Order Michigan Supreme Court
Lansing, Michigan
September 2, 2009 Marilyn Kelly,
Chief Justice
137667-8 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
LENAWEE COUNTY BOARD OF ROAD Diane M. Hathaway,
COMMISSIONERS, Justices
Plaintiff-Appellant,
v SC: 137667-8
COA: 285626; 286158
Lenawee CC: 06-002255-CZ
STATE AUTO PROPERTY & CASUALTY
INSURANCE COMPANY and CITIZENS
INSURANCE COMPANY OF AMERICA,
Defendants-Appellees,
and
BRISKEY BROTHERS CONSTRUCTION, INC.
and STAN SLUSARSKI TRUCKING &
BACKHOE, INC.,
Defendants.
_________________________________________/
On order of the Court, the application for leave to appeal the October 2, 2008
orders of the Court of Appeals is considered. We direct the Clerk to schedule oral
argument on whether to grant the application or take other peremptory action. MCR
7.302(H)(1). At oral argument, the parties shall be prepared to address whether Miller v
Chapman Contracting, 477 Mich 102 (2007), was correctly decided. The parties may file
supplemental briefs within 42 days of the date of this order, but they should not submit
mere restatements of their application papers.
CAVANAGH, J. (concurring).
I concur in the order granting oral argument on whether to grant the application
for leave to appeal. I write to respond to Justice Young’s dissent, in which he questions
both my principles and my fidelity to judicial restraint.
Justice Young presumes much. He challenges my commitment to stare decisis
when this Court has merely raised the question whether Miller v Chapman Contracting,
2
477 Mich 102 (2007), was correctly decided. It is my practice, however, to review the
parties’ briefs, hear their arguments, and reflect on the law and merits of a case before
making a decision. I have not made up my mind on the vitality of Miller or any other
issue in this case. Consequently, my commitment to stare decisis is not currently at
issue.
More importantly, however, Justice Young misunderstands the import of my
statement in Cooper v Wade, 461 Mich 1201 (1999). I did not take the time to write a
dissenting statement in Cooper merely because I disagreed with the Court’s
reconsidering precedent in that single case. I have never suggested that it is always
inappropriate to overrule precedent; I have merely advocated for using a necessary
measure of judicial restraint before doing so.1 My concern in Cooper was that it
appeared that some members of the Court were not only exhibiting careless disregard
for the doctrine of stare decisis, but actually deliberately and methodically setting out to
overturn longstanding, well-established precedent.2 During that term alone, the majority
of the Cooper Court had already overturned or vacated 10 previous cases, in six
different decisions. See Cooper, 461 Mich at 1203 n 3. Unlike the order in Cooper, the
current order is not part of a long string of cases that, when viewed collectively,
suggests a pattern of exercising the power to overturn numerous longstanding
precedents in a manner that lacks judicial restraint.
I expect that this discussion will continue if, in the future, any majority of this
Court votes to reconsider or overrule precedent. If I do vote to overrule a case, at that
point I invite Justice Young to, in lieu of presuming that I lack principle, take that
opportunity to evaluate the merits of the principles I use to guide my approach to stare
decisis and determine whether my vote is consistent with those principles.3 I hope that
1
As I have stated, I think that “[t]he ‘majority of the Court can overrule a precedent for a
good reason, a bad reason, or no reason at all.’ . . . But precedent should not be lightly
discarded. This Court should ‘give respect to precedent and not overrule or modify it
unless some substantial reason is given for doing so.’” People v VanderVliet, 444 Mich
52, 105 (1993) (Cavanagh, J., dissenting, quoting People v Cetlinski, 435 Mich 742, 768
[1990], and Wood v Detroit Edison Co, 409 Mich 279, 297 [1980]).
2
Unfortunately, my concerns in Cooper turned out to be justified. According to Justice
Markman’s calculations, just in the period between 2000 and July 2007, counting only
decisions from which Chief Justice Kelly dissented, this Court overruled around 60 cases
in 40 different decisions. Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 228-247
(2007).
3
Thirteen years ago I agreed with Justice Levin’s recognition that “[t]here is a limit to
the amount of error that can plausibly be imputed to prior courts” and that “[i]f that limit
should be exceeded, disturbance of prior rulings would be taken as evidence that
justifiable reexamination of principle had given way to drives for particular results in the
3
Justice Young might consider that my views do not lack principle simply because they
differ from his own. Until the opportunity to have a meaningful discussion on these
issues arises, however, I can only note that I detect a distinct hollowness in the whining,
mewling sound that now emanates from those who, until recently, cared little about the
composition of majorities and the value of longstanding precedent.
CORRIGAN, J. (dissenting).
I respectfully dissent from the order granting oral argument on whether to grant
the application for leave to appeal. As Justice Young correctly notes, the appellants have
not asked this Court to reconsider Miller v Chapman Contracting, 477 Mich 102 (2007).
Moreover, the parties have not addressed the issue whether Miller was correctly decided.
