Anglers of the Ausable Inc v. Dept of Environmental Quality

Order Michigan Supreme Court
Lansing, Michigan
June 18, 2010 Marilyn Kelly,
Chief Justice
138863-66(87)(91)(94) Michael F. Cavanagh
Elizabeth A. Weaver
ANGLERS OF THE AuSABLE, INC., Maura D. Corrigan
Robert P. Young, Jr.
MAYER FAMILY INVESTMENTS, LLC, Stephen J. Markman
and NANCY A. FORCIER TRUST, Diane M. Hathaway,
Plaintiffs-Appellants, Justices
v SC: 138863-138866
COA: 279301, 279306, 280265,
280266
Otsego CC: 06-011697-CE
DEPARTMENT OF ENVIRONMENTAL
QUALITY, DIRECTOR OF THE
DEPARTMENT OF ENVIRONMENTAL
QUALITY, and MERIT ENERGY
COMPANY,
Defendants-Appellees.
_________________________________________/
On order of the Court, the motion to file a reply brief and the motion to file a
supplemental affidavit are GRANTED. The motion to dismiss for mootness is DENIED.
CAVANAGH, J. (concurring).
I concur in the order denying the motion for dismissal. This Court originally
granted leave to appeal to consider several issues, including whether the state could
convey an easement to defendant, Merit Energy Company, that granted the right to
discharge water on state-owned land; the proper test for determining the extent to which
defendant may discharge water; and whether plaintiffs may pursue a cause of action
against the Department of Environmental Quality (DEQ) that challenges the propriety of
the DEQ approving and issuing a permit to defendants. Anglers of the AuSable, Inc v
Dep’t of Environmental Quality, 485 Mich. 1063 (2010). Defendant now argues that the
case is moot because, since the Court granted leave to appeal, defendant has quit-
claimed its interest in the easement and claimed that it has abandoned any plans to
discharge water into Kolke Creek. I am not convinced.
It is well established that “this Court does not reach moot questions or declare
principles or rules of law that have no practical legal effect in the case before us unless
the issue is one of public significance that is likely to recur, yet evade judicial review.”
Federated Publications, Inc v Lansing, 467 Mich. 98, 112 (2002). An issue is not
2
necessarily moot, however, “[w]here a party voluntarily ceases an activity challenged as
illegal . . . .” Dep’t of Social Services v Emmanuel Baptist Preschool, 434 Mich. 380,
425 (1990), Cavanagh, J., concurring, quoting United States v W T Grant Co, 345 U.S.
629, 633 (1953). In such cases, the issue may still be moot only if the party attempting
to moot the issue can show that “there is no reasonable expectation that the wrong will
be repeated,” and “the burden is a heavy one.” Id., 345 US at 633. The United States
Supreme Court has been particularly wary of finding an issue moot when there remains
“a public interest in having the legality of the practices settled,” Grant, 345 US at 632-
633, and when the party seeking to moot the issue is the party who prevailed in the
lower court. City of Erie v Pap’s AM, 529 U.S. 277, 287-288 (2000).1 In City of Erie, the
Court cautioned that appellate courts have an “interest in preventing litigants from
attempting to manipulate the Court’s jurisdiction to insulate a favorable decision from
review . . . .” Id. at 288.
Under these principles, I do not believe that all of the issues presented in this case
are no longer justiciable. Defendant’s conduct amounts to nothing more than a
“voluntary cessation of allegedly illegal conduct” that does not render the case moot
unless the defendant shows that the alleged wrong will not arise again. I cannot see that
defendant has met this heavy burden. The legality of the practices addressed by the
Court of Appeals remain important public questions.2 Moreover, because defendant
1
The dissenting statements rely on cases that are inapposite to the factual situation in this case.
