Henry v. Dow Chemical Co.

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

FILED JULY 31, 2009

GARY HENRY and ALL OTHERS
SIMILARLY SITUATED,

Plaintiffs-Appellees,

v No. 136298

DOW CHEMICAL COMPANY,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

WEAVER, J.

Class action litigation in Michigan is governed by the Michigan Court

Rules, and MCR 3.501(A)(1) specifically sets forth the prerequisites for class

certification. These prerequisites are often referred to as numerosity,

commonality, typicality, adequacy, and superiority.1

In this case we consider the proper analysis a court must conduct when

determining whether the prerequisites for class certification have been met.

Additionally, we consider whether this particular class of plaintiffs was

erroneously certified by the circuit court.

1
See infra at 11-12 for the complete court rule containing the prerequisites
for class certification.
 In deciding these questions, we conclude that a party seeking class

certification is required to provide the certifying court with information sufficient

to establish that each prerequisite for class certification in MCR 3.501(A)(1) is in

fact satisfied. A court should avoid making determinations on the merits of the

underlying claims at the class certification stage of the proceedings.

Additionally, we remand this case to the circuit court for clarification of its

analysis of MCR 3.501(A)(1)(c) and (d) in light of our opinion today.

I. FACTS AND PROCEDURAL BACKROUND

This case arises from allegations that defendant, Dow Chemical Company,

negligently released dioxin, a synthetic chemical that is potentially hazardous to

human health, from its Midland plant into the Tittabawassee River. The

representative plaintiffs allege that they, along with the proposed class members,

have incurred property damage caused by the dioxin contamination. Plaintiffs’

claims are based on theories of negligence and nuisance. This dispute concerns

the circuit court’s decision to grant plaintiffs’ motion for class certification.

At the outset, we note that Dow’s alleged dioxin contamination of the

Tittabawassee River has been the subject of a prior appeal in this Court (Henry I).2

In Henry I, we addressed plaintiffs’ allegations that dioxin negligently released by

Dow caused a risk of harm to their health.3 In Henry I, we articulated the basic

2
Henry v Dow Chem Co, 473 Mich 63; 701 NW2d 684 (2005) (Henry I).
3
Id. at 67.

2
facts and procedural history surrounding the alleged dioxin contamination as

follows:

Defendant, The Dow Chemical Company, has maintained a
plant on the banks of the Tittabawassee River in Midland, Michigan,
for over a century. The plant has produced a host of products,
including, to name only a few, “styrene, butadiene, picric acid,
mustard gas, Saran Wrap, Styrofoam, Agent Orange, and various
pesticides including Chloropyrifos, Dursban and 2, 4, 5-
trichlorophenol.” Michigan Department of Community Health,
Division of Environmental and Occupational Epidemiology, Pilot
Exposure Investigation: Dioxin Exposure in Adults Living in the
Tittabawassee River Flood Plain, Saginaw County, Michigan, May
25, 2004, p 4.

According to plaintiffs and published reports from the
MDEQ, defendant’s operations in Midland have had a deleterious
effect on the local environment. In 2000, General Motors
Corporation was testing soil samples in an area near the
Tittabawassee River and the Saginaw River when it discovered the
presence of dioxin, a hazardous chemical believed to cause a variety
of health problems such as cancer, liver disease, and birth defects.

By spring 2001, the MDEQ had confirmed the presence of
dioxin in the soil of the Tittabawassee flood plain. Further
investigation by the MDEQ indicated that defendant’s Midland plant
was the likely source of the dioxin. Michigan Department of
Environmental Quality, Remediation and Redevelopment Division,
Final Report, Phase II Tittabawassee/Saginaw River Dioxin Flood
Plain Sampling Study, June 2003, p 42 (identifying Dow’s Midland
plant as the “principal source of dioxin contamination in the
Tittabawassee River sediments and the Tittabawassee River flood
plain soils”).

In March 2003, plaintiffs moved for certification of two
classes in the Saginaw Circuit Court. The first class was composed
of individuals who owned property in the flood plain of the
Tittabawassee River and who alleged that their properties had
declined in value because of the dioxin contamination. The second
group consisted of individuals who have resided in the
Tittabawassee flood plain area at some point since 1984 and who
seek a court-supervised program of medical monitoring for the

3
 possible negative health effects of dioxin discharged from Dow’s
Midland plant. This latter class consists of 173 plaintiffs and, by
defendant’s estimation, “thousands” of putative members.

Defendant moved under MCR 2.116(C)(8) for summary
disposition of plaintiffs’ medical monitoring claim. The Saginaw
Circuit Court denied this motion, and denied defendant’s subsequent
motions for reconsideration and for a stay of proceedings.

After the Court of Appeals denied defendant’s motion for
peremptory reversal and emergency application for leave to appeal,
the defendant sought emergency leave to appeal in this Court.
Discovery and other preliminary proceedings on plaintiffs’ motion
for class certification continued in the Saginaw Circuit Court until,
on June 3, 2004, we stayed the proceedings below and granted
defendant’s application for leave to appeal.[4]

Given that plaintiffs did not allege a present medical injury, we concluded

that plaintiffs did not assert a viable negligence claim recognized by Michigan

common law.5 Therefore, we reversed the circuit court’s denial of Dow’s motion

for summary disposition with regard to plaintiffs’ medical monitoring claims and

remanded the matter to the circuit court for entry of an order of summary

disposition accordingly.6

On remand, the circuit court addressed plaintiffs’ motion for class

certification with respect to the remaining claims of negligence and nuisance,

which are the subjects of the present appeal. The current proposed class consists

of persons owning real property within the 100-year flood plain of the

4
Id. at 69-70.
5
Id. at 81.
6
Id. at 102.

4
Tittabawassee River on February 1, 2002.7 The proposed class is estimated by

plaintiffs to consist of approximately 2,000 persons.

The circuit court certified the proposed class, concluding that the

prerequisites for class certification in MCR 3.501(A)(1) were met. Specifically,

the circuit court ruled that joinder of approximately 2,000 persons is

impracticable, the question of Dow’s allegedly negligent pollution is common to

all plaintiffs, the mere fact that damages may be individualized is not sufficient to

defeat class certification, the plaintiffs’ property claims arise from the same

alleged actions of Dow, the class members share common legal and remedial

theories, and the representative plaintiffs are able to fairly and adequately protect

the interests of the proposed class members.

Additionally, the circuit court determined that maintenance of this suit as a

class action is the superior method of adjudication given that denial of class

7
Plaintiffs define the scope of the 100-year flood plain of the Tittabawassee
River as the geographic area bounded on the west and south by River Road and
Stroebel Road, including areas on the west and south side of those roads, and
bounded on the east and north by Midland Road, St. Andrews Road, and Michigan
Avenue, including areas on the east and north side of those roads.

The Michigan Department of Environmental Quality provides the following
information regarding “floodplains” on its website:

A river, stream, lake, or drain may on occasion overflow [its]
banks and inundate adjacent land areas. The land that is inundated
by water is defined as a floodplain. In Michigan, and nationally, the
term floodplain has come to mean the land area that will be
inundated by the overflow of water resulting from a 100-year flood
(a flood which has a 1% chance of occurring any given year).
(last accessed July 14, 2009).

5
certification may result in up to 2,000 individual suits against Dow. The circuit

court further reasoned that a class action would be manageable here because the

class members all reside in the allegedly polluted area and similar evidence would

be required to establish Dow’s negligence with respect to each class member.

The Court of Appeals granted Dow’s application for leave to appeal from

the circuit court order granting class certification. In a divided decision, the Court

of Appeals affirmed the class certification with regard to the issue of Dow’s

liability only.8

The lead opinion concluded that class certification on all issues, including

the issue of damages, is proper.9 The lead opinion relied on the MDEQ findings

submitted by plaintiffs and held that, in light of the MDEQ’s findings and the fact

8
Henry v Dow Chem Co, unpublished opinion per curiam of the Court of
Appeals, issued January 24, 2008 (Docket No. 266433).
9
The lead opinion reviewed the order for clear error and concluded that
because neither party requested an evidentiary hearing in the circuit court, there
were no factual findings to review. Henry, supra at 7-8 (opinion of Fort Hood, J.).
Additionally, the lead opinion concluded that the circuit court properly relied on
caselaw in support of its decision to grant certification. Id. at 8. The lead opinion
referred to two published Court of Appeals opinions in which class certification
was deemed inappropriate: Zine v Chrysler Corp, 236 Mich App 261; 600 NW2d
384 (1999), and Tinman v Blue Cross & Blue Shield, 264 Mich App 546; 692
NW2d 58 (2004). After reviewing those cases, the lead opinion concluded that
both cases required more of an individualized inquiry than in the present case and,
therefore, the present case is factually distinguishable. Henry, supra at 8-11
(opinion of Fort Hood, J.).

6
that the parties presented contradicting theories of the dioxin contamination, the

circuit court did not clearly err.10

A partial concurrence to and partial dissent from the lead Court of Appeals

opinion agreed that the circuit court did not err in certifying the class with respect

to Dow’s liability, but concluded that individualized questions prevailed with

respect to the issue of damages. Thus, the partial concurrence and partial dissent

reasoned that a bifurcated proceeding would be the most appropriate manner of

adjudication.11

10
The MDEQ’s findings are set forth in a “declaration” made by the
MDEQ. The declaration indicates that some of the levels of dioxin initially
discovered near the Tittabawassee River were as high as 2,200 parts per trillion,
which is a concentration 25 times that of the residential direct contact criterion.
The declaration further explains that the dioxin was likely transported downstream
onto the flood plain during flood events.

The declaration indicates that the MDEQ hired a survey firm to develop a
flood plain map and establish the 100-year flood plain at issue. On the basis of the
survey results, the MDEQ issued an information bulletin to 2,500 individuals
explaining the potential hazards of dioxin exposure and the MDEQ’s need for
further investigation.

According to the declaration, further investigations confirmed the presence
of excessive dioxin concentrations. This discovery permitted the MDEQ to
classify each contaminated property as a “facility.” The effect of the “facility”
designation includes the imposition of various obligations on the affected property
owners. Pursuant to state environmental laws, these property owners must notify
potential purchasers of the dioxin contamination.

The MDEQ’s declaration identifies Dow’s Midland facility as the
“principal source” of the dioxin. The declaration clarifies that dioxin
concentrations from other sources were too low to result in the levels of dioxin
discovered.
11
In a “bifurcated” proceeding, the class would be certified with respect to
the issue of Dow’s liability. If Dow’s liability is established, individual plaintiffs

7
 The Court of Appeals dissent concluded that the circuit court did not

engage in a “rigorous analysis” to determine whether the prerequisites for class

certification are met, as required by Gen Tel Co of the Southwest v Falcon, 457 US

147, 161; 102 S Ct 2364; 72 L Ed 2d 740 (1982). Therefore, the dissent

concluded that the class was erroneously certified with respect to all issues.12

This Court granted Dow’s application for leave to appeal, asking the parties

to address, among other issues, whether the federal “rigorous analysis”

requirement for class certification also applies to state class actions and whether

this particular class of plaintiffs was properly certified by the circuit court.13

must then choose whether to seek damages on their own. Henry, supra at 2
(Meter, P.J., concurring in part and dissenting in part). As the partial concurrence
and partial dissent reasoned, the circuit court may “use case-management tools to
consolidate claims that will involve largely similar proofs on the issue of
damages.” Id.
12
Henry, supra at 1 (K.F. Kelly, J., dissenting). The dissent additionally
opined that individual issues overwhelmingly predominate over any common
issues of fact and law in this case, specifically noting that the flooding pattern is
not uniform for each plaintiff involved. Id. at 5.
13
Henry v Dow Chem Co, 482 Mich 1043 (2008). The order asked the
parties to consider specifically:

(1) whether the “rigorous analysis” requirement for class
certification that is applied in the federal courts also applies to state
class actions, see Gen Tel Co of the Southwest v Falcon, 457 US
147, 161; 102 S Ct 2364; 72 L Ed 2d 740 (1982);
(2) if so, whether the Saginaw Circuit Court engaged in the
required rigorous analysis to determine if class certification was
appropriate;

(3) whether the plaintiffs met all of the requisites for class
certification established in MCR 3.501(A)(1), including the

8
 II. STANDARD OF REVIEW

In order to resolve the issues presented in this case, this Court must first

consider the proper application of MCR 3.501(A). The proper interpretation and

application of a court rule is a question of law, which we review de novo.14 This

court uses the principles of statutory construction when interpreting a Michigan

court rule.15 We begin by considering the plain language of the court rule in order

to ascertain its meaning.16 “The intent of the rule must be determined from an

examination of the court rule itself and its place within the structure of the

Michigan Court Rules as a whole.”17

However, we note that this Court has not formally established the standard

of review for class certification decisions. Therefore, we take this opportunity to

do so. We have held that where a party challenges a trial court’s factual findings,

a review for clear error is appropriate, and where a party challenges a trial court’s

requirement that questions of law or fact common to the members of
the class predominate over questions affecting only individual
members; and

(4) whether the plaintiffs established that they suffered injury
on a class wide basis in order to justify class certification.
14
Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005).
15
Id.
16
Id. at 705.
17
Id. at 706.

