Tag: Supreme Court (page 3)

Lansing, MI, September 5, 2012-- Citizens Protecting Michigan's Constitution  today expressed disappointment with the Supreme Court ruling to allow the  unions so-called collective bargaining ballot proposal to go forward but pledged to continue the fight to protect Michigan's Constitution and the state's economic future against attempts by union bosses and outside special interests to hijack Michigan's constitution.

"With the court decision behind us, the campaign to fully inform voters can begin," said Stu Sandler, Consultant for Citizens Protecting Michigan's Constitution.  "Michigan's citizens have a clear choice this November between protecting our state's constitution and economic future or returning to the failed policies of the past by handing control of the state and perhaps billions of state and local tax dollars to a handful of union bosses.

"While we are disappointed with the Court's decision to allow a purposefully misleading and job killing proposal on the ballot, we are fully prepared and will work each and every day between now and November 6th to inform Michigan families about the real purpose behind this deceptive proposal.  If adopted this proposal would have a devastating effect on our state, but we are  confident that on Election Day voters will tell Big Labor "No!  Hands off our constitution!"

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The debate over the O'Brien vs. Markey race for the third GOP Supreme Court nomination has, for the most part, been respectful.  Oh sure, there are the usual hysterics because 20 years ago someone bought a ticket to a colleague's fundraiser, but these are minor and safely ignored.  I like to think of the pro-Markey crowd as best represented by Kevin Rex Heine, who at least does his homework.  [Someday, I'd like to meet Kevin and shake his hand.]  That doesn't mean I agree with him, however.  In fact, the more I study Markey's decisions, the more uncomfortable I am with the thought of her on the high court.

Two years ago, your Wizard opined on the choice Republicans faced between potential Supreme Court nominees Mary Beth Kelly and Jane Markey.  Judge Kelly, of course, is now Justice Kelly, and Judge Markey is trying again, this time squaring off against Oakland County Circuit Court Judge Colleen O'Brien.  

Round one is over, and the world waits anxiously for round two tomorrow in what is the most important Supreme Court case since Brown v Board of Education, and maybe since Marbury v Madison.

Today's Arguments

Today the Supreme Court heard arguments on whether it should or should not decide the health care cases because of the federal Anti-Injunction Act.  This law, passed in 1867, essentially provides that a tax cannot be challenged until it is paid.  One court found that, since the penalty (the alleged "tax") imposed by the Patient Protection and Affordable Care Act (ACA) for not buying health insurance does not take effect until 2014, and since therefore no one had been forced to pay the tax yet, the challenge to the law is not yet "ripe" for decision.  

All the parties challenging the law and the federal government agreed that the the case is ready to be decided, so the Supreme Court had to appoint an attorney, Robert Long, to argue that the the Anti-Injunction Act barred the proceedings.  Things didn't go too well for him.

From the questioning, it was fairly apparent that the justices want to reach the merits of the ACA litigation.  Justice Sotomayor asked Mr. Long to describe the "parade of horribles" that would occur if the court decided to reach the merits.  Much fumbling ensued, leading Justice Scalia to observe "there will be no parade of horribles."  Justice Breyer pointed out that the statute calls it a penalty, not a tax, and Justice Ginsburg observed that it is not a revenue-raising measure since, if everyone obeys the law, there will be no revenue associated with the penalty.

When the Solictor General, Donald Verrilli, argued that the penalty is not a tax, Justice Alito snagged him with the conflicting positions taken by the Administration.  To get the case heard, Verrilli argued the penalty is not a tax; but to get the law upheld, Verrilli argues the penalty is a tax, an inconsistency upon which Justice Alito seized:

General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn't have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

Based on the tenor of the questioning, I think there is little doubt the court will brush aside the Anti-Injunction Act in order to get to the meat of the case.

The issues to be argued are known generally by the public, but few understand them in any detail.  For example, during a recent forum, the Lieutenant Governor here in the Enchanted Mitten, arguing for a state-established health care exchange, said that even if the Court finds the individual mandate unconstitutional, it will have no effect on health care exchanges, since HCEs are not before the Court.  This position is not exactly accurate.  If the Court determines that the individual mandate is unconstitutional. it will then  expressly decide whether the entire law must be struck down, including those provisions pertaining to health care exchanges.

The inability for the Michigan Supreme court to hold government agencies to the freedom of information standards we THOUGHT we had in place as an oversight tool is a bit of a tragedy.  we should have the expectation that ALL correspondence done by our public officials on company time on government owned equipment is not private use. From a release:

State Supreme Court Failure to Rectify Disastrous FOIA Ruling `Must Be Fixed,' Says Center Attorney

Legislature should act swiftly to restore the intent behind Michigan's public disclosure law  

MIDLAND -- In a setback for government transparency, the Michigan Supreme Court yesterday refused again to hear an appeal of a lower court decision that misinterpreted the Freedom of Information Act and now thwarts disclosure of improper activity by public employees. The Mackinac Center and the Michigan Press Association had filed a joint amicus brief seeking to have the state Supreme Court overturn the ruling and uphold the true meaning of the statute.

"In one sense, the Court's decision is unsurprising, since the court rarely grants reconsideration motions," said Patrick Wright, director of the Mackinac Center Legal Foundation. "On the other hand, the Court of Appeals completely misread the law in a way that will help government officials hide criminal activity -- the exact opposite of FOIA's intent. This ruling must be fixed either by the Legislature or by the Michigan Supreme Court in a future case."

The case was originally filed by citizen-journalist Chetly Zarko in 2007. Zarko, who passed away in 2010, was seeking public-employee emails related to a labor conflict and potential illegal politicking in the Howell School District. The Michigan Education Association subsequently filed a suit to prevent the disclosure. A trial court ruled in Zarko's favor, but the Court of Appeals overturned that decision in a manner that significantly undermined the effectiveness of FOIA, which was enacted post-Watergate to enable the public to ferret out illegal governmental conduct.

In December 2010, the Supreme Court denied leave to appeal the decision in a 4-3 ruling. A reconsideration motion was filed by Zarko's attorneys in January and heard by a court that included two new justices.

"If allowed to stand, this ruling decimates FOIA and cries out for a quick fix," said Wright. "We should not permit state and local governments to hide their criminal activity from those they serve."

The spirit of that type of determination in revealing truth in government shall be missed. It was good for us and truly good for the elected officials in keeping them straight up.

The Michigan Supreme Court COULD have gone to the lefties.  It COULD have gone to those who think the constitution is a "living, breathing, document." It could have even lost some of its federalist nature AFTER the election when Maura Corrigan took on a new career as the head of DHS.  Certainly we were lucky that the election turned out as it did, and that even the replacement of Corrigan was a constitutionalist.

Because at any given point in the last year we could have found ourselves with a laughing stock and dangerous ally of the enemies of liberty.  

It could have become populated by those too much like the Indiana Supreme court.  Particularly when they spout such nonsense as:

"We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action."

Worth the wait however.  As now reported in the major news outlets including the Detroit News:

"Judge Zahra's 16 years of judicial experience and his razor-sharp intelligence will make him an outstanding addition to the court," Snyder said.

Snyder, who campaigned as "one tough nerd" to win the governor's race in November, noted Zahra is "a self-described law geek."

"This is a case where it's nice to say a nerd gets to appoint a geek," Snyder said at a news conference."

"One area in which I can emphatically state we are better off today than eight years ago relates to the court system." Explaining that he shares the philosophy of Justice Maura Corrigan and the majority of the Michigan Supreme Court, Zahra said he aims to search for the rule of law and respects the separation of powers, "Leaving to the legislature the significant policy questions of the day."