Justice MARKMAN relies on recitations of the general principles of the mootness doctrine from
People v Richmond, 486 Mich. 29 (2010), and Federated Publications. He fails to recognize,
however, that these applications of these general principles, no matter how recently decided, do
not control the outcome of this case because Grant and its progeny identify an exception to those
general principles that is specific to cases, like this one, that involve the voluntary cessation of
allegedly illegal conduct that has the potential to be resumed. Similarly, the case on which
Justice YOUNG heavily relies, Street R Co of E Saginaw v Wildman, 58 Mich. 286 (1885), is
inapplicable because it was predicated on distinct legal principles and also did not involve the
voluntary cessation of allegedly illegal conduct. In Wildman, the plaintiff sought an injunction to
prevent the defendant from moving a building, but the defendant moved the building while the
plaintiff’s appeal to this Court was pending. 58 Mich at 286-287. This Court therefore
dismissed plaintiff’s equitable action for injunctive relief because, given that the allegedly illegal
activity had been completed, it would have been useless for the Court to grant the requested
injunctive relief. Id. at 287-288. Therefore, Wildman is inapplicable to this case because the
Court’s holding was not predicated on whether there was an ongoing legal dispute affecting the
parties’ rights but instead on the impossibility of granting injunctive relief to prevent an already
completed action. In fact, the Court noted that the plaintiff could still pursue an action in law for
damages. 58 Mich at 287-288.
2
For example, defendant prevailed on whether the plaintiffs may challenge the DEQ’s decision
to issue or deny a permit and whether the state could convey an easement granting riparian rights
to state-owned land. Further, the Court of Appeals decision left intact the trial court’s injunction,
which would permit defendant, upon obtaining riparian rights, to pursue a discharge that
3
prevailed before the Court of Appeals on several of these important public issues, and
did not move to moot the issues until after this Court had granted leave to appeal, this
Court’s interest in preventing defendant from insulating a favorable decision from
review is strongly implicated.
Indeed, the facts of this case are strikingly similar to those in City of Erie, where
the Court rejected the plaintiff’s attempt to moot the city’s appeal of the plaintiff’s
successful challenge to a city ordinance, when the plaintiff had prevailed in the lower
court and cried mootness only after the Court had granted leave to appeal. City of Erie,
529 US at 287-288. As in this case, the party seeking to moot the case in City of Erie
had submitted an affidavit claiming that it would no longer pursue the challenged
conduct and presented its voluntary surrender of the property interest necessary to
pursue that conduct as evidence of its intent.3 Yet the City of Erie Court reasoned that
because the lower court’s decision would otherwise remain intact, continuing to affect
both parties, and the party could potentially resume the conduct, the issues were not
moot.4 Further, and perhaps most importantly, the Court found the notion that a party
constitutes a “reasonable use.” The propriety and proper interpretation of that test was another
issue on which this Court granted leave to appeal.
These issues are of significant public importance, for, as stated in our Constitution, “[t]he
conservation and development of the natural resources of the state are hereby declared to be of
paramount public concern in the interest of the health, safety and general welfare of the people.”
1963 Const, art 4, § 52.
3
In City of Erie, the plaintiff-respondent was the owner of a nude dancing establishment affected
by the challenged city ordinance, and the Pennsylvania Supreme Court had held that the
ordinance was unconstitutional. After the United States Supreme Court granted certiorari, the
plaintiff-respondent filed an affidavit stating that he had closed his business, sold his property,
and never intended to operate a nude dancing establishment again. City of Erie, 529 US at 284-
288 and 302-303, Scalia, J., concurring.
4
The City of Erie Court reasoned that the plaintiff-respondent could still obtain another building
and reopen the establishment, given that it was still incorporated under state law. City of Erie,
529 US at 288. Similarly, in this case, defendant could obtain another easement and pursue a
discharge that would constitute a reasonable use of the water under the existing test. The City of
Erie Court also reasoned that both parties had a continuing interest in the litigation because the
city could not enforce its ordinance under the lower court’s decision, even against other parties,
and the plaintiff-respondent still had an interest in preserving the lower court’s decision in favor
of his rights. Id. Justice YOUNG acknowledges that the city’s inability to enforce its ordinance
against the plaintiff and other inhabitants of the city constituted an ongoing injury and yet
concludes that these plaintiffs do not have an ongoing injury. Notably, however, the result of
leaving the Court of Appeals decision intact in this case is similar. Plaintiffs’ ability to enforce
their riparian interests, against defendant and other parties seeking to use Kolke Creek, will
continue to be affected by the Court of Appeals conclusions that an easement over state-owned
land may grant riparian rights to Kolke Creek and that plaintiffs lack a cause of action to
challenge the DEQ’s decision to issue a permit to discharge water into Kolke Creek. Further, as
4
who had prevailed in the lower court could moot a case through its voluntary actions to
be repugnant to “[o]ur interest in preventing litigants from attempting to manipulate the
Court’s jurisdiction to insulate a favorable decision from review.” Id. at 288. See also,
City News & Novelty, Inc v City of Waukesha, 531 U.S. 278, 283-284 (2001). Dismissing
this case as moot would be equally repugnant to this principle.
