(Source: MIRS.news, Published 07/29/2022) When a Democratic-nominated majority took over the Michigan Supreme Court in 2021, the speculation was this might lead to more high court opinions split along party lines.
However, with the high court calling it a 2021-22 session on Thursday, an analysis by MIRS showed the opinions fell along Republican-nominated/Democrat-nominated lines 13% of the time.
The seven justices unanimously agreed 64% of the time, including holding unconstitutional both the Grand Rapids Police Department's photograph and print and the use of one-judge grand jury to issue indictments in the Flint water crisis criminal prosecution.
Democrat-nominated Chief Justice Bridget Mccormack was part of the majority 95% of the time, with fellow Dems Justices Richard Bernstein and Elizabeth Welch, who joined the court in January 2021, trailing her at 92% and Justice Cavanagh at 91%.
GOP-nominated Justices David Viviano and Brian Zahra trailed at 71% and 66%, respectively, and Justice Elizabeth Clement was essentially in the middle at 86%.
When the Supreme Court had dissenting opinions, Zahra's name was there 51% of the time. Viviano was with the dissenting opinion 38% of the time and Clement 17%.
The court closed its 2021-22 term Friday having issued 77 opinions, including issues ranging from township ordinances to juveniles sentenced to life-without-parole. Some opinions account for more than once individual case.
The justices offered no word on whether they will hear Gov. Gretchen Whitmer's executive message challenging the state's 1931 abortion-ban law, and its 2022-23 term could see appeals on a Court of Claims case filed by Planned Parenthood of Michigan that challenges the same law.
Among the court's most anticipated rulings was Rouch World and Uprooted Electrolysis, businesses who refused to serve a same-sex couple and a transgender woman, respectively, based on their religious beliefs.
The consolidated cases is one of 11 times that Republican-nominated Clement sided with the Democrats, holding that Michigan's Elliott-Larsen Civil Rights Act provides protections based on sexual orientation.
The court declined to consider an appeal that could have considered whether groups can challenge state environmental permitting decisions in court.
The Party splits came in widely watched cases, including whether unemployment claimants falsely accused of fraud could seek financial relief from the state. Specifically, the Democratic-nominated justices said yes for the first time.
The case, Bauserman v. Unemployment Insurance Agency, was one of the cases the dissent took the majority to task for making rulings – as alleged – that overstep the Legislature's purview and create law.
"After (the Bauserman) decision, the Constitution will also provide individuals with a cause of action for money damages when their constitutional rights are violated if the Legislature has not provided a remedy that a majority of this Court deems 'adequate,'" Viviano wrote in his dissent. "This represents an expansion of liability for the state and its taxpayers, without any legal grounding.
"In fashioning this new cause of action for monetary damages, the Court wields legislative power, unjustified by our common-law authority or the text and history of the Constitution itself," he added.
In a case over zoning regulations at the township level, Viviano said the majority "conjures new definitions, criteria and factors" on Michigan zoning laws and that the action "is contrary to the intent of the Legislature."
In a series of opinions related to juveniles who were sentenced to life-without-parole, Zahra said the Democratic majority upset the Legislature's policy choice related to a U.S. Supreme Court case that said such a sentence for juveniles is unconstitutional.
And in a case about an estranged wife inheriting from a dead husband, Zahra said the majority created a "brand-new test … that is untethered from the statutory text" while in 161723 he called the majority's action "extremely troubling that is wholly inconsistent" with standards of appellate review.
But, the Democratic-nominated justices also countered the criticism with their own.
In People v. Stovall, McCormack took the unusual route of authoring a concurring opinion to the majority opinion she authored.
As McCormack noted in a footnote, a "quirk of this Court's practice" allows the justices to "concur" with an opinion they author – "a step I have never taken before," she wrote, noting that she wanted to "dedicate a separate opinion to some fundamental observations."
Those observations included recognizing Zahra's question about whether the ratifiers in 1963 understood that "cruel or unusual punishment" provider greater protection than the Eighth Amendment "currently provides under our society's evolving standards of decency."
McCormack said Zahra's view would overrule 50 years of precedent.
"When the Court has for 50 years approached new iterations of a question governed by broad constitutional text with a specific analysis, it is immodest indeed to pitch that away because now, in 2022, one can determine somehow that the ouija board has spoken and the 1963 ratifiers meant something else by that broad language," McCormack wrote.
