The Supreme Court's Injustice

Dayton City Paper | July 12, 2007
"To sin by silence when they should protest makes cowards of men."
-Abraham Lincoln

There is no more iconic image representing the spirit of the Olympic games than the Olympic flame being relayed across every continent. The runners, usually selected for their achievements, traverse the countryside passing through the smallest of towns to the largest cities on Earth. Even though the flame symbolizes the spirit of competitive unity for every participating country, when the torch passes through the United States, there is something thoroughly American about it. As we watch it course its way across the country on the news, we feel pride for the athletes that represent our nation's best. The relay torchbearers themselves exemplify the ideals of heroism and triumph, images that are as American as apple pie and Chevrolet.

However, as reported in this paper three years ago by M.R. Cook, what appears to the public as a wholesome representation of that American spirit, the truth lies in the shadows of corporate manipulation. We, as the public, rarely get a glimpse beyond what is portrayed by the media. Unbeknownst to the masses, there is a caravan that follows the torchbearers, replete with security, a medical team, extra torches and a multi-million dollar marketing campaign aimed directly at the American people.

The Olympic Torch Relay that led up to the 2002 Winter Games in Salt Lake City was a massive media blitz, created by Campbell-Ewald to represent Coca-Cola and Chevrolet at a cost of $15 million dollars. The Chevrolet Olympic Torch Relay/Olympic Winter Games Sponsorship Program, as it was called, was the largest integrated advertising campaign in General Motors history. Millions of viewers would watch the progress of the torchbearers as the ever present Coke and Chevy banners waved in the background. Ninety Chevy dealerships participated in the nationwide promotional tour, displaying the special Corvette Z06, which was the Torch Relay's official pace vehicle. Coca-Cola maintained a Web site to mark the progress of the torch across the United States. Everywhere you looked, the images of Coke and Chevy were there.

Mark Howick, a Miami Valley resident, knows firsthand how beguiling the corporate advertising dollar can be. Mark was a professional truck driver who had logged in more than 1.5 million miles on the road in his 22-year career, providing transportation for the entertainment industry and the NASCAR racing circuit. A representative from Campbell-Ewald called and asked Howick to join their team, supporting the Olympic Torch Relay. Problems soon arose when the convoy was almost constantly behind schedule and the driver's were ordered to "make the next city," thereby violating speed limits and hours-of-service regulations to comply. Logbooks, which represented the time a trucker was on the road, were reportedly either missing or bogus, which is in direct violation of Department of Transportation regulations. There was also suspected drug and alcohol use among the Olympic Torch drivers, but screenings were not obtained when accusations were made. Further, propane cylinders were transported without the proper placards being displayed and these cylinders were even borne through several tunnels against municipal, state, federal laws and even post 9/11 Homeland Security protocol.

When Howick voiced his concerns about safety to fellow employees and supervisors, he was told to just carry out his job requirements and just do what he was told. When he persisted with his complaints of workplace and public safety issues, Howick became a federal whistleblower. As an act of retaliation, he was promptly fired on January 13, 2002 by Jack Maxwell, the Operations Manager for "... not being a team player." This act, this predilection for following his safety training, for doing what he knew was right, led him down an even more shadowy path then he had already witnessed; the American Judicial System.

Howick filed a formal complaint with the U.S. Department of Transportation and the Occupational Safety and Health Administration (OSHA). The Federal Motor Carrier Safety Administration, which is the Department of Transportation's investigative/enforcement arm, conducted an investigation into the allegations and "certain instances of noncompliance as alleged were discovered." A hefty fine was assessed to Campbell-Ewald for their transgressions…a whopping $3,000. OSHA's investigation drug on for nine months. Even after submitting sworn affidavits from fellow truckers corroborating his allegations and an Ohio Bureau of Unemployment Services Examiner's Fact-finding report stating that "(the) employer has failed to provide documentation of insubordination. Employer has failed to establish just cause for the discharge," OSHA found that, "There just wasn’t sufficient documentation to ... officially support the case."

This set off legal proceedings that spanned six years, snaked through the Offices of the Administrative Law Judges, the Administrative Review Board, the U.S. Department of Labor (USDOL), the U.S. Sixth Circuit Court of Appeals and eventually terminated within the hallowed walls of the United States Supreme Court. Hundreds of briefs, letters, waivers, requests and petitions were tendered, reviewed, filed and tossed aside in the course of this case, while no real examination of the facts were ever completely performed and no conclusions reached insofar as a concrete verdict rendered. At the end of this arduous journey at the U.S. Supreme Court, Howick's case was summarily dismissed with no real explanation given within the terse, one page communique announcing the denial of his petition. This is no real surprise as the Supreme Court only hears one percent of all appeals that are submitted for their review.

Most of us are wholly unfamiliar with the way in which the modern judicial system truly operates at this level. Most of our legal "knowledge" comes from television, movies and the occasional John Grisham novel. The modern judicial system, which has been called by some "the most undemocratic of all the branches,” has evolved into something so beyond the reach of the American people as to be viewed as a self-serving entity. What we, as a people, would commonly think of as "justice" deals with an inherent view of "right and wrong" while the court's focus is much narrower. The court system seems to exist within a gray area, less and less interested into the claims of wrongdoing and more focused on specific points of judicial procedure. In the case of Mark Howick, the further it progressed through the system, the narrower the scope of its inquiry. Less and less were the courts interested in whether or not the transportation of explosive propane tanks through several tunnels was in flagrant disregard of public safety or if exhausted drivers posed a risk to other motorists was right or wrong. The courts were more interested in whether or not procedural law had been adhered to and that the policies of the court were followed to the letter.