Accordingly, I object to the decision to inject Miller into this appeal.
YOUNG, J. (dissenting).
I dissent and would deny leave to appeal, because Miller v Chapman Contracting,
477 Mich 102 (2007), is applicable, correct, and was decided only 28 months ago. The
majority, however, believes it appropriate to alert the parties to “be prepared to address”
whether Miller was correctly decided, even though the appellants did not ask this Court
to reconsider Miller. While the majority is within its rights to reconsider Miller, doing so
is incompatible with the respect for judicial restraint and stare decisis that members of the
majority professed for over a decade.
The appellants have not asked this Court to reconsider Miller, nor have the parties
briefed the issue whether Miller was correctly decided. Nevertheless, the majority has
injected this issue into the case because it disagrees with how this Court decided Miller
approximately 28 months ago. Again, the majority has a right to revisit any decision it
wishes, but its members have previously argued that doing so was a form of “activism.”
Justice Cavanagh has decried the practice of “directing parties to address issues not
initially raised or briefed by the parties in their application for leave to appeal” as a
short term.” People v Mezy, 453 Mich 269, 303 (1996) (Levin, J. dissenting, quoting
Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 865-866
[1992]). See also People v Childers, 459 Mich 216, 225 (1998) (Cavanagh, J.
dissenting). In light of my deep respect for the doctrine of stare decisis, I have yet to
determine what my response will be if I am confronted with precedent that represents a
pattern of disregarding that doctrine in a manner that goes beyond what can be considered
a “justifiable reexamination of principle.” Perhaps there are some cases where, as stated
by the United States Supreme Court “[r]emaining true to an ‘intrinsically sounder’
doctrine established in prior cases better serves the values of stare decisis than would
following a more recently decided case inconsistent with the decisions that came before
it.” Adarand Constructors, Inc v Pena, 515 US 200, 231 (1995).
4
“distinct type[] of activist behavior.” Mack v Detroit, 467 Mich 186, 224 n 9 (2002)
(Cavanagh, J., dissenting).
Ten years ago, Justice Cavanagh, joined by then Justice Kelly, dissented from an
order that asked the parties to address whether the Court should exercise its authority to
reconsider previously decided cases. Cooper v Wade, 461 Mich 1201 (1999). He
explained that “the fact that a majority would feel that the proper exercise of its duties
mandates that [it] revisit every decision of this Court that [it] might question and have the
power to reach . . . is a troubling thought.” Id. at 1203 (Cavanagh, J., dissenting).
Instead, he counseled “a necessary measure of judicial restraint.” Id.
In his concurring statement, Justice Cavanagh attempts to distinguish the instant
case from Cooper v Wade by claiming that “the current order is not part of a long string
of cases that, when viewed as a collective, suggest a pattern of exercising the power to
overturn numerous longstanding precedents in a manner that lacks judicial restraint.” But
this claim rings hollow when one member of this Court, our Chief Justice, has claimed
that she would “undo a great deal of the damage that the Republican court has done.”
Brian Dickerson, GOP Justices Gird for Gang of 3 1/2, Detroit Free Press, January 11,
2009, at 1B. Indeed, this statement, when viewed in light of actions the new
philosophical majority has already taken in effectively overturning the established
precedent of this Court,4 suggests that there has been the very “pattern of exercising
power to overturn numerous longstanding precedents in a manner that lacks judicial
restraint” that Justice Cavanagh decried in the Court’s former philosophical majority.
4
Rather than forthrightly overruling decisions, the Court’s new majority has increasingly
taken to the practice of simply ignoring precedents with which it disagrees. See, e.g.,
Vanslembrouck v Halperin, 483 Mich 965 (2009), where the new majority ignored Vega
v Lakeland Hospitals, 479 Mich 243, 244 (2007); Hardacre v Saginaw Vascular
Services, 483 Mich 918 (2009), where it 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); Juarez v Holbrook, 483 Mich
970 (2009), where it failed to follow Smith v Khouri, 481 Mich 519 (2008); Chambers v
Wayne Co Airport Authority, 483 Mich 1081 (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 enforce Thornton v Allstate Ins Co, 425
Mich 643 (1986), and Putkamer v Transamerica Ins Corp of America, 454 Mich 626
(1997).
5
Justice Cavanagh also claims that the order in the instant case “has merely raised
the question” whether Miller was correctly decided. As he well knows, the Court will not
be “merely” discussing whether Miller was correctly decided; that discussion has a point,
and that point can only be to reconsider Miller.
Because judicial restraint and principle should not depend on whether one is in the
majority, I respectfully dissent.5 However, regarding the merits, I request that the parties
address the relevance of textual differences between MCR 2.118(D) and FR Civ P
15(c)(1)(C).
5
Justice Cavanagh incorrectly asserts that I have attacked his principles. I do not attack
his principles. Having been on the receiving end of Justice Cavanagh’s principles for ten
years, I challenge only the consistency with which he applies them.
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.
September 2, 2009 _________________________________________
s0901 Clerk