In light of the important public interests implicated by the issues before this
Court, the parties’ continuing interest in having them settled, and this Court’s interest in
ensuring that litigants are not merely “insulat[ing] a favorable decision from review,” I
cannot agree with defendant that this case no longer presents any justiciable issues.5
Therefore, I concur with the denial of defendant’s motion to dismiss.
CORRIGAN, J. (dissenting).
I concur in Justice YOUNG’s legal analysis of the mootness issue. As Justice
MARKMAN states, consistent with Justice YOUNG’s analysis: “By allowing this appeal to
proceed, the Court can only ‘reach moot questions or declare principles or rules of law
that have no practical legal effect in the case before [it],’” citing Federated Publications,
Inc v Lansing, 467 Mich. 98, 112 (2002). Because this case is moot, plaintiffs’ appeal
should be dismissed.
I especially share Justice YOUNG’s concern that, because there are no longer any
“live” issues between plaintiffs and defendant Merit Energy, this Court will be
constrained to consider significant constitutional questions presented by plaintiffs without
the benefit of full opposing advocacy by Merit. Merit has already acquiesced to
plaintiffs’ demands. Accordingly, plaintiffs cannot achieve additional relief against
Merit.6 Therefore, Merit reasonably will be significantly less motivated to expend
in City of Erie, defendant has an interest in preserving the lower court’s decision with regard to
these issues.
5
Unlike Justice YOUNG, I prefer to rest my analysis and conclusions on the strength of my legal
reasoning alone. I believe that reasonable people can, in good faith, disagree on the proper
interpretation and application of the law without it signifying deleterious motives or a lack of
fidelity to the principles of justice and fair advocacy. I thus find it unnecessary, and unbecoming
to the office, to attempt to bolster my position by resorting to personal attacks on those who hold
opposing views. In my 27 years of service to the people of Michigan as a member of this Court,
I have rarely found such methods to improve the level or depth of the Court’s discourse.
Regrettably, the effect is generally the opposite. I must note, however, that Justice YOUNG’s
mewling over stare decisis is remarkably ironic, given his part in efforts over the past years to
dismantle and undo decades of this Court’s jurisprudence. See Sedler, Robert A., The Michigan
Supreme Court, Stare Decisis, and Overruling the Overrulings, Wayne State University Law
School Research Paper No. 09-28 (2009). (accessed May
21, 2010).
6
My concurring colleague concludes that, because Merit voluntarily ceased its allegedly illegal
conduct, it thus might voluntarily resume the conduct in the future, and therefore this case is
5
resources to counter plaintiffs’ general legal arguments, by which plaintiffs urge us to
overturn precedential opinions in unrelated cases.
It is beyond debate that the judicial power to hear a case inheres, in part, in the
existence of parties with sufficient interests in a suit to guarantee vigorous advocacy.
Although members of this Court disagree about the applicability of the traditional “case
and controversy” requirement in Michigan, Nat’l Wildlife Federation v Cleveland Cliffs
Iron Co itself confirms that we agree about the fundamental need for meaningful
advocacy. In Nat’l Wildlife Federation, which addressed the judicial power primarily in
the context of standing, a majority of the Court explained that the proper exercise of the
judicial power requires the existence of a “real dispute,” of a “plaintiff who has suffered
real harm,” and of “genuinely adverse parties.” Nat’l Wildlife Federation v Cleveland
Cliffs Iron Co, 471 Mich. 608, 614 (2004).7 Justice WEAVER, concurring in result,
similarly opined that, “[b]efore Michigan courts will hear a case, they consider whether
‘a party's interest in the outcome of the litigation . . . will ensure sincere and vigorous
advocacy.’” Id. at 658 (WEAVER, J., concurring in result only), quoting House Speaker v
State Admin Bd, 441 Mich. 547, 554 (1993); and see Nat’l Wildlife Federation, supra at
676 (CAVANAGH, J., concurring in result and concurring in Justice WEAVER’s reasoning);
id. (KELLY, J., concurring in result only and concurring in Justice WEAVER’s opinion).