Is this another example of a bureaucratic quagmire or is there a more injudicious motive just below the surface? When one reviews some of the more high profile whistleblower cases within recent memory, one finds that the courts seem to lean more to the side of big business than for the citizenry. If this sounds almost like a conspiracy theory, consider that Campbell-Ewald, the defendant in Howick's original complaint, is the very same advertising firm embroiled in yet another Bush administration scandal. In February of 2006, it was revealed that Campbell-Ewald produced an advertising campaign said by some to be a thinly veiled, re-election commercial that utilized taxpayer dollars. $194 million taxpayer dollars, to be exact.

In 2005, the Subcommittee on Oversight of Government Management, chaired by Sen. George Voinovich, convened to review the practices of the U.S. Office of Special Counsel. (OSC) who processes government whistleblower cases. Tom Devine, the longtime legal director of the Washington-based Government Accountability Project (GAP) reported to the committee that the Whistleblower Protection Act has "suffered from a series of crippling judicial rulings [that] have rendered the Act useless, producing a dismal record of failure for whistleblowers and making the law a black hole." Referring to the OSC, Devine went on to say that, "... we warn federal whistleblowers that they may be signing their own professional death warrant by seeking the (OSC's) help." Out of 1,200 cases set for review by the OSC at the beginning of 2004, only a few were selected for further investigation. Out of those cases that managed to warrant further examination, only eight were deemed to have merit. Throughout 2004, the OSC received 2,000 new complaints, dismissing 1,799 of them within the short span of 240 days. Cases were dismissed out of hand due to a rubber stamped designation of being a "low priority." There have been cases dismissed based on improper filing practices such as being submitted with the wrong color folder, the wrong typeface point size and even using the incorrect vernacular of the legal system.

"If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers."
- Abraham Lincoln

By design, the judiciary branch is not a responsive entity and is not accountable to the people's will. On the federal level, the judges are appointed to their positions with a lifelong tenure, and their salaries set and secured to insure their judicial impartiality. The intention is for the appointed judges to be insulated from political pressures so that they can adjudicate disputes without the fear of reprisals from a politically or financially powerful party that they may rule against in a civil or criminal conflict. This theory works fine on paper and in discussion, but many times falls short in reality. The inherent dilemma lies within the definitions of judicial restraint and judicial activism.

Judicial restraint, in its simplest terms, occurs when the judicial body adheres strictly to the law and to precedents. By contrast, judicial activism occurs when Justices interject their own personal views and political preferences into their interpretations of the law. The Supreme Court, as an example, shows itself to act within the defined actions of judicial activism throughout its existence, diving into some of the most politically crucial conflicts of our time. This casts the Court directly in the role as a policy making body and not the impartial institution it was intended to be.

The use of judicial activism may not seem to be threatening at first blush nor, in some cases, as with the civil rights acts, a necessary action. Even so, a judicial body promoting their own political and personal leanings to create policy without the balance of a democratic process can be quite dangerous indeed. It creates a poisoned system whereby cases are adjudicated with the goal of creating an impenetrable wall to protect special interests, namely the privileged business and capitalist enterprise. By setting precedent after precedent, the courts preemptively dissuade a person from even pursuing what is supposed to be a protected right; to hold persons, companies and even the government to the standards put forth by the very laws that they now hide behind. When Howick's case was dismissed by the USDOL, it set a precedent for every case similar to his to fail, to be dismissed with only a cursory glance. The only way to undo the damage is either through a monumental restructuring of the judicial system through legislation or for case after case to be tried and won, chipping away at the formidable façade that has been built.

"If justice goes astray, the people will stand about in helpless confusion"
- Confucius

In a recent item that appeared May 24 in The New York Times, the editorial board stated flatly that "Whistleblowers have been systematically denied, demeaned and demoted by political appointees flouting laws designed to protect workers with the courage to come forward." Why, under present conditions, would an employee come forward with allegations against his employer? It would appear that the playing field is not only slanted against the employee; it is riddled with landmines as well. The agencies that were intended to facilitate a whistleblower's complaint are now mere paperwork ossuaries where the truth goes to be buried. There is little help from the media as they are in the perilous position of having their advertising revenues decimated if they report on high profile clients who find themselves on the sharp end of an accusation. Even attorneys are becoming increasingly wary of such cases due to the longevity of the proceedings and the statistically low probability of a victory for their client. Why would an individual, acting on the behalf of his fellow citizens, come forward with allegations of corporate or governmental wrongdoing only to be subjected to personal attacks, loss of income, loss of reputation as well as the emotional and financial damage he or she will most certainly endure?

The emotional damage whistleblowers face can be devastating in of itself as well. All of us have found ourselves at some point contending with a faceless injustice with nowhere to turn, standing there in mute rage. Couple this with the struggle to maintain your case, raise money for your case, maintain your employment (or more than likely, find new employment) and keep a marriage, family or relationship intact. All of this with the feelings of alienation, paranoia, betrayal and anger that are sure to arise while your life is interred with the day to day dealings with lawyers, courts, clerks, depositions and the onus of proving your case. It is no wonder that many plaintiffs in these types of cases end up in some form of therapy, usually enduring a lifelong scar that never truly heals.

Where is the hope within this story? Without a radical restructuring of the judicial system or far reaching legislation to rein in the judiciary process, returning a modicum of integrity to the system, the potential for the individual to be overrun by those with political or corporate clout is a forgone conclusion. Is it impossible for change to occur, forced by a common voice of concerned citizens? Margaret Mead once said, "A small group of thoughtful people could change the world. Indeed, it's the only thing that ever has." I do truly hope, for the sake of us all, but especially for my children, that someday there will be justice for those who believe.

Dayton City Paper

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