Soon-to-be-Former Justice Alton Davis

The Michigan Supreme Court has nearly 20 oral arguments scheduled for December on a wide-variety of important cases.  Whether those arguments will be heard as scheduled is now in question due to circumstances arising from the mid-term election results.

Some background is needed here. 

When I clerked for the Michigan Court of Appeals back in the late 1980s, recently-elected Court of Appeals Judge Betty Weaver was one of the few judges that took the time to stop by and discuss issues with us lowly clerks.  She made no secret of the fact that she was Supreme Court-bound; she was elected to the court in 1995.

After 15-years on the high court, Justice Weaver, a "moderate" Republican, abruptly resigned in August, providing Governor Granholm the opportunity to appoint Weaver's successor, Alton Davis, who could run, and who did run, as an incumbent sitting justice.

Apparently, Weaver resigned in disgust over long-running and well-publicized rifts with her colleagues; particularly Justice Robert Young, Jr.  The Davis appointment allowed the court to shift, at least temporarily, to a Democratic majority.

The recent election provided two spots on the bench for four candidates; two of the candidates, Davis and Justice Young, were incumbents.  Justice Young, considered a conservative justice, linked his campaign in ads and signs with trial judge Mary Beth Kelly.

The tactic worked.  Justice Young retained his seat and will have the opportunity to introduce his "running mate" to the bench in January thereby preserving the narrow 4-3 majority that the judicial conservatives have maintained at the high court for years.

A problem, however, has surfaced since the election.  Should oral argument proceed on the cases scheduled for December when Justice Davis will not be around to participate in the judicial conferences leading to the formation of the common law of our state?

This problem also arose when conservative former justice Cliff Taylor was defeated by Justice Diane Hathaway.  In that instance, the oral arguments were adjourned until the new justice could assume her seat on the bench.

Adjourning the arguments is the best practice.  We should not have a lame-duck justice participating in oral arguments on some very important cases when that justice will not be around during judicial debate and opinion-drafting time.  These are not just any ole cases.  This is our common law.

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