The United States Supreme Court expressed the concept well in Baker v Carr, 369 U.S.
186, 204; 82 S. Ct. 691 (1962), where the high Court presented a threshold question with
regard to whether a party has standing to appeal, particularly when constitutional
questions are at issue: “Have the appellants alleged such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult
constitutional questions?” Because there is no longer a genuine controversy between the
parties—in particular, because Merit has no real reason to vigorously defend now that it
has ceased the activity of which plaintiffs complained and no further relief against Merit
distinguishable from moot cases in which injunctive relief is no longer available to prevent an
already completed, allegedly harmful action. I disagree that this case is distinguishable for this
reason. Rather, Merit has thoroughly documented that it is no longer physically capable of
resuming the conduct that plaintiffs sought to prevent, as has been confirmed by the Department
of Natural Resources and Environment and Merit’s application for Department of Environmental
Quality approval of an alternative groundwater discharge plan. If Merit’s future alternative plans
somehow encroach on the property at issue here, plaintiffs would have new grounds for a
separate lawsuit in which they would be free to again challenge the precedent with which they
voice their disagreement here.
7
The majority also concluded that exercising the judicial power requires
the eschewing of cases that are moot at any stage of their litigation; the ability to
issue proper forms of effective relief to a party; the avoidance of political
questions or other non-justiciable controversies; the avoidance of unnecessary
constitutional issues; and the emphasis upon proscriptive as opposed to
prescriptive decision making. [Id. at 614-615.]
6
is available—I conclude that this Court should grant Merit’s motion to dismiss the
appeal.
YOUNG, J. (dissenting).
I dissent. This case is moot. But the majority permits the case to remain on the
docket. Why? The answer is simple. The majority desires to make good on the promise
that Chief Justice KELLY made to her supporters shortly after the election of Justice
HATHAWAY to this Court:
We the new majority [Chief Justice KELLY and Justices CAVANAGH,
WEAVER, and HATHAWAY] will get the ship off the shoals and back on
course, and we will undo a great deal of the damage that the Republican-
dominated court has done. Not only will we not neglect our duties, we will
not sleep on the bench.[8]
The reason why the “new majority” declines to grant defendant Merit Energy’s
motion to dismiss for mootness is because it disagrees with this Court’s decisions in
Michigan Citizens v Nestlé Waters9 and Preserve the Dunes v DEQ.10 It now seeks to
overrule them despite constitutional mootness principles that deprive this Court of the
authority to do so in this appeal. Because this case is moot, it presents no legitimate basis
for this Court to exercise the “judicial power” given to it under the Michigan
Constitution.
I. THE FACTS OF THIS CASE
In a nutshell, this is what this suit is about: Plaintiffs feared damage to their
riparian rights if defendant was permitted to complete and use a mile long
pipeline in order to discharge a treated effluent into a tributary of a river
along which plaintiffs own property. Merit has now abandoned that plan.
Defendant Merit Energy owns land in Otsego County containing a groundwater
contaminant plume. It sought DEQ approval of its corrective action plan to treat the
contaminated water and discharge the treated water near Kolke Creek, which flows into
the AuSable River. To effect this plan, Merit obtained an easement from the Michigan
Department of Natural Resources to construct a 1.3 mile pipeline to carry the treated
water over state-owned land covered by the easement. The plaintiffs seek to enjoin Merit
8
She Said, Detroit Free Press, December 10, 2008.
9
479 Mich. 280 (2007).
10
471 Mich. 508 (2004).
7
from carrying out its corrective action plan, alleging violations of their common law
riparian rights and the Michigan Environmental Protection Act.11
After this Court granted leave, Merit moved to dismiss the appeal because it
abandoned its plan to discharge the treated wastewater into Kolke Creek. The plaintiffs
do not dispute that Merit has not discharged any treated wastewater into Kolke Creek.
Moreover, Merit quitclaimed its interest in the easement back to the Department of
Natural Resources and Environment (DNRE) and provided thorough documentation to
this Court to prove it did so. This documentation included a copy of the quitclaim deed
that conveyed its interest in the easement back to the DNRE. Accordingly, Merit no
longer has physical access to Kolke Creek. It cannot violate the MEPA or plaintiffs’
common law riparian rights. Further, it offered proof that it filed for a new groundwater
discharge permit to achieve its treatment goals by an alternative plan that avoids
discharging treated effluent into Kolke Creek. In short, the plaintiffs’ common law
riparian rights and their rights under the MEPA are secure.
