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Michigan Supremes Election: Private vs Public Rights

Environmental rulings contrast Corrigan, Cavanagh

October 15, 2006 |
Great Lakes Bulletin News Service


This election could tip the scales towards protecting—or polluting—Michigan’s blue waters.

Next month, Michigan voters not only have a clear choice between a conservative and a liberal candidate for governor, they also have that choice in electing two of Michigan’s seven state Supreme Court Justices. Up for re-election in November are Justice Maura D. Corrigan, among the state high court’s most conservative members, and Justice Michael F. Cavanagh, one of the court’s two liberal members.

Though the election cannot shift the court’s ideological balance—there are five conservative and two liberal justices—it certainly could push the court further to the right or the left. The two challengers are Democratic nominee Jane Beckering, a personal injury attorney from Grand Rapids, and Republican nominee Mark Shulman, who represented West Bloomfield Township, north of Detroit, from 1999 to 2005 as a Republican state Representative. The two candidates who win the most votes will serve on Michigan’s Supreme Court.

A Great Lakes Bulletin News Service review of 11 recent state Supreme Court decisions paint a picture of how the incumbents decided key cases involving natural resources and property rights, and how they are likely to rule in the future.

According to the review, Judgment on Nature, Justice Corrigan’s written opinions generally favor the rights of businesses and private property owners, with a clear predilection to strict interpretation of environmental statutes. Justice Corrigan expresses a strong proclivity to make decisions based, at least in part, on how the ruling will affect Michigan’s economy and business climate. But Ms. Corrigan is by no means completely predictable. Her majority decision last year to allow citizens to walk every mile of Michigan’s Great Lakes shoreline seemingly had little to do with business interests and much to do with what is commonly referred to as “the public interest.”

For his part, Justice Cavanagh generally favors a more even balance between private and public rights. In environmental cases, for example, he often goes against the majority in urging greater protection of natural resources and fostering a clean environment, even if it raises business expenses.

Justice Corrigan is a member of the state Supreme Court’s majority, usually casting her vote in the conservative bloc that includes Justices Clifford Taylor, Stephen Markman, and Robert Young, Jr. In none of the cases examined by the Great Lakes Bulletin News Service did she dissent or write a separate, concurring opinion. Of the 11 cases examined, Justice Corrigan wrote the opinions for three of them: Glass v. Goeckel, Henry v. Dow Chemical, and Preserve the Dunes v. Technisand Inc.

Justice Cavanagh, on the other hand, went along with the majority in only five of the 11 cases—hardly a surprise given the court’s conservative bent and his own liberal approach. In three other cases he agreed with the decision, but for different reasons than the other justices.

Corrigan: Profitability over Responsibility
Justice Corrigan’s pro-business, anti-regulation leanings were clearly evident in two recent Supreme Court cases, one involving sand mining near Lake Michigan, and the other involving a dioxin, a chemical that may cause cancer, and health monitoring.

The Supreme Court’s 2005 decision on the sand mining case allowed a mining company to continue dismantling a dune even though it is in a protected zone. The court held that the Michigan Environmental Protection Act does not provide citizens the authority to challenge mining permit issued by the state Department of Environmental Quality, which many observers viewed as a significant narrowing of the seminal Michigan Environmental Protection Act, a cornerstone of environmental protections for over three decades.

In her opinion, Justice Corrigan wrote that “whether the DEQ’s permitting decision was ‘unprincipled’ or an ‘illegal about-face’ is not a determination for this court to make.” In her discussion of the case, which strongly discourages citizens from taking state agencies to court for their decisions, she dwelled on the consequences for businesses of what allowing such suits would trigger: A more contentious permit process. Her opinion did not address the increased environmental protection such suits might generate.

Her opinion insisted that allowing lawsuits against state agencies could have catastrophic economic consequences. Addressing the idea of allowing citizens more time to challenge permits, Justice Corrigan mused: “What sane investor would take such a risk? As gas prices soar, few people in Michigan would thank this Court for ‘protecting’ the environment in this radical fashion. The dissent’s regime would render the permitting process a useless exercise. It would cripple economic expansion in Michigan and probably lead to disinvestment.”

