keep your eyes on the Michigan Supreme Court re: citizens' environmental rights

Yes, the Court is Scary

This is another example of why this Court is so scary, and how it has done more to protect the positions of those that paid to put them there than any other Court that I have observed through years in this business. 

This is a bit of a summary, but the slight of hand began about 5 years ago, when the Court essentailly grafted the federal constitution's "case and controversy" requirement into the Michigan constitution, despite the fact that there is no such state requirement. In the federal system, the court (which is of limited jurisdiction, not general jurisdiction, like state courts), can only hear "cases and controversies." This led to judicially-adopted principles of standing (whether you are aggrieved enough to bring the case yourself), ripeness (whether the harm has been done, or is close enough to occurring), and other similar doctrines, which were all tests to determine whether the constutitional standard (i.e., a real case or controversy) was met.  These principles have been used over the years to boot parties out of federal court, and often, rightly so.  However, our state judicial masterminds apparently envy the federal court's historical ability to send claimants packing. 

Michigan courts (and all state courts) have, more or less, their own standing principles.  Up to about 5 years ago, Michigan standing merely required a showing that a party was prepared for "vigorous advocacy," provided other low hurdles were met.  This didn't mean that it was easy to win cases, this just meant that citizen groups at least had a fair chance of keeping a case alive long enough for the court to review the merits of their claim.  However, to the current court, that made it way too easy for those pesky little people.  Thus, as if by magic, a series of early 2000's cases started announcing a "constitutional minimum" standing requirement of injury in fact, a nexus between the injury and the challenged conduct, and the ability of the court to redress the wrong - in other terms, they simply adopted (without a "case and controversy" requirement in the state constitution), the federal "case and controversy" tests.  Not only that, they proceeded since then to enforce those federal tests, in courts of general jurisdiction, more harshly than the feds do, in courts of limited jurisdiction.  No matter what a statute might say, if it is violated, but the aggrieved cannot sue for it under court-invented doctrine, the court has effectively changed the statute.  A remarkable trick for a bunch that fancies themselves purists and slaves to the letter of the law. 

In the process, they also invited the bar to challenge the right of the legislature to confer standing by statute (the environmental statute at issue allows "any person" to bring a couse of action if there is impairment), under separation of powers principles.  They balked at deciding this issue in a few cases in which someone took them up on the invitation, but they may decide it here.  The issue there is whether the legislature can, in effect, tell the courts what cases they can hear.  Again, this is misplaced legal ego, as legislatures have always had the mandate to make certain conduct illegal, and to provide for the private remedy of allowing the injured party to enforce the law themselves, in court.  In essence, the legislature has always had the power to create "standing" by deciding what is legal and what is not.  This is exactly what it does when it criminalizes drive by porn - it gives the prosecutor "standing" (in effect) to bring a legal proceedings against someone who watched dirty movies on the DVD in their H2 in a school zone (or whatever that stupid law says).  Apparently, this radical and activist bunch doesn't see it this way.

You are correct in sounding the alarm.  However, nobody is paying attention. 

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by: Bluesman Johnson @ Fri Jun 22, 2007 at 20:42:35 PM UTC