9
exercise of discretion, a review for abuse of discretion is appropriate.18 Given that

the analysis a trial court must undertake in order to determine whether to certify a

proposed class may involve making both findings of fact and discretionary

determinations, we find it proper to review the trial court’s factual findings for

clear error and the decisions within the trial court’s discretion for abuse of

discretion. This differentiated standard of review for class certification decisions

is consistent with the mixed nature of a proper class certification analysis.

III. ANALYSIS

The parties dispute whether the federal “rigorous analysis” requirement for

class certification also applies to state class actions and whether class certification

was appropriate in this particular case.

A. What is the proper analysis for determining whether class
certification is justified?

Pursuant to MCR 3.501(A)(1), members of a class may only sue or be sued

as a representative party of all class members if the prerequisites dictated by the

18
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463,
471-472; 719 NW2d 19 (2006). In Herald, this Court clarified, in the context of
the Freedom of Information Act (FOIA), that if a party challenges some
underlying fact supporting the trial court’s decision, then the appropriate standard
of review is clear error, and the reviewing court must defer to the trial court’s view
of the facts unless the reviewing court is “left with the definite and firm conviction
that a mistake has been made by the trial court.” Id. at 472. However, we further
held that “when an appellate court reviews a decision committed to the trial
court’s discretion, such as the balancing test at issue in [FOIA cases], . . . the
appellate court must review the discretionary determinations for an abuse of
discretion . . . .” Id.

10
court rule are met. Therefore, in order to proceed with a suit in the form of a class

action, the following circumstances must exist:

(a) the class is so numerous that joinder of all members is
impracticable;

(b) there are questions of law or fact common to the
members of the class that predominate over questions affecting only
individual members;

(c) the claims or defenses of the representative parties are
typical of the claims or defenses of the class;

(d) the representative parties will fairly and adequately assert
and protect the interests of the class; and

(e) the maintenance of the action as a class action will be
superior to other available methods of adjudication in promoting the
convenient administration of justice. [MCR 3.501(A)(1).]

Next, MCR 3.501(A)(2) sets forth the following non-exhaustive list of

factors that a court should consider when determining whether maintaining a suit

as a class action is the “superior” method of adjudication:

(a) whether the prosecution of separate actions by or against
individual members of the class would create a risk of

(i) inconsistent or varying adjudications with respect to
individual members of the class that would confront the party
opposing the class with incompatible standards of conduct; or

(ii) adjudications with respect to individual members of the
class that would as a practical matter be dispositive of the interests
of other members not parties to the adjudications or substantially
impair or impede their ability to protect their interests;

(b) whether final equitable or declaratory relief might be
appropriate with respect to the class;

(c) whether the action will be manageable as a class action;

11
 (d) whether in view of the complexity of the issues or the
expense of litigation the separate claims of individual class members
are insufficient in amount to support separate actions;

(e) whether it is probable that the amount which may be
recovered by individual class members will be large enough in
relation to the expense and effort of administering the action to
justify a class action; and

(f) whether members of the class have a significant interest in
controlling the prosecution or defense of separate actions. [MCR
3.501(A)(2).]

It is important to note that the rules governing class certification in MCR

3.501(A) very closely mirror the federal prerequisites for class certification found

in FR Civ P 23. In Falcon, the United States Supreme Court reiterated that the

class action device for litigation is “‘an exception to the usual rule that litigation is

conducted by and on behalf of the individual named parties only.’”19 The

Supreme Court concluded that district courts must conduct a “rigorous analysis”

of each of the class action prerequisites in FR Civ P 23 before certifying a class.20

Dow argues that the federal “rigorous analysis” requirement should apply

to state class actions as well.21 Dow asserts that representative plaintiffs will

19
Falcon, supra at 155 (citation omitted).
20
Id. at 161.
21
Dow asserts that the “rigorous analysis” requirement has already been
incorporated into Michigan caselaw in Jackson v Wal-Mart Stores, Inc,
unpublished opinion per curiam of the Court of Appeals, issued November 29,
2005 (Docket No. 258498) at 3, quoting Falcon, supra at 155.
In Jackson, the Court of Appeals reasoned that “‘the class determination
generally involves considerations that are enmeshed in the factual and legal issues

12
always allege that their proposed class complies with the prerequisites for class

certification, and a trial court should not simply rely on these allegations when

deciding whether to certify a class. While Dow concedes that a court may not

deny class certification on the ground that plaintiffs are unlikely to prevail on the

merits of their underlying claims, Dow argues that this prohibition alone does not

relieve plaintiffs of their burden to establish that the prerequisites of class

certification have in fact been met.

Conversely, plaintiffs argue that only MCR 3.501(A) governs class

certification in Michigan, and that this court rule does not mandate a “rigorous

analysis.” Additionally, plaintiffs point out that no decision by this Court, or any

published opinion by the Court of Appeals, has held that the federal “rigorous

analysis” requirement applies to state class actions.

Given that Michigan’s requirements for class certification are nearly

identical to the federal requirements, we find it reasonable to conclude that similar

purposes, goals, and cautions are applicable to both.22 While it is true that

Michigan courts are not bound by any decision requiring a “rigorous analysis,” we

question whether the purpose of the strictly articulated class certification

comprising plaintiff’s cause of action,’” and the “rigorous analysis” may
necessarily require the court to “‘probe behind the pleadings’ and analyze the
claims, defenses, relevant facts, and applicable substantive law ‘before coming to
rest on the certification question.’” Jackson, supra at 3, quoting Falcon, supra at
155, 160 (citation and quotation marks omitted).
22
The Sixth Circuit recognized class actions as a procedural device used
“to achieve the economies of time, effort, and expense.” Sterling v Velsicol Chem
Corp, 855 F2d 1188, 1196 (CA 6, 1988).

13
prerequisites would be defeated if a representative plaintiff’s only burden is to

simply state that its proposed class does in fact meet the prerequisites.

Dow argues that this type of lax burden would give courts the authority to

“rubber stamp” a plaintiff’s allegations that the prerequisites in MCR 3.501(A)(1)

have been met. To avoid this danger, Dow urges this Court to clarify that the

federal “rigorous analysis” standard applies for state class actions. However,

Dow’s argument seems to implicate only two options: either Michigan courts

must conduct a “rigorous analysis” for class certification decisions, or Michigan

courts may simply accept a plaintiff’s bare assertions that the prerequisites for

class certification are in fact met. We believe that Dow’s argument is

unnecessarily narrow in scope.

The plain language of MCR 3.501(A)(1) states that representative plaintiffs

may pursue a class action suit “only if” the enumerated prerequisites are met.

Thus, it is apparent that strict adherence to the class certification requirements is

required. There is nothing ambiguous about this court rule. A party seeking class

certification must meet the burden of establishing each prerequisite before a suit

may proceed as a class action. Furthermore, there is no authority in Michigan

allowing a party seeking class certification to avoid this affirmative burden.

The next logical inquiry is what a party must show in order to satisfy a

court that the prerequisites for class certification are established. More

specifically, how must a court analyze a party’s motion for class certification to

determine whether sufficient information exists to justify certification?

14
 Given that MCR 3.501(A)(1) contains carefully crafted prerequisites for

class certification, common sense dictates that at least some greater analysis is

required than simply accepting a party’s bare assertion that the prerequisites have

been met. The United States Supreme Court has labeled this greater analysis as a

“rigorous” one in Falcon.23 The problem is that Falcon provides little guidance as

to what a “rigorous analysis” actually entails. Furthermore, Falcon is so factually

distinct from the present case that we are unable to draw significant parallel

conclusions.24 What we can infer from the Falcon decision is that a court must

only certify a class in circumstances where the court has actually been shown that

the prerequisites for class certification are satisfied.

Before Falcon, the United States Supreme Court held that trial courts

should not conduct “a preliminary inquiry into the merits” of claims when making

a class certification determination.25 In Falcon, the Supreme Court reasoned that

because the decision to certify a class involves considerations “‘enmeshed in the

23
Falcon, supra at 161.
24
Falcon is based on federal claims of Title VII discrimination. The most
significant issue in Falcon dealt with whether it was sufficiently shown that the
representative plaintiff had claims that were typical of those of the other class
members. The Supreme Court concluded that no showing had been made
regarding questions of law or fact that were common to the claims of the
representative employee and of the members of the class he sought to represent.
The Supreme Court stated in conclusion that “a Title VII class action, like any
other class action, may only be certified if the trial court is satisfied, after a
rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Id. at
161.
25
Eisen v Carlisle & Jacquelin, 417 US 156, 177; 94 S Ct 2140; 40 L Ed
2d 732 (1974).

15
factual and legal issues comprising the plaintiff’s cause of action,’” a court may at

times need to look further than the pleadings to make a determination on class

certification.26 The Supreme Court added that, sometimes, the question of

certification will be plainly and adequately answered by the pleadings.27 After

Falcon, the Supreme Court clarified that a trial court has broad discretion when

determining whether a class should be certified; however, its discretion must be

exercised within the framework of FR Civ P 23.28

Now, federal courts must balance both the prohibition against delving into

the merits of claims during the class certification determination with the

requirement that courts conduct a “rigorous analysis” to determine whether the

class certification prerequisites are satisfied. The Sixth Circuit recognizes that

district courts must conduct a “rigorous analysis” to determine whether the

prerequisites in FR Civ P 23 are met.29 In addition, the United States Court of

Appeals for the Sixth Circuit has acknowledged that it is possible to determine that

the requirements for class certification are met solely on the basis of the

26
Falcon, supra at 160, quoting Coopers & Lybrand v Livesay, 437 US
463, 469; 98 S Ct 2454; 57 L Ed 2d 351 (1978) (citation and quotation marks
omitted).
27
Id.
28
Gulf Oil Co v Bernard, 452 US 89, 100; 101 S Ct 2193; 68 L Ed 2d 693
(1981).
29
In re American Med Sys, Inc, 75 F3d 1069, 1078 (CA 6, 1996).

16
pleadings.30 Nevertheless, this determination often requires more information than

the pleadings provide.31

We agree with Dow that a certifying court may not simply “rubber stamp”

a party’s allegations that the class certification prerequisites are met.32 However,

the federal “rigorous analysis” requirement does not necessarily bind state

courts.33 We believe that the plain language of MCR 3.501(A) provides sufficient

guidance for class certification decisions in Michigan. Given that MCR

3.501(A)(1) expressly conditions a class action on satisfaction of the prerequisites,

a party seeking class certification is required to provide the certifying court with

information sufficient to establish that each prerequisite for class certification in

MCR 3.501(A)(1) is in fact satisfied. A court may base its decision on the

pleadings alone only if the pleadings set forth sufficient information to satisfy the

court that each prerequisite is in fact met.34 The averments in the pleadings of a

30
Id. at 1079, citing Weathers v Peters Realty Corp, 499 F2d 1197, 1200
(CA 6, 1974).
31
Id.
32
We note that plaintiffs do not contest this argument. In fact, plaintiffs
assert that if this Court finds the need to articulate the proper analysis for class
certification, it may find valuable guidance in Sixth Circuit decisions.
33
See Walters v Naddell, 481 Mich 377, 390; 751 NW2d 431 (2008).
34
The Sixth Circuit reasoned as follows in In re American Med Sys:
“Mere repetition of the language of Rule 23(a) is not
sufficient. There must be an adequate statement of the basic facts to
indicate that each requirement of the rule is fulfilled.
Maintainability may be determined by the court on the basis of the

17
party seeking class certification are only sufficient to certify a class if they satisfy

the burden on the party seeking certification to prove that the prerequisites are

met, such as in cases where the facts necessary to support this finding are

uncontested or admitted by the opposing party.

