The stunning upset defeat of Republican Chief Justice Cliff Taylor ends the Michigan Supreme Court's conservative grip and opens the welcome prospect that it will overrule one of its most controversial decisions -- the 2007 gutting of the state's widely acclaimed Michigan Environmental Protection Act.
Environmentalists were among those who backed Democrat Diane Marie Hathaway, a relatively obscure Wayne County circuit judge whose victory means the court will have four women and three men.
Republican Justice Betty Weaver, a former chief justice frequently at odds with the "Engler Four" on the high court and now pivotal on which of two current Democrats will be the next chief, told me Wednesday the environmental protection act decision was "judicial activism at its worst (and) needs to be corrected."
Ex-Gov. Bill Milliken, who championed and signed the act into law, said Taylor "spearheaded the movement to emasculate it and now, hopefully, there is an opportunity to revisit this landmark act."
Before the court's 4-3 ruling on a Mescota County case involving Nestle's Ice Mountain bottled water operation, the act gave "any person" standing to bring an environmental court challenge.
But the high court limited standing only to persons directly impacted.
In her dissent of that decision, Weaver said the ruling "has taken the power to protect the state's natural resources away from the people of Michigan, despite the people's stated belief that the natural resources of this state are of paramount concern."
She said the court earlier had noted that "the Legislature conferred standing under MEAP to any person who alleges that a defendant's conduct has or is likely to pollute, impair, or destroy the air, water, or any natural resources or the public trust therein."
As for changing the court's ruling, she said Wednesday, "All cases are fresh cases."
It is clear that those who lost in 2007 will bring fresh cases.
Traverse City attorney Jim Olson, who represented Michigan Citizens for Water Conservation in the Ice Mountain case and was among a small band who attended a pre-election gathering for Hathaway at Traverse City's Open Space on Grand Traverse Bay, said challenge of the 2007 ruling "should and can be done."
Obviously, it could be done over time on a case working its way up the appeal process. But since some aspects of the MEAP case were sent back to the Mecosta court, plaintiffs in the case have some more immediate cards to play.
Along with Weaver, Democratic Justices Mike Cavanagh and Marilyn Kelly dissented from the 2007 decision. Count incoming Justice Hathaway as pro-MEAP. Those four outnumber Taylor's allies -- Republicans Robert Young (author of the 2007 decision), Maura Corrigan and Stephen Markman.
Environmentalists, long vocal but not particularly effective as political activists, were effective in the Supreme Court race, helped by organized labor, some anti-Taylor editorials, a legal community unfriendly toward Taylor and pro-Democratic funding that helped counter the advantage that business spending has long given Republicans in high court races.
Clean Water Action, for example, made 53,172 phone calls and 50,866 mailings, and knocked on 20,750 doors on behalf of Hathaway.
Although Weaver has exchanged public barbs with her fellow Republicans on the court, she steadfastly, post-election, declined personal criticism of nemesis Taylor.
Weaver, who at Hathaway's request met with her for nearly three hours at Weaver's Glen Arbor home on the banks of the Crystal River, said:
"I believe that with Judge Hathaway the people of Michigan have chosen a fair and independent judge, who brings much needed trial judge experience to the Michigan Supreme Court. I am hopeful that with the addition of Judge Hathaway we can bring about reform of the operations and activities of the Supreme Court by, among other things, replacing secrecy with transparency, working to reform the selection of justices, and helping the Supreme Court deserve the people's trust and confidence."
Taylor, according to the Associated Press, predicts "a hard turn to the left" for the court.
More likely is a turn to the center and to transparency sought by Weaver, who has no intention of seeking another stint as chief justice but will have a big say on who's next.
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