View the Webinar

The coming months and years will see a flood of lawsuits affecting Michigan’s economy, especially COVID-19 lawsuits. How will the Michigan Supreme Court’s rulings affect our livelihood? It’s time for Michigan citizens to judge the judges.

Presented by Michigan Lawsuit Abuse Watch and the Judicial Evaluation Institute, this webinar unveils the most comprehensive evaluation of the Michigan Supreme Court from a civil liability perspective since the first evaluation it released in 1998.

Background

When a recent Harris Poll revealed that Michigan’s legal liability system had sunk to the bottom half of the rankings in a nationwide survey taken to determine which states have a fair and reasonable liability system, MiLAW decided it was time for a thorough review of the top court in the state.

To perform the evaluation, we commissioned the Judicial Evaluation Institute (JEI), a widely-respected non-partisan organization based in Washington DC whose mission is to educate the public about judicial performance, values and philosophy in respect to economic issues.

The Michigan constitution gives citizens the responsibility for electing the members of the supreme court, but there is little information available to the public to help us make our decisions. Very few people outside the legal profession read the cases that come before the court, and judges are often prevented by legal ethics from declaring how they stand on a particular issue. Therefore, we are often left with nothing more than partisan affiliations or anecdotal stories upon which to make our decisions, and those can be very misleading.

The Michigan Judicial Evaluation changes that and gives the people of Michigan reliable and meaningful information about how our state’s top judges rule in cases of civil liability — the type of lawsuits that impact our access to quality health care, our ability to buy affordable insurance, the availability of well-paying jobs, the overall economic climate of Michigan.

The Q&A section below provides detailed information about the judicial evaluation.

Q&A

Explain the score given to each judge.

Each currently-seated judge of the Michigan Supreme Court has been evaluated on his or her decisions in six broad areas of law and the effect of those decisions on civil liability in Michigan's law and courts. The areas are: employment, insurance, medical malpractice, “other liability lawsuits,” product liability, and workers’ compensation. Each currently-seated judge who participated in a sufficient number of cases is given an overall cumulative score. Overall scores range from 0 to 100. The higher the score, the more the judge’s opinions have had the effect of restraining liability.

Only two justices scored above 50. Four scored below that figure, while Justice Megan Cavanagh, who is the most recent justice to join the court, did not have an opportunity to participate in enough cases to be evaluated, although her score is trending very low. The scores below 50 belong to Richard Bernstein (28), Elizabeth Clement (29), Chief Justice Bridget Mary McCormick (33) and David Viviano (37). The scores above 50 belong to Brian Zahra (72) and Stephen Markman (78). Markman must retire when his term expires at the end of this year because of constitutional age limits for justices.

What do you mean by “liability”?

The “expansion of liability” means that all of us are more and more vulnerable to being sued for an ever greater array of causes. Judge-made law has made employers, school teachers, other professionals, school boards, towns and counties, churches and voluntary associations, our colleges and universities, neighbors and schoolmates, caregivers, physicians and pharmacists more likely to have their activities and decisions second-guessed by lawyers and to be dragged into litigation.

Who actually prepared this study?

The Judicial Evaluation Institute (JEI) based in Washington DC and the Economic Judicial Report (EJR), based in Oklahoma, prepared the study. For more than two decades, JEI and EJR have conducted and regularly updated similar studies of the judiciaries in many states across the nation. Using attorneys to do all the research and analysis, they have earned a reputation for producing careful, non-partisan reports that provide an accurate reflection of judges’ jurisprudence with respect to liability in our civil justice system.

What criteria were used to evaluate the judges on the Michigan Supreme Court?

MiLAW, JEI and EJR believe that an inordinate spread of civil liability has harmed American economic and institutional life. Therefore, cases were chosen because they involve civil liability and feature one of following:

— Dissension among the justices

— A decision that overturns a lower court

— A case that presents a new issue of law

The report includes cases spanning a period from January 1, 2015 through April 1, 2020 to provide the best understanding of a judge’s philosophy in cases affecting the spread of liability in our society. Among the questions asked are whether a decision further expands liability, tends to affect the availability of beneficial services, creates certainty or uncertainty in the law, tends to encourage or discourage business expansion in Michigan, and fosters or discourages job creation in the state.

Are you saying judges should give a higher priority to slowing down the spread of liability than to impartiality and proper application of the law?

Absolutely not. Nor are we saying it is preferable for a judge to have a 100% rating. If a common sense, faithful reading of a statute or application of the common law says that a certain injured person should be compensated for that injury, or that one business or not-for-profit agency has somehow wronged another person or entity, we believe that is how a judge should decide the case. We want judges to follow the law and do justice. As indicated above, it is principally when judges do not agree that this evaluation studies and critiques their decisions. By analyzing a judge’s record over numbers of cases where outcomes have not been dictated clearly or easily by current law (and therefore the judges have disagreed or the court has had to struggle with a new issue of law), this study gives insight into each judge’s philosophy and values. And these beliefs and values are very important, for much of the law applied in our courts is “common law” or “judge made” law. Tort law, for instance, is largely a matter of common law. Judges create these common-law rules, one precedent at a time. Similarly, these beliefs and values can determine whether a judge votes to strike down a statute intended to restrain lawsuits and liability.

Aren’t fairness and impartiality the most important traits for a judge?

Without question, fairness and impartiality are the first qualities we should expect all our judges to strive for. Rating fairness—even defining fairness—is virtually impossible, however. Every judge would claim to be fair and impartial in every case, but still we have split decisions in which judges disagree. Where the controlling law is susceptible to disagreement, or when judges are in effect “making new law,” judges are forced, consciously or not, to look to another guide to help them form their individual opinions or votes on the case—and this other guide, finally, will often be their own beliefs and philosophy about judging and liability. Voters and other selectors of judges are entitled to know the pattern of each judge’s rulings.

What are the practical implications of restraint in the area of civil liability?

A small business can plan its growth better when the body of law that governs its activities and responsibilities is steady, clear and predictable. Businesses of all sizes are more likely to locate and expand in Michigan if they know they will be in a legal climate where the courts can be relied on to give statutes the meaning that the legislature appears to have intended. Towns, colleges and not-for-profits will have lower litigation budgets. The price of automobile insurance, malpractice insurance, and homeowners’ and renters’ insurance will be lower in a state where people have a clear sense of what the court will do if there is an accident or other unfortunate event.

What do you mean when you suggest that the rapid spread of liability in recent decades has harmed American institutional life?

We mean that towns, schools and churches will be better able to ask, “How can we serve the people?”—if they don’t have to ask first, “Will a lawsuit and a surprise ruling ruin us?” We mean that higher-scoring judges have fostered a legal climate in which fewer of citizens’ dollars must be spent to protect against lawsuits, and a society that lets voluntary associations and families concentrate more on their essential purposes and less on avoiding lawyers and litigation.

Is this a one-time project?

No, we plan to update this study, as we have in the past.

Is MiLAW, EJR or JEI endorsing any of the members of the Michigan Supreme Court based on these ratings?

No. We hope to contribute to more informed evaluation of judges. As noted above, citizens often have had little or no information on the records of their judges. Information they did have tended to be anecdotal and limited to a highly-publicized case or two. Party affiliation alone, when it was known, may well have led to unfairly attributing one philosophy or another to an individual judge. A few cases and party affiliation alone do not constitute a sound basis for assessing a judge’s record. Among other things, it is unfair to the judges involved.