Truth Squad calls foul on pandering Supreme Court ad

How we make the call

Flagrant foul

A false statement about a candidate’s position or a fact involving policy. It’s one thing to point out differences between records. It’s another for a candidate or third-party group to present false information or inaccurately portray a candidate’s political record.

Regular foul

A statement that distorts a candidate’s record or a fact involving policy, or which omits a fact that is essential to understanding a candidate’s position.

Warning

A statement that may be generally truthful, but lacks context and could easily mislead or be misconstrued.

No foul

A statement, however strident, that is based on accurate facts.

Who: Michigan Chamber of Commerce
What: Radio ad for Michigan Supreme Court candidates Brian Zahra and David Viviano
The call: Regular Foul

Listen to the ad here

Relevant text of the ad:

“Judges can't stop sexual predators before they strike. But they can make sure those that get caught pay a heavy price. That's why Supreme Court Justices Brian Zahra and David Viviano have upheld convictions for sexually abusive criminals. And Viviano and Zahra have made it illegal for sexual predators to use computers to help them commit sexual abuse. Justices Brian Zahra and David Viviano have consistently prioritized the rights of crime victims by upholding tough sentences for violent offenders and sexual abusers. Viviano and Zahra use common sense on Michigan's Supreme Court. They are rule-of-law judges that apply the law to the facts. They are not influenced by special interests. Supreme Court Justices Brian Zahra and David Viviano use common sense and protect our children and families.”

Eight candidates are competing for three open seats on the Michigan Supreme Court. Incumbent Justice David Viviano, named to the court by GOP Gov. Rick Snyder in February 2013, is running for a term that expires in 2016 against Wayne County Circuit Court Judge Deborah Thomas, nominated by the Democratic Party and Libertarian candidate Kerry Morgan. Brian Zahra, named to the court in 2011 by Snyder and elected in 2012 to complete the remainder of the term, is seeking one of two seats for a full eight-year term. He was nominated by the Republican Party, as was Kent County Circuit Court Judge James Robert Redford. The Democratic Party nominated Michigan Court of Appeals Chief Judge William Murphy and prominent Detroit area attorney Richard Bernstein. Livingston County lawyer Doug Dern, nominated by the Natural Law Party, is also running. Viviano, Zahra and Bernstein are considered the favorites.

The ad wars are just beginning in what promises to be an expensive close to the campaign: Candidates had already raised more than $2 million as of Sept. 12. By late September, nearly $700,000 in TV ads had been booked for October.

In what tends to be a familiar campaign theme in judicial races at all levels, this one-minute ad makes the case that Viviano and Zahra are tough on crime – especially sexual predators.

“Judges can't stop sexual predators before they strike. But they can make sure those that get caught pay a heavy price. That's why Supreme Court Justices Brian Zahra and David Viviano have upheld convictions for sexually abusive criminals.”

In April 2014, the state Supreme Court decided to not hear an appeal from a former Muskegon County resident convicted in 2011 of two counts of first-degree sexual conduct and three counts of second-degree sexual conduct with a victim younger than 13.

“And Viviano and Zahra have made it illegal for sexual predators to use computers to help them commit sexual abuse.”

In 2011, Zahra joined a state Supreme Court majority in upholding the conviction of a 51-year-old man convicted of using a computer to encourage a minor to commit an immoral act. In doing so, it reversed a state Court of Appeals decision vacating his conviction because of faulty jury instructions. According to the case background, the man engaged in sexually explicit Internet chat room conversation with a person he believed to be a 15-year-old girl. She was in fact an undercover police officer.

In 2009, then-Macomb County Circuit Judge Viviano sentenced a former Romeo Middle School teacher, Patrick O'Connor, to one to 15 years in prison for having sexual contact with a 12-year-old girl in the school. According to a report read in court by Viviano, O'Connor kissed, hugged and groped the girl in his classroom and other areas in the school over several weeks. He also sent messages via computer that implied potential future sex.

In 2010, Circuit Judge Viviano sentenced Craig Hamilton Gonser, 42, to 10 to 25 years in prison following Gonser’s 2009 conviction on charges of indecent exposure and attempted gross indecency. He was convicted of exposing himself to his young daughter while looking at Internet pornography. Viviano exceeded normal sentencing guidelines after Gonser pleaded no contest to being a sexually delinquent person. Prosecutors said DNA evidence linked Gonser to a 1994 Clinton Township rape.

At sentencing, Viviano said to Gonser: “I also believe you need to be punished for some of the mistakes that you have made and some of the terrible things that you have done and the impact they have had on people’s lives.”

The ad is incorrect in claiming Zahra and Viviano “made it illegal” to use a computer to commit a sexual crime. That is a matter of statute, not judicial decision.

“They are rule-of-law judges that apply the law to the facts.”