Business and economic consequences were also at the forefront of Justice Corrigan’s opinion in Henry v. Dow Chemical. The case, brought by citizens of Midland, involved public exposure to dioxin, a potentially carcinogenic byproduct of chemical processing from Dow Chemical’s huge industrial plant there. In their suit, citizens asked the company to pay for medical tests to monitor the development of illnesses related to exposure to dioxin. The Court, in a decision last year, said that the company was not liable to cover the costs of this monitoring.

Justice Corrigan’s ruling openly displayed her irritation with the citizen suit. She said that compelling the company to pay for monitoring the health of those exposed to the chemical could possibly “wreak enormous harm on Michigan’s citizens and its economy.” In the text of the opinion, Justice Corrigan includes part of the transcript from the oral arguments given in the case, which is uncommon in Supreme Court opinions. She chose to showcase arguments focusing on the effect of the cost of monitoring on the business climate of the state, rather than the potential effects of dioxin exposure on human health.

Overall, her opinion in the case, consistent with her other opinions addressing similar issues, focused more on the implications for business profitability than the responsibilities of the company to ensure public health and safety. Justice Cavanagh strongly disagreed with that point of view in his minority opinion on Henry.

Corrigan Rules for Beachwalkers
But Justice Corrigan, despite the concern she demonstrates for private and business interests in these two cases, does occasionally rule in favor of the public interest. She did exactly that more than a year ago in Glass v. Goeckel, a high-profile case that weighed the authority of Great Lakes shoreline residents to bar citizens from walking along Great Lakes beaches in front of their property.

In a break with the strong advocacy of property rights common in her decisions, Justice Corrigan wrote a majority opinion overturning a lower court ruling and affirming the right of citizens to walk along literally every mile of Michigan’s Great Lakes beaches. “Although the state retains the authority to convey lakefront property to private entities,” she wrote, “it necessarily conveys such property subject to the public trust.” (Emphasis in the original.)

Compounding the surprise many observers felt when the Glass decision was reached, two other conservatives on the high court’s bench prepared a separate opinion that also advocated allowing citizens to walk along the beach. The only difference is that those two justices favored confining beach walking to a narrower strip of sand closer to the water than Justice Corrigan’s opinion requires.

 “We would not so casually set aside the countless deeds that order property rights for the length of our state shoreline,” Justice Corrigan added. “We would not give away to littoral landowners the absolute title to public trust land preserved for the people. Such a departure would represent a grave disturbance to the property rights of littoral owners and of the public.”

Cavanagh: Protect People, not just Profits
The Glass decision aside, Justice Cavanagh’s opinions display a different view of the law than Chief Justice Corrigan’s. In Huggett v. DNR, the court dealt with the extent to which farming activities are excluded from wetland protections. In a unanimous decision, the court restricted the types of operations which are exempt from the environmental regulations.

The activities proposed in this case were extensive and would have involved draining and filling wetlands, and all the justices felt this went beyond the scope of an exception to environmental protection. The text of the opinion, however, did not concentrate on the potential harm that could be done to wetlands, but rather on the wording of the statute. Here Justice Cavanagh’s writing shows a technical outlook, rather than any strong passion for natural resource protection.

However, in both the dissent Justice Cavanagh wrote in the Henry medical rights case and the dissent his liberal colleague Justice Marilyn Kelly wrote in Preserve the Dunes, which he supported, there is markedly more concern for the rights the public has to a safe and clean environment.

In the Henry case, Justice Cavanagh is quick to criticize the economic focus Justice Corrigan takes in her decision. His dissent reframes the issues in the case, concentrating on what he feels is most important: holding businesses responsible for the results of the environmental pollution they generate.

“Whatever its intent, the majority’s result protects a wrong-doing corporation at the expense of the health of the people wronged,” Justice Cavanagh writes. “But we cannot turn a blind eye to defendant’s repeated contamination of our state’s environment because holding defendant accountable may negatively affect its profits.”

The portraits of the two justices which emerge from examining their opinions in these cases are very different, but generally in line with their liberal and conservative reputations.

Justice Corrigan’s opinions give more weight to the rights of businesses and private property owners, a leaning which has earned her the endorsement of the Michigan Chamber of Commerce for the upcoming election. Justice Cavanagh, on the other hand, views the strong protection of those rights with skepticism, and attempts to work for a balance that grants public rights and the benefits and value of environmental protection greater weight. 

Laura Bishop, a Metcalf fellow at the University of Chicago, worked on the Michigan Land Use Institute’s news desk this summer.  Reach her at bishoplc@uchicago.edu

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