Supreme Reversal - MI Supreme Ct: Direction reverses, divide remains

By DAVID N. GOODMAN, Associated Press Writer

DETROIT, Jan. 1, 2010 (AP): The Michigan Supreme Court underwent a major transformation in 2009, when a Democrat, who defeated a Republican incumbent, set in motion a series of rulings that favor injured people with damage claims and tighten judicial ethics.

One thing that hasn't changed is a bitter ideological split that has led to sharp attacks, ridicule, and mockery by justices against their colleagues.

Conservative forces that dominated the court for a decade lost their majority after the November 2008 election, when Democrat Diane Hathaway beat Republican Chief Justice Clifford Taylor.

Candidates are nominated by parties but their party affiliations don't appear on the ballot.

``There have been a number of cases when the changing of the guard—the arrival of Justice Hathaway in place of Justice Taylor—made the difference,'' said prominent Detroit appellate lawyer Mark Bendure, who often represents people suing companies for damages.

The GOP still has a 4-3 majority, but Elizabeth Weaver has clashed with fellow Republicans Maura Corrigan, Stephen Markman, and Robert Young Jr. for years and frequently sides with the Democrats on civil cases and organizational matters.

In January 2009, Weaver joined Hathaway and Democrats Michael Cavanagh and Marilyn Kelly to select Kelly as chief justice.

Personal conflicts aside, the new court issued several 4-3 rulings in favor of people claiming damages. Three came in July alone when the narrow majority:

_ Let the family of a woman who died after childbirth claim loss of child care and household services in their medical malpractice suit against a Monroe hospital and doctors.

_ Allowed a paralyzed gunshot victim to move ahead with her lawsuit against a Detroit 911 operator who asked if she was ``a mental patient'' when she called for help.

_ Ordered the Michigan Catastrophic Claims Association to fully reimburse insurance companies for the cost of 24-hour care for two men who sustained brain damage in vehicle crashes.

``Justice Weaver has been the swing vote,'' said Bendure. ``In personal injury cases, her tendency has been to vote with the Democratic bloc. In criminal cases, she has been more conservative.''

Bendure said he hopes the court will prove more sympathetic to people seeking damages from insurers, doctors, and others.

That's what worries those who represent defendants in civil suits.

They express concern for whether the new majority will respect precedents set by past state Supreme Courts or will attempt to reshape Michigan's judicial philosophy to reflect their own views.

``Everyone is watching the court to see if it is going to hold fast to a large number of existing precedents'' or start rolling them back, said Mary Massaron Ross, a prominent corporate defense lawyer. ``A court should be slow to overturn past precedents, in order to create stability in the law.''

Signs that the court was ready to reconsider past decisions came early.

In December, the previous court voted 4-3 to direct the state Court of Appeals to consider a challenge to a circuit court ruling against an oil field wastewater discharge permit. In February—after Hathaway unseated Taylor—the high court reinstated the Otsego County decision.

``There are a number of cases where the court has specifically asked whether a given case should be revisited,'' Massaron Ross said. ``That of course heightens the concern about stability.''

Bitterness spilled over in November, when Weaver joined Kelly, Hathaway and Cavanagh in a 4-3 vote to approve a policy letting the full court consider whether specific justices should be barred from hearing cases in which they have possible conflicts of interest.

Kelly cited the policy as a leading accomplishment of her first year as chief justice.

``I believe that this rule will foster greater public confidence that the court is fair and unbiased,'' she told The Associated Press in an e-mail Tuesday.

Conservatives sharply attacked the new rule and those who passed it.

``The majority has created a 21st century Star Chamber,'' wrote a dissenting Young, referring to a secretive English court abolished in 1640.

Corrigan warned that the policy would worsen divisions on the court and said ``cancerous vitriol'' was ``sure to spew from justices' pens'' as the policy is implemented.

``I'm troubled by the divisiveness of the court,'' Bendure said, saying it's increasingly become a battleground between opposing political camps, rather than a place of reasoned legal discourse.