“Rule of law” is used by judges who assert that their role is to interpret the law as written and not as they feel it should be. (A judge who, say, “made it illegal” to use a computer to commit a sexual crime would not be a rule-of-law judge) The term is often used interchangeably with other generic, tough-judge phrases such as “no nonsense” and “law-and-order.”

In an interview with the Macomb Daily, Viviano said: “Our role as judges is to interpret the laws, not to make them. We are to fairly apply the words of the statutes or the Michigan Constitution, and leave policy making to other branches.”

Likewise, on his campaign site, Zahra states: “A rule of law judge believes that...interpreting the law must be more principled than what an individual judge feels is a good outcome. A rule of law judge believes that a judge's proper role is to determine what the law is, not what an all powerful judiciary believes the law ought to be.”

Truth Squad is confused. How can Zahra and Viviano claim to impartially follow the law as written, while simultaneously promising to give priority to crime victims in sexual assault cases? That sounds like judges who are more interested in upholding convictions than ensuring fairness in the justice system. Isn’t a prime duty of appellate judges to make sure the government follows the rules before sending someone off to prison?

“They are not influenced by special interests.”

Without looking inside the heart and mind of a judge, that's a tough assertion to evaluate. And debate never ends over whether campaign donations to politicians or judges corrupt the integrity of our judicial and political systems. We do know that Viviano and Zahra have taken sizeable donations from people with powerful business ties.

According to the Michigan Campaign Finance Network, as of Aug. 7, Viviano had donations of $61,200 from the Amway-connected DeVos family of West Michigan, $20,400 from the family of billionaire Ambassador Bridge owner Manuel Moroun, $20,475 from the Michigan Chamber of Commerce, $58,850 from Birmingham law firm Conway MacKenzie, $19,820 from Detroit law firm Dickinson Wright and $6,800 from shopping mall magnate Robert Taubman. Zahra had identical donations from the DeVos and Moroun families, Taubman, Conway Mackenzie and the Michigan Chamber. Dickinson Wright contributed $22,286.

A 2013 study of 2,345 state supreme court cases involving business across 50 states found a connection between donations and judicial opinions. According to the analysis, judges who accepted 1 percent of contributions from the business sector ruled in favor of business 46 percent of the time. Those who accepted a fourth of their contributions from business ruled in favor of business 62 percent of the time.

It’s also worth noting that this ad is sponsored by the Michigan Chamber of Commerce.

The call: Regular Foul

The ad correctly notes that Viviano and Zahra have come down hard on those who commit sexual assault or violent crimes, at least in cases cited by their campaigns. As is common in judicial races, this ad gives a pinched portrait of a justice’s role in criminal appeals. The job of a Supreme Court justice is not to throw the book at every defendant whose conviction comes before them. A justice’s role, rather, is to ensure that prosecutors followed the law in securing that conviction, a notion that has become less theoretical in an era in which hundreds of sexual assault convictions have been reversed because of flaws in scientific evidence or some form of prosecutorial misconduct. But nuance makes for a squishy campaign ad.

This ad also gilds the lily by asserting that Zahra and Viviano “made it illegal” to use a computer to commit an illegal sexual act. They did not.

