Energetic disputation on the Michigan Supreme Court

Two opinions issued by the Supreme Court on July 31 show that the sheaths of civility are starting to wear thin among the Justices.

Mack v City of Detroit was a claim for discrimination based on sex and sexual orientation, brought by a Detroit police officer.  The central holding was that the claim was barred by governmental immunity, and that the defendant's failure to plead governmental immunity as an affirmative defense did not bar the defense.  Overruling a previous case which held otherwise, the Court held that "Governmental immunity is a characteristic of government and thus a plaintiff must plead her case in avoidance of immunity." 

Sington v Chrylser Corporation was a workers' compensation case in which a worker had sustained on on-the-job injury, worked at a different job with physical restrictions for a couple of years, and then sustained a non-work-related stroke.  The issue concerned a statutory provision that the entitlement to benefits would be revived if the different work constituted "favored work" under the workers' compensation statute.  The Court held that it did not. 

Since the controversies here are presented as judicial volleys back and forth, we will provide quotes from the opinions and the dissents in a somewhat logical but out-of-order fashion.

In Mack, Justice Robert P. Young, Jr. wrote for the majority.  After analyzing the case of McCummings v Hurley Medical Center, 433 Mich 404; 446 NW2d 114 (1989), and determining that "the law regarding the nature of governmental immunity has been misguided for some time", he concluded:

"We conclude that McCummings was wrongly decided and, returning to our prior precedent, overrule McCummings’ conclusion that governmental immunity is an affirmative defense."

What makes the Mack case unusual is that the governmental immunity issue had not been raised by the City, and the issue had not been briefed by either party.  Indeed, the City had "abandoned" its position that govnernmental immunity applied.  The Court rejected this attempted abandonment, noting that "a city cannot waive governmental immunity". 

Justice Michael Cavanagh, one of the "liberal" members of the Court, dissented and sharply criticized the decision to address an issue that no one had raised and which had not been briefed by the parties:

"I respectfully disagree with the majority’s conclusion. . .

"In reaching its holding, the majority disregards the foundational principles of our adversarial system of adjudication. As protectors of justice, we refrain from deciding issues without giving each party a full and fair opportunity to be heard. But not for this concern, the judicially created doctrine of standing would be discarded, as it ensures 'concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination . . . .' Baker v Carr, 369 US 186, 204; 82 S Ct 691; 7 L Ed 2d 663 (1962) (Brennan, J.). However, the majority has disregarded such considerations, misconstruing the proper scope of its authority, by making dispositive an issue never argued or briefed by the parties. Neither of the parties has had the benefit of sharing with this Court their thoughts on the effect of the tort immunity act on this case, though the implications of the majority’s holding are vast. Never before have I witnessed such overreaching conduct from members of this Court."

Later, addressing the merits of the issue, he stated:

"The majority has opportunistically seized on the circumstances presented in this case to overrule decades of sound precedent and unsettle an area of law that had finally achieved some stability. In proclaiming that plaintiff must plead in avoidance of immunity, the majority ignores not only the value of precedent, but also the sound principles on which McCummings v Hurley Medical Ctr, 433 Mich 404; 446 NW2d 114 (1989), was based. . .

"Having identified a flaw in the majority’s deceptively useful rationale (i.e., because the Court has declared immunity a 'characteristic' in the past, it is not an affirmative defense), we must now turn to its substantive conclusions. . .

"Shockingly, without the issue being contemplated, let alone raised by the parties, the majority concludes that plaintiff’s claim should have been dismissed for its failure to plead in avoidance of government immunity. Slip op at 2, 21-22, 26. However, our precedent and court rules had expressly placed this burden on the government. I object to the majority’s application of its holding, which placed the burden of prescience on plaintiff."

And he attempted to forestall too much reliance on some of the majority's holdings:

"In sum, the fact remains that governmental immunity is a defense to liability. Although the majority erroneously declares that plaintiff must plead in avoidance of the doctrine, the government continues to bear the onus of proof. If a trial court finds the parties have equally carried the burden of production concerning the applicability of the doctrine, the court must find for the plaintiff. Any indication to the contrary in the majority’s opinion may only be referenced as dicta, as the issue this case presents is limited to the sufficiency of the pleadings."

