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Opening volley for political season

August 31, 2010
By Richard Clark

ESCANABA - On the surface last week's resignation of Supreme Court Justice Elizabeth Weaver Justice from the Michigan Supreme Court seemed mundane, but it may be the opening volley in the fall political season. Justice Weaver said that she wanted to serve the public by working for reform of the Michigan judiciary.

Candidates for the Michigan Supreme Court are listed in the nonpartisan section of the ballot, but the Republican and Democratic parties nominate the candidates. The Republican Party nominated Justice Weaver two times.

Justice Weaver became concerned about the mission of other Republican justices on the Supreme Court. Instead of being independent judicial thinkers they were ideologues with an agenda, sweeping aside decades of precedent.

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Richard Clark

Last weekend the Republican Party nominated Justice Robert Young as one of their candidates to the Supreme Court. In recent opinions Justice Weaver has strongly criticized Justice Young.

Recently Justice Weaver wrote, "Justice Young's dissent in this case attempts to deceive the public." Justice Weaver could have said Justice Young was "incorrect" but instead suggested dishonesty as his motive.

In local elections we invariably ask people who know with a candidate "What's Jane Doe like?" We can't very well ask that question of a statewide candidate but we are well advised to listen to Justice Weaver's views of Justice Young.

I can't help but think that Justice Weaver's negative view of Justice Young is influenced by his opinion in Brown v Brown.

In Brown Lisa Brown, a 23-year-old security guard, was sent by her employer to work at a steel company. The steel company's night foreman aggressively harassed Lisa. According to the court's opinion Lisa told the plant manager, the night foreman's supervisor, that the foreman frequently accosted her.

For months the night foreman made sexually charged comments on a daily or near daily basis. Lisa complained three times to the foreman's supervisor, plant manager Harlan Gardner. The harassment did not stop.

Three other employees told Lisa that they too had complained about the foreman's comments.

One evening while Lisa was performing her duties the night foreman shoved Lisa into a bathroom an raped her. Lisa suffered psychological trauma and could not continue to work.

Lisa sued for damages from the night foreman and his employer for not taking corrective actions when its supervisor was told of the vile conduct of its night foreman.

Justice Young said that the woman could not sue the foreman's employer under the circumstances because the man had no criminal history of rape and that his harassing behavior did not necessarily mean the man would rape her.

Justice Young's empathy for the employer ignored reality. Lisa could not change her circumstances.

Her employer assigned her to work at the steel plant. She was obliged to be at work. What message did the steel company give the foreman by not stopping the harassment over several months?

In Brown Justice Weaver sided with Justice Cavanagh who wrote the dissenting opinion. Justice Cavanagh did not say Lisa should get money, he said that a jury should make the decision whether the company could be held responsible for its behavior.

Justice Young added insult to injury in Brown when he wrote, "Justice Cavanagh's theory of liability is simply that defendant was on notice that Brown was a rapist because he made unwanted sexual comments."

The Brown case should have been decided by a jury. The Seventh Amendment to the U.S. Constitution preserves the right to jury trial for disputes in excess of $20, a spirit apparently not shared by Justice Young.

Justice Young was a corporate officer and general counsel for AAA. Michigan needs an independent justice. Maybe we should listen to Justice Weaver.


EDITOR'S NOTE - Richard Clark, Escanaba, practices personal injury law throughout the Upper Peninsula. He can be reached at



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