In the wake of the Michigan Court of Appeals sua sponte reversal of its decision last year to remand our hazardous waste complaint to the Kent County Circuit Court (see yesterday's article), I did a little checking. I searched the court's records for other cases in which it has retroactively applied the new Cleveland Cliffs standard for standing to bring an environmental citizen suit. There are none.
Nor could I find any other type of case in which the Court of Appeals acted on its own motion to reverse itself. (I am told that court does have this authority but rarely uses it.) It is also strange that the Court of Appeals acted without reference to the record of the remanded case, in which we met the very requirements for standing that it now says we lack. Even odder is that none of the defendants in the remanded case actually ever filed with the original trial court a motion to dismiss our hazardous waste claim.
So how did the Court of Appeals bounce a complaint no one asked it to?
Something's fishy about what the court did. I'm not suggesting someone has pulled strings to do in our case against the Berkey & Gay polluters. That would involve highly unethical ex parte communications with high court judges and there's no evidence of that. But I must wonder if our good cause is getting caught up in turf battle between the judiciary and the legislature over which branch of the state government makes the law about who has access to the courts.