Merit has abandoned and deeded over its interest in the property on which it
planned to run the pipeline that plaintiffs feared would eventually
contaminate the AuSable River and violate their riparian rights.
Accordingly, plaintiffs no longer have a viable claim against Merit. In lawyer
speak, plaintiffs’ claims are now completely “moot.”
II. MOOTNESS
This Court has the constitutional authority to exercise only the judicial power, not
“powers properly belonging to another branch. . . .”12 This Court has defined the judicial
power to include “the existence of a real case or controversy” and “the eschewing of
cases that are moot at any stage of their litigation.”13
The avoidance of deciding moot questions is a firmly established principle of law
to which this Court has adhered for more than a century. Street R Co of E Saginaw v
Wildman, an 1885 case of this Court, is an especially apt application of this Court’s
longstanding mootness doctrine.14 In Street R Co, the plaintiff railroad sought to enjoin
the defendant from moving a building along its railroad tracks “to the great interruption
of its business and profits, the serious inconvenience of the public, and the hindrance and
delay of the United States mails which it carried. . . .”15 Shortly after the lower court
dismissed the plaintiff’s claim, but before the plaintiff appealed to this Court, the
11
MCL 324.1701 et seq.
12
Const 1963, art 3, § 2.
13
Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich. 608, 614 (2004).
14
Street R Co of E Saginaw v Wildman, 58 Mich. 286, 286 (1885).
15
Id.
8
defendant moved the building, thereby negating any ability to prevent the claimed harm
or a basis for injunctive relief. On appeal, this Court determined that “[i]f the
complainant was ever entitled to the [equitable] relief prayed for, we cannot now make
any decree to aid it” because “[w]e can hardly prevent [the defendant] from doing what
has already been done.”16
In this case, the defendant no longer has the physical means of discharging treated
water into Kolke Creek, which is the harm that plaintiffs seek to enjoin.17 This Court
simply cannot enjoin a harm that can no longer occur. However, Chief Justice KELLY
and Justices CAVANAGH, WEAVER, and HATHAWAY are not concerned about the harm
about which plaintiffs have complained because it no longer exists. On the contrary, the
majority needs this appeal, now an empty vessel, to attack precedent with which it
disagrees.
Once Merit quitclaimed the easement necessary to build the pipeline, it no
longer had the physical ability to contaminate the Kolke or the AuSable in the
manner plaintiffs claimed in their suit. As established by Street, it obviously
follows for all but Chief Justice KELLY and Justices CAVANAGH, WEAVER,
and HATHAWAY that, without the threatened construction of the pipeline,
there remains no threatened injury to plaintiffs’ riparian rights and certainly
none that this Court can remedy.
16
Id. at 287.
17
The concurrence cites City of Erie v Pap’s AM, 529 U.S. 277 (2000), to explain why the
defendant’s voluntary abandonment of its plan should not preclude this Court’s review of the
case. But the overriding concern present in the U.S. Supreme Court’s decision in City of Erie—
the possibility that the plaintiff would purchase another property anywhere within the city limits
to maintain his victory in the Pennsylvania Supreme Court—is not present in the instant case.
Here, the defendant would have to receive another easement on the specific property from its
state owner, the Department of Natural Resources and Environment, before the plaintiffs’ alleged
harm would occur. Such action is exceedingly unlikely, especially in light of the DEQ’s
admission in its brief supporting dismissal that “there no longer exists the possibility of surface
water discharge to Kolke Creek of the AuSable River” and defendant’s proof that it gave up all
rights and means to access Kolke Creek.
Another distinction between this case and City of Erie is that, in City of Erie, the
defendant city suffered an ongoing injury from the Pennsylvania Supreme Court’s decision that
the First Amendment barred it from enforcing its nude dancing ordinance, not only against the
plaintiff but also against all inhabitants of the city. No such ongoing injury exists here. In
particular, the Court of Appeals ruling did not divest the plaintiffs of their riparian rights.
Rather, it merely applied the settled precedent of this Court to the facts of the case.
