Anglers of The Ausable Inc. v. Dep't of Envtl. Quality

• Decision Date: 25 April 2011
• Docket Number: 280265,138866.COA Nos. 279301,279306,138865,280266.,Docket Nos. 138863,138864
• Citation: 489 Mich. 884,796 N.W.2d 240
• Parties: ANGLERS OF THE AUSABLE, INC., Mayer Family Investments, LLC, and Nancy A. Forcier Trust, Plaintiffs–Appellants,v.DEPARTMENT OF ENVIRONMENTAL QUALITY, Director of the Department of Environmental Quality, and Merit Energy Company, Defendants–Appellees.
• Court: Michigan Supreme Court

489 Mich. 884

796 N.W.2d 240

ANGLERS OF THE AUSABLE, INC., Mayer Family Investments, LLC, and Nancy A. Forcier Trust, Plaintiffs–Appellants,

v.DEPARTMENT OF ENVIRONMENTAL QUALITY, Director of the Department of Environmental Quality, and Merit Energy Company, Defendants–Appellees.

Docket Nos. 138863

138864

138865

138866.COA Nos. 279301

279306

280265

280266.

Supreme Court of Michigan.

April 25, 2011.

Order

On order of the Court, the motions for rehearing are considered, and they are GRANTED. This Court's opinion of December 29, 2010 is VACATED and this appeal is DISMISSED on grounds of mootness, for reasons set forth in the dissenting opinion reported at 488 Mich. at 91, 793 N.W.2d 596 (2010). The Court of Appeals opinion at 283 Mich.App. 115, 770 N.W.2d 359 (2009) is also VACATED. See Grand Traverse Co. Prosecutor v. Meijer, Inc. (In re Investigative Subpoenas), 488 Mich. 1032, 793 N.W.2d 229 (2011); United States v. Munsingwear, Inc., 340 U.S. 36, 39–40, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (“The established practice of the Court in dealing with a civil case ... which has become moot while on its way here, or pending our decision on the merits, is to reverse or vacate the judgment below.... When that procedure is followed, the rights of all parties are preserved....”).

“T[he] judicial power ... is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.” Anway v. Grand Rapids R. Co., 211 Mich. 592, 616, 179 N.W. 350 (1920) (quoting Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246 [1911] ) (emphasis added). As a result, “this Court does not reach moot questions or declare principles or rules of law that have no practical legal effect in the case before” it. Federated Publications, Inc. v. City of Lansing, 467 Mich. 98, 112, 649 N.W.2d 383 (2002). In accordance with these principles, this case is moot because it presents “nothing but abstract questions of law, which do not rest upon existing facts or rights.” Gildemeister v. Lindsay, 212 Mich. 299, 302, 180 N.W. 633 (1920). In light of the fact that: (a) defendant has quit-claimed its easement interest back to the riparian owner; (b) defendant no longer has the physical means of discharging water into Kolke Creek or the Au Sable River; (c) defendant is now disposing of the water by alternative means; (d) defendant no longer has a permit that allows discharge into Kolke Creek or the Au Sable River; and (e) the Department of Environmental Quality has attested that “there no longer exists the possibility of surface water discharge to Kolke Creek or the Au Sable River,” this is a case of obvious mootness. There is “no reasonable expectation that the wrong will be repeated,” United States v. WT Grant, 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), because the very harms that plaintiffs sought to enjoin no longer exist.

YOUNG, C.J. (concurring).

I fully join this Court's order and write only to answer a criticism the dissenting statement raises. Justice Cavanagh quotes my dissenting opinion in United States Fidelity Ins. & Guar. Co. v. Michigan Catastrophic Claims Ass'n. (On Reh'g), 484 Mich. 1, 27, 795 N.W.2d 101 (2009) (Young, J., dissenting), and rhetorically asks the question I raised in that case—“What changed?”—that would lead me to support rehearing in the instant case.

The answer is simple: the majority opinion in USF & G prevailed over my dissenting opinion, and I see no reason to remain bound by a position that failed to receive majority support two years ago.¹ Today's order merely applies the very same principles that former Justice Weaver and Justices Hathaway, Marilyn Kelly and notably Justice Cavanagh himself applied in deciding to grant rehearing in USF & G. And although Justice Cavanagh dissents from the order in this case, he does not repudiate his decision to grant rehearing in USF & G. Instead, his dissent in the instant case is fully premised on his belief that this Court's previous disposition on the mootness issue “was properly decided.” Because I continue to hold the opposite belief—that this Court erred in issuing an opinion on the merits of a moot case ²—I fully join today's order.

ZAHRA, J. (concurring).