If the pleadings are not sufficient, the court must look to additional

information beyond the pleadings to determine whether class certification is

proper.35 However, when considering the information provided to support class

certification, courts must not abandon the well-accepted prohibition against

assessing the merits of a party’s underlying claims at this early stage in the

proceedings.36 Similar to the federal district courts, state courts also have broad

pleadings, if sufficient facts are set forth, but ordinarily the
determination should be predicated on more information than the
pleadings will provide . . . . The parties should be afforded an
opportunity to present evidence on the maintainability of the class
action.” [In re American Med Sys, supra at 1079, quoting Weathers
v Peters Realty Corp, 499 F2d 1197, 1200 (CA 6, 1974).]
35
A court may permit discovery before ruling on class certification
pursuant to MCR 3.501(B)(3)(b), which states: “The court may allow the action to
be maintained as a class action, may deny the motion, or may order that a ruling be
postponed pending discovery or other preliminary procedures.”
36
Beattie v CenturyTel, Inc, 511 F3d 554, 560 (CA 6, 2007). In Beattie, the
court acknowledged that a “rigorous analysis” must be applied to determine
whether the prerequisites for class certification in FR Civ P 23 are met. However,
the court also noted as follows:

Rule 23 does not require a district court, in deciding whether
to certify a class, to inquire into the merits of the plaintiff’s suit.
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177; 94 S. Ct. 2140; 40
L. Ed. 2d 732 (1974) (“We find nothing in either the language or
history of Rule 23 that gives a court any authority to conduct a
preliminary inquiry into the merits of a suit in order to determine

18
discretion to determine whether a class will be certified.37

Certifying courts must be mindful that, when it is necessary to look beyond

a party’s assertions to determine whether class certification is proper, the courts

shall analyze any asserted facts, claims, defenses, and relevant law without

questioning the actual merits of the case.38 We believe the above analysis strikes

the appropriate balance between the need to ensure that the class certification

prerequisites are sufficiently satisfied and the need to preserve a trial court’s

discretion in making class certification decisions.

B. Did the circuit court engage in an appropriate analysis to
determine if the prerequisites for class certification were satisfied in
this particular case?

After reviewing the circuit court’s decision, we believe its articulation and

application of the analysis for class certification is potentially inconsistent with the

required analysis. Therefore, we give the circuit court the opportunity to evaluate

the class certification prerequisites in light of this Court’s articulation of the proper

analysis for determining whether class certification is justified.

whether it may be maintained as a class action.”). Daffin v. Ford
Motor Co., 458 F.3d 549, 553 (6th Cir. 2006). [Beattie, supra at
560.]
37
See In re American Med Sys, supra at 1079.
38
In Jackson, the Court of Appeals did in fact rely on Falcon. However,
the Court of Appeals did not lose sight of the prohibition against examining the
merits of a case when determining whether to certify a class, even if the certifying
court finds it necessary to “‘probe behind the pleadings’ and analyze the claims,
defenses, relevant facts, and applicable substantive law ‘before coming to rest on
the certification question.’” Jackson, supra at 3, quoting Falcon, supra at 160,
and citing Neal v James, 252 Mich App 12, 15; 651 NW2d 181 (2002).

19
 Again, there are cases where the pleadings alone will be sufficient to

establish that the prerequisites are met, and a court should not evaluate the merits

of the case at the class certification stage, however, mere repetition of the

language of MCR 3.501(A)(1) is not sufficient to justify class certification, and

there must be an adequate statement of basic facts to indicate that each

prerequisite is fulfilled. As we have concluded, at least some greater analysis is

required than simply accepting a party’s bare assertion that the prerequisites have

been met. Thus, a circuit court may not simply accept as true a party’s bare

statement that a prerequisite is met unless the court independently determines that

the plaintiff has at least alleged a statement of basic facts and law that are adequate

to support that prerequisite.

In this particular case, before conducting its analysis of the class

certification prerequisites, the circuit court announced that it must “accept the

allegations of the plaintiff in support of the motion as true.” This statement is

potentially inconsistent with the standard adopted by this Court today to the extent

that it could be read to require courts to accept as true plaintiffs’ bare assertions

that the class certification prerequisites are met.39

It is not clear whether the circuit court’s understanding of the prerequisites

of MCR 3.501(A)(1) was consistent with the proper analysis announced in this

39
The trial court’s statement of the appropriate standard is similar to the
approach previously adopted by the Court of Appeals in Neal v James, 252 Mich
App 12, 15-16; 651 NW2d 181 (2002). Therefore, to the extent that Neal could be
read to require a trial court to accept as true a plaintiff’s bare assertion that a class
certification prerequisite is met, we overrule Neal.

20
Court’s decision today. We acknowledge that this case does not present a

situation in which plaintiffs provided the circuit court with only a complaint

containing bare assertions that the prerequisites of MCR 3.501(A)(1) were met and

the circuit court granted plaintiffs’ motion for class certification on the basis of

those assertions alone. Instead, the circuit court conducted a two-day hearing and

reviewed numerous documents from both parties, including scientific studies,

affidavits from experts, and information provided by the MDEQ. In its analysis of

MCR 3.501(A)(1)(a), (b), and (e), the circuit court appears to have independently

determined that plaintiffs alleged a statement of basic facts and law sufficient to

support each of those three prerequisites, and we hold that its analysis of those

three prerequisites was sufficient. For MCR 3.501(A)(1)(c) and (d), however, the

analysis conducted on the record by the circuit court was not sufficient to meet the

proper analysis announced by this Court today.40

40
For MCR 3.501(A)(1)(c), the typicality prerequisite, the trial court’s
analysis consisted of a restatement of the standard; a statement that “plaintiffs
contend” that their claims “arise from the same course of conduct” and that “they
share common legal and remedial theories”; and a quote from a federal district
court case stating that the typicality requirement may be satisfied if “there is a
nexus between the class representatives’ claims [and] defenses and the common
questions of fact or law which unite the class.” It is unclear from the trial court’s
analysis whether it independently determined that the plaintiffs alleged basic
questions of law and fact sufficient to support their allegation that their legal
remedial theories were typical of those of the class.

In the circuit court’s analysis of MCR 3.501(A)(1)(d), the adequacy of
representation prerequisite, it stated that “[t]he representative parties will fairly
and adequately assert and protect the interest of the class.” It supported this
conclusion by reasoning that “no proof has been submitted to this Court that
would indicate that the Plaintiffs herein, the representative parties, would not

21
 For MCR 3.501(A)(1)(c) and (d), where the analysis conducted by the

circuit court on the record was not sufficient to meet the proper analysis, we do not

believe that it is possible to look behind the circuit court’s analysis in order to

guess whether the circuit court actually conducted the correct analysis or whether

the circuit court would have reached the same result if it had conducted the correct

analysis. Especially given the extensive evidentiary record developed in this case

before the class certification decision, the circuit court may have made a valid,

independent determination that the plaintiffs had alleged an adequate statement of

basic facts and law sufficient to support a finding that MCR 3.501(A)(1)(c) and (d)

were met. Nonetheless, because the circuit court potentially used an evaluative

framework that is inconsistent with this Court’s interpretation of the rule, we

remand this case to the circuit court so that it may at least clarify its reasoning for

ruling that MCR 3.501(A)(1)(c) and (d) were met, in light of this Court’s decision

today.41

fairly and adequately assert and protect the interest of the class.” In other words,
the circuit court did not perform an analysis that sufficiently shows that it
independently determined that the plaintiffs would adequately represent the class
and also potentially shifted the burden to defendant to show that plaintiffs would
not adequately represent the class.
41
To the extent that the circuit court determines that the standard it initially
used is inconsistent with the proper standard, it should reanalyze all the
prerequisites under MCR 3.501(A)(1). If, however, the circuit court determines
that its standard was consistent with the proper standard, it should only revisit
MCR 3.501(A)(1)(c) and (d) in order to provide further explanation on the record
for its conclusion that the prerequisites were met.

22
 We do not reach the question of if, and to what extent, the issues involved

in this case should be “bifurcated.” However, we note that it is within the circuit

court’s discretion to certify a class on a limited basis and to decertify certain

members of the class when it deems it appropriate under MCR 3.501(B)(3).42

42
Justice Young states that we have “reversed the Court of Appeals
majority’s decision that bifurcation on damages is required,” and, in doing so,
violated this Court’s procedural rules because the plaintiffs did not file a cross-
appeal on this issue. Post at 17. We disagree that the Court of Appeals reached a
decision on bifurcation that would have required plaintiffs to cross-appeal the
issue in order for it to be before this Court.

We suggest that Justice Young is misreading the Court of Appeals
opinions. To the extent that there was a Court of Appeals “decision” on
bifurcation, it is because there were two votes in favor of class certification only
for the issue of liability and two votes against class certification only for the issue
of whether the commonality prerequisite was met with regard to damages. The
Court of Appeals wrote three separate opinions. Henry v Dow Chem Co,
unpublished opinion of the Court of Appeals, issued January 24, 2008 (Docket No.
266433). Judge Karen Fort Hood would have affirmed the trial court’s ruling that
the class should be certified, without qualification. Judge Patrick Meter, in a
partial concurrence and partial dissent, would have certified the class “with regard
to defendant’s potential liability,” but believed that “with regard to damages,
individual questions predominate over common questions.” Id. at 1 (Meter, P.J.,
concurring in part and dissenting in part). Therefore, he believed that “the
damages phase, should liability be established, must be dealt with on a case-by-
case basis.” Id. Judge Kirsten Frank Kelly would have reversed the trial court and
held that the class could not be certified with regard to any issues because she
believed that “individual questions of fact and law predominate over the issues
common to the class such that the commonality requirement of MCR 3.501(A) is
not met.” Id. at 1 (K.F. Kelly, J., dissenting).

Given that only one Court of Appeals judge held that bifurcation was
necessary, reading the Court of Appeals opinion to have reached a holding
regarding bifurcation requires cobbling together three divergent applications of the
commonality prerequisite in MCR 3.501(A)(1). If this Court were to reverse the
Court of Appeals holding concerning the commonality prerequisite with regard to
damages, there would be no Court of Appeals “decision” requiring bifurcation.
This Court specifically granted leave on whether the commonality prerequisite

23
Indeed, the circuit court’s order suggested that it recognizes that it will likely be

administratively easier to bifurcate at some point. Given that the most efficient

method for conducting the proceedings will likely be affected by how other issues

in the case develop, and given the circuit court’s extensive familiarity with the

complex factual and legal issues presented, we do not think that the circuit court

abused its discretion by waiting to determine to what extent bifurcation of the

issues involved may be needed.

IV. CONCLUSION

A party seeking class certification bears the burden of establishing that each

of the prerequisites for class certification in MCR 3.501(A)(1) is in fact satisfied.

It is not sufficient for a certifying court to simply accept a party’s assertion that the

prerequisites are met. When it is necessary to look beyond a party’s assertions in

order to assess whether the prerequisites for class certification are met, a certifying

court should do so without delving into the merits of the underlying claims

involved.

Because the circuit court potentially used an evaluative framework that is

inconsistent with this Court’s interpretation of the rule and articulation of the

proper analysis for class certification, we remand this case to the circuit court so

was met. Henry v Dow Chem Co, 482 Mich 1043 (2008) (ordering the parties to
address “whether the plaintiffs met all of the requisites for class certification
established in MCR 3.501(A)(1), including the requirement that questions of law
or fact common to the members of the class predominate over questions affecting
only individual members [the commonality prerequisite]”). Therefore, to the
extent that there was a Court of Appeals holding regarding bifurcation, it is
squarely before this Court.

24
that it may at least clarify its reasoning for ruling that MCR 3.501(A)(1)(c) and (d)

were met, in light of this Court’s decision today.

Elizabeth A. Weaver
Marilyn Kelly
Michael F. Cavanagh
Diane M. Hathaway

25
 STATE OF MICHIGAN

SUPREME COURT

GARY HENRY and ALL OTHERS
SIMILARLY SITUATED,

Plaintiffs-Appellees,

v No. 136298

DOW CHEMICAL COMPANY,

Defendant-Appellant.

YOUNG, J. (concurring in part and dissenting in part).

In this case, we are asked to review the trial court’s certification of a

plaintiff class consisting of approximately 2,000 landowners within the flood plain

of the Tittabawassee River. The Michigan Court Rules govern the procedure for

certifying class actions in Michigan courts. MCR 3.501(A)(1) provides specific

prerequisites for proposed plaintiff classes. A party seeking class certification

bears the burden of proving that these prerequisites are in fact met and must

provide sufficient information to the ruling court for it to make the determination

that the prerequisites are met. Because part II of the majority opinion correctly

articulates the appropriate appellate standard of review for class certification

decisions and part III(A) of the majority opinion correctly articulates the

appropriate legal standard a trial court must apply in ruling on a motion for class

certification, I join those sections of the majority opinion.
 While I would vacate the entirety of the trial court’s class certification

decision because it committed a legal error by using the wrong legal standard in

certifying the class, the majority determines only that the trial court’s analysis of

MCR 3.501(A)(1)(c) and (d) was insufficient and requires further explanation. In

doing so, the majority also reverses sub silentio the determination of the Court of

Appeals majority limiting the scope of the proposed class action to issues of

liability only. I therefore dissent in part. Because I believe that the trial court’s

decision was wholly affected by its application of an incorrect standard, I would

vacate the class certification in its entirety and remand to the trial court for a

completely new ruling on the motion for class certification and limit any

certification of the proposed class to issues of liability. The trial court in this case

expressly indicated that it must “accept the allegations of the plaintiff in support of

the motion [for class certification] as true.” This is inconsistent with the plain

requirement of the court rules, which allow class certification “only if” the

prerequisites listed in MCR 3.501(A)(1) are met, not merely alleged. I therefore

would vacate its class certification regarding liability in its entirety and remand to

the trial court so it can apply the appropriate legal standard.

