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New Era or Will High Court Retain Its ‘Radical’ Ways?

by Ron Bretz
February 16, 2009

Something very rare in Michigan politics occurred last fall: the sitting chief justice of the Michigan Supreme Court was defeated in his bid for reelection. More surprisingly, former Chief Justice Cliff Taylor, armed with one of the largest campaign funds in any judicial election, was beaten by a relatively unknown trial judge from Detroit, Diane Hathaway.

Post-election, the media reflected on how this upset occurred, proffering a number of reasons: Democrats and labor were unhappy with Taylor’s decisions and targeted him; the election of President Barack Obama brought many more Democratic voters to the polls; and the devastating portrayal of Chief Justice Taylor as “the sleeping judge” in a statewide television commercial.

Another factor that is not capable of measurement was the frustration that many lawyers and judges had with the opinions authored by Taylor or one of his similar-thinking colleagues on the court: Associate Justices Corrigan, Markman, and Young. These four, sometimes referred to as the “Gang of Four” in the press, comprised a majority of the seven-member court. Since cases are decided by a majority vote of the entire court, these four effectively controlled the outcome of most of the cases heard by the court since their arrival in 2000. And those decisions have been monumental, changing the face of Michigan law in a way this state has never seen. Indeed, some would say (and I agree) that the Taylor court engaged in a radical effort to do just that.

Lawyers and judges are not always fond of change, particularly in the law. We are by nature conservative beasts; we like to think we know the law and can give our opinions to clients or litigants with confidence. So when the Supreme Court continually reads big changes into the laws we have relied on, we begin to lose some of that confidence. The stability of the law is replaced with uncertainty over what the law might be tomorrow.

The importance of respecting precedent is reflected in the Latin term stare decisis, meaning “to stand by the thing decided.” The idea is that courts should follow the prior decision or precedent unless it is unsound or inconsistent with basic principles of justice. All appellate courts have on occasion abandoned stare decisis and overruled existing precedent. However, it should be done sparingly so as to avoid inconsistency and unpredictability in the law. As legendary U.S. Supreme Court Justice Louis Brandeis once wrote, “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”

How much change has there been under the rule of Taylor and his colleagues? In an attempt to quantify that change, I reviewed all the criminal decisions of the last few years while my colleague at Cooley Law School, Professor Joe Kimble, with the assistance of law student Dana Evans, looked at all the civil cases. Our goal was to determine how many years of its own precedent this court overruled. Such a figure is significant because every time the Michigan Supreme Court overrules one of its own cases, it effectively changes the law.

The results are astonishing: from 2000 to 2008, the Michigan Supreme Court overruled a combined 758 years of precedent in 24 criminal decisions and 697 years in 33 civil decisions. By contrast, the U.S. Supreme Court, in a 46-year period (1946–1992) covering a volatile period in U.S. law (remember the Warren Court?), overruled its own precedent in roughly 130 cases. Averaged out, the Michigan Supreme Court overruled over seven cases per year while the U.S. Supreme Court overruled less than three cases per year.

While it is certainly within the power of the Michigan Supreme Court to overrule its prior decisions, it is a power that should be used sparingly. In the last eight years, however, the court has wielded this power freely. Defenders of the court’s practice would have us believe that the majority has simply been fixing the abuses wrought by earlier courts. Critics argue that the Gang of Four embarked on a campaign to change Michigan law to suit the justices’ political views. There is support for both views, but the preponderance of the evidence seems to support the critics.

For example, in a 2006 drunk driving case, the court overturned a 1963 decision in which the court unanimously provided a remedy for violation of the suspect’s statutory right to an independent blood test. Since 1960 the Michigan drunk driving statute has provided that someone arrested for operating a motor vehicle under the influence has the right to an independent blood test conducted by or under the supervision of a licensed physician of the suspect’s choice. The only limitation is that the facility chosen must be reasonably available. However, the statute providing for this right does not also provide a remedy for violation of the right.

Accordingly, the 1963 court in the case of People v. Koval decided that a conviction following a violation of this statutory right was improper. Since that decision, the Michigan courts have agreed that if the police violate a suspect’s right to an independent blood test, the charge must be dismissed. This rule stood for 43 years. Then Mark Anstey of Watervliet was arrested for drunk driving and demanded that the police take him to Watervliet Community Hospital for an independent blood test. The police refused and the prosecutor admitted throughout the proceedings that the police had violated Mr. Anstey’s statutory right. As a result, the trial court dismissed the charges and the Court of Appeals upheld that dismissal.

The Michigan Supreme Court, in an opinion by Justice Corrigan and joined by all but Justices Kelly and Cavanagh, reinstated the charge against Mr. Anstey. The court overruled Koval and the legion of cases following Koval. According to the court majority, the remedy created by the Koval decision is not contained in the text of the statute. Since the legislature did not explicitly authorize dismissal of the charges (or any remedy for that matter), the court did not have the right to create such a remedy. The majority went on to say that if the police violated a defendant’s statutory right, the trial court could instruct the jury regarding the statutory violation. The court stressed that such an instruction was not required and was not a “remedy” for a violation of the statute.

