Lansing Schls Educ Assn v. Lansing Schl Dist Bd of Ed

Order Michigan Supreme Court Lansing, Michigan December 4, 2009 Marilyn Kelly, Chief Justice 138401 Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman LANSING SCHOOLS EDUCATION Diane M. Hathaway, ASSOCIATION, MEA/NEA, CATHY Justices STACHWICK, PENNY FILONCZUK,

ELIZABETH NAMIE, and ELLEN WHEELER,

Plaintiffs-Appellants, v SC: 138401 COA: 279895 Ingham CC: 07-000483-AW LANSING BOARD OF EDUCATION and

LANSING SCHOOL DISTRICT,

Defendants-Appellees.

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AMENDMENT TO ORDER

On order of the Court, the order of November 19, 2009 is amended to correct a clerical error by adding, after the text thereof, the following: YOUNG, J. (dissenting).

I dissent from the majority’s direction to the parties to reconsider the precedentially binding opinion of Lee v Macomb Co Bd of Comm’rs.1 This order is yet another installment in Chief Justice KELLY’s promise to “undo a great deal of the damage that the Republican Court has done.”2

When this Court decided Lee, a majority of six justices accepted this Court’s adoption of the federal standing test articulated in Lujan v Defenders of Wildlife.3 Indeed, the Lee majority adopted the Lujan test to clarify the essential elements of standing based, in part, on Justice CAVANAGH’s previous advocacy of Lujan as an appropriate guide in this respect.4 While Justice WEAVER has never disguised her disagreement with the adoption of the Lujan test,5 Justice CAVANAGH6 and then-Justice KELLY7 only later disavowed their acceptance of the Lujan test. Given this history, the standing analysis employed in Lee was a predictable target of the new majority’s effort to “undo” the work of the TAYLOR Court.

Although the new majority’s pattern of overturning precedent has become predictable, its hypocrisy has yet to become stale. Despite years of purported fidelity to stare decisis,8 the new majority has zealously set out to dismantle the decisions of the TAYLOR Court with which they disagree. The ax has been quick and unerring, taking out decisions by any means possible: openly or sub silentio,9 through direct appeal or

Justice CAVANAGH joined then-Justice KELLY’s approval of this Court’s adoption of the Lujan test, but dissented on the basis of the majority’s application of that test to the facts). reconsiderations of our prior orders and opinions.10 As noted in my recent dissent to the order granting leave to appeal in Hoover v Michigan Mut Ins Co:11 Chief Justice KELLY was once concerned that “if each successive Court, believing its reading is correct and past readings wrong, rejects precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously unstable.”

The current order is further evidence that Chief Justice KELLY’s “fears for preserving precedent pertained only to precedent with which she [and other members of the new majority] personally agreed.”12 The current direction for the parties to address whether Lee was correctly decided evinces the new majority’s willingness to reject precedent. It is the new majority’s prerogative to do so. However, the new majority’s retreat from its previous reverence for precedent should not go unnoticed.