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Comments

Tom Shields
Wed, 10/08/2014 - 10:09am
The Truth Squad is indeed confused. Justice Zahra and Justice Viviano have not made any claims in this ad. This is not their ad. It is an issue ad produced and paid for by the Michigan Chamber. The justices were not involvement in determining the content. The article correctly states that Zahra are and Viviano are rule of law judges who believe their role is to interpret the law, not to make them. Their record is open for all to see and can judge for themselves. The Police Officers of Michigan, Faternal Order of Police and more than 100 prosecutors and sheriffs took a look at their record and endorsed them in this year's election.
Eugene D. Mossner
Wed, 10/08/2014 - 1:04pm
Have either Justice Zahra or Viviano repudiated this ad, cleverly crafted by the Michigan Chamber of Commerce? If not, they have endorsed its content -- and it is totally misleading. The job of a Court of Appeals judge,or a Supre Court Justice, as they should know, is simply to determine if there was any error committed in the lower court proceedings -- not to uphold lengthy sentences whenever they are handed out. And if the millions of dollars they are spending on their campaign are not coming from "special interests," please tell me where are they coming from? Not from Mr. and Mrs. average American. Vote for Bill Murphy, Chief Judge of the Michigan Court of Appeals whose integrity and honesty are unquestionable. And if you've got a few bucks, send it his way. He's only got $37,00 in his campaign chest.
David Richards
Wed, 10/08/2014 - 1:13pm
The article clearly identifies in multiple locations that the source of the ad is the Michigan Chamber of Commerce, rather than the candidates themselves or their campaign committees. That being the case, I don't know what Mr. Shields' complaint is.
Gary
Thu, 10/09/2014 - 7:08am
Did you bother to read the piece, Tom? It clearly shows that the ad was paid for by the MICHIGAN CHAMBER OF COMMERCE. The word count shows Chamber of Commerce is mentioned SEVEN TIMES.
Mike R
Wed, 10/08/2014 - 10:21am
My highest praise to Bridge for its excellent analysis of the ads, law, and judicial ethics. I'm a lawyer, and I rarely see such thoughtful, intelligent, and "plain English" writing when it comes to articles about lawyer, judges, and political advertising. While I am sympathetic to the difficulties faced by judges when it comes to advocating for their own candidacy while maintaining the appearance and fact of impartiality, I was saddened when I saw such obvious pandering to the emotional response of an ignorant electorate. I respect Justices Zahra and Viviano (I have no knowledge of Judge Redford), and I can only hope that in this instance they let their party's campaign machine trump their better judgment.
L. Reynolds
Wed, 10/08/2014 - 10:26am
I am disappointed that candidates for the highest state court would resort to such demogogory and chicanery . I thought all ethical judges are obligated to uphold the law and the Constitution , especially to protect those who are not rich and powerful. I hold the TV stations that air these ads and allow political campaigns to run up their prices for air time in more disdain for abdicating their civic responsibility to inform the voters. I am grateful to The Bridge, PBS ,and NPR for promoting intelligent discourse and will continue to support them.
Jim Nothoff
Sat, 10/11/2014 - 8:59am
Thanks for your support of The Bridge, PBS, and NPR! I too am proud to share these as groups I too support. But in regard to your comments on demagoguery, and chicanery at this level of the judicial races, I refer you back to the tactics used by Mark Brewer in the 2008 campaign against then Supreme Court Chief Justice Clifford Taylor. The out and out lies and deceit of posing an actor as Chief Justice Clifford Taylor asleep on the bench reached an all time low in politics from my personal point of view. These ads were not issue ads from third parties, but very blunt direct ads designed to portray a talented professional person as not being able to be engaged in his job, and sleeping while hearing cases before the Michigan Supreme Court. Mark Brewer was then the Chair or head of the Michigan Democrat Party. Tricks, chicanery, deceit, character assignation, lies? These are nothing new to the politics of getting elected, and I thank Bridge for pointing out some options of interpretation of some comments made by the Chamber and some of the ads being aired by third parties. But please do not think issue ads and out and out lies are similar in any way! You be the judge!
Robert
Wed, 10/08/2014 - 10:53am
I agree with Mike R. and am also a lawyer. The problem here of course is the "system". The State assembled a blue ribbon, bipartisan group to evaluate how we elect and appoint judges. It came up with some excellent suggestions for modifications. All have been ignored including by Governor Snyder in his recent appointments. What is more puzzling are Justices Zahra and Vivano's decision to accept donations from Mr. Moroun. Mr. Moroun has shown time and time again that he has no interest in mind other than his own and is very adept at playing power politics. Not sure I'd want him as one of my contributors.
Frank Lawrence, Jr.
Wed, 10/08/2014 - 1:40pm
How can Brian Zahra honestly say that he protects children and that he's tough on crime, when he has used the statute of limitations to shield the Catholic Church from claims involving horrific, pedophile acts? See Antos v Diocese of Lansing, 2005 Mich. App. LEXIS 2830 and Doe v Diocese of Lansing, 2005 Mich. App. LEXIS 2826.
Barry B
Wed, 10/08/2014 - 2:50pm
I am also an attorney and love hearing Supreme Court ads about how tough Justices are on crime. How many criminal cases does the Supreme Court actually hear? Also they never do the sentencing. The part about making the use of computers illegal for sex offenders is the most amusing. As the Bridge article points out, Justice do not pass laws, they interpret laws. Sadly, most voters have no idea what the Supreme Court does and so advertising that these Justices protect your family is good salesmanship. Tom's comment that the two Justices did not make the ad, the ad was made by the Michigan Chamber of Commerce, is also misleading. The Justices are the ones at the end of the ad smiling and wearing their robes, not the Chamber. To say they had no input in determining the content is hard to believe, considering the requirements that they adhere to judicial ethics. Further calling this an issues ad begs the question, why is an organization that promotes businesses concerned with sexual predators and families? The simple answer is because voters are more interested in families than businesses. I seriously doubt you will find any Judicial candidate that is pro criminal and anti family.
Debi
Wed, 10/08/2014 - 7:04pm
Thank you ! Good call. I heard their ad too. Sexual predators r not allowed to prowl the net. I believe that's a federal law. NOT these judge's.
Jay Johnson
Sat, 10/11/2014 - 9:43am
Perhaps Michigan would be better off if we all voted for the candidates that were not endorsed by the Chamber of Commerce.
AP
Tue, 10/28/2014 - 11:06pm
The best part is that there isn't even a reference to Richard's judicial or legal history because he does not have a track record as a litigator, judge, or influential character in the statutes or laws that make up this state. I also love that his ads say that the corporations and insurance companies have the lawyers why don't you have your judge. That's clearly no appearance of impropriety.it would be more respectable if we just had Sam Bernstein on the ads saying please vote.for my son I've already paid this much.