Delayed Justice

Jim and Glenna Chandler have said they will appeal the decision of U.S. District Court Judge Janet Neff. Certainly they will with the help of their attorney Rob Gaecke. I had heard from them earlier, but today’s story in The Grand Rapids Press makes it public. I’ve thought about this and wondered. I am not an attorney so there are causes and ramifications I don’t understand. But in the first place, I believe Judge Neff has a reputation as a good and fair judge. We will not likely know–ever–what she feels about a case, this case if particular. She may believe that Wackenhut is culpable or not, that she’d like the corporation held blameless or blameworthy. We don’t know. That was not her job. Her job was to decide on the basis of her research exactly what the law allowed or prohibited. If she’s a good judge, and we believe she is, her feelings don’t enter this work at all. Those of us outside the legal fraternity can say things like: “This doesn’t make sense.” “It’s not right.” “It’s not fair.” However human, we won’t be right to do so. Instead, we should take a look at precedent. In particular, she may have decided that the statue of limitation had run because of the work of the Michigan Supreme Court. In the Trentadue Case the state’s high court affirmed a three-year limit on the period to bring suit…even if the perpetrator of the crime was not known or identified. This is yet another legacy of the Taylor Court and Betty Weaver–a strong and reasonable voice on the court dissented. The result? According to Nacole M. Hurlbert, writing in the law review of the University of Detroit Mercy:

While the Trentadue court effectively precludes the common law discovery rule only with respect to wrongful death claims, it is likely that complete abrogation will follow. In coming to its conclusion, the court overruled decades of common law precedent. Although the court acknowledged that “the discovery rule does not create expectation or reliance interests,” its abrogation may have unforeseeable consequences in the future when a plaintiff’s cause of action is eliminated before it is discovered.

And that’s exactly what has happened.

In the Chandler case, it was 28 years after the crime that some of those responsible for the murder faced justice in a court of law. How could the Chandlers have sought civil relief any earlier? Against whom?

Justice Weaver descried it coming and lamented the High Court’s overturning of what had ben the common law until that point. You can read her dissenting opinion here. She was outvoted by what has come to be know as the Engler Court (for former Governor John Engler who appointed four of them to that bench).

In a case like this, Judge Neff may have decided that she has no choice but the follow the Trentadue decision and that it applies in this case. The appeal may bring the matter to other eyes and sensibilities, but it also might provide the grit for some traction to overturn what seems to us a betrayal of common sense by the Michigan Supreme Court in the Trentadue case.

Attorney Gaecke is willing to take the case further. He certainly has the grit and resolve and he says he believes he’s right, particularly that that the law of equitable estoppel should hold sway, even in the face of the Trentadue case, because of the underlying fraud on the part of Carl Paiva in concealing his crime and the crimes of others.

We’ll see, we’ll see, we’ll see. Yes, let Justice roll down like the waters….