9
Indeed, plaintiffs do not contend that they have an immediate injury at stake. But
they still want this Court to rule on the substantive legal issues – for the benefit of future
cases. Again, the Street R Co decision provides guidance:
It was suggested on the hearing that we ought to settle the rights of
the parties so that the principle established might be a guide in other cases
likely to arise. But courts of equity will not lend their aid by injunction for
the enforcement of a right or the prevention of a wrong in the abstract, not
connected with any injury or damage to the person seeking relief, nor when
such injury or damage can be fully and amply recovered in an action at law.
Nor are courts of equity established to decide or declare abstract questions
of right for the future guidance of suitors.[18]
The plaintiffs also claim that this case fits into an exception to the mootness
doctrine, that “the issue is one of public significance that is likely to recur, yet evade
judicial review.”19 Not so. The issues presented here are not the sorts of issues whose
transitory nature makes it likely that future litigation would “evade judicial review.”20 To
the contrary, any riparian owner aggrieved by the actions or imminently threatened
actions of another can seek injunctive or other relief.
Although the concurrence posits that the plaintiffs’ riparian rights are endangered
by the Court of Appeals decision, such decision merely applied existing Michigan law.
More important, however, is the fact that the plaintiffs’ riparian rights can no longer be
invaded by defendant, which has abandoned the only means by which it might have
injured plaintiffs’ rights. Thus, the real reason this case is not being treated as moot is
because the plaintiffs, like Chief Justice KELLY and Justices CAVANAGH, WEAVER, and
HATHAWAY, wish to challenge whether this Court correctly decided two previous cases,
Michigan Citizens v Nestle Waters and Preserve the Dunes v DEQ. A dismissal, of
course, will preclude them from doing so.
The concurrence claims that the “defendant prevailed on whether plaintiffs may
challenge the DEQ’s decision to issue or deny a permit and whether the state could
convey an easement granting riparian rights to state-owned land,”21 and that not to review
such issues implicates “this Court’s interest in preventing defendant from insulating a
favorable decision from review….”22 These claims are red herrings.
First, the Court of Appeals merely applied this Court’s existing precedent in
determining that the issuance of a permit is not “conduct” that “has polluted, impaired, or
destroyed or is likely to pollute, impair, or destroy the air, water, or other natural
18
Id.
19
Federated Publications, Inc v Lansing, 467 Mich. 98, 112 (2002).
20
See, e.g., Socialist Workers Party v Secretary of State, 412 Mich. 571, 582 n 11 (1982).
21
Ante, at ___ n __.
22
Ante, at ___.
10
resources,” within the meaning of the Michigan Environmental Protection Act.23 There is
every reason to assume that someone in the future who actually has a justiciable claim
will challenge the correctness of this Court’s jurisprudence, if this Court had properly
dismissed the instant case.
Second, the Court of Appeals’ determination that the state had the authority, as a
riparian property owner, to convey an easement to the defendant is moot now that the
underlying easement no longer exists. If plaintiffs’ or the majority’s primary concern is
the published Court of Appeals ruling permitting the state to convey an easement rooted
in its riparian rights, this Court could simply vacate that portion of the Court of Appeals
opinion. We have done precisely this in the past when denying leave or disposing of a
case on grounds of mootness, most recently in Gadigian v City of Taylor24 and Howe v
Boucree.25 That the new majority has declined simply to correct what it believes is
erroneous in the Court of Appeals decision is further indication of its desire, at any
cost, to reach and overturn cases with which it disagrees.
The mootness doctrine partly stems from the necessity of an adversarial process to
a society governed under the rule of law. As it stands now, Merit has no stake in the
future outcome of this case, and thus has no remaining interest to pursue the appeal
vigorously. Why would Merit pay the expense of contesting in the Supreme Court a
matter in which it has already conceded by its actions? By rights, having abandoned the
pipeline, Merit should also abandon this case even if a majority insists on it going
forward. Accordingly, I am greatly concerned by the resulting total collapse of the
adversarial process in this case—having no party vigorously to argue in defense of the
cases with which the plaintiffs and Chief Justice KELLY and Justices CAVANAGH,
WEAVER, and HATHAWAY intend to overturn. For those who wish to overturn cases
decided by “the Republican-dominated Court,” it is useful to have no one with a serious
interest in defending them.
