Stare decisis v. the "new authority": the Michigan Supreme Court's practice of overruling precedent, 1998-2002.

• Author: Delaney, Sarah K.

1. INTRODUCTION

   The 2000 election for the Michigan Supreme Court went down in history as Michigan's most expensive judicial race ever. (1) In addition to having spent in excess of fifteen million dollars, the campaign was tarnished by vicious mud-slinging and accusations by both the Republican and Democratic parties. (2) Three open seats on the Michigan Supreme Court, previously held by conservative justices appointed by Governor John Engler, spurred this unprecedented battle. (3) Although Michigan Supreme Court Justices are elected in a nonpartisan election, they are nominated at party conventions, and they receive the support of the Republican and Democratic parties. (4) When the dust settled from the 2000 election, the Republican incumbents had prevailed over their Democratic-backed counterparts, and a conservative bloc remained in the Michigan Supreme Court. (5)

   During the election, the Democratic party's attacks focused on the court's practice of overturning precedent, a trend that increased dramatically from 1998 to 2002. (6) The Democratic Party contended that this increase reflected a conservative shift in the Michigan Supreme Court created by the Engler-appointed justices, and that these conservative justices were overturning precedent to change the law to favor corporations--especially insurance companies. (7)

   The criticism directed toward the conservative majority remained after the 2000 election, and was voiced not only by politicians but also through dissent within the court chambers. (8) Why has the new court, beginning with the Engler-appointed justices, felt the need to overturn precedent at nearly twice the rate of the era before them? What do these opinions tell Michigan constituents about the ideologies of the justices sitting on their highest court? Is there truth behind the allegations made by the Democratic Party during the 2000 election, or is the conservative majority simply returning the Michigan Supreme Court to its "proper role of interpreting the law, not creating it"? (9)

   This study seeks to answer these questions by examining cases from 1998 to 2002 in which the majority chose to overturn past case law. (10) By analyzing the majority, concurring, and dissenting opinions written by each Michigan Supreme Court Justice, this study will identify individual Justices' voting patterns and the ideologies that underlie their respective decisions.

2. DEFINING CONSERVATISM AND LIBERALISM

   Before categorizing the Michigan Supreme Court decisions and their authors as conservative or liberal, it is necessary to define these terms as they exist as political ideologies. Conservatism embodies the principle that individuals hold inherent rights that are best protected by limiting the power of the government. (11) Therefore, conservative values include limited government, autonomous institutions, and individual freedom. (12) Limited government interference enables a society to establish cultural entities over generations, which, in turn, produces institutions "shaped in accordance with the demands made on them; their defects and unintended consequences will become apparent and, under pressure for reform, reshaped." (13) Reflecting the belief that social institutions evolve from the demands placed on them by individuals, conservatism embraces capitalism, based on its proven success over time in promoting the ideals of democracy. (14) Conservative values include the right to retain the fruits of one's labor, individual initiative, and the duties one has to his society based on tradition. (15)

   In contrast to conservatism, liberalism places the greatest emphasis on the civil and political rights of each individual. (16) Liberalism values individual freedom over traditional community values and "demand[s] a substantial realm of personal freedom ... which the state should not intrude upon, except to protect others from harm." (17) While liberalism traditionally supported limited governmental interference and laissez-faire capitalism, contemporary liberalism has shifted, and now promotes the government's role in advancing individual rights. (18) This principle translates to regulation of the market and initiation of social programs to ensure equal opportunity and the general welfare of the population. (19) In their debates regarding stare decisis and overturning precedent, the decisions of the current Michigan Supreme Court have reflected the conflicts between liberalism and conservatism.