I also dissent from the majority’s decision to give discretion to the trial

court to certify the class on the issue of damages. The plaintiffs did not cross-

appeal the decision of the Court of Appeals majority to vacate class certification

2
on the issue of damages, and therefore this Court cannot vitiate this unappealed

ruling of the Court of Appeals.

I. Facts and Procedural History

Plaintiffs commenced the instant action against defendant, Dow Chemical

Company, for its alleged pollution of the Tittabawassee River. They claim that the

release of dioxin into the Tittabawassee River has either directly contaminated

their properties or has otherwise adversely affected their properties. They

subsequently moved for class certification. Plaintiffs’ proposed class consists of

all owners of real property in Saginaw County within the 100-year flood plain of

the Tittabawassee River, as of February 1, 2002.1 This proposed class contains

approximately 2,000 people. Defendant opposed class certification.

After receiving supplemental briefs and hearing oral arguments on the

motion for class certification, the Saginaw Circuit Court issued its opinion and

order granting class certification on October 21, 2005. At the outset of its

analysis, the court explained that it was bound to accept the plaintiffs’ allegations

supporting its motion for class certification as true:

Due to the limited case law in Michigan addressing
certification of class action lawsuits, the Court can refer to federal
case law that interprets the federal rules on class certification.

1
A river’s “100-year flood plain” is the land area subject to the floodwaters
from a flood that has a one percent chance of occurring in any given year.
Accordingly, the land at the edge of the 100-year flood plain has a one percent
chance of being flooded with water from the Tittabawassee River in any given
year, while land closer to the river has a greater chance of being flooded in any
given year.
3
 Brenner v Marathon Oil Co, 222 Mich App 128, 133 (1997). When
evaluating a motion for class certification, the court is to accept the
allegations of the plaintiff in support of the motion as true. The
merits of the case are not examined. Allen v Chicago, 828 F Supp
543, 550 (ND Ill, 1993). The plaintiff bears the burden of proving
that the class should be certified. Id.[2]

The court then listed the five requirements of class certification and discussed the
plaintiffs’ allegations regarding each of these requirements. I reprint the trial
court’s analysis of the five requirements in its entirety:

a. The first requirement that the Plaintiffs must meet is that
“the class is so numerous that joinder of all members is
impracticable.” MCR 3.501(A)(1)(a). The Plaintiffs define the
potential class as:

“All persons who owned real property within the one-hundred
year Flood Plain of the Tittabawassee River in Saginaw County,
Michigan on February 1, 2002. For purposes of this class definition,
the one-hundred year Flood Plain of the Tittabawassee River is
defined as the geographic area set forth on the map attached as
Exhibit A (Exhibit B attached to this order), which is generally
bounded on the west and south by River Road and Stroebel Road,
including property on the west and south side of such roads, and
generally bounded on the east and north by Midland Road, St.
Andrews Road, and Michigan Avenue, including property on the
east and north sides of such roads and avenue.”

The Plaintiffs also allege and the Court finds that there would
be approximately 2,000 persons in the proposed class. The Court
finds that the class is so numerous that joinder of all members is
impracticable.

b. There are questions of law or fact common to the members
of the class that predominate over questions affecting only individual
members.

All of the Plaintiffs’ claims are based on the allegation that
the Defendant polluted the Tittabawassee River, causing damage to
the Plaintiffs in the form of reduced value of their home and

2
All citations have been converted to this Court’s standard format.
4
property. Therefore, the alleged negligence of the Defendant, if any,
as to the cause of the alleged pollution is common to all potential
Plaintiffs. Equally, any questions of law would be common to the
entire class. Although the question of damages may be
individualized, the mere fact that damages may have to be computed
individually is not enough to defeat a class action. As the Court
stated in Sterling v Velsicol Chem Corp, 855 F2d 1188, 1197 (CA 6,
1988):

“No matter how individualized the issues of damages may be,
these issues may be reserved for individual treatment with the
question of liability tried as a class action. Consequently, the mere
fact that questions peculiar to each individual member of the class
remaining [sic] after the common questions of the defendant’s
liability have been resolved does not dictate the conclusion that a
class action is impermissible.” See also Dix v Am Bankers Life
Assurance Co, 429 Mich 410, 417, 418, 419 (1987), and the more
recent case of Mejdrech, et al v Met-Coil Sys Corp, 319 F3d 910
(CA 7, 2003).

This Court finds that there are questions of law or fact
common to the members of the class that predominate over
questions affecting only individual members.

c. The claims or defenses of the representative parties are
typical of the claims or defenses of the class.

In this case, Plaintiffs contend that their property claims arise
from the same course of conduct by Defendant Dow and that they
share common legal and remedial theories with the members of the
class. The court in Cook v Rockwell Int’l Corp, 151 FRD 378 (D
Colo, 1993), stated:

“So long as there is a nexus between the class representatives’
claims [and] defenses and the common questions of fact or law
which unite the class the typicality requirement is satisfied (citations
omitted) . . . . The positions of the named plaintiffs and the potential
class members do not have to be identical. Thus, the requirement
may be satisfied even though varying fact patterns support the
claims or defenses of individual class members or there is a disparity
in the damages claimed by the representative parties and the other
members of the class. The court finds that the representative parties’
claims are not adverse or antagonistic to others in the class.

5
Therefore, the court finds that the claims or defenses of all of the
representative parties are typical of the claims or defenses of the
class and are not antagonistic to the class.”

d. The representative parties will fairly and adequately assert
and protect the interest of the class.

There presently are approximately seven Plaintiffs who are
the representative parties. Further, no proof has been submitted to
this Court that would indicate that the Plaintiffs herein, the
representative parties, would not fairly and adequately assert and
protect the interest of the class.

e. The maintenance of the action as a class action will be
superior to other available methods of adjudication in promoting the
convenient administration of justice.

To deny a class action in this case and allow the Plaintiffs to
pursue individual claims would result in up to 2,000 individual
claims being filed in this Court. Such a result would impede the
convenient administration of justice. Further, such a procedure
would or could result in inconsistent or varying adjudications with
respect to individual members of the class. A class action would
also assure legal assistance to the members of the class. Moreover, a
class action would achieve economy of time, effort and expense.
The Court specifically finds that the action would be manageable as
a class action based on the facts and the reasons set forth herein.
Each member of the class lives in the area alleged to have been
damaged. Each member of the class allegedly suffered damages as a
result of the release of contaminates in the Tittabawassee River.
Almost identical evidence would be required to establish negligence
and causal connection between the alleged toxic contamination and
Plaintiffs’ damages and the type of damages allegedly suffered. The
Court stated in Sterling v Velsicol Chem Corp, supra at 1197:

“In the instant case, each class member lived in the vicinity of
the landfill and allegedly suffered damages as a result of ingesting or
otherwise using the contaminated water. Almost identical evidence
would be required to establish the level and duration of chemical
contamination, the causal connection, if any, between the plaintiffs’
consumption of the contaminated water and the type of injuries
allegedly suffered and the defendant’s liability. A single major issue
distinguishing the class members is the nature and amount of

6
 damages, if any, that each sustained. To this extent, a class action in
the instant case avoided duplication of judicial effort and prevented
separate actions from reaching inconsistent results with similar, if
not identical, facts. The district court clearly did not abuse its
discretion in certifying this action as a rule of [sic] 23(b)(3) class
action. However, individual members of the class still would be
required to submit evidence concerning their particularized damages,
damage claims and subsequent proceedings.”

The Court finds that the maintenance of the action as a class
action will be superior to other available methods of adjudication in
promoting the convenient administration of justice.[3]

The Court of Appeals rendered three individual opinions in ruling on

defendant’s appeal. Judge Meter and Judge Fort Hood affirmed the trial court’s

certification with regard to the issue of Dow’s liability,4 while Judge Meter and

Judge K.F. Kelly determined that the individual issues predominate over class-

wide issues with respect to damages.5 Defendant appeals the Court of Appeals

judgment and claims that the trial court erred in certifying the plaintiff class.6 It

argues that certification should be vacated, first, because the trial court applied an

erroneous legal standard in accepting the plaintiffs’ allegations in support of their

3
All internal citations have been converted to this Court’s standard format.
4
Henry v Dow Chem Co, unpublished opinion per curiam of the Court of
Appeals, issued January 24, 2008 (Docket No. 266433). Accord id. (Meter, P.J.,
concurring in part and dissenting in part).
5
Id. (Meter, P.J., concurring in part and dissenting in part). Accord id.
(K.F. Kelly, J., dissenting).
6
Plaintiffs did not file a cross-appeal of the Court of Appeals ruling that
damages must be determined individually.
7
motion for class certification as true and, second, because the plaintiffs’ proposed

class fails as a matter of law.

II. Standard of Review

This Court has not expressly established a standard for reviewing

certification of a class action, although in a peremptory order we impliedly

reviewed a class certification decision for clear error.7 The Court of Appeals has

accordingly employed a clear error standard.8 “In Michigan, the clear error

standard has historically been applied when reviewing a trial court’s factual

findings whereas the abuse of discretion standard is applied when reviewing

matters left to the trial court’s discretion.”9 I concur in part II of the majority

opinion and agree that legal determinations are reviewed under a de novo

standard, that findings of fact are reviewed under a clear error standard, and the

court’s ultimate certification decision is reviewed for abuse of discretion. An

abuse of discretion occurs when the trial court’s decision is outside the range of

reasonable and principled outcomes.10

7
Hill v City of Warren, 469 Mich 964 (2003).
8
See, e.g., Neal v James, 252 Mich App 12, 15; 651 NW2d 181 (2002).
9
Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463,
471; 719 NW2d 19 (2006).
10
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006).
8
III. To Be Certified as a Class of Plaintiffs in Michigan Courts, the Requirements

Provided in MCR 3.501 Must, in Fact, be Met

The Michigan Court Rules govern the certification of class actions. MCR

3.501(A)(1) provides:

One or more members of a class may sue or be sued as
representative parties on behalf of all members in a class action only
if:

(a) the class is so numerous that joinder of all members is
impracticable;

(b) there are questions of law or fact common to the
members of the class that predominate over questions affecting only
individual members;

(c) the claims or defenses of the representative parties are
typical of the claims or defenses of the class;

(d) the representative parties will fairly and adequately assert
and protect the interests of the class; and

(e) the maintenance of the action as a class action will be
superior to other available methods of adjudication in promoting the
convenient administration of justice.[11]

The plain language of MCR 3.501(A)(1) is clear: representative plaintiffs may

pursue a class action lawsuit “only if” the enumerated prerequisites have been met.

The procedure for certifying a class in Michigan underscores this

requirement. Because a “plaintiff must move for certification that the action may

11
MCR 3.501(A)(1) (emphasis added).
9
be maintained as a class action,”12 the plaintiff bears the burden of satisfying the

trial court by a preponderance of the evidence that the prerequisites to class

certification have been met. Moreover, once the plaintiff moves to certify a class,

the trial court “may allow the action to be maintained as a class action, may deny

the motion, or may order that a ruling be postponed pending discovery or other

preliminary procedures.”13 In other words, MCR 3.501 expressly contemplates

that the trial court should make an independent determination that the proposed

class meets the requirements for class certification. Thus, a trial court may certify

a class only if the plaintiffs have provided sufficient information that each

prerequisite to class certification has been met. Because part III(A) of the majority

opinion correctly articulates this standard, I join that section of the opinion.

I also concur in the majority’s decision to overrule Neal v James14 to the

extent it “require[s] a trial court to accept as true a plaintiff’s bare assertion that a

class certification prerequisite is met . . . .”15 The Court of Appeals in Neal held

that a trial court must “accept the allegations made in support of the request for

certification as true.”16 Although the trial court in the instant case did not

12
MCR 3.501(B)(1)(a).
13
MCR 3.501(B)(3)(b).
14
Neal, 252 Mich App 12.
15
Ante at 21 n 39.
16
Neal, 252 Mich App at 15. Neal has subsequently been cited for this
proposition in a published opinion of the Court of Appeals. See Duncan v
10
expressly indicate its reliance on Neal, as a published Court of Appeals decision, it

is binding on all lower courts.17 The requirement in Neal that a certifying court is

bound to accept the plaintiffs’ allegations supporting its motion for class

certification as true, however, is inconsistent with the plain meaning of MCR

3.501 as articulated above. Moreover, it cites stale federal precedent for its

statement of law.18 Accordingly, I concur with the majority that Neal is overruled

to the extent that it is inconsistent with the rule of law articulated today.

