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    Who are the NERD fund donors Mr Snyder?

    Raise the curtain.


    By Kevin Rex Heine, Section News
    Posted on Fri Sep 07, 2012 at 04:06:53 PM EST
    Tags: Michigan Supreme Court, 2012 vacancy nomination, Bob Young, Mary Beth Kelly, Wayne County Circuit Court, Colleen O'Brien, Oakland County Circuit Court, trust but verify . . . always, overturned decision, Auto-Owners v Keizer-Morris (all tags)

    In Grand Rapids tomorrow, the republican delegates will vote on which Judges will represent the Michigan Republican Party on the ballot for the Michigan Supreme Court.  Though the incumbent justices (Markman and Zhara) are expected to win handily, the race between Judge Jane Markey and Judge Colleen O'Brien for the vacancy nomination has become a little heated, with O'Brien's personal messenger Mike Rizik recently writing an especially mean email chock full of lies about Judge Markey.

    So is O'Brien fighting a grudge match?  Is this a "fight between unfriendly opponents?"

    Maybe so.  It seems that in 2009, Court of Appeals Judge Jane Markey reversed Circuit Judge Colleen O'Brien because, according to Markey, O'Brien "abused her discretion" by refusing to allow a person to join a lawsuit, even thought the court rules clearly allowed him to join.  As a result of Markey's ruling, the case was returned to a chastened Judge O'Brien who was ordered to follow the law.  Is this an undercurrent in the race?  Is this what so motivates her "supporters" to unprecedented attacks against Judge Markey?

    What does it mean when a Court of Appeals judge plainly rules that Circuit Judge O'Brien has abused her discretion?  Well, Rule of Law judges accord to every word or phrase its plain and ordinary meaning.  The Court will often rely on dictionary definitions.

    So what is the plain, ordinary use of the terms here?  When a circuit judge has discretion, it means she has "power of free decision or latitude of choice within certain legal bounds."  In other words, to be able to apply a little common sense to situation.

    Fair enough.  That means that in some areas of law, a circuit judge is free to decide certain types of cases according to the judge's own judgment without fear of being reversed by the Court of Appeals.

    According to Merriam-Webster, abuse, in this context, means "to put to a wrong or improper use."  In other words, to misuse.

    Here is specifically what Judge Markey wrote in Auto-Owners v. Keizer-Morris:

    The trial court denied the motion without explanation and denied reconsideration.  Shortly thereafter, the court granted plaintiff's motion for summary disposition and entered a judgment submitted by plaintiff.  Defendant had neither appeared nor opposed anything pertaining to the lawsuit.

    The sole issue in this appeal is whether the trial court (O'Brien) erred in denying appellant's motion to intervene.  This Court reviews a trial court's decision on a motion to intervene for abuse of discretion.  An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes.

    Appellant claims a right to intervene under MCR 2.209(A)(3). That rule states that a person may intervene by right

    "... when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

    "[T]he rule should be liberally construed to allow intervention when the applicant's interest otherwise may be inadequately represented."

    Ultimately, Judge Markey, in a published decision, found that Judge O'Brien's handling of the case fell "outside the range of principled outcomes."  Ouch.  That has to hurt.  So Judge Markey, a higher court judge, ruled that O'Brien misused her position in ruling as she did.  It's a pretty sharp rebuke.  It's one that must sting some.  It's published, so it's out there for every judge and lawyer to see.  It's a rebuke that might motivate a lower court judge to launch a few written bombs towards her now archenemy: the higher court judge who sent back a case she thought had been cleared off of her docket.

    < Don't Get Your Panties in a Bunch -- It's Not Personal | Taking an industrial-strength eraser to that "line" separating political parties. >

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    Bravo, swabbie! (none / 0) (#1)
    by Corinthian Scales on Fri Sep 07, 2012 at 09:00:31 PM EST
    Go Markey!!!

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