ 1 Judicial power in court of justice; divisions.

Sec. 1.

The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.

Senate Bill 652 of 2013, which became PA 164 of 2013, did not receive a two-thirds vote in the Michigan House. The Chair ruled that this was constitutional because SB 652 did not create a new court of limited jurisdiction. Either the Speaker Pro Tempore ruled incorrectly, or else Judge Talbot did not realize that the Michigan Court of Claims is nothing more than the Michigan Court of Appeals acting as a Court of Claims. Either way, Judge Talbot’s dismissal of Helen Moore et al v. Rick Snyder was flat out wrong.

The fix is in. Michigan’s deep state has their DPS bail out. Someone whispered instructions into Judge Talbot’s ear. Articles IV and VI of the 1963 Michigan Constitution be damned. Results are all that matter in today’s Michigan. Rule of law is stone dead in Michigan.

Some men are born mediocre, some men achieve mediocrity, and some men have mediocrity thrust upon them.
Joseph Heller, Catch-22, Chapter 9

You Betcha! (7)Nuh Uh.(0)

  2 comments for “Catch-22

  1. Sue Schwartz
    August 11, 2016 at 4:32 pm

    Several months back when the Gamrat, et al issue was filed in the Court of Claims, I stated then that filing in this court was a mistake. The Court of Claims (the US also has a Court of Claims in Washington DC) should only be used on issues involving contract claims--such as a car accident caused by negligently maintained state roads, etc. but never should a constitutional issue be brought before this limited jurisdiction court.

    Tom Bleakley is not a stupid attorney and the court rules provide for issues such as this to be filed directly before the Michigan Supreme Court--I question his choice of forum--especially a forum legislatively created with limited jurisdiction.

    You Betcha! (1)Nuh Uh.(0)
  2. JD
    August 12, 2016 at 6:28 am

    I wish that someone would someday use this space to intelligently DEBATE the critical state history brought forward here by those with the courage to do so.
    "...Articles IV and VI of the 1963 Michigan Constitution be damned. Results are all that matter in today’s Michigan. Rule of law is stone dead in Michigan..."
    Revolutions during less critical times than these have been the direct result of patriots declaring much less on a far less regular basis.

    How does this author consistently hit it literally out of the park to empty stadiums?
    Am i missing something here?

    How do we all sit by like bumps on the side of a road when our fellow countryman declares the following:
    ".. since when do the Legislature and the Governor get to set a 60 day window on constitutional challenges, by statute? Constitutional challenges are the purview of Michigan’s ‘one court of justice’. The Governor and Legislature are specifically prohibited from usurping the authority of this third branch of government by Article III of our 1963 Constitution.."

    Our children will soon read these REAL TIME accounts of the day (which should be required government class reading in REAL TIME this fall) and rightfully wonder...was patriotism truly 'dead' by the fall of 2016...or were even the very best detailed (corrupt) accounts of the time obviously ignored save a 'You betcha!' button?

    We need to march on Lansing (yesterday) including every legislative office between (right on through the lame duck) if there is to be any hope whatsoever for our children's future. Timing matters and now is (past) the time for patriots to rally for their cause and not necessarily our own.

    You Betcha! (0)Nuh Uh.(0)

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