Michigan, ___ Mich App ___, ___; ___ NW2d ___, decided June 11, 2009
(Docket No. 278652), slip op at 45.
17
MCR 7.215(C)(2).
18
Both the Neal Court and the instant trial court cited a stale federal district
court case for the proposition that a trial court is bound to accept the plaintiff’s
pleadings on behalf of the motion for certification as true. Allen v Chicago, 828 F
Supp 543, 550 (ND Ill, 1993) (“In evaluating the motion for class certification, the
allegations made in support of certification are taken as true . . . .”). However, the
Seventh Circuit Court of Appeals subsequently undermined Allen in Szabo v
Bridgeport Machines, Inc, 249 F3d 672, 676 (CA 7, 2001), which precluded
courts from relying uncritically on the allegations contained in motions for class
certification: “Before deciding whether to allow a case to proceed as a class action,
. . . a judge should make whatever factual and legal inquiries are necessary under
[Federal] Rule [of Civil Procedure] 23.” Therefore, even if a Michigan court “can
refer to federal cases construing the federal rules on class certification,” Neal, 252
Mich App at 15, it should look only to cases that remain good law.

Applicable federal caselaw does not require that trial courts accept the
allegations in support of the motion for class certification as true. Indeed, the
United States Supreme Court expressly negated that principle. Gen Tel Co of the
Southwest v Falcon, 457 US 147, 160; 102 S Ct 2364; 72 L Ed 2d 740 (1982).
The Court of Appeals’ citation of Falcon in Duskin v Dep’t of Human Services,
___ Mich App ___, ___; ___ NW2d ___, decided June 11, 2009 (Docket No.
279151), slip op at 5, is consistent with the use of applicable federal precedent.

11
 IV. The Trial Court Erred by Certifying the Class to the Extent It Stated and

Applied an Erroneous Standard of Law

A. The Trial Court Articulated an Erroneous Standard of Law

Before certifying the plaintiff class, the trial court sought briefing and

conducted extensive oral arguments on the motion for class certification.

Nevertheless, even though it did so, the trial court’s opinion made no mention of

these facts. Instead, the trial court prefaced its ruling by explaining that “[w]hen

evaluating a motion for class certification, the court is to accept the allegations of

the plaintiff in support of the motion as true.” This statement has meaning, and its

meaning completely rebuts the plaintiffs’ claim that the trial court conducted the

appropriate analysis in making its ruling on class certification. The trial court’s

statement indicates that it approached its analysis without the appropriate

analytical independence from the plaintiffs’ allegations supporting class

While federal caselaw may be helpful in interpreting a similarly worded but
ambiguous provision in the Michigan Court Rules, courts must not forget that it is
the Michigan Court Rules that they are interpreting. Accordingly, federal caselaw
interpreting the Federal Rules of Civil Procedure can be instructive at most, but
never controlling. As explained earlier, the plain language of MCR 3.501(A)(1)
requires that the prerequisites for class certification must in fact be met before a
trial court can certify a class of plaintiffs. That federal caselaw interprets FR Civ
P 23 similarly is fortuitous but ultimately of less import than the actual text of the
Michigan Court Rules.

12
certification. It is appropriate to vacate the trial court’s certification for this legal

error alone.19

B. The Trial Court Applied an Erroneous Standard of Law

Moreover, a critical reading of the trial court’s actual ruling underscores the

inappropriate deference that the trial court afforded plaintiffs’ pleadings on the

motion for class certification. For example, in concluding that “there are questions

of law or fact common to the members of the class that predominate over

questions affecting only individual members,”20 the trial court merely reiterated

plaintiffs’ claims without discussing the arguments that defendant proffered in

opposition to the motion.

Defendant’s trial brief listed several questions of law or fact that it alleged

required individualized determination:

 How each proposed property class member uses and enjoys his,
her[,] or its property (when, in fact, there are a vast array of
different types of commercial, industrial, agricultural, residential,
governmental, non-profit and other entities in the 20-mile-long
proposed property class area, and each proposed class member
uses and enjoys his, her[,] or its property in ways different from
others);

19
The trial court’s statement that “[t]he plaintiff bears the burden of
proving that the class should be certified” does not cure any defect it caused by
saying it was bound to accept the plaintiffs’ allegations supporting class
certification as true. If the plaintiffs’ allegations supporting class certification
must be accepted as true, as the trial court stated, then the plaintiffs can meet their
burden of proof merely by alleging that the requirements for class certification
have been met.
20
MCR 3.501(A)(1)(b).
13
 Whether each proposed class member has suffered a substantial
and unreasonable interference with use and enjoyment as a result
of misconduct by Dow (when, in fact, such proposed class
members already have testified that they have not suffered any
such interference, and the alleged interferences from others are
highly variable and dissimilar);

 Whether the different levels of dioxin on class properties
constitute an unreasonable and substantial interference with use
and enjoyment (when, in fact, the levels differ significantly from
each other, such that some proposed class members have no level
of dioxin on their soil in excess of levels upstream of Dow, some
have no level of dioxin on their soil in excess of the DEQ’s direct
contact criteria, and other proposed class members have higher
levels);

 What duty (if any) Dow owes to each particular proposed class
member (when, in fact, different types of dioxin have been
deposited on different proposed class properties at different times
over the past 100 years, by potentially many different entities,
who would have faced vastly different standards of care and
states of the art at the time of such deposits and, even focusing on
the most current version of the DEQ’s direct action criteria
(which were not applicable until recently), different DEQ criteria
apply to different types of property within the class, and those
criteria differ from applicable federal criteria);

 Whether Dow violated any duty owed to different proposed class
members (when, in fact, the various levels of dioxin on the
different properties fall both above and below the various
potential standards of care that could have been in effect over the
past 100 years);

 Whether any proposed class member’s property value was
injured (when, in fact, many proposed class members already
have sold their class properties at a substantial profit, including
some who received more than their asking price and others who
have sold for more than their recently appraised value, whereas
others have no interest in ever selling their property, and others
refuse to sell, and still others contend their property has been
rendered “worthless”);

14
 ***

 Whether and how each proposed class member is situated vis-à-
vis Dow’s defenses, including the statute of limitations (when, in
fact, many proposed class members have believed for many years
that Dow polluted the Tittabawassee River, including with
dioxin, and thereby diminished the use and enjoyment and value
of proposed class properties).

Thus, defendant raised several issues in this case that may require individualized

determination, and that therefore may bar class certification under MCR

3.501(A)(1)(b). Even if these concerns ultimately do not preclude class

certification, the issues raised are ones that a trial court would have rebutted or

explained if it had conducted an independent inquiry into whether the prerequisites

of class certification had in fact been met. The trial court’s failure to respond to

any of these claims in its ruling, therefore, belies the plaintiffs’ contention that the

trial court conducted an appropriate analysis of whether the plaintiffs’ proposed

class met the requirements for class certification. Moreover, it belies the

majority’s assumption that the trial court conducted an appropriate analysis of

some of the class certification prerequisites, as the predomination prerequisite is

one in which the majority concluded that “the circuit court appears to have

independently determined that plaintiffs alleged a statement of basic facts and law

sufficient to support [the] prerequisite[] . . . .”21

Because the trial court failed to address defendant’s arguments in

opposition to class certification, not only did it articulate a legal standard that was

21
Ante at 21.
15
inconsistent with the plain meaning of the Michigan Court Rules, but it also

applied that inappropriate standard in granting class certification. Accordingly,

class certification must be vacated in its entirety, and this case must be remanded

to the trial court for reconsideration of all the class certification prerequisites in

light of the appropriate legal standard.

C. Instructions for Remand

On remand, the trial court must determine whether the plaintiffs’ proposed

class in fact meets the prerequisites for class certification contained in MCR

3.501(A)(1).22 If the trial court determines that the proposed class meets the

prerequisites for class certification, then the trial court may certify the proposed

class. However, if it certifies the same class, it may only certify that class with

regard to the issue of Dow’s liability. Two judges on the Court of Appeals held

that, as a matter of law, damages must be determined in individual proceedings.23

I would not disturb that holding; indeed, the plaintiffs did not file a cross-appeal to

dispute the majority’s determination that proceedings to determine damages must

be bifurcated from any class action regarding Dow’s liability. Accordingly, I

22
Pursuant to MCR 3.501(B)(3)(d)(ii), the trial court may instead divide the
proposed class “into separate classes with each treated as a class for purposes of
certifying [or] denying certification . . . .”
23
Henry, supra (Meter, P.J., concurring in part and dissenting in part);
(K.F. Kelly, J., dissenting).
16
would preclude the trial court from certifying the proposed class on the issue of

damages, since that legal issue has been settled for the purposes of this litigation.24

The majority has reversed the Court of Appeals majority’s decision that

bifurcation on damages is required. Although it claims that it “do[es] not reach

the question of if, and to what extent, the issues involved in this case should be

‘bifurcated,’”25 it does so by subterfuge in claiming that it “do[es] not think that

the circuit court abused its discretion by waiting to determine to what extent

bifurcation of the issues involved may be needed.”26 This is in direct contradiction

of the majority position of the Court of Appeals, which states unequivocally that

“with regard to damages, individualized questions prevail.”27 This gross violation

24
Moreover, the law of the case doctrine would preclude a subsequent
appellate court from certifying the proposed class on the issue of damages. CAF
Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981) (“[I]f
an appellate court has passed on a legal question and remanded the case for further
proceedings, the legal questions thus determined by the appellate court will not be
differently determined on a subsequent appeal in the same case where the facts
remain materially the same.”).
25
Ante at 23.
26
Ante at 24.
27
Henry, supra, at 1 (Meter, P.J., concurring in part and dissenting in part).
Accord id. (K.F. Kelly, J., dissenting). The majority posits that I am “misreading”
the Court of Appeals opinions by “cobbling together three divergent” opinions to
come to my conclusion that two judges would have reversed the trial court’s
certification with respect to damages. Ante at 23 n 42. I see no other way of
interpreting the three Court of Appeals opinions. Though fractured, they reach a
clear result. Judge Fort Hood would have affirmed class certification entirely;
Judge Meter would have affirmed class certification only with respect to questions
of liability; and Judge K.F. Kelly would have vacated class certification entirely.
17
of our procedural rules is yet another indication of the majority’s now familiar

approach to seek its desired result whatever the consequences.28 The plaintiffs,

While only one Court of Appeals judge specifically mandated “bifurcation,” that
result is the only way of reconciling the three divergent Court of Appeals
positions. In any event, that result was not appealed by the plaintiffs and, as a
result of the majority’s opinion, plaintiffs are in a better position than they would
have been had defendant not appealed. The only principled basis for avoiding the
Court of Appeals ruling on damages would be if a different class were certified.
However, this principled approach is unavailable to the majority because it
preserves part of the class certification the trial court rendered and requires only
that the trial court reconsider portions of its analysis. Thus, unless the trial court
declines to certify on remand or certifies a different class, the majority has
enhanced plaintiffs’ position.
28
The majority’s determination to ignore facts and precedent inconvenient
to its desired outcome has become its modus operandi. See, e.g., Vanslembrouck v
Halperin, 483 Mich 965 (2009), where the new majority ignored Vega v Lakeland
Hospitals at Niles & St Joseph, Inc, 479 Mich 243, 244; 736 NW2d 561 (2007);
Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009), where it failed to
follow Boodt v Borgess Med Ctr, 481 Mich 558; 751 NW2d 44 (2008); Sazima v
Shepherd Bar & Restaurant, 483 Mich 924 (2009), where it failed to follow
Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331 (1940), and
Camburn v Northwest School Dist, 459 Mich 471; 592 NW2d 46 (1999); Juarez v
Holbrook, 483 Mich 970 (2009), where it failed to follow Smith v Khouri, 481
Mich 519; 751 NW2d 472 (2008); Chambers v Wayne Co Airport Auth, 483 Mich
1081 (2009), where it failed to follow Rowland v Washtenaw Co Rd Comm, 477
Mich 197; 731 NW2d 41 (2007); and Scott v State Farm Mut Auto Ins Co, 483
Mich 1032 (2009), where it failed to enforce Thornton v Allstate Ins Co, 425 Mich
643; 391 NW2d 320 (1986), and Putkamer v Transamerica Ins Corp of America,
454 Mich 626; 563 NW2d 683 (1997). Chief Justice Kelly contends, as she has
elsewhere, that “the accusation that the Court has been ignoring precedent is
incorrect.” Ante at 4. See also Potter v McLeary, 484 Mich ___, ___; ___ NW2d
___ (2009) (Kelly, C.J., concurring), decided July 31, 2009 (Docket No. 136336),
slip op at ___; and Beasley v Michigan, 483 Mich 1025, 1025-1027 (2009) (Kelly,
C.J., concurring). This response has been repeatedly answered in detail. See
Beasley, 483 Mich at 1027-1030 (Corrigan, J., dissenting); Potter, 484 Mich at
___ (Markman, J., concurring in part and dissenting in part), slip op at ___. More
importantly, Chief Justice Kelly’s response fails to address the fundamental
problem that “[leaving] intact precedents that were inconsistent with new
decisions essentially allow[s] future litigants to choose among inconsistent
18
appellees to this case, have not filed a cross-appeal of the Court of Appeals

majority’s decision requiring that damages be determined on an individualized

basis. It is a basic principle of appellate procedure that appellees who have not

cross-appealed “may not obtain a decision more favorable to them than was

rendered by the Court of Appeals.”29 The majority’s failure to follow this basic

principle of law by declaring that the trial court has discretion not to follow the

binding decision of the Court of Appeals, where the majority does not even state

that it is reversing any part of the Court of Appeals’ judgment, is contrary to this

Court’s precedent and unworthy of a Court committed to the rule of law.30

V. Conclusion

The party seeking certification of a class under MCR 3.501 bears the

burden of establishing by a preponderance of the evidence that its proposed class

in fact meets the requirements for class certification as articulated in the Michigan

precedents as in columns A and B of a Chinese restaurant menu.” Rowland, 477
Mich at 227 (emphasis and punctuation omitted).
29
McCardel v Smolen, 404 Mich 89, 94-95; 273 NW2d 3 (1978). See also
Pontiac Twp v Featherstone, 319 Mich 382, 390; 29 NW2d 898 (1947) (“In the
absence of a cross appeal, errors claimed to be prejudicial to appellee cannot be
considered nor may appellee have enlargement of relief.”).
30
Our order granting leave to appeal asked the parties to brief four issues.
Henry v Dow Chem Co, 482 Mich 1043 (2008). Needless to say, due the lack of a
cross-appeal, we did not ask the parties to brief whether the Court of Appeals had
erred in holding that the trial court had erred in granting class certification
regarding the issue of damages. All appellate practitioners should take careful
note of today’s decision, because an appellant is ending up in a worse position
than it was in under the Court of Appeals decision that it appealed, even though no
cross-appeal was filed.

