Chief Justice McCormack: A Portrait of Judicial Grace

A. Vince Colella
Moss & Colella P.C.

For those who recall the “dog days” of the Michigan Supreme Court, judicial partisanship cast a looming shadow over controversial opinions. In 2011, Justice Robert Young succeeded Marilyn Kelly as chief justice of the Supreme Court after his contentious re-election to a third term on the bench. During Young’s tenure, the court drew sharp criticism from plaintiff lawyers. Tort law opinions were ostensibly drawn sharply along party lines. However, that would all change in 2013 when a University of Michigan law professor (and dean), joined the bench. Immediately, Bridget McCormack’s “force de majeure” could be felt by the members of the high court. Notably, Justice McCormack’s legal philosophy was conspicuously embraced by the chief justice. A quick bond was formed between McCormack and Young, creating an air of congeniality that drew national attention. The “new era” of the Michigan Supreme Court was spawned by McCormack’s youthful enthusiasm and fundamental commitment to the rule of law.

In 2020, within a year of being appointed chief justice, McCormack faced the daunting task of guiding the courts through the pandemic. However, Covid-19 presented a unique opportunity for McCormack to embrace technological advancements and launch a remote access program that garnered national recognition. Michigan quickly became the quintessential test pilot for implementing new video technology to enhance security and access to the court system. “Zoom” became a household name. And while lawyers (and judges) were initially reticent, they soon welcomed the technology and advocate for its continued use today.

In addition to returning diplomacy to the state’s high bench and paving the way for wide scale remote access to the courts, McCormack also penned numerous influential opinions in the areas of criminal law, civil rights and personal injury.  In People v Peeler, 2021 Mich App LEXIS 5094 (Aug 25, 2021), McCormack authored a decision to overturn a one-man grand jury indictment issued by a Genesee County Circuit Court judge. This controversial case involved criminal charges brought against three state employees investigated for their roles in the Flint water crisis. The questions before the court were two-fold, (1) whether a defendant is entitled to a preliminary exam by a citizens’ grand jury and (2) whether a single judge can issue an indictment authorizing criminal charges. In her opinion, McCormack chastised the notion of allowing a one-man “grand” jury to consider evidence in secret as opposed to a public courtroom likening the proceeding to a “star chamber.”

In 2015, McCormack weighed in on the importance of “effective assistance” of counsel in the case of People v Ackley, 497 Mich 381 (2015) The case involved the unexplained and unwitnessed death of a 3-year-old girl. Ackley, the live-in boyfriend of the girl’s mother, was found to have been denied effective assistance where his lawyer failed to secure a suitable expert in the preparation and presentation of the defense. In her majority opinion, McCormack conceded that while counsel is not required to “shop for experts,” given the highly contested nature of the medical issues center to the defense, securing an expert to “meaningfully assist” in advancing an argument to counter the prosecution’s theory of guilt was of critical importance.

McCormack, who formerly co-founded the University of Michigan Innocence Clinic, has been cautious of limiting protections guaranteed under the 4th Amendment. In People v Frederick, 500 Mich 228 (2017), the court was tasked with determining whether police officers are permitted to make unscheduled visits at the home of a suspect (before dawn) to investigate a crime under the auspices of everyday visits, i.e., solicitors, mail delivery, etc. The practice referred to as “knock and talk” was being employed by local law enforcement to surreptitiously investigate drug crimes. In the opinion, McCormack expressed an uneasiness with allowing knock and talk (searches) to go unfettered. She wrote, “when [police] officers stray beyond what any private citizen might do [when approaching a residential home without notice to the homeowner] they strayed beyond the bounds of a permissible knock and talk; in other words, the officers are trespassing.” Id. at 239. The significance of this decision cannot be overstated given the proclivity of state and federal courts to further erode 4th Amendment safeguards.

Additionally, McCormack’s influence has been felt in Michigan’s auto No-Fault law. Perhaps recognizing the inequity between insurers and auto accident victims, McCormack refused to allow a carrier to invoke the one-year notice and statute of limitations defenses in cases where the insurer paid benefits prior to the commencement of a lawsuit. Jesperson v Auto Club, 400 Mich 29 (2016). McCormack justly determined that the “payment exception” to the notice requirement is not limited only to cases where the insurer has made payment within one year of the accident; but may be extended to cases where the insurer has made a payment prior to the filing of a lawsuit.

McCormack’s judicial presence will be sorely missed. However, her legacy will undoubtedly shape and inspire the future of our courts.

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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.