Order Michigan Supreme Court
Lansing, Michigan
January 29, 2010 Marilyn Kelly,
Chief Justice
138863-66 & (79)(81)(83) Michael F. Cavanagh
ANGLERS OF THE AuSABLE, INC., Elizabeth A. Weaver
MAYER FAMILY INVESTMENTS, LLC, Maura D. Corrigan
Robert P. Young, Jr.
and NANCY A. FORCIER TRUST, Stephen J. Markman
Plaintiffs-Appellants, Diane M. Hathaway,
SC: 138863-138866 Justices
v COA: 279301, 279306, 280265,
280266
DEPARTMENT OF ENVIRONMENTAL Otsego CC: 06-011697-CE
QUALITY, DIRECTOR OF THE
DEPARTMENT OF ENVIRONMENTAL
QUALITY, and MERIT ENERGY COMPANY,
Defendants-Appellees.
_________________________________________/
On order of the Court, the motion to expand the record is DENIED. The
application for leave to appeal the March 31, 2009 judgment of the Court of Appeals is
considered, and it is GRANTED. The parties shall include among the issues to be
briefed: (1) whether defendant Merit Energy Company could be conveyed or granted the
right to discharge water on land owned by the state; (2) what test should be applied to
determine whether and the extent to which Merit may discharge water; (3) whether the
plaintiffs have a cause of action under the Michigan Environmental Protection Act, MCL
324.1701(1), against defendant Department of Environmental Quality; and (4) whether
Michigan Citizens v Nestlé Waters, 479 Mich 280 (2007), and Preserve the Dunes v
DEQ, 471 Mich 511 (2004), were correctly decided.
The motions for leave to file brief amicus curiae are GRANTED. Other persons
or groups interested in the determination of the issues presented in this case may move
the Court for permission to file briefs amicus curiae.
YOUNG, J. (dissenting).
I respectfully dissent from the order granting leave in this case and instead would
deny leave to appeal. The order directs the parties to discuss whether Michigan Citizens
v Nestlé Waters1 and Preserve the Dunes v DEQ2 were correctly decided. I believe both
cases were correctly decided. While it is certainly the prerogative of the Court to do so,
1
479 Mich 280 (2007).
2
471 Mich 508 (2004).
2
this order is another instance where the majority seems to retreat from its previously
stated fidelity to stare decisis.3
Since the shift in the Court’s philosophical majority in January 2009, the majority
has pointedly sought out precedents only recently decided4 and has failed to give effect to
3
See, e.g., Pohutski v City of Allen Park, 465 Mich 675, 712 (2002) (Kelly, J., dissenting)
(“[I]f each successive Court, believing its reading is correct and past readings wrong, rejects
precedent, then the law will fluctuate from year to year, rendering our jurisprudence
dangerously unstable.”); People v Hawkins, 468 Mich 488, 517-518 (2003) (Cavanagh, J.,
dissenting) (“We have overruled our precedents when the intervening development of the
law has ‘removed or weakened the conceptual underpinnings from the prior decision, or
where the later law has rendered the decision irreconcilable with competing legal doctrines
or policies.’ . . . Absent those changes or compelling evidence bearing on Congress’ original
intent . . . our system demands that we adhere to our prior interpretations of statutes.”),
quoting Patterson v McLean Credit Union, 491 US 164, 173 (1989), and Neal v United
States, 516 US 284, 295 (1996); Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 278
(2007) (Cavanagh, J., dissenting) (‘“Under the doctrine of stare decisis, principles of law
deliberately examined and decided by a court of competent jurisdiction become precedent
which should not be lightly departed.’”), quoting People v Jamieson, 436 Mich 61, 79
(1990); Brown v Manistee Co Rd Comm, 452 Mich 354, 365 (1996) (“[A]bsent the rarest
circumstances, we should remain faithful to established precedent.”); Todd C. Berg,
Hathaway attacks, Michigan Lawyers Weekly, October 27, 2008 (“‘People need to know
what the law is,’ Hathaway said. ‘I believe in stare decisis. Something must be drastically
wrong for the court to overrule.’”); Lawyers’ election guide: Judge Diane Marie Hathaway,
Michigan Lawyers Weekly, October 30, 2006, in which Justice Hathaway, then running for a
position on the Court of Appeals, was quoted as saying: “[t]oo many appellate decisions are
being decided by judicial activists who are overturning precedent.”