19
Court Rules. The trial court, therefore, is not bound to accept the allegations of

the moving party, but rather must make an independent finding that the

prerequisites of class certification have been met. Because the trial court in the

instant case did not make such an independent determination, I would vacate class

certification in its entirety and remand this case to the circuit court for further

proceedings consistent with this opinion. I would not disturb the Court of Appeals

majority’s decision that the proposed class may not be certified on the issue of

damages.

Robert P. Young, Jr.
Maura D. Corrigan
Stephen J. Markman

20
 STATE OF MICHIGAN

SUPREME COURT

GARY HENRY and ALL OTHERS
SIMILARLY SITUATED,

Plaintiffs-Appellees,

v No. 136298

DOW CHEMICAL COMPANY,

Defendant-Appellant.

CORRIGAN, J. (concurring in the opinion of YOUNG, J.).

I join Justice Young’s opinion in full. I write separately in order to discuss

additional issues raised by this appeal that I believe the trial court should consider

on remand before again certifying a class in this case. The trial court’s October

21, 2005, opinion and order granting class certification formally defined the class

to include “all persons who owned real property within the one-hundred year

Flood Plain of the Tittabawassee River in Saginaw County, Michigan, on February

1, 2002.” The class definition also included a geographic description of the

relevant flood plain. But the definition did not limit the class to those property

owners who are actually injured by pollution emanating from the activities of

defendant, Dow Chemical Company. Rather, the order defined the class broadly

to include all of the approximately 2,000 persons who owned property on

approximately 13,000 acres of land. I conclude that such an indiscriminate,
overbroad definition of the class failed to comport either with MCR 3.501 or with

the precedent cited in the trial court’s order because it included numerous class

members with no present injuries.

Further, such an overbroad class definition would be likely to have

significant, negative effects on the hundreds of purported class members who

indeed may have no present injuries. It is striking that only about 170 landowners

had elected to join this suit as plaintiffs at the time of the trial court’s certification

decision.1 The owners of property with no present injuries may reasonably wish

not to be included in the class because certification of their otherwise unharmed

property may itself guarantee reduction in their property values; these landowners

will never recover against Dow because they cannot allege damages under

negligence or nuisance theories, but their property values may collapse further

simply as a result of their being lumped into the class.

For this reason, if the trial court on remand again concludes that

certification of a class is proper, I would direct the court to limit the class to those

property owners with actual injuries as a result of Dow’s activities.

1
Indeed, although I agree with Justice Young that the trial court should
reconsider whether the proposed class satisfied each criterion for class
certification on the question of Dow’s liability, I agree with the majority that the
record presents particularly problematic unanswered questions concerning whether
the representative plaintiffs’ claims are typical of those of the proposed class,
MCR 3.501(A)(1)(c), and whether plaintiffs will “fairly and adequately assert and
protect the interests of the class” as class representatives, MCR 3.501(A)(1)(d).
See ante at 22-23.

2
 The actual injury requirement

It is axiomatic that each member of a plaintiff class must have suffered an

actionable injury, which is a prerequisite of any tort claim. “[C]lass members

must have suffered actual injury to have standing to sue . . . .” Zine v Chrysler

Corp, 236 Mich App 261, 288; 600 NW2d 384 (1999). As the United States

Supreme Court opined in Gen Tel Co of the Southwest v Falcon, 457 US 147, 156;

102 S Ct 2364; 72 L Ed 2d 740 (1982): “We have repeatedly held that a class

representative must be part of the class and possess the same interest and suffer the

same injury as the class members.” (Emphasis added; citation and quotation

marks omitted.) Michigan cases similarly require plaintiffs to “demonstrate with

common proof that the members of the class have suffered a common injury.”

A&M Supply Co v Microsoft Corp, 252 Mich App 580, 599-600; 654 NW2d 572

(2002) (emphasis added).

Likewise, the federal toxic tort cases relied on by plaintiffs and the trial

court involved certification of classes explicitly defined by reference to the

members’ present injuries. For example, the discussion in Sterling v Velsicol

Chem Corp, 855 F2d 1188, 1197 (CA 6, 1988), which the trial court quotes at

length in its October 21, 2005, order, addresses a class of residents who alleged

that they “suffered damages as a result of ingesting or otherwise using . . .

contaminated water.” Sterling involved plaintiffs who lived near a landfill from

which toxic chemicals seeped into the ground, contaminating soil and

groundwater. Much as in the present case, because several wells near the site

3
tested positive for contamination, all residents within 1,000 acres of the site were

advised to stop using their wells for any purpose. Several residents sued under

theories including nuisance and negligence. Id. at 1192-1194. The United States

Court of Appeals for the Sixth Circuit affirmed class certification. But the class

did not indiscriminately include every resident within the 1,000-acre area; rather,

Sterling’s discussion and holding presuppose that each class member had a present

injury because “each class member lived in the vicinity of the landfill and

allegedly suffered damages as a result of ingesting or otherwise using the

contaminated water.” Id. at 1197 (emphasis added). Similarly, the class in Olden

v Lafarge Corp, 383 F3d 495, 507 (CA 6, 2004), was expressly defined as “all

owners of single family residences in the City of Alpena whose persons or

property was damaged by toxic pollutants and contaminants which originated

from the Lafarge cement manufacturing facility . . . .” (Emphasis added.) In

contrast, as noted, the class certified here broadly included “all persons who

owned real property” within the 100-year flood plain, without reference to whether

such persons could allege harm as a result of Dow’s activities. Because it is

apparent that such an overbroad class cannot all allege cognizable claims, I

conclude that plaintiffs’ proposed class definition is flawed.

Present injuries under the torts alleged

Plaintiffs sued under negligence and nuisance theories. To prove

negligence, “a plaintiff must demonstrate a present physical injury to person or

4
property in addition to economic losses that result from that injury.” Henry v Dow

Chem Co, 473 Mich 63, 75-76; 701 NW2d 684 (2005) (Henry I) (emphasis in

original). Henry I created a bright line rule by unambiguously requiring a plaintiff

alleging negligence to prove present physical injury. Here, plaintiffs cannot show

that each land parcel in the 100-year flood plain is presently contaminated with

pollution alleged to have originated from Dow’s activities. Indeed, studies by the

Michigan Department of Environmental Quality (DEQ) expressly show that some

of the land is not contaminated. Because the owners of uncontaminated property

do not have present physical injuries, they cannot allege negligence under

Michigan law.

Accordingly, plaintiffs argue that even the uncontaminated properties suffer

present injury in fact under a nuisance theory because they may become

contaminated in the future. But Dow correctly argues that the purported injury in

fact to many of these properties is too speculative to be recognized in Michigan.

To prove private nuisance, a plaintiff must show substantial interference

with the use and enjoyment of his land. Adkins v Thomas Solvent Co, 440 Mich

293, 303-304; 487 NW2d 715 (1992).2 Because a nuisance is a “nontrespassory

invasion,” a plaintiff need not show physical intrusion upon his land to prove

nuisance. Id. at 302.

2
Public nuisance, on the other hand, requires proof of an “unreasonable
interference with a right common to all members of the general public.” Adkins,
440 Mich at 304 n 8. Plaintiffs alleged both public and private nuisance theories.

5
 There are countless ways to interfere with the use and
enjoyment of land including interference with the physical condition
of the land itself, disturbance in the comfort or conveniences of the
occupant including his peace of mind, and threat of future injury that
is a present menace and interference with enjoyment.” [Id. at 303.]

Significantly, although nuisance may involve “‘threatening or impending

danger,’” id., quoting Kilts v Kent Co Supervisors, 162 Mich 646, 651; 127 NW

821 (1910), a plaintiff cannot prove nuisance “where damage and injury are both

predicated on unfounded fear of third parties that depreciates property values,” id.

at 312. “[P]roperty depreciation alone is insufficient to constitute a nuisance.” Id.

at 311.

Here, the facts presented by plaintiffs do not suggest that all or even most

of the 2,000 proposed class members can allege cognizable nuisance claims. As

noted, the DEQ reports that many parcels of land are not physically contaminated.

Many more parcels have not even been tested, were never subject to flooding, and

are very unlikely to experience flooding even during the next century. Crucially,

the DEQ’s restrictions apply only to contaminated or frequently flooded land—not

to all land in the 100-year flood plain.3 Because the class was defined on the sole

3
The March 15, 2004, declaration of Andrew W. Hogarth, chief of the
MDEQ’s Remediation and Redevelopment Division, specifies that only “locations
where dioxin concentrations exceed the residential direct contact criteria” are a
designated “facility” for purposes of state restrictions on contaminated land, which
include the requirement to inform potential buyers of dioxin contamination. He
states that the DEQ also “believes” that property “subject to frequent flooding by
the Tittabawassee River downstream of Midland is a facility.” He avers that
residents were specifically informed of these definitions in the DEQ’s June 2003
Information Bulletin No. 3. As Dow observes, there is no evidence to suggest that

6
basis of the geographic boundaries of the 100-year flood plain, much of the

circumscribed land has only a one percent chance of flooding in a given year. See

ante at 3 n 1 (Young, J.). Moreover, the degree of risk of contamination from

future flooding is questionable and somewhat speculative; Dow has already altered

its activities and begun remediating past contamination of the river as was

required, in part, by the DEQ.4

Accordingly, although some landowners may be able to allege present harm

from nuisance, many residents of the flood plain certainly cannot. Indeed, the land

that is not presently contaminated, that has a low risk of flooding in the future, and

that has a largely speculative risk of actual contamination as a result of future

flooding, is comparable to the land in Adkins where the plaintiffs sought damages

based on diminished property values they alleged were caused by contamination in

the surrounding area. These plaintiffs’ land was not actually contaminated; a

groundwater divide prevented the migration of toxic chemicals from the

uncontaminated property with a low likelihood of flooding in a given year is
“subject to frequent flooding” or otherwise designated a “facility” by the DEQ’s
terms. Similarly, the DEQ’s Information Bulletin No. 4, dated March 2004,
identified precautions that residents of the flood plain could take “to reduce
exposure to dioxins from the identified areas of contamination.” (Emphasis
added.) By their terms, these guidelines do not apply to uncontaminated soil.
4
I also note, as the DEQ observed in its June 2003, Phase II Final Report,
the presence of uncontaminated properties within the 100-year flood plain that are
elevated above the flood level as a result of “local natural features or the
introduction of clean fill material.” Obviously these properties also have a low
risk of future contamination from flooding.

7
surrounding land. Adkins, 440 Mich at 299-300, 318. The Court held that fear-

based diminution in property values was an insufficient basis for relief, stating:

Under such a theory, a cause of action could be stated on behalf of
any individual who could demonstrate an effect on property values even if
the polluted ground water had neither strayed from defendants’ own
property, nor disturbed a plaintiff’s enjoyment by the fear that it would do
so.
If any property owner in the vicinity of the numerous hazardous
waste sites that have been identified can advance a claim seeking damages
when unfounded public fears of exposure cause property depreciation, the
ultimate effect might be a reordering of a polluter’s resources for the
benefit of persons who have suffered no cognizable harm at the expense of
those claimants who have been subjected to a substantial and unreasonable
interference in the use and enjoyment of property. [Id. at 318-319.]

