Imagine working in a business where you have to have college and a post graduate degrees to become employed. In addition, you have to pass a very detailed test before you can actually start to work. Now imagine that your department has a dispute with another department that simply cannot be resolved. The procedure is to take dispute to the boss to have her decide what should happen and who is right. There is a catch. The boss is elected by those members of the community who bother to vote; the boss has the position for four years regardless of how her decisions affect business. Welcome to the practice of law in the state courts in Michigan.
Michigan is certainly not the only state where judges are elected. The process is referred to as non- paritisian, but candidates for the Supreme Court justice positions are nominated by the political parties. No where are there more partisian politics than in the race for the two Michigan Supreme Court Justice positions. In many elections, it seems that the only people who care are attorneys. This election promises to be different; by the time the voters go to the polls in November, it will be clear that this race is very partisian. The outcome will determine the direction the court will take and will have a significant impact on employers who have enjoyed a business friendly Supreme Court over the last decade.
Why is this election so different? For the past eleven years, Republicans controlled the court. A change began when Chief Justice Cliff Taylor was defeated and replaced by Justice Diane Hathaway. A split developed among the Republican Justices when Justice Elizabeth Weaver began to disagree with her fellow Republican justices. The split culminated in a landmark day on July 31, 2010 when the majority of the court reversed five prior "Engler" court decisions over heated dissent from the Republican justices. In August of 2010, Justice Weaver resigned allowing Governor Granhold to appoint her replacement--Justice Alton Davis. Justice Davis will now be able to run as an incumbent. For the first time in eleven years, there is a Democratic majority on the court.
In this year's election, both a Democratic and Republican Justice ( Robert Young) are in contested races. If both win or if one Republican and one Democrat are elected to the court, the Democrats will maintain their majority. Why should an employer care since what the Supreme Court does appears to have little direct impact on business in the state?
The answer lies in understanding that the Democratic majority may review and reverse employment law decisions of the "Engler" court. While normally Supreme Court cases are not reversed, the Granholm Court has reviewed prior decisions and applied critieria which, to the majnority, justifies the reversal as happened in July. For employers, prior decisions which limited the time in which claims had to be brought and which prior barred claims not raised within the limitations period may be reviewed since the several of the Democratic Justices disagreed with those decisions. Instead of being employer friendly, the Court is trending to becoming much more employee friendly. As a result, employment litigation can be expected to rise as more attorneys are willing to take cases as well as their chances in this new judicial environment. Change will not necessarily be immediate since it often takes years for a case to get to and be decided by the court. There could, however, be a case already on appeal which could be used by the Democratic majority to change the law.
In the meantime, the business climate in this state with respect to employment and discrimination law will change in perception, if not in reality. Employment litigation which had been impacted by Michigan's prolonged recession may now experience its own recovery. A case which was deemed "unwinnable" under prior law may now be viewed as the "one" which can change the law. More attorneys will be willing to take the chance that their case will be the one the Supreme Court uses to reverse prior "Engler Court" decisions. Employers who were not interested before in the "nonpartisian" Supreme Court races should be very interested now.