The Extreme Right-Wing Michigan Supreme Court: A Case Study: People v Derror

Michigan has the most extreme right-wing Supreme Court in all 50 states. I don't say this just as hyperbole. I think this can be empirically shown. As part of an effort to do so, I'm going to look at one specific case. I will probably highlight others as well as I get the chance. There are plenty to choose from.

There are a lot of common themes in many of their opinions that I will highlight (mostly through pointing out what is written in the dissent, which does a pretty decent job of highlighting much of what the current majority of the court often does.)

The case is People v Derror. There are two major issues in this case that I will highlight. The first issue was whether 11-Carboxy-THC was a schedule 1 controlled substance. Briefly, this compound is a compound with NO pharmacological effects that forms in the body as part of the process of metabolizing (and ultimately expelling) THC from the body. And THC is the active (and thus usually illegal) ingredient in marijuana. It may be the case that trace amounts of it could be found with a sensitive enough test days, weeks, months, possibly even years after smoking a joint. Which is rather relevant to the second issue, but I'll get to that in a moment.

To end the suspense early, I'll say right now that the court held in Derror that this basically inert waste product was a schedule 1 controlled substance. They held this based on language in the statute that covers "derviative" and then their own interpretation of what a "metabolite" is. The basic "logic" was that, though the statute would appear to some to be referring to "derivative" products that were other drugs such as if you take one illegal drug and change it to make a slightly different drug, either one more potent or, perhaps, one you hope won't be covered under the criminal statute - but in fact is, because "derivatives" are covered, the Court knew what it REALLY meant. The Court took that language, pulled out their trusty dictionaries with all of their varied (and sometimes contradictory meanings) for "derivative" and promptly decided that what it REALLY meant is that any substance that is broken down from the illegal one (THC in this case), even if it is just a natural metabolic process that creates it and even if the substance has no effect on the body or mind.

Of course, this presented them with a slight problem, in that some of the other derivatives of THC in the body include carbon dioxide and water. In order to avoid that, they pulled out their trusty dictionaries and again arbitrarily selected defininitions that would allow them to keep 11-carboxy-THC schedule 1 while avoiding water and carbon dioxide being considered such.

Of course, the whole time they are doing this they are "protesting" that they are just following the "plain language of the statute." This despite the fact that the statute never gives a precise definition for those words nor does it even say which dictionary would be appropriate to consult. This is a common theme with the court. The right-wing justices often claim they are simply acting as pure "textualists" interpreting statutes and yet at the same time, where there are multiple definitions for a word, some that could support their right-wing interpretation, some that would support a more moderate interpration (or even, perish the thought, a liberal one), somehow the correct dictionary definition to use is always the right-wing one.

In this case, they go even further, as the dissent points out. They totally ignored that portion of the statute that says that the Michigan statute (which is identically worded to the federal statute listing schedule 1 drugs) is to be interpreted the same as the Federal statute. And federal courts have never held 11-Carboxy-THC to be schedule one. To the contrary, they hold it is not. But apparently our Supreme Court can ignore this becaues those pesky Federal courts weren't properly interpreting federal law (even though, by law, their interpretations ARE federal law). You see, the Federal courts considered such horrid things as the legislative history of the statute, something Michigan's Supreme Court considers irrelevant - after all, they have their dictionaries!

But now with Derror it gets worse. Because the second issue was whether, regarding the criminal statute for causing an accident while intoxicated, a defendant must be shown to have known he was intoxicted and if that intoxication caused the accident. The court found that no such showing need be made on either count. I could understand the notion of not wanting anyone to be driving around with intoxicants in them. But they go way beyond that here. Because, as noted above, 11-carboxy-THC could theoretically be found in a person weeks or even months or years after smoking a joint. They'd ordinarily have no way to know. So now someone can be arrested and charged with a serious felony for driving with a harmless, natural metabolic by-product that has no effect on driving and which could have been lingering for months. Isn't Michigan wonderful?

Now, the deck is pretty heavily stacked against criminal defendants everywhere. But in Michigan, you are basically screwed. Not just specifically because of Derror, but because that is just an example of the twisted pretzels of "logic" the court is willing to create just to keep defendants good and convicted.

Just to give a little taste of that, even though there is no reason to support it (other than blatent favoritism), prosecutor appeals get priority in Michigan. (They also can file their appeal briefs months or even over a year late and still have it be considered - defendants have to meet their filing deadline (usually only 21 or 28 days) or else). On top of that, one of the right-wing Supreme Court Justices has a standing order that every prosecutor appeal be heard by the Supreme Court. This is significant because the vast majority of cases (including those of criminal defendants who are appealing) never get heard by the Michigan Supreme Court. It is appeal by leave granted. And yet prosecutors get an automatic "in" there.

I hope that by pointing out cases like Derror, I could help at least a few people see just what sort of Supreme Court Michigan has. Most lay people have no idea. It is almost a sick joke amongst the members of the Michigan bar.