4
See, e.g., University of Michigan Regents v Titan Ins Co, 484 Mich 852 (2009) (directing
the parties to consider whether Cameron v ACIA, 476 Mich 55 (2006), was correctly
decided); McCormick v Carrier, ___ Mich ___ (2009) (Docket No. 136738, order entered
August 20, 2009) (granting leave to consider the plaintiff’s request to overrule Kreiner v
Fischer, 471 Mich 109 (2004)); Lenawee Co Bd of Rd Comm’rs v State Auto Prop & Cas Ins
Co, ___ Mich ___ (2009) (Docket Nos. 137667-8, order entered September 2, 2009)
(directing the parties to consider whether Miller v Chapman Contracting, 477 Mich 102
(2007), was correctly decided); Edry v Adelman, ___ Mich ___ (2009) (Docket No. 138187,
order entered September 30, 2009) (directing the parties to consider whether Wickens v
Oakwood Healthcare Sys, 465 Mich 53 (2001), was correctly decided); Hoover v Michigan
Mut Ins Co, ___ Mich ___ (2009) (Docket No. 138018, order entered September 25, 2009)
(directing the parties to consider whether Griffith v State Farm Mut Automobile Ins Co, 472
Mich 521 (2005), was correctly decided); Lansing Schools Education Ass’n v Lansing Bd of
Ed, ___ Mich ___ (2009) (Docket No. 138401, order entered November 19, 2009) (directing
the parties to consider whether Lee v Macomb Co Bd of Comm’rs, 464 Mich 726 (2001), was
correctly decided).
3
other recent precedents of this Court.5 Today, the Court again orders reconsideration of
two cases that were decided just three and six years ago. Nothing in the law of this State
or the rationale of those decisions has changed in this short time. Accordingly, as I have
in other similar orders,6 I respectfully dissent from this order.
CORRIGAN, J., joins the statement of YOUNG, J.
5
See, e.g., Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009), where the majority
failed to follow Boodt v Borgess Med Ctr, 481 Mich 558 (2008); Sazima v Shepherd Bar &
Restaurant, 483 Mich 924 (2009), where it failed to follow Chrysler v Blue Arrow Transport
Lines, 295 Mich 606 (1940), and Camburn v Northwest School Dist, 459 Mich 471 (1999);
Vanslembrouck v Halperin, 483 Mich 965 (2009), where it failed to follow Vega v Lakeland
Hosps, 479 Mich 243, 244 (2007); Juarez v Holbrook, 483 Mich 970 (2009), where it failed
to follow Smith v Khouri, 481 Mich 519 (2008); Beasley v Michigan, 483 Mich 1025 (2009),
Chambers v Wayne Co Airport Auth, 483 Mich 1081 (2009), and Ward v Michigan State
Univ, ___ Mich ___ (2009) (Docket No. 138380, order entered October 23, 2009), where it
failed to follow Rowland v Washtenaw Co Rd Comm, 477 Mich 197 (2007); and Scott v State
Farm Automobile Ins Co, 483 Mich 1032 (2009), where it failed to follow Thornton v
Allstate Ins Co, 425 Mich 643 (1986), and Putkamer v Transamerica Ins Corp of America,
454 Mich 626 (1997)).
6
See, e.g., University of Michigan Regents, supra, 484 Mich at 853; Lenawee Co Bd of Rd
Comm’rs, supra, ___ Mich at ___; Hoover, supra, ___ Mich at ___; Lansing Schools
Education Ass’n, supra, ___ Mich at ___.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 29, 2010 _________________________________________
y0126 Clerk