Lastly, his separate section on the propriety of unilateral action bear quoting in full:

"IV. PRINCIPLES OF THE ADVERSARY SYSTEM

"The majority’s disingenuous response to the dissenting opinions requires clarification. The majority claims that any briefing on the propriety of the rule in McCummings would be a waste of time because 'additional briefing would not assist this Court in addressing this question of law.' Slip op at 22. This comment flies in the face of the foundations of our adversarial system, in which the parties frame the issues and arguments for a (presumably) passive tribunal. The adversarial system ensures the best presentation of arguments and theories because each party is motivated to succeed. Moreover, the adversarial system attempts to ensure that an active judge refrain from allowing a preliminary understanding of the issues to improperly influence the final decision. This allows the judiciary to keep an open mind until the proofs and arguments have been adequately submitted. In spite of these underlying concerns, the majority today claims that the benefits of full briefing are simply a formality that can be discarded without care. The majority fails to comprehend how the skilled advocates in this case could have added anything insightful in the debate over the proper interpretation of a century’s worth of precedent. Whatever its motivation, the majority undermines the foundations of our adversarial system.

"The majority also implies that the 'central question in this case was whether the charter’s purported creation of a cause of action for sexual orientation discrimination is preempted' by the GTLA. Slip op at 23. However, the extent of the parties’ preemption briefing focused solely on the relevance of the Civil Rights Act vis-à-vis the charter-created cause of action. Moreover, the questions by this Court during oral argument do not substitute for proper briefing, but only illustrate how the Court pursues its own end in a fashion unanticipated by the parties.

"While occasionally a court may find it necessary to resolve an issue not briefed by the parties, the frequency with which the majority undertakes such activist endeavors demonstrates its desire to arrive at its destination."

Given the fact that the "conservative" members of this Court base a good part of their jurisprudential thinking on the position that courts must simply apply the law and avoid the "activism" of judicial reinterpretation of the law, the occasional turning of the tables by their opponents, labeling them as activists of another stripe, is a sharp jibe.  And Justice Cavanagh is surely mindful that this is an election year in which Justice Young is seeking a full eight-year term. 

Justice Elizabeth Weaver, the longest-serving of the "conservative" Justices, and who is also up for re-election this year, also dissented, in a more moderate tone:

"The majority has decided important issues involving governmental immunity that were not raised or briefed by the parties and that are very significant to the people of Detroit and all the people of Michigan. The majority should have insured that it had briefing and heard argument on these issues before deciding them. . .

"Without the benefit of briefing or argument, the majority overrules settled precedent1 to hold that governmental immunity cannot be waived because it is a characteristic of government. In McCummings v Hurley Medical Ctr, 433 Mich 404, 411; 466 NW2d 114 (1989), this Court held that governmental immunity must be pleaded as an affirmative defense. The majority overrules McCummings and holds that immunity is an unwaivable characteristic of government. The parties did not raise or address in any court whether governmental immunity is a characteristic of government or an affirmative defense.2

"While the general concept of governmental immunity was alluded to in questioning during oral argument before this Court, the questioning did not reference the concept of immunity as a characteristic of government and did not foreshadow an intent to reconsider McCummings. The majority’s decision to reach out and overrule a case that was not raised, briefed, or argued is certainly efficient. However, the majority’s efficiency in this case forsakes procedural fairness. It is worth emphasis that the majority can only conclude that the city has not waived governmental immunity by overruling McCummings.

"I decline the majority’s invitation to take a position without briefing and argument on whether governmental immunity is a characteristic of government, an affirmative defense, or some other judicially determined hybrid. These characterizations have significant procedural consequences. It is the role of the Court to respond to issues properly before it and to seek additional briefing and argument on significant matters that may have been overlooked by the parties. This is especially true where the issues are of great importance, such as the issues not briefed or argued in this case, which seriously affect the settled law of this state.

"The majority’s decision to address and resolve this issue without briefing or argument is inappropriate. Before deciding this significant change in the law of governmental immunity, the Court should have had briefing and argument."