3. STARE DECISIS

   The Michigan Supreme Court addressed the underlying principles of stare decisis throughout the cases involved in this study. Stare decisis is defined as "[t]he doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation." (20) The rationale behind the doctrine of stare decisis rests on the values that it promotes--efficiency of the court, consistency in the law, fairness, and legitimacy. (21) All of the cases in this study involved overruling precedent, and therefore, the Michigan Supreme Court was compelled to examine this doctrine in order to reach the intended result in these cases. (22) In doing so they recognized that, although the doctrine of stare decisis "'promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process,"' it nevertheless does not rise to the status of "an inexorable command." (23)

   In response to accusations by the dissent contending that the majority failed to adhere to precedent and the doctrine of stare decisis, (24) Justice Taylor directly addressed the doctrine and set out a test that the court must follow in determining whether to overrule a prior decision. (25) The court held that in determining whether to overturn a decision, it must consider (1) whether the earlier decision of the court was incorrectly decided and (2) whether overruling the decision would work an undue hardship because of reliance interests or expectations that have arisen. (26) In answering the second part of this test, the court must determine "whether the previous decision has become so embedded, so accepted, so fundamental, to everyone's expectations that to change it would produce not just readjustments, but practical real-world dislocations." (27) This test enables the majority to overcome the doctrine of stare decisis in many instances, particularly in cases concerning statutory interpretation. (28) Once the court determines that a case has been "wrongly decided," the doctrine of stare decisis protects that previous holding only to the extent that reliance interests meet the high standard set by the court. (29)

4. THE ENGLER APPOINTMENTS

   1. Justice Clifford W. Taylor

      Governor John Engler appointed Justice Taylor to the Michigan Supreme Court on September 1, 1997 to fill the seat vacated by Justice Dorothy Comstock Riley. (30) In 1998, Justice Taylor was elected to complete the remainder of Justice Riley's term and, in 2000, won the race for re-election for a full eight-year term. (31) At this time, Justice Taylor is considered to be one of the most conservative Justices on the Michigan Supreme Court. (32) Out of the twenty-five cases examined in this study, Justice Taylor signed his name to seven, including Robinson, making him the author of the greatest number of majority opinions overturning precedent. (33)

      In each of these cases, Justice Taylor overruled a prior Michigan Supreme Court decision in order to reach the majority's intended result. In his earlier opinions, Justice Taylor planted a seed: "When it becomes apparent that the reasoning of an opinion is erroneous, and that less mischief will result from overruling the case rather than following it, it becomes the duty of the court to correct it." (34) By characterizing the departure from stare decisis as a "duty" of the court, whereas generally adherence to the doctrine of stare decisis weighs heavily on the list of the court's duties, Justice Taylor creates an interest to balance against the doctrine of stare decisis. The duty to overrule erroneous holdings repeatedly materializes in Justice Taylor's decisions--often in response to the dissent's accusations of judicial activism and to justify the possibility of unfair results that may occur from the court's decisions. (35)

      Throughout Justice Taylor's opinions, two distinct rationales emerge that highlight how the prior terms of the Michigan Supreme Court made an erroneous decision. Justice Taylor's first rationale asserts that where a previous court's decision rested on false presumptions, or failed to take into account practical considerations, the current court should reexamine such a case, and, upon finding it erroneous, overrule it. (36) This rationale implies that the previous court lacked the wisdom and practicality that the current majority now possesses. The three cases written by Justice Taylor that use this rationale concern criminal situations (37) and shed light on the presumptions of the current conservative majority, which are in conflict with those false presumptions of the previous liberal court. In People v. Graves, Justice Taylor employed this rationale to overcome a previous decision which created an automatic reversal rule in criminal cases in which the judge permitted the jury to consider a charge that the prosecution failed to establish by sufficient proof. (38) Justice Taylor determined that the prior court's foundation for the automatic reversal rule rested on the flawed belief that such an error always causes prejudice to the defendant. (39) He concluded that the unsound reasoning of the prior court was based on its "unwarranted assumption that jurors do not follow their instructions not to compromise their views" and "a supposition that can only be equated with rough guesswork regarding what happened in the jury room." (40) Whereas...