Last week I reported on the extraordinary shenanigans by which Michigan judge Elizabeth Gleicher enjoined state officials from enforcing a state abortion law if and when Roe is overturned. In response to that ruling, two county prosecutors, along with Right to Life of Michigan and the Michigan Catholic Conference, filed a complaint asking the court of appeals to take superintending control of the case as well as a motion seeking immediate consideration of their complaint.
I’m pleased to pass along that the state court of appeals today granted the complainants’ motion for immediate consideration and ordered Judge Gleicher to file her answer to the complaint by June 13. Here is an excerpt from their motion (italics in original; underlining added; citations simplified):
- … [T]he Court of Claims [i.e., Judge Gleicher] in its May 17, 2022 Opinion and Order in Planned Parenthood of Mich v Attorney General exceeded its jurisdiction, acted in a manner inconsistent with its jurisdiction, and failed to proceed according to law in declining to dismiss Planned Parenthood’s action and entering injunctive relief, as well as in not recusing itself. Given that the only party to the action who can appeal has vowed not to do so, the lower court’s actions also leave Plaintiffs without an adequate legal remedy.
- The lower court’s ruling has enjoined enforcement of a decades-old, valid Michigan statute – by county prosecutors who are not even parties to the action – in a suit between non-adverse parties who agree on that improper remedy, issued by a judge with longstanding and/or continuing financial and other ties to one of them, and contrary to binding, published authority of this Court that the judge litigated and lost as a practicing attorney….
- Protection of this Court’s precedential decisions also counsels strongly in favor of immediate consideration…. In Mahaffey v Attorney General (1997), this Court stated unambiguously that “the Michigan Constitution does not guarantee a right to abortion that is separate and distinct from the federal right.” In holding the opposite in this case, the Court of Claims distinguished Mahaffey as involving the right to privacy, due process, free speech and vagueness, and not the “right to bodily integrity” that according to the Court of Claims was not even recognized under the Michigan Constitution until Mays v Snyder (2018). The Court of Claims went on to define the parameters of that due-process right primarily as “the right to be let alone” articulated by Justice Cooley in Cooley, Torts, 29. Id, pp 17-18. Drawing from a hodgepodge of foreign and federal cases from the last century – some of them overruled, or dissenting statements – the Court of Claims defined its newly found right as someone’s “right to determine what shall be done with his own body,” or “[t]he right of a person to control his own body,” or “that each man is considered to be master of his own body….”
- But far from constituting a field left unplowed by this Court in Mahaffey, the Court of Claims’ amorphous right was squarely put in issue by the 1994 complaint in that case – which the Court of Claims judge filed as co-counsel for plaintiffs. Though it was not labeled a “right to bodily integrity,” the term that gained recognition with Mays in 2018, the gravamen of that claim was the same….
(For you procedural mavens, a complaint for an order of superintending control under Michigan law is, as I understand it, akin to an action for mandamus.)