In its response to the dissents, the majority stated:

"Justices Weaver and Cavanagh criticize our opinion primarily on the ground that our decision is allegedly reached without the benefit of briefing or argument. This argument camouflages their reluctance to address the core legal questions at hand. . .

"In his dissent, Justice CAVANAGH has fired his standard shot: this Court overrules cases capriciously. Now he has added a fusillade, suggesting that the majority 'tees up' issues it wants the parties to brief, and somewhat inconsistently, that the majority decides matters without briefing by the parties. While we recognize that following the law as enacted by our Legislature is sometimes at odds with our dissenting colleague’s personal policy preferences, our constitutional duty demands that we follow the rule of law. While Justice CAVANAGH chooses to characterize his policy frustrations as the majority’s judicial disobedience, neither the law, this Court’s history, nor Justice CAVANAGH’s own judicial history supports his characterization.

"On the so-called briefing issue, we think Justice CAVANAGH wants it both ways. In this case, where the controlling legal issue was discovered after the parties had submitted their briefs, Justice CAVANAGH complains. In other cases, when the Court has believed there might be a controlling issue on which it wanted the benefit of the parties’ briefing, Justice CAVANAGH also complains. See, e.g., Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000) (a case cited in his footnote 9), wherein Justice CAVANAGH dissented, criticizing the majority for flagging in its grant order a legal issue the Court specifically wanted briefed by the parties. 461 Mich 1201.22

"Apart from Justice CAVANAGH’s desire to have it both ways on the issue of party 'briefing', no one can seriously question the right of this Court to set forth the law as clearly as it can, irrespective whether the parties assist the Court in fulfilling its constitutional function. The jurisprudence of Michigan cannot be, and is not, dependent upon whether individual parties accurately identify and elucidate controlling legal questions.

"Concerning Justice CAVANAGH’s habitual assertion that this Court casually disregards stare decisis, we note that Justice CAVANAGH himself is no stranger to overruling precedent. [string of about 12 cites omitted]

"More important, we emphasize that this stout defense of stare decisis by Justices CAVANAGH and KELLY is their standard argument when they are unhappy with the result of an opinion. See Sington v Chrysler Corp, 467 Mich ___; ___ NW2d ___ (2002) (KELLY, J., dissenting). Their charge is that the new composition of this Court is the explanatory variable for a deteriorating respect for precedent. Sington provides the latest example of their argument, but it also demonstrates how statistically insignificant are the occasions when this Court (as opposed to its pre-1999 predecessor) has overturned its prior cases. . .

"I think it is fair to say that the cases Justice CAVANAGH cites in footnote 9 more probably reveal his desire that this Court never address a controlling legal issue. Yet, we welcome Justice CAVANAGH’s newly announced repudiation of 'judicial activism in any form.' We question whether his new judicial philosophy includes the obligation to respect and follow the law, even where it is inconvenient to one’s policy preferences or even when the parties fail to bring the controlling law to the Court’s attention."

In Sington, the majority opinion was written by Justice Clifford Taylor, another of the "conservatives".  He stated, after noting that a previous case called Haske would suggest a ruling for the claimant:

"In light of the inconsistency of Haske with the plain language of § 301(4), we overrule it and return to the rule established in Rea, which was harmonious with the language of the statute."

He then defended the decision to overrule precedent:

"In considering whether to overrule a prior decision of this Court, the first inquiry, of course, is whether that prior decision was wrongly decided. . .

"Further, it is particularly appropriate to overrule a prior erroneous decision of this Court that has failed to apply the plain language of a statute. . . As we observed in Robertson, supra at 756, the values underlying general respect for stare decisis are also enhanced 'by a legal regime in which the public may read the plain words of its law and have confidence that such words mean what they say and are not the exclusive province of lawyers.' Because Haske failed to apply the plain language of the definition of 'disability' in § 301(4), and in light of the lack of a significant reliance interest in the Haske decision, we are impelled to overrule it."