The very problem identified in Adkins is present here. Plaintiffs argue that

property values throughout the flood plain have been diminished in part as a result

of DEQ warnings to residents concerning possible contamination and steps

residents should take to avoid harmful exposure to dioxin-contaminated soil;

residents were told, for example, that children and gardeners should avoid

prolonged exposure to contaminated soil and that certain steps were required if

residents wished to move or dispose of such soil. But the DEQ itself also reported

that various areas of the flood plain were not harmfully contaminated, and the

state-promulgated restrictions applied only to contaminated or, at most, frequently

flooded land. Indeed, the depositions of some flood plain residents explicitly

revealed that these residents were not directly affected by pollution and had not

altered the use of their land in any way as a result of Dow’s alleged polluting

activities. Thus, many proposed class members would be able to argue at most

8
that their property values decreased simply as a result of publicity concerning

pollution of the Tittabawassee River in part due to this lawsuit. But this is

precisely the sort of unfounded fear that the Adkins Court concluded could not

underlie a nuisance claim. Finally, the 170 or so plaintiffs who moved for class

certification risk the very problem identified in Adkins; by attempting to certify

2,000 class members, most of whom obviously had not yet chosen to participate in

the suit and many of whom may not be able to allege damages from present

injuries, the plaintiffs virtually guarantee both that Dow’s resources will be

stretched to defend uncognizable claims at the expense of those plaintiffs who

suffer actual harm and that any fear-based diminution in property values

throughout the flood plain will accelerate as a result of the overbroad class

definition.5 Indeed, not only does the proposed class definition incorrectly suggest

that undamaged land is indeed damaged in some way, but the definition likely

would suspend all flood plain residents’ abilities to sell undamaged land

throughout the pendency of this suit, which is already over six years old.

Conclusion

For these reasons, I conclude that the class proposed by plaintiffs is too

broad and therefore is untenable. Significantly, it is not even clear that the trial

5
Dow posits that the 100-year flood plain is too broad an area for a
factfinder to conclude that every owner suffers a present, nonspeculative injury
sounding in nuisance. Dow reasonably asks: why not the 1,000-year or 1 million-
year flood plain? Conversely, plaintiffs would be more likely to properly define a
geographically based class if they focused merely on the 10- or 20-year flood
plain.

9
court intended to accept plaintiffs’ broad proposed definition when it initially

certified the class. I note that the October 21, 2005, order refers to two defining

characteristics of the class, one largely geographic but the other apparently based

on present injury: “Each member of the class lives in the area alleged to have

been damaged. Each member of the class allegedly suffered damages as a result

of the release of contaminates in the Tittabawassee River.” (Emphasis added.)

Accordingly, if the trial court again concludes on remand that class certification is

appropriate, I would direct the court to explicitly limit any class definition to

property owners who suffer present injuries.

Maura D. Corrigan
Stephen J. Markman

10
 STATE OF MICHIGAN

SUPREME COURT

GARY HENRY and ALL OTHERS
SIMILARLY SITUATED,

Plaintiffs-Appellees,

v No. 136298

DOW CHEMICAL COMPANY,

Defendant-Appellant.

KELLY, C.J. (concurring).

I fully agree with and sign the majority opinion in this case. I write for the

sole purpose of responding to Justice Young’s comments regarding the majority’s

respect for the doctrine of stare decisis. Justice Young repeats a claim that he and

Justices Corrigan and Markman have published numerous times this term1 with

the same string of citations.2 The claim is that their colleagues who comprise the

1
See, e.g., Petersen v Magna Corp, 484 Mich ___; ___ NW2d ___ (2009)
(Markman, J., dissenting), decided July 31, 2009 (Docket Nos. 136542 and
136543); Chambers v Wayne Co Airport Auth, 483 Mich 1081 (2009) (Corrigan,
J., dissenting); Scott v State Farm Mut Auto Ins Co, 483 Mich 1032 (2009)
(Corrigan, J., dissenting); Beasley v Michigan, 483 Mich 1025 (2009) (Corrigan,
J., dissenting); Juarez v Holbrook, 483 Mich 970 (2009) (Markman, J.,
dissenting). Justice Young joined the dissenting statements in Chambers, Scott,
Beasley, and Juarez.
2
Post at 18 n 28.
majority in this case have been ignoring precedent. A review of the cases in the

string cite serves to illustrate that the claim is simply false.

Justice Young claims that in Vanslembrouck v Halperin,3 the Court ignored

Vega v Lakeland Hosps.4 However, Vanslembrouck is distinguishable from Vega

because Vega determined that MCL 600.5851(1) is a savings provision, whereas

Vanslembrouck held that MCL 600.5851(7) is a statute of limitations. Thus, these

cases examined the effect of altogether different statutory provisions.

Justice Young also claims that in Hardacre v Saginaw Vascular Services,5

the Court failed to follow Boodt v Borgess Med Ctr.6 However, in Hardacre, the

Court denied leave to appeal because the allegations in the plaintiff’s notice of

intent to file an action did not need to comply with Boodt. In Hardacre, the

burden of explication of the standard of care was minimal.7

Nor did the Court ignore precedents with which it disagrees in Sazima v

Shepherd Bar & Restaurant.8 Justice Young claims that the Court failed to follow

3
Vanslembrouck v Halperin, 483 Mich 965 (2009).
4
Vega v Lakeland Hospitals at Niles-St Joseph, Inc, 479 Mich 243; 736
NW2d 561 (2007).
5
Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009).
6
Boodt v Borgess Med Ctr, 481 Mich 558; 751 NW2d (2008).
7
See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 694
n 12; 684 NW2d 711 (2004).
8
Sazima v Shepherd Bar & Restaurant, 483 Mich 924 (2009).

2
Chrysler v Blue Arrow Transport Lines.9 However, Sazima involved exceptions to

the “going and coming” rule as set forth in Camburn v Northwest School Dist.10

Thus, the Court was not bound by Chrysler.

Justice Young next claims the Court ignored Smith v Khouri11 when it

decided Juarez v Holbrook.12 However, in Juarez, it was undisputed that the trial

court performed a reasonableness analysis in calculating the proper attorney fee

award. Therefore, a remand in light of Smith was unnecessary.

Likewise, Justice Young is incorrect in claiming that the Court failed to

enforce Thornton v Allstate Ins Co13 and Putkamer v Transamerica Ins Corp of

America14 in Scott v State Farm.15 In Scott, the Court of Appeals undertook a

thorough analysis of the relevant no-fault jurisprudence and applied precedent as it

has been understood for nearly 30 years.

9
Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331
(1940).
10
Camburn v Northwest School Dist, 459 Mich 471, 478; 592 NW2d 46
(1999).
11
Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008).
12
Juarez, supra.
13
Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986).
14
Putkamer v Transamerica Ins Corp of America, 454 Mich 626; 563
NW2d 683 (1997).
15
Scott, supra.

3
 Finally, the Court did not fail to abide by Rowland in Chambers v Wayne

Co Airport Auth.16 Chambers interpreted MCL 691.1406, while Rowland

interpreted MCL 691.1404(1). Thus, the cases dealt with different statutory

provisions and the Court was not bound to extend Rowland to the statute at issue

in Chambers.

In summary, the accusation that the Court has been ignoring precedent is

incorrect. Had other Justices been in the majority in some of the decisions

complained about, they might well have extended existing precedent to a new area

of the law. But the refusal of those in the majority in this case to so extend

precedent is quite different from a refusal on their part to apply it. This is a

distinction that Justices Young, Corrigan, and Markman would do well to concede.

Marilyn Kelly

16
Chambers, supra.

4
 STATE OF MICHIGAN

SUPREME COURT

GARY HENRY and ALL OTHERS
SIMILARLY SITUATED,

Plaintiffs-Appellees,

v No. 136298

DOW CHEMICAL COMPANY,

Defendant-Appellant.

WEAVER, J.

I write this separate opinion with regard to the issue of my participation in this

case.

In preparation of my 2008 income taxes, it came to my attention that I own 108

shares of Dow Chemical, which I received through a recent inheritance. After I became

aware of this information, I asked the Clerk of the Court, Corbin Davis, to notify the

parties to this case. Below is a copy of the disclosure statement sent to the parties by Mr.

Davis on April 15, 2009:

Justice Weaver has requested that I inform you of the following:
In preparation of her 2008 income taxes, it has come to Justice
Weaver’s attention that she now owns 108 shares in Dow Chemical, which
she received through a recent inheritance. Justice Weaver has informed me
that she did not own any Dow Chemical stock at the time she sat on this
matter in a prior appeal. Henry v Dow Chemical Co, 473 Mich 63; 701
NW2d 684 (2005).
 She has been informed that this stock is currently worth
approximately $10.94 per share, thus making the total value of her stock
$1,181.52. Pursuant to the Code of Judicial Conduct Canon 3(C):
“A judge should raise the issue of disqualification whenever the
judge has cause to believe that grounds for disqualification may exist under
MCR 2.003(B).”
MCR 2.003(B)(5) provides in part that a judge is disqualified when:
“The judge knows that he or she . . . has an economic interest in the
subject matter in controversy or in a party to the proceeding or has any
other more than de minimis interest that could be substantially affected by
the proceeding.”
Justice Weaver believes that the amount of stock she owns in Dow
Chemical is not a “more than de minimis interest” that could be
substantially affected by this proceeding.
She also states that she has no personal bias or prejudice for or
against either party and, therefore, finds no need to recuse herself in this
case. However, should either of the parties desire that she recuse herself,
she is willing to do so.
Please advise me of your preference in this matter at your earliest
convenience.

Justice Young also sent a separate statement to the parties expressing his

disagreement with my decision to notify the parties in this manner. Both parties

responded that they had no objection to my continued participation in this case.

I bring this issue to the public’s attention because it is another example of why this

Court needs fair, clear, written rules for disqualification concerning the participation or

nonparticipation of Michigan Supreme Court justices. Since May 2003, I have repeatedly

called for this Court to recognize, publish for public comment, place on a public hearing

agenda, and address the need to have written, clear, fair, orderly, and public procedures

2
concerning the participation or disqualification of justices.1 See, e.g., statement or

opinion by Weaver, J., in In re JK, 468 Mich 202, 219-225; 661 NW2d 216 (2003);

Gilbert v DaimlerChrysler Corp, 469 Mich 883 (2003); Advocacy Org for Patients &

Providers v Auto Club Ins Ass’n, 472 Mich 91, 96-104; 693 NW2d 358 (2005);

McDowell v Detroit, 474 Mich 999, 1000 (2006); Stamplis v St John Health Sys, 474

Mich 1017, 1017-1018 (2006); Heikkila v North Star Trucking, Inc, 474 Mich 1080, 1081

(2006); Lewis v St John Hosp, 474 Mich 1089, 1089-1090 (2006); Adair v Michigan, 474

Mich 1027, 1044-1051 (2006); Grievance Administrator v Fieger, 476 Mich 231, 328-

347; 719 NW2d 123 (2006); Grievance Administrator v Fieger, 477 Mich 1228, 1231-

1271 (2006); People v Parsons, 728 NW2d 62, 62-65 (2007); Ruiz v Clara’s Parlor, Inc,

477 Mich 1044 (2007); Neal v Dep’t of Corrections, 477 Mich 1049, 1049-1053 (2007);

State Auto Mut Ins Co v Fieger, 477 Mich 1068, 1070-1071 (2007); Ansari v Gold, 477

Mich 1076, 1077-1079 (2007); Short v Antonini, 729 NW2d 218, 219-220 (2007);

1
Justice Young now asserts that he feels an “ethical obligation” to raise questions
about the manner in which I have handled the issue of my participation in this matter.
Post at 2 n 1. However, I again note that since 2003, I have raised the issue of the need
for clear, written, and fair disqualification rules for Michigan Supreme Court justices, but
the “majority of four” (Justice Young, along with Justices Corrigan and Markman and
former Chief Justice Taylor) refused to address the issue until 2006, when this Court
worked on the issue of disqualification, and the “majority of four” refused to publish the
proposed disqualification rules formulated by members of this Court.

In March of this year (2009), after former Chief Justice Taylor’s removal from this
Court as a result of his overwhelming defeat in the 2008 election, the “remaining three”
(Justice Young, along with Justices Corrigan and Markman) voted against publishing
proposed rules for disqualification. Fortunately, this year, a majority voted in March
2009 to publish for public comment until August 1, 2009, the three proposals for rules of
disqualification to be considered at a public hearing later in 2009.
3
Flemister v Traveling Med Services, PC, 729 NW2d 222, 223-225 (2007); McDowell v

Detroit, 477 Mich 1079, 1084-1086 (2007); Johnson v Henry Ford Hosp, 477 Mich

1098, 1099-1100 (2007); Tate v Dearborn, 477 Mich 1101, 1102-1103 (2007); Dep’t of

Labor & Economic Growth v Jordan, 480 Mich 869, 869-873 (2007); Cooper v Auto

Club Ins Ass’n, 739 NW2d 631, 631-633 (2007); and Citizens Protecting Michigan’s

Constitution v Secretary of State, 482 Mich 960, 962-964 (2008).

