Flagrant foul called on Democratic attack in Supreme Court race

MICHIGAN TRUTH SQUAD ANALYSIS: "Streak" and "Lily"

Who: Michigan Democratic Party

What: Web/TV ads

Truth Squad call: Flagrant Foul

Questionable statement: "After my daughter, Lily, was killed at the hands of a child abuser, I vowed to spend my life protecting children. I know how important it is to have judges who protect them too. For years, Michigan's Supreme Court has turned its back on victims of sexual assault and abuse."

The speaker in "Lily" is Michigan child abuse activist Lauren Furneaux. As heart-tugging as is her personal experience, it is hard to see a link in this case to Michigan Supreme Court rulings. Her daughter died in November 2010, a few hours after Furneaux handed her off to her daughter's father in their joint custody arrangement. A few hours later, Lily was dead, in the living room of her father's trailer. In February 2012, Renee King was convicted and later sentenced to life in prison in Macomb County Circuit Court for sexually assaulting and murdering her 2-year-old stepdaughter.

Furneaux filed civil suit in March against King and the toddler's father, Jeffrey Wolfenbarger. The allegation that Michigan's Supreme Court has "turned its back" on victims of sexual assault and abuse is not substantiated in the ad.

Contacted by Truth Squad, Democratic Party spokeswoman Kirstin Alvanitakis said Furneaux was referred to the party after she contacted its candidates for state Supreme Court, offering her support.

Alvanitakis said there was "no connection" between what happened to Furneaux's daughter and broader issues before the court. "It is a powerful ad. We are sensitive to that. The connection is that she has endorsed our slate of candidates and what we are standing for. An endorsement from a mother is an extremely impactful thing for people to see."

In a separate news release, the Democratic Party cited two cases. In People v. Brian Lee Hill, a Supreme Court majority  in 2010 overturned an Appeals Court conviction of a man who downloaded child sexually abusive material from the Internet and burned it to compact discs. Republican Stephen Markman joined Democratic Chief Justice Marilyn Kelly, Diane Hathaway and Michael Cavanaugh in the 4-3 decision. The majority held that the defendant could not be convicted of a 20-year felony for simple possession of the material. Republican justices Robert Young and Maura Corrigan and Republican Elizabeth Weaver dissented.

In Brown v. Brown, a Supreme Court majority ruled 4-3 in 2007 to overturn an Appeals Court finding that held a Detroit steel company liable for the rape of a security guard. The security guard maintained she had been subject to sexual harassment prior to the rape. Republican Chief Justice Clifford Taylor and Republican justices Young, Corrigan and Markman sided with the majority, arguing that that the defendant "could not reasonably have anticipated" that the harassment would culminate in rape. Democratic justices Cavanagh, Weaver and Kelly dissented.

Democratic Party Chairman Mark Brewer has claimed sexual victims "would be denied justice" by the current Supreme Court should a sexual abuse situation arise comparable to the Penn State University scandal involving football coach Jerry Sandusky. On Aug. 16, the Truth Squad called a foul on a different Democratic ad that tried to make the Penn State-Michigan Supreme Court linkage.

Interestingly, the court in 2012 ruled, by 4-3 Republican majority, to allow evidence of "prior bad acts" of the accused in sexual assault cases instead of a more stringent standard that weighed its prejudicial effect. The decision empowers prosecutors to introduce evidence of such prior bad acts, potentially shifting focus from the charged offense to to what happened in other situations.

Questionable statement: "For four years running, Supreme Court Justices Stephen Markman and Brian Zahra have sided with insurance companies over patients and providers in every opinion under the no-fault law ..."

The video "Streak" briefly flashes an image of several cases tied to Michigan's no-fault auto insurance law, which turn on court interpretation of the statute in assessing victim rights and insurance obligation under the law. The ad also points viewers to a website, michiganinsurancecourt.com. Markman and Zahra are technically nonpartisan on the ballot, but are backed by Republicans.

The website provides a list of 16 cases under the header "100 percent for insurers against patients and providers over the last four years."

However, the campaigns of Zahra, Markman and O'Brien offer up their own lists of cases involving no-fault insurers that they say show the court, in the last four years, ruling against insurers.

Michigan State University law professor Brian Kalt calls the 100 percent claim "overstated," even though he said Markman and Zahra generally side with insurance companies.

In Henry Ford Health System v. Esurance Ins. Co., Markman in January 2011 sided with Chief Justice Robert Young and justices Maura Corrigan and Mary Beth Kelly in declining to take a Michigan Court of Appeals Case that ordered damages paid by an insurance company.

In Jackimowicz v Citizens Insurance Company, the Supreme Court – including Markman and Zahra - declined without comment to hear a Court of Appeals case that rejected the insurer's claim denying benefits because of alleged fraud by the insured plaintiff. The Court of Appeals ordered Citizens Insurance to award benefits.

In Zigmond Chiropractic PC v Auto Club Insurance Association, the state Supreme Court including Markman and Zahra  declined to hear a case in which the lower court found that treatments including hot packs and mechanical traction therapy were not unlawful and therefore eligible for no-fault benefits.

In Doreen Copus v. Meemic Insurance Company, the state Supreme Court – including Markman and Zahra – declined to hear a case in which the Court of Appeals  rejected the insurer's claim to restrict work loss benefits under no-fault.

Questionable statement: "Now they want to bring former insurance lawyer Colleen O'Brien. She worked to deny benefits to a cancer patient."

O'Brien defended American Community Mutual Insurance in a lawsuit brought by the widower of a woman who died of lung cancer. Ethel Nesbitt went to a physician in October 1993, complaining of a cough and shortness of breath. The doctor ordered an X-ray, which four days later indicated an accumulation of fluid on the lung. Five days after the X-ray, Nesbitt applied for a six-month short-term insurance policy. She was subsequently diagnosed with cancer and in January 1994, died. The insurance company maintained the cancer was a pre-existing condition even though it was diagnosed after Nesbitt applied for the policy.

Questionable statement: "The Supreme Court candidates Connie Kelley, Shelia Johnson and Bridget McCormack are different. With zero tolerance for violence against children, these three protect families."

The claim that Kelly, Johnson and McCormack are "different" in regard to protection against child abuse is difficult to evaluate without evidence the court is indifferent to abuse victims. That is not offered. The assertion they have "zero tolerance" is one that's impossible to vet. What constitutes "zero tolerance?" The claim these three "protect families" is not backed by example and is too anodyne to evaluate.

Overall impression: "Streak" makes a comprehensive claim about Markman's and Zahra's rulings, but without an apparent comprehensive list of them. Whether or not these findings constitute sympathy for a special interest is a matter of opinion. "Lily" asserts the Supreme Court has "turned its back" on abuse victims without evidence. The assertion that Democratic candidates Kelley, Johnson and McCormack are "different" with regard to abuse victims is not substantiated.

Foul or no foul: Flagrant foul. Both ads make sweeping claims about the two justices' voting record which are not correct. The linkage between the Penn State child molestation scandal and Michigan is a bid for an emotional response, one that is not explained or substantiated. A party spokesperson gets points for honesty in admitting there's no connection between the Supreme Court justices and a highly charged case, yet the party throws it up anyway. Flagrant. Foul.

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