I concur in the order granting rehearing, which vacates this Court's opinion of December 29, 2010, as well as the Court of Appeals' opinion of March 31, 2009. I write separately to address the propriety of granting a motion for rehearing when there has been a change in the makeup of the Court between the time the Court's initial opinion is released and the date the motion for rehearing is decided.

MCR 7.313(E), this Court's rule governing motions for rehearing, is a discretionary rule as it does not define a standard under which this Court is to decide motions for rehearing.³ Thus, whether to grant or deny the motion is left to the discretion of the Court. Historically, in exercising discretion, the Justices of this Court consider whether the Court properly interpreted and applied the law. This explains why Justices typically cast votes on rehearing that are consistent with their initial view of the case.⁴ Generally speaking, a Justice will only change his or her vote when the legal arguments on rehearing persuade the Justice that his or her initial view of the case was erroneous. Not surprisingly, Justices Marilyn Kelly, Cavanagh, Hathaway, Markman and Chief Justice Young view this case in the same light that they did on the date the original opinion was issued. The instant motion thus rises or falls on the votes cast by myself and Justice Mary Beth Kelly. Because we were not seated on the Court when the initial opinion was released, we have no established position in this case.

It is suggested that Justice Mary Beth Kelly and I ought not cast our votes based on the merit of the legal arguments and the correctness of the opinion that is the subject of rehearing and, instead, limit our review to a determination whether any new arguments have been presented to this Court that were not previously presented at the time the opinion under review was released. Nothing in MCR 7.313(E), however, supports the notion that the Court may only grant rehearing where new legal arguments are presented. Significantly, such a constraint exists in the pertinent court rule for the Court of Appeals. Specifically, MCR 7.215(I)(1), which governs motions for rehearing and reconsideration in the Court of Appeals, states that “[m]otions for reconsideration are subject to the restrictions contained in MCR 2.119(F)(3).” MCR 2.119(F)(3) in turn provides that:

Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.

The absence of any reference to MCR 2.119(F) in the rule governing motions for rehearing in this Court, and the express reference to it in the equivalent Court of Appeals rule, leads me to conclude that in deciding the pending motion it is appropriate to consider whether the Court's December 29, 2010 opinion was properly decided, rather than limit review to the question regarding whether new arguments are presented on rehearing.⁵

[796 N.W.2d 243 , 489 Mich. 888]

This same conclusion has been reached by virtually every Justice faced with this situation. Then–Justice Alton Davis voted to grant reconsideration where he concluded the Court's prior order was erroneous. Duncan v. State of Michigan, 488 Mich. 957 (2010) (Davis, J., concurring). Likewise, Justice Hathaway voted to grant rehearing and vacate an opinion originally issued before she joined the Court. United States Fidelity Ins. & Guaranty Co. v. Michigan Catastrophic Claims Ass'n (On Rehearing), 484 Mich. 1, 795 N.W.2d 101 (2009).⁶ Then–Justice Corrigan and Chief Justice Young did the same in McCready v. Hoffius, 459 Mich. 1235, 593 N.W.2d 545 (1999). History informs us that this is not a recent trend in the Court. See, e.g., Harmsen v. Fizzell, 354 Mich. 60, 92 N.W.2d 631 (1958); Weller v. Mancha, 353 Mich. 189, 91 N.W.2d 352 (1958); Rumney v. Coville, 51 Mich. 186, 16 N.W. 372 (1883).⁷

The inquiry does not end, in my opinion, upon review of the correctness of the decision under review. As is evident from the substance of the dissent in this case, which echoes the dissent of Chief Justice Young in United States Fidelity Ins. & Guar. Co., 484 Mich. at 27, 795 N.W.2d 101, it can be unsettling to this Court when within the period for rehearing, interpretation of the law changes due to a change in the composition of the Court. See also Sazima v. Shepherd Bar & Restaurant, 483 Mich. 924, 762 N.W.2d 924 (2009) (Markman, J., dissenting). Because of these concerns, my discretion is also guided by consideration of the jurisprudential significance of the issues presented on rehearing.

Justice Cavanagh claims that the newly composed Court is “undoing recent precedent.” Like every Justice on this Court, I respect the role stare decisis plays in Michigan's jurisprudence. That said, every Justice on this Court, with the exception of Justice Mary Beth Kelly and myself, has at one time or another found it appropriate to overrule precedent because the Justice concluded doing so served the best interests of Michigan's jurisprudence. See e.g., Regents of University of Michigan v. Titan Ins. Co., 487 Mich. 289, 791 N.W.2d 897 (2010); Robinson v. City of Detroit, 462 Mich. 439, 613 N.W.2d 307 (2000). In my view, the order granting rehearing and vacating the December 29, 2010 opinion does not undo precedent; it restores precedent. Simply stated, the Court disregarded the mootness doctrine so that it could overrule Preserve the Dunes, Inc....