Elizabeth A. Weaver

4
 STATE OF MICHIGAN

SUPREME COURT

GARY HENRY and ALL OTHERS
SIMILARLY SITUATED,

Plaintiffs-Appellees,

v No. 136298

DOW CHEMICAL COMPANY,

Defendant-Appellant.

YOUNG, J.

I write separately to respond to Justice Weaver’s separate concurrence.

It would appear from Justice Weaver’s separate opinion that I opposed the

communication of her late-discovered ownership interest in one of the parties. She states:

“Justice Young also sent a separate statement to the parties expressing his disagreement

with my decision to notify the parties in this manner.” Ante at 2 (emphasis added). This

is patently untrue, as Justice Weaver knows. What I challenged was the inadequacy of

her disclosure to the parties concerning the nature of her ownership of stock in Dow

Chemical. For example, she did not disclose when she actually became the legal owner

of stock in Dow Chemical or precisely when she discovered she had this ownership

interest. Moreover, she did not disclose the basis for her unilateral determination that her

ownership interest is not a “more than de minimis interest” or why any ownership interest
was not itself disqualifying. In order to ensure that the context of my criticism of her

disclosure is provided, I am publishing my own communication to the parties below.

I continue to question Justice Weaver’s participation in this case.1 I believe that

any ownership interest in a party precludes a judge’s participation. MCR 2.003(B)(5)

provides that a judge is disqualified when “[t]he judge knows that . . . she . . . has an

economic interest in . . . a party to the proceeding or has any other more than a de

minimis interest that could be substantially affected by the proceeding.” This court rule

is written in the disjunctive, which distinguishes an economic interest in a party from

every other type of potentially disqualifying interest. Only those “other” types of

interests contain an exception for de minimis interests. Without doubt, Justice Weaver

has an “economic interest in . . . a party” in this proceeding.

This qualitative distinction made in MCR 2.003(B)(5) between economic interests

and other interests is similarly found in the nearly identical federal statute regarding

judicial recusal.2 28 USC 455(b)(4) disqualifies a federal judge from sitting in a case if

1
While, consistent with my previous practice, Adair v Michigan, 474 Mich 1027,
1052 (2006) (statement of Young, J.), I do not “vote” on Justice Weaver’s
disqualification in this case, I believe I do have an ethical obligation to raise questions
about her decision. I note that, contrary to their participation in United States Fidelity Ins
& Guaranty Co v Michigan Catastrophic Claims Ass’n, ___ Mich ___ order of the
Supreme Court, entered July 21, 2009 (Docket Nos. 133466 and 133468), where the
Chief Justice and Justice Cavanagh concurred in and signed Justice Hathaway’s decision
to participate, here they have not joined in Justice Weaver’s decision to participate. I
have no idea why these justices have chosen to vote on the disqualification in the one
case but have declined to do so in this instance.
2
Compare 28 USC 455(b)(4), which provides that a judge shall disqualify himself
when “[h]e knows that he . . . has a financial interest in the subject matter in controversy
2
he or she “has a financial interest in the subject matter in controversy . . . .” The statute

defines “financial interest” as “ownership of a legal or equitable interest, however small.”

28 USC 455(d)(4). The United States Court of Appeals for the Tenth Circuit has

determined that the federal statutory scheme

differentiates between two kinds of interests. If the judge has direct
ownership, legal or equitable, then disqualification is required regardless of
the size of the interest, unless one of the specified exceptions applies. On
the other hand, an interest not entailing direct ownership falls under “other
interest,” and requires disqualification only if the litigation could
substantially affect it.[3]

Furthermore, the leading commentators on federal practice and procedure indicate that

this statutory provision

eliminate[s] any dispute about the substantiality of a financial interest. If a
judge, or any other person within the statutory language, has any financial
interest, as that term is defined, however small, in a party or in the subject
matter in controversy, the judge must recuse. There is no room for
discretion.[4]

Under MCR 2.003(B)(5) there was no discretion here for Justice Weaver’s continued

participation.

or in a party to the proceeding, or any other interest that could be substantially affected
by the outcome of the proceeding,” with MCR 2.003(B)(5), which provides that a judge
is disqualified when “[t]he judge knows that he . . . has an economic interest in the
subject matter in controversy or in a party to the proceeding or has any other more than
de minimis interest that could be substantially affected by the proceeding.” The federal
statute was enacted in 1948 and the Michigan court rule was amended in 1995 in light of
the 1990 ABA Model Code of Judicial Conduct, which, in pertinent part, was taken from
the federal statute.
3
In re New Mexico Natural Gas Antitrust Litigation, 620 F2d 794, 796 (CA 10,
1980). This is the same distinction made in MCR 2.003(B)(5).
4
Wright and Miller, 13D Federal Practice and Procedure (3d ed), § 3546, pp 76-
78 (emphasis in original; citations omitted).
3
 My Statement to the Parties

My response, also communicated to the parties, challenging Justice Weaver’s

disclosure to the parties concerning her stock ownership is restated here as follows:5

In light of her repeated public statements regarding standards for
recusal, I regret that Justice Weaver has placed the parties in the awkward
position of having to decide whether she will take part in the decision of
this case notwithstanding her acknowledged financial interest as an investor
in the defendant corporation. I ask that the following public information
regarding Justice Weaver’s stated positions on recusal be taken into
consideration in making a decision on her request for remittal.
While I have publicly supported the Court’s more than a century old
recusal policy,2 Justice Weaver has been equally publicly critical of that
longstanding policy in suggesting that she subscribes to a “higher”
standard.3
Nevertheless, Justice Weaver claims that her ownership of
approximately $1,200 in defendant Dow’s stock is “not a ‘more than de
minimis interest.’” She has made this determination herself, which is
contrary to her repeated public statements on the question of judicial
recusal.4
For example, in this Court’s March 18, 2009 order on ADM 2009-04
(Proposed Disqualification Rules for Justices), Justice Weaver reiterated
her 2006 statement on disqualification and explained that “[i]t is a most
basic truth that the person who may be the least capable of recognizing a
justice’s actual bias and prejudice, or appearance of bias and prejudice, is
the justice h[er]self.”5 Presumably consistent with that sentiment, she
recused herself in Kyser v Kasson Twp, “because she has a past and current
business relationship with Kasson Township Supervisor Fred Lanham and
his family.”6
Moreover, Justice Weaver has advocated a disqualification standard
that requires judges to recuse themselves if there is merely an appearance
of impropriety. She has cited with approval Canon 2 of the ABA Model
Code of Judicial Conduct, which states that “[a] judge shall avoid . . . the
appearance of impropriety in all of the judge’s activities” and Model Canon

5
My communication to the parties begins with endnote 2 because Justice
Weaver’s communication contained one citation and the citations were numbered
continuously. Additionally, all citations in the communication have been converted to
this Court’s standard format.
4
3(E)(1), which states that a judge “shall disqualify . . . herself in a
proceeding in which the judge’s impartiality might reasonably be
questioned.”7
The disqualification standard that she has publicly championed is an
objective standard, not a subjective standard to be determined by her say-
so. Justice Weaver’s “appearance of impropriety” standard is made without
regard to whether an individual judge harbors an actual bias toward any
party in the case being heard:
“[W]hen a judge recuses . . . herself to avoid the appearance of
impropriety, the result is that the judge avoids risking actual bias. Second,
when a judge recuses . . . herself, the judge eliminates the appearance of
impropriety and thereby engenders public confidence in the judiciary.”8
Accordingly, if her support of the “appearance of impropriety”
standard is genuine – and I assume that she would not have advocated it
otherwise – her personal belief that she “has no personal bias or prejudice
for or against either party” and that the total value of her stock is “not more
than a de minimis interest” is irrelevant to whether she must recuse herself.
Moreover, Justice Weaver has advocated in her various published
statements on disqualification standards that the disqualification decision
cannot be solely vested in the judge who is the subject of disqualification
but must be reviewed by other members of the Court.9
Here, Justice Weaver has made her own determination that her Dow
stock ownership is “de minimis” within the meaning of MCR 2.003(B)(5).
But there is no basis upon which an objective observer can assess the
validity of her claim and decision. Context is essential in considering what
level of ownership in a party litigant is “de minimis,” and no one but
Justice Weaver is privy to her financial status – something she has chosen
not to share.
My point here is that Justice Weaver’s request for remission is
entirely inconsistent with her published views on what standards ought
apply in recusal situations. Her ownership of stock in a party defendant
does pose an appearance of impropriety from the standpoint of the public.10
Can anyone imagine the public at large believing that it is perfectly
appropriate for a judge to decide a case in which she owns stock in one of
the parties?11 Moreover, her communication – which states her conflict,
announces that her conflict does not matter, and asks the parties to agree
with her – is inherently intimidating and coercive to both parties involved
in this litigation.12 Rejection of her stated premise – that, notwithstanding
her stated conflict, she should participate in the case – obviously puts the
parties in the position of offending a sitting Justice. By her own stated

5
positions on recusal, she should not be putting the parties in the position of
having to bless an appearance of impropriety.
Finally, the nature of Justice Weaver’s private communication with
the parties does not comport with her conclusion that the Michigan
Constitution, art 6, § 6, “requires that a justice’s self-initiated decision and
reasons not to participate, or a challenged justice’s decision and reasons to
participate or not participate, should be in writing and accessible to the
public.”13 It would seem to me that, under her proposed regime, Justice
Weaver’s discussion of her stock ownership should be published for public
review.
Again, I wish to state that I believe that our historic disqualification
policy is constitutionally sound and should be embraced by all members of
this Court. Since it has not been, and since Justice Weaver has articulated
her own, purportedly “higher” recusal standards, I am left to wonder why
Justice Weaver advocates a public position contrary to the position she
practices and why she believes it appropriate that the parties should be
asked to bless her conflict.

2
“In short, a justice confronted with a disqualification motion has typically
consulted with members of the Court and made a determination whether
participation in a particular matter was appropriate. Other than providing
counsel, other members of the Court have not participated in the decision.”
Order of the Michigan Supreme Court, March 18, 2009, p 33 (“March 18,
2009 order”) ADM 2009-04 (statement of Young, J.). See also Adair v
State of Michigan, 474 Mich 1027, 1052 (statement of Young, J.).
3
See, e.g., March 18, 2009 order, supra at 9 n 1 (statement of Weaver, J).
4
So far as I am aware, Justice Weaver did not consult with any member of
this Court before announcing her position.
5
March 18, 2009 order, supra at 14.
6
Kyser v Kasson Twp [483 Mich 903 (2009) (order denying leave)] and
[483 Mich 983 (2009) (order vacating denial order and granting leave)].
Justice Weaver did not disclose the nature of her “business relationship”
that warranted her recusal.

6
7
See Adair v State of Michigan, 474 Mich 1027, 1047 (2006) (statement of
Weaver, J.). Justice Weaver does not subscribe to my view that, because
Justices cannot be replaced on a case by case basis, a different rule of
disqualification must apply to Justices. See id. at 1044-45. On the
contrary, she advocates that a disqualified Justice can be replaced in such a
case.
8
Id. (Emphases added.) Justice Weaver claims that she “has no personal
bias or prejudice for or against either party . . . .” Nevertheless, her lack of
actual bias in this case is irrelevant under her disqualification standard to
the question whether the participation of a judge who has an ownership
interest in a litigant creates an appearance of impropriety.
9
March 18, 2009 order, supra at 13-14. This, of course, is one of the issues
pending in Caperton v Massey, United States Supreme Court Docket No.
08-22, where it is claimed that due process requires that a recusal issue
must be decided by someone other than the judge who is the subject of
potential disqualification.
10
Indeed, Congress has made this very policy judgment. 28 USC 455(b)(4)
disqualifies a federal judge from sitting in a case if he or she “has a
financial interest in the subject matter in controversy.” The statute defines
“financial interest” as “ownership of a legal or equitable interest, however
small.” 28 USC 455(d)(4). While this federal statute is not controlling
here as our disqualification rule for Michigan judges permits a “de
minimis” financial interest, it does provide support for the proposition that
even a small financial stake in a party litigant creates an appearance of
impropriety.
11
As stated, Justice Weaver provides the parties with no basis upon which
to evaluate her request for remission.
12
I am aware that this procedure is specifically contemplated by MCR
2.003(D). Nevertheless, if Justice Weaver’s standard for recusal is the
appearance of impropriety, then submitting this question to the parties
becomes moot and is inherently aimed at coercing the parties to accept her
participation notwithstanding the appearance of impropriety.
13
Adair, 474 Mich at 1050 (statement of Weaver, J.) (emphasis added).

Robert P. Young, Jr.

7