Chief Justice KELLY and Justices CAVANAGH, WEAVER, and HATHAWAY
have fully advertised their interest in overturning these precedents in the
order granting leave in this appeal. Their decision to persist in this appeal
despite its patent mootness shows that they are prepared to accomplish its
stated objective of “undoing” the precedent of this Court without even
waiting for a plaintiff who has a live claim and parties who will participate in
a meaningful adversarial process.
23
MCL 324.1703(1); Preserve the Dunes v DEQ, 471 Mich. 511 (2004).
24
486 Mich. 869 (2010) (affirming the Court of Appeals result on different grounds and vacating
that court’s unnecessary analysis as dictum).
25
483 Mich. 907 (2009) (denying leave to appeal but vacating moot portions of the Court of
Appeals opinion).
11
In short, there is not a clearer instance of mootness than this case: the action
originally challenged by plaintiffs can no longer be physically accomplished by the
defendant. However, the majority’s decision to permit the appeal to proceed despite the
absence of a live controversy demonstrates that it has other fish to fry; irrespective
whether the case before it presents a legitimate vehicle for it to accomplish its goal, it will
entertain plaintiffs’ argument in favor of overturning yet another precedent with which it
disagrees. The fact that the members of the majority have for 10 years been stout
supporters of stare decisis illustrates how “situational” was their prior claimed fidelity to
precedent.26
The concurring justice claims that it is “remarkably ironic” that I raise the
majority’s selective interest in respecting precedent. However, my position on stare
decisis has not changed,27 and the concurring justice attempts to shift focus to me in order
26
See, e.g., Pohutski v City of Allen Park, 465 Mich. 675, 712 (2002) (KELLY, J., dissenting)
(“[I]f each successive Court, believing its reading is correct and past readings wrong, rejects
precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously
unstable.”); People v Hawkins, 468 Mich. 488, 517-518 (2003) (CAVANAGH, J., dissenting) (“We
have overruled our precedents when the intervening development of the law has ‘removed or
weakened the conceptual underpinnings from the prior decision, or where the later law has
rendered the decision irreconcilable with competing legal doctrines or policies.’ . . . Absent
those changes or compelling evidence bearing on Congress’ original intent . . . our system
demands that we adhere to our prior interpretations of statutes.”), quoting Patterson v McLean
Credit Union, 491 U.S. 164, 173; 109 S. Ct. 2363; 105 L. Ed. 2d 132 (1989) and Neal v United
States, 516 U.S. 284, 295; 116 S. Ct. 763; 133 L. Ed. 2d 709 (1996); Rowland v Washtenaw Co Rd
Comm, 477 Mich. 197, 278 (CAVANAGH, J., dissenting) (‘“Under the doctrine of stare decisis,
principles of law deliberately examined and decided by a court of competent jurisdiction become
precedent which should not be lightly departed.’”), quoting People v Jamieson, 436 Mich. 61, 79
(1990); Devillers v Auto Club Ins Ass’n, 473 Mich. 562, 622 (2005) (WEAVER, J., dissenting)
(“Correction for correction’s sake does not make sense. The case has not been made why the
Court should not adhere to the doctrine of stare decisis in this case.”); Todd C. Berg, Hathaway
attacks, Michigan Lawyers Weekly, October 27, 2008 (“‘People need to know what the law is,’
Hathaway said. ‘I believe in stare decisis. Something must be drastically wrong for the court to
overrule.’”); Lawyers' election guide: Judge Diane Marie Hathaway, Michigan Lawyers
Weekly, October 30, 2006, in which Justice HATHAWAY, then running for a position on the Court
of Appeals, was quoted as saying: “[t]oo many appellate decisions are being decided by judicial
activists who are overturning precedent.”
27
I signed Robinson v City of Lansing, 462 Mich. 439 (2000), and continue to subscribe to its
principles concerning stare decisis. See also Rowland v Washtenaw Co Rd Comm’n, 477 Mich.
197, 225 (2007) (MARKMAN, J., concurring) (stating that cases that the Court’s previous
philosophical majority overruled were ones “in which the clear language of the law was
misconstrued, or in which the policy preferences of the justices were substituted for those of the
lawmaker”). What principles guide the new majority when it overrules the precedent of this
Court? The new majority’s true perspective on stare decisis is clearly evident in their actions in
this case: The majority here reaches outside of its judicial powers to overturn precedent with
which it disagrees.