Justice Cavanagh, joined by the new chief justice, dissented. If the dissenters’ attitude toward the majority’s philosophy was not previously clear, Justice Cavanagh’s dissent in this case made it clear. He accused the majority of eroding the statutory and constitutional rights of criminal defendants and of using a “magic wand of an opinion” to make rights disappear:

“Today’s edict puts Michigan citizens on notice that when the Legislature grants an explicit right — indeed, one with a constitutional dimension — but sees fit to leave the remedy for violating that right to a court’s discretion, the right is really no right at all. The ‘consolation’ the majority provides is the ability to tell the jury that the right was violated. So drivers be warned: Although our Legislature decided that you have an indelible right to a reasonably requested independent chemical test, this Court finds that if you attempt to exercise that right, the decision whether you are permitted to do so rests solely in the hands of your jailer. If that person decides, for good reason, bad reason, or no reason at all, to deprive you of that right, so be it. Thanks to the majority’s continued plod through the volumes of our law, there are no meaningful consequences to that decision, so we have now amassed another right not worth the paper the Legislature printed it on.”

Certainly there are civil cases that reflect an equal or even greater disregard for established law. But, as I noted earlier, my specialty is criminal law. In the 24 criminal cases that overturned existing precedent, all were decided in favor of the prosecution and only two had the support of the full court. The new chief justice, Marilyn Kelly, dissented in 22 of these cases along with her fellow Democrat, Michael Cavanagh. Justice Kelly’s remarks in a 2008 case demonstrate her philosophy:

“I am concerned that the majority’s approach to the doctrine of stare decisis tends to turn it on its ear. The majority correctly observes that stare decisis should not be mechanically applied to prevent the overruling of previous case law. Then it errs by moving in the opposite direction. In contravention of the purpose of the doctrine, it mechanically applies stare decisis to permit the overruling of every case it believes was incorrectly decided.”

Now that Marilyn Kelly is chief justice and Diane Hathaway has been installed as an associate justice, two huge questions remain. Will the court discontinue its activist path of rewriting the law? Will the court undo any of the legal changes of the last eight years?

Of course, the answer to these questions is yet to be written, but it seems that it cannot do both. If the court attempts any massive repositioning of the law, it too will be accused of judicial activism. If the court decides to respect stare decisis, it will leave in place a great deal of legal precedent that at least the court’s two long-time Democrats are not happy with.

But it is important to look at Chief Justice Kelly’s statement above. Neither she nor any judge believes that stare decisis should be “mechanically applied” to prevent the overruling of any previous case. Instead, I think we can count on the chief justice and at least her two fellow Democrats to consider every case very carefully and seek to overturn those precedents from the Taylor court that are inconsistent with basic notions of justice.

It is important to note that the Supreme Court still consists of a four-Republican majority. Justices Corrigan, Markman and Young are joined by fellow Republican Justice Betty Weaver. Although Weaver has had her well-publicized differences with the Gang of Four, she is fairly conservative and agreed with the majority in overturning most of the precedents referred to above.

If any of the damage wrought by the Taylor court is to be reversed, the three Democrats need Justice Weaver’s vote. It is an encouraging sign that she joined them in electing Marilyn Kelly as chief justice.

Ron Bretz is a professor of law at Cooley Law School in Lansing.

6 Comments

6 responses so far ↓

  • 1 Cigar Dave // Feb 19, 2009 at 2:00 pm

    Maybe Michigan can rejoin civilized mainstream jurisprudence. Time will tell but it has to get better.

  • 2 lesluc // Feb 20, 2009 at 7:11 am

    Way to go Bretz!

  • 3 Dave Lambert // Feb 23, 2009 at 10:42 am

    Stare decisis is not mandated by the Constitution and it can lead to unconstitutional results.

  • 4 expoliticalhack // Mar 2, 2009 at 2:03 pm

    Now I’m no lawyer but Michigan has only been a state since 1837 (about 172 years) so 1,455 years of legal precedent is pushing it. But given the article was written by someone who has contributed to the Democrats nominees to the Supreme Court in the past we shouldn’t be surprised by the blatant bias.

  • 5 john scott // Mar 2, 2009 at 5:27 pm

    Michigan courts and lawyers will be reeling for years from the damage done to fundamental justice by the Taylor-led Gang of Four. Perhaps the court can now select cases to decide that will effectively grant us a do-over of the last few years. Meantime, let’s find a better way of getting judges than by elections funded by entities with an interest in the outcome of cases before the courts.

  • 6 Libertarian Lost // Jun 16, 2009 at 5:55 pm

    My guess is liberal leaning pundits who rail against conservative judges, will at the same time applaud and rejoice at liberal activism on the US Supreme Court if BO gets his way and has more picks. General Rule – whoever is in charge makes the rules. That is why life, law and politics tend to be cyclical.

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