This year, Michigan voters will elect justices to serve on the Michigan Supreme Court. Two of the seven seats will be filled. They'll go to the candidates with the two highest vote totals. Michigan Radio's Morning Edition is featuring interviews with each of the five candidates running for the court.
Justice Bryan Zahra was appointed by former Republican Governor Rick Snyder to fill a vacancy on the Michigan Supreme Court in 2011. He was elected to a partial term in 2012 then elected to a full eight-year term in 2014. Zahra is now seeking a second full term on the court. Zahra was nominated by the Republican Party, although Supreme Court candidates appear without party affiliation on the ballot.
He spoke with Michigan Radio's Doug Tribou.
Doug Tribou: You've been on the court for more than a decade, so you've seen a lot of cases. But I'd like to ask if you would share one or two opinions or dissents that you see as a strong representation of your legal philosophy or approach.