12
to avoid confronting his own inconsistency. The public should understand when Justices’
positions on important matters shift. And that is the focus of this dissent: when the
concurring justice was in the minority, he liked stare decisis a lot; now that he is in the
majority, it is not an issue. That is the “irony” the public should understand.
Having no substantive response to my noting the reversal of his reverence for
precedent, the concurring justice has entered into the explicitly partisan realm,
referencing an article by a Wayne State University law professor. Not everything written
by a law professor is unbiased, nor is this particular law professor. In fact, this
professor’s ubiquitous appearances on the Democratic Party web site attacking me and
urging my political defeat demonstrates that he has a dog in the November hunt. So does
the concurring justice.
III. CONCLUSION
The fact that the “new majority” refuses to dismiss this case as moot is noteworthy
but hardly surprising in light of Chief Justice KELLY’s pledge to her supporters to “undo
… the damage that the Republican-dominated court has done.” Yet in People v
Richmond, Justice CAVANAGH, Chief Justice KELLY, and Justice HATHAWAY have all
just recently pronounced that “a court cannot ‘tender advice’ on matters that are no longer
in litigation.”28 Their failure to apply this principle to this case reflects a fickleness to
consistent rules of law – even rules to which they claim to subscribe. They and Justice
WEAVER are eager to oblige the plaintiffs’ request to undo this Court’s precedents despite
the mootness of plaintiffs’ claims.
The decision of Chief Justice KELLY and Justices CAVANAGH, WEAVER, and
HATHAWAY to persist in this appeal despite its patent mootness shows that
the majority is prepared to accomplish its stated objective of “undoing”
precedent of the last decade by any means necessary.
28
People v Richmond, 486 Mich. 29 (2010), quoting Anway v Grand Rapids R Co, 211 Mich. 592,
611-612 (1920). I continue to adhere to the substantive position stated in Justice CORRIGAN’s
dissent, which I joined.
13
Thus, not only have Chief Justice KELLY and Justices CAVANAGH, WEAVER, and
HATHAWAY determined to reconsider two cases that were decided just three and six years
ago, they are also determined to do so in defiance of our constitutional limitations on
judicial power. Because I have sworn to uphold the constitution of this state, I must
emphatically dissent from the determination of Chief Justice KELLY and Justices
CAVANAGH, WEAVER, and HATHAWAY to reach non-justiciable questions of law by
refusing to dismiss this moot appeal.
MARKMAN, J. (dissenting).
I concur fully in Justice YOUNG’s legal analysis concerning the mootness of this
case, and, therefore, join in dissenting from the order denying defendant’s motion to
dismiss. As this Court just recently explained in People v Richmond, 486 Mich. 29(2010), “[w]hether a case is moot is a threshold issue that a court addresses before it
reaches the substantive issues of the case itself.” And as Justice YOUNG has clearly
demonstrated, plaintiffs’ claims became moot when defendant deeded over its interest in
the easement on which it planned to run a pipeline back to the Department of Natural
Resources. Simply put, without a remaining property interest, it is impossible for
defendant to harm plaintiffs’ riparian rights, or their other rights under the Environmental
Protection Act. With this uncontroverted evidence, defendant carried its burden of
demonstrating that “there is no reasonable expectation that the wrong will be repeated.”
United States v W T Grant Co, 345 U.S. 629, 633 (1953).29 By allowing this appeal to
proceed, the Court can only “reach moot questions or declare principles or rules of law
that have no practical legal effect in the case before [it].” Federated Publications, Inc v
City of Lansing, 467 Mich. 98, 112 (2002). To do so is directly contrary to Richmond, a
decision of five weeks vintage.
29
The concurrence begs the question of what evidence, in its view, would ever be sufficient for a
defendant to show that “there is no reasonable expectation that the wrong will be repeated.” W T
Grant Co, 345 US at 633. If (a) defendant’s quit-claim deed conveying its property interest back
to the state; (b) documentation establishing that defendant has received a discharge permit from
the DEQ to dispose of the water by alternative means; and (c) DEQ’s admission that “there no
longer exists the possibility of surface water discharge to Kolke Creek or the AuSable River” are
insufficient, it is difficult to imagine how defendant could ever demonstrate to the majority’s
satisfaction that the alleged wrong will not arise again.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 18, 2010 _________________________________________
y0615 Clerk