On October 22, 2009, the Detroit Free Press published two letters to the editor, responding to its October 11, 2009 editorial entitled: "Restoring Judicial Restraint-Running roughshod over GOP precedents would only diminish court's moral authority".
The first is written by US District Court Judge Avern Cohn:
"Your editorial comment on the faults of the pre-January 2009 majority of the Michigan Supreme Court is on the mark. Your concern that the new majority, in an effort to reverse faulty precedents, will act with inappropriate haste, and that the solution lies with the Legislature, is to say the least, fatuous. Given the divisions in the Legislature, asking it to enact new laws reversing the harshness of the pre-January 2009 decisions is like exploring a black hole: It will never happen.
The decisions of the former majority rest on a bed of sand. The sooner they are no longer the law, the better off all of us will be. A bad decision is just that, a bad decision. And the way to correct a bad decision is by a good decision."
The second is by attorney Jose' Brown, Chairman of the Negligence Section of the State Bar of Michigan:
"Your Oct. 11 editorial, "Restoring Judicial Restraint," hits the mark, then misses the point. You rightly reveal how destructive the previous state Supreme Court was to the rights of citizens and families. But then you advise the present court to accept the legal system that the previous activist court left.
That court reversed decades-old precedent that held road commissions and local governments responsible for properly maintaining traffic signals. Under the new law that the activist court created, they can now allow traffic lights to malfunction without any responsibility, even if they ignore lights they knew were broken. So if all four lights at an intersection mistakenly show green, and cause two school buses to collide and kill the children, there is no liability on the part of the errant city or road commission.
In that instance, the court wrote a new definition of an old law that had always been understood to require safe traffic lights. It was not an oversight by the Legislature. Will this Legislature restore the old law, as you suggest? It is unlikely to agree on anything, as we are seeing in the budget debacle. Should this new law stand simply because the court ruled that way, as you suggest?
All high courts occasionally overturn or reshape precedent. Precedent is not sacrosanct simply because it exists. In its essence, precedent is binding because it is well considered, wise and legitimately created. That court routinely discarded precedent authored by the most well respected legal minds, precedent that stood the test of decades of examination and that all sides understood and accepted as fair, true and correct law.
Nevertheless, the court's opinions became the law, but the beauty of precedent is that it can be reshaped by future courts in the interests of justice for all."
I agree with the sentiments contained in both letters, and further commentary, by me, would be but pale by comparison.
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