The last of the opinions is that of Justice Marilyn Kelly, one of the "liberals".  Hers is the strongest language:

"I. The Majority Again Disdains Precedent

"Today the majority once again discards a prior decision and replaces it with its preferred interpretation of the law.2 In announcing its new vision of disability law, it refers to its recent pronouncements about the value of precedent in Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), and Robertson v DaimlerChrysler, 465 Mich 732; 641 NW2d 567 (2002). However, the sheer volume of this majority's decisions overturning precedent in the past four years raises serious questions about the degree to which the majority values the principle of stare decisis. Time after time, established law has been discarded on the basis that it was 'wrongly decided.' It is an amazement to me how frequently the members of this majority have found that esteemed justices who came before them simply misunderstood the law.

"In the five-year period from 1993 through 1997, there were approximately twelve cases in which precedent was overturned by this Court. In the five-year period from 1998 through 2002, at least twenty-two cases were overturned. However, the number of dispositions went down." [footnotes omitted]

After explicating her conclusion that Haske was in fact correctly decided, she said,

"Haske accurately interpreted the statute. The majority's rationale for overturning it gives no deference to precedent. It simply replaces its interpretation of the first sentence of § 301(4) with the interpretation of a different group of justices.

"Appellate courts, in the normal course of their work, are called upon continuously to reevaluate the lasting vigor of prior courts' binding opinions. Of necessity, some must be found to be no longer valid because of subsequent legislative alterations of the law or changing customs and practices unforeseen by an earlier court. Very occasionally, a prior decision is found to work unexpected hardship. And rarely, a drastic error may be shown to have been made by a prior court in its reasoning or reading of a statute.

"So it is that, in the history of this and of the vast majority of supreme courts across the land, overrulings of precedent are infrequent. Yet, quite the opposite is true of the present Michigan Supreme Court. It is for that reason that, the majority's pronouncements to the contrary notwithstanding, one may wonder whether reasoned adherence to stare decisis may properly be considered a policy of this Court."

Justice Weaver, who had dissented in the Haske case and who now found her position accepted by the majority, wrote a concurrence because "The dissents and the majority have chosen to engage in responses to each other that contain some inappropriate and unnecessary assertions."

For the majority, Justice Taylor noted,

"Justice Kelly’s dissent merits a response. As Justice Kelly has pointed out, in the last three and a half years, there have been cases reversing past precedent of this Court. She cites sixteen. These should be seen in the context of the overall number of dispositions by this Court during the same period. From January 1, 1999 to June 30, 2002, there were 8,198 dispositions by this Court. Thus, it is rare (in fact, a frequency of under one-fifth of one percent) when precedent is overturned, but it does sometimes happen. During this period, the issue of treatment of precedent has arisen primarily in review of earlier Supreme Court cases interpreting statutes. In fact, of the cases that Justice Kelly has cited where precedent has been overruled, eleven are within this category. As the dissents to these actions have been forceful, so as to inform as to the doctrine of stare decisis and its limits, this Court in Robinson chose to discuss the doctrine in depth as well as its proper application."

Justice Cavanagh, who concurred in part but who joined Justice Kelly's dissent on the Haske issue, commented:

"I also must express my disappointment with the majority’s lengthy response to Justice Kelly’s dissenting opinion. I appreciate that my colleagues feel the need to defend and substantiate their respective positions, after all, that is our duty as justices. However, I am uncomfortable with the majority’s overzealous attack of Justice Kelly’s discussion of stare decisis. It is completely unnecessary to add numerous pages defending the majority’s decision to overrule precedent and attacking Justice Kelly’s positions in previous cases. These lengthy sections have nothing to do with the merits of this case and do not add anything to the resolution of the question at hand. They do, however, speak volumes about the majority’s manic sensitivity to criticism."

Although some friction between conflicting opinions is common in courts at any level, it is rare to see this level of animus among members of a state Supreme Court in their written opinions.  (In Wisconsin, the sniping took place in the news media, not in the Court's issued opinions.)  This level of vitriol is usually reserved for the august heights of the judiciary -- the  U.S. Supreme Court.

© Copyright 2002 Franco Castalone. Last update: 8/2/2002; 10:42:02 PM.