MSC tosses Anglers case

The Michigan Supreme Court vacated its Dec. 29, 2010, opinion in Anglers of the AuSable Inc. v Department of Environmental Quality; the December opinion had been considered a win for environmentalists concerned with polluted discharge into Northern Michigan’s Kolke Creek.

The Court dismissed the case on the basis of mootness. Chief Justice Robert P. Young Jr. said that the case is now moot because:

a) defendant has quit-claimed its easement interest back to the riparian owner;
b) defendant no longer has the physical means of discharging water into Kolke Creek or the AuSable River’
c) defendant is now disposing of the water by alternative means;
d) defendant no longer has a permit that allows discharge into Kolke Creek or the AuSable River;and
e) the Department of Environmental Quality has attested that “there no longer exists the possibility of surface water discharge to Kolke Creek or the AuSable River.

But dissenters Michael F. Cavanagh, Marilyn Kelly and Diane M. Hathaway took issue with the Court’s rehearing of the case in the first place.

Wrote Cavanagh in his dissent: “Contrary to Justice (Brian K.) Zahra’s belief that this Court ‘disregard the mootness doctrine,’ this Court previously considered, at great length, defendants’ arguments related to this issue, as evidenced by my concurring statement … to this Court’s June 18, 2010, order denying defendant Merit’s motion to dismiss for mootness. … Defendants make no new arguments in their current motions, and the June 18, 2010 order was properly decided, therefore, reconsideration on mootness grounds is improper.”

That was just one chapter in the book of “You Started It.”

Cavanagh in his dissent quoted Young’s dissent in the 2009 case, United States Fidelity Ins & Guar Co v Michigan Catastrophic Claims Ass’n, where Young asked: “What changed?”

The facts have not changed the text of the statute at issue has not changed. The parties’ arguments have not changed. And the rationale advanced in the opinions of this Court has not changed. Yet, within a matter of months, a decision of this Court, thoughtfully briefed, argued and considered by seven justices, is no longer worth the paper it was written on. Even the casual observer, however, does not really need to ask why. The reason is obvious: … the composition of this Court changed.

And it has changed again, from a Democrat majority to a Republican majority, since Anglers was decided in an opinion authored by then-Justice Alton Thomas Davis.

Young responded to Cavanagh’s use of his own words by stating, “The answer is simple: the majority opinion in USF&G prevailed over my dissenting opinion, and I see no reason to remain bound by a position that failed to receive majority support two years ago. Today’s order merely applies the very same principles that former Justice (Elizabeth A.) Weaver and Justices Hathaway, Marilyn Kelly and notably Justice Cavangh himself applied in deciding to grant rehearing in USF&G.”

So there. Neener, neener, neener.

Zahra concurred with Young: “MCR 7.313(E), this Court’s rule governing motions for rehearing, is a discretionary rule as it does not define a standard under which this Court is to decide motions for rehearing. … Historically, in exercising discretion, the Justices of this Court consider whether the Court properly interpreted and applied the law.”

He said that it’s not surprising that the justices who were on the court at the end of last year have not changed their minds on the matter. But there are two new Republican justices: Zahra and Mary Beth Kelly.

“It is suggested that Justice Mary Beth Kelly and I ought not cast our votes based on the merit of the legal arguments and the correctness of the opinion … and, instead, limit our review to a determination whether any new arguments have been presented to this Court that were not previously presented at the time of the opinion under review was released.”

But Zahra said that there is nothing in MCR 7.313(E) that supports the idea that the Court “may only grant rehearing where new legal arguments are presented.” And he also pointed out that when it comes to whether or not the two new justices should weigh in on reconsideration, “This same conclusion has been reached by virtually every Justice faced with this situation.”

Zahra noted that Davis voted to grant reconsideration in Duncan v State of Michigan, and Hathaway voted to grant rehearing in USF&G. Young and then-Justice Maura D. Corrigan did the same in McCready v Hoffius.

“Like every Justice on this Court,” Zahra wrote, “I respect the role stare decisis plays in Michigan’s jurisprudence. That said, every Justice on this Court, with the exception of Justice Mary Beth Kelly and myself, has at one time or another found it appropriate to overrule precedent because the Justice concluded doing so served the best interest of Michigan’s jurisprudence.”

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