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    Who are the NERD fund donors Mr Snyder?

    Raise the curtain.

    Homeless Offenders

    By Kevin Rex Heine, Section News
    Posted on Thu Sep 06, 2012 at 04:14:58 PM EST
    Tags: Michigan Supreme Court, 2012 vacancy nomination, Jane Markey, Court of Appeals, trust but verify . . . always, People v Dowdy, MCL 28.722(p), unintended consequences of the law, Michigan Sex Offender Registration Act (all tags)

    Laws which are passed in a "knee jerk" reaction to a "preventable" tragedy often are not particularly well thought through, are insufficiently deliberated before passage, tend to overreact, and are particularly notorious for two things: (1) they tend to expand government reach into places the Founding Fathers would have never tolerated, and (2) they tend to be later found to have gaps that result from lack of foresight, and are only discovered in a post-legislation lawsuit.

    The Patriot Act is a classic example of such a law.  And I do find myself chuckling just a little when an Amber Alert mentions a missing 14-year-old girl, last seen headed out of town with a 19-year-old man . . . yeah, you know what's probably really happening.  Also on this list are the various elements of sex offender registration.  Between Megan's Law, the Wetterling Act, and the Adam Walsh Act we have I don't know how many different ways to permanently screw up other people's lives over nothing, for no other reason than because we as a society lack the testicular fortitude to deal with bona fide sex offenders according to their crime.

    An example in my mind is a high school kid here in Kentwood a couple of years back who streaked across the football field during the final home game of the season . . . not even out of high school, and an overreactive law has already thrown out the rest of his productive life.  (Back in my day, the only LEO involvement in such an incident would be to escort the student in question home and turn him over to the parents for disciplinary action.)  I mean seriously, in Michigan you can land on the sex offender registry for nothing more offensive than cussing in public, which is a real concern for a career sailor such as myself.

    And then there are other shortfalls.

    We've discussed this before, but for those new to these postings, let me state this:  Circuit judges, like Colleen O'Brien, rarely write opinions (she's only written 276 in the past 12-1/2 years, according to Westlaw); decisions aplenty, but rarely opinions.  When they do, those opinions are not released to the media or even the internet.  Instead, they are stuffed in a file, unread by anyone except the parties before the court.  They are accessible of course.  They're "open to the public," in the sense that anyone can drive to the courthouse and, if you have a name of a party to the case or a case number, you can pull the file and read the decision / opinion.  In some instances, such as Oakland County, the records can be ordered online, but ordering the records online is not the same thing as freely searchable online.

    Which brings us to the Court of Appeals and judges like Judge Jane Markey.  All of her opinions are in writing, and immediately posted on the internet through the court's website.

    Thus, someone like the Wizard of Laws can sit in the comfort of his living room with the laptop and casually review some 4,891 decisions rendered by Judge Markey in her nearly 18 years on the bench, all the while watching the Detroit Tigers lose to the Cleveland Indians.  It's great fun.  And, (yawn, crack open another beer, eat some more Cheetos), maybe find some Markey decision that he can discuss in a Monday-morning quarterback way.

    I have no complaints.  That is the beauty of Judge Markey's open, verifiable record.  We can all sit in our living rooms and review her work and judge for ourselves.  And if we're so inclined, we can come up with some reason or another to second-guess any decision we choose to, not unlike second-guessing Jim Leyland's pitching rotation choices.

    Of course, the Wizard of Laws cannot expound on Judge O'Brien's record, at least not credibly.  There is no easily available O'Brien record. He cannot choose a case here or there, or even a sentence here or there, to hold up and expound upon.  So don't ever expect the Wizard to ever say anything positive about O'Brien's record.  What is there to say either way?

    Anyway, let's talk about the People v. Dowdy case that was the subject of a recent Wizard post.  It's simple.  The Michigan Legislature passed the Sex Offender Registration Act (Act 295 of 1994) which required all convicted sex offenders to register their addresses with the police.  But the Michigan Legislature, in passing the law and establishing its various definitions and descriptions, never took into account the homeless.  The homeless by definition have no address, nor do they have a fixed, permanent place of abode.  The homeless move around the streets, taking into account the weather, the availability of shelters, the risk of crime and so on.  They have no "address" per se to register.

    So one can argue all day whether Markey got it right, or whether a bare majority of the Supreme Court got it right.  The fact remains that the Michigan Legislature screwed up by not taking into account the homeless.  Why blame judges for legislative malpractice?  Do we not expect a true rule-of-law judge to apply the law as it is written to the facts-in-evidence of the case in question?  Did we forget that the Court of Appeals has no authority to override the legislature?  Or does that apply only when the outcome suits our particular preconception of how the outcome should be?

    So how did the case really end up?  Has the Wizard been true to his readers?  Not really, in my opinion.  What happened in the case is this: the Legislature recognized its screw up after reading both Markey's decision and the Supreme Court decision, and realized it had to clarify a very murky situation . . . a murky situation of its own making.

    The Legislature amended the statute - MCL 28.722(p) - effective July 11, 2011, to provide:

    "If a person is homeless or otherwise lacks a fixed or temporary residence, residence means the village, city, or township where the person spends a majority of his or her time.  This section shall not be construed to affect existing judicial interpretation of the term residence for purposes other than the purposes of this act."

    Problem solved.  Judge Markey was right, but then again, maybe the Supreme Court was also right.  It was a bad law.  And the Legislature fixed it.  The system worked as designed.

    < Congratulations, Kerry Bentivolio! | The Nighmares Are Back >

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    Well, this took a nasty turn (none / 0) (#1)
    by The Wizard of Laws on Thu Sep 06, 2012 at 06:34:35 PM EST
    Kevin -- In my last post (thank you for linking to it), I was careful to mention you as a good example of those supporting Judge Markey, even as I disagreed with your conclusion.  I am sorry to see you making it so personal and creating an image of me that isn't true.

    Nevertheless, I bear you no ill will. The point of the rule of law is not whether a decision is good or bad, but whether it complies with the law as written.  In Dowdy, as in the other cases I have examined from the Markey collection, I focused on the decisionmaking process.  That process led Judge Markey to ignore precedent going back to 1897.  One effect of this process was, temporarily until corrected by the Supreme Court, to make things less safe (if it is true that knowing where sex offenders are is helpful to law enforcement).  And, the Supreme Court pointed out that the amendments to SORA did not affect the case, nor do they improve things much, if at all, beyond the Supreme Court's opinion.

    Even more troubling is an email sent today by Judge Markey, in which she states:  "During this campaign, I've often said I am a Rule of Law judge. And it's true. But I'm also a real world judge who believes that a little common sense goes a long way." (Emphasis added).  This is precisely the problem -- applying a judge's "common sense" is just code for empathy, as was the case in Progressive Insurance Company v Smith, about which I wrote here.

    There's no question that it's more difficult to discern the opinion record of circuit judge, but is that the only reason you are so anti-O'Brien?  Or are there some other grounds you and others have not disclosed?  If there are other reasons, I would like to hear them.

    Until then, we'll just have to agree to disagree on this one.  As always, I respect your arguments, your passion, and your hard work.  If Judge Markey is nominated, I will certainly support her in the general election, but I think that her record shows she is not the best choice we have and would be an uncertain vote in future cases in which the rule of law is at issue.

    The Wiz

    The old bit of wisdom... (5.00 / 1) (#2)
    by rdww on Fri Sep 07, 2012 at 11:47:59 AM EST
    ... that "bad laws are those requiring the greatest amount of later tidying up" comes to mind here.

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