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Lawrence Glazer
Lawrence M. Glazer

Scholars Explore Michigan Supreme Court Upheaval

February 20, 2011

The Michigan Supreme Court has attracted increasing scrutiny from the press and public in recent years. Much of this attention has been provoked by the huge campaign expenditures for election to the court; by the increasing bitterness between former Justice Elizabeth Weaver and her fellow Republican-nominated colleagues; and by a growing perception of partisan or ideological division between blocs of justices (for examples, see recent Dome columns by Jack Lessenberry “Crusading for Court Reform” and “Evidence Mounts for Judicial Reform” and “Shaking Up Michigan Courts”).

Even William Whitbeck, current judge and former chief judge of the Michigan Court of Appeals (whose affiliation was Republican before joining that court), expressed his dismay recently, saying, “It is little wonder that the court has, of late, consisted of two separate camps that correspond, not coincidentally, with the political affiliations of the justices. And it is no wonder at all, given their political importance, that the political parties and their often anonymously funded outriders spend millions upon Supreme Court elections.”

All of these controversies have come to the attention of the public. What has been less noticed is evidence relating to the substance of the Supreme Court’s recent work

A University of Chicago Law School study in May 2008 reviewed each state’s highest court’s actions from 1998 through 2000 (which includes the first two years of Michigan’s conservative majority), and graded each one on three measures:

  • Productivity, defined as the number of opinions issued per judge per year;
  • Influence on other states’ courts, defined as the number of opinions by other states’ highest courts in which an opinion of the subject court was cited (e.g., how many times an opinion of the Michigan Supreme Court was cited with approval in an opinion issued by another state’s highest court); and
  • Independence from partisan preferences in deciding cases, defined as the number of opposing opinions written, by the judge of interest, against a judge of the opposite party, divided by the number of opposing opinions written against a judge of either party.

The results:

  • In productivity, the Michigan Supreme Court ranked near the bottom: 40th of 44 courts for which data were available.
  • In influence the Michigan Supreme Court again ranked low, 42nd out of 52 courts studied (two states have separate supreme courts for criminal and civil appeals, thus the total is higher than 50).
  • Most significantly, in independence the Michigan Supreme Court was ranked 52nd of 52 courts — dead last.

The authors’ methods of measuring productivity, influence and independence are, of course, subject to dispute. What is indisputable, though, is that the Michigan Supreme Court’s conservative majority for most of the past 12 years has drastically changed the court’s approach to following the rules established by previous decisions, or precedents (formally known in law as stare decisis, usually translated as “let the decision stand”).

No matter how well drafted a legislative statute is, questions which the legislature never anticipated will arise over time. For example, if one statute provides that you must bring a lawsuit within three years of the event in a case of wrongful death, and another statute provides that you must bring a lawsuit within five years of the event in a case of medical malpractice, which statute applies to a case of wrongful death caused by medical malpractice? Such questions can only be answered by the courts.

Over the years, the courts’ answers to such questions become the accepted “body of law,” which institutions and individuals rely upon in making investments and planning their affairs so as to avoid potential legal liabilities. Such reliance is based on the assumption that the extant body of law, though it may be extended or limited from time to time, will essentially continue to govern our affairs.

A dramatic example of changing established law was the Court’s decision in the 2000 case of Nawrocki v. Macomb County Road Commission. For many years it had been settled law in Michigan that state and local governments’ duty to maintain public roads reasonably safe for travel included the duty to keep signage in reasonably good condition, for obvious reasons. In other words, if a stop sign fell down and the local government had notice of it and failed to fix it, that government was liable for an injury to a motorist caused by the lack of the stop sign.

As a result, all local governments made sure to keep stop signs in good repair and visible, and motorists naturally came to rely on this. In the Nawrocki decision, the conservative majority overturned that interpretation of the governmental immunity statute, ruling that because the statute did not expressly mention signage as an exception to governmental immunity, the legislature must have intended to exclude such cases.

The U.S. Supreme Court and virtually all state appellate courts follow the stare decisis principle. Even when they believe that a prior case was wrongly decided, they will not overrule it unless “related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or…facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification” (so said the U.S. high court in its decision in Planned Parenthood of S.E. Pennsylvania v. Casey).

But when the conservative Republicans gained a majority in 1999, they changed the meaning of stare decisis in Michigan. Since then they have overruled the court’s previous decisions whenever they have determined that the previous case was “wrongly decided.” You might think that correcting the previous decisions would involve merely technical issues, and indeed that is what the conservative majority said it was doing in most of the cases. But according to legal scholars, every single one of these “corrections” changed existing law in the same direction: erecting barriers to enforcing individual rights against businesses and governments.

The Michigan Court majority’s attitude toward precedent has caught the attention of scholars, and has been analyzed in two articles, “Stare Decisis v. The ‘New Authority’: The Michigan Supreme Court’s Practice Of Overruling Precedent, 1998-2002,” in the Albany Law Review in March 2003; and “The Michigan Supreme Court, Stare Decisis, And Overruling The Overrulings,” by Wayne State University Professor Robert A. Sedler (Wayne State University Law School Legal Studies Research Paper Series No. 09-28, December 8, 2009).

Sedler examined the Michigan Supreme Court’s decisions from 1999 (when a conservative Republican majority was first seated) to 2008. He found that during that period the court had overruled 38 of its prior decisions, in contrast to the previous 10-year period 1989–1998, in which the court had overruled only eight prior decisions.

Moreover, Sedler found that in every overruling decision involving a civil case, the new ruling favored defendants over plaintiffs, and in every criminal case the new ruling favored the prosecutor. He concluded that “a majority of the justices…have used their power…in order to make significant changes in Michigan’s tort law in favor of defendants over plaintiffs…in workers compensation law in favor of employers over workers, and significant changes in criminal law in favor of prosecutors over defendants.”

Prof. Sedler is a former general counsel to the ACLU of Kentucky, and this will no doubt cause some to charge him with bias. However, New York attorney Sarah K. Delaney reviewed the Michigan court’s decisions from 1998–2002 and reached virtually the same conclusions as Sedler.

Reviewing a smaller set of decisions than Sedler, and making a justice-by-justice analysis, Delaney concluded that the conservative majority “has determined what decision they desire to reach, and when a previous opinion bars them from so holding, they rely on the argument that the previous court interpreted a statute incorrectly.”

None of these scholarly critiques is the final word, but together they do add weight to the argument that it is time for reform in our Supreme Court.

Lawrence M. Glazer is the author of Wounded Warrior, a recently published biography of former governor and Supreme Court justice John Swainson. He is also a retired Ingham County Circuit Court Judge and former legal advisor to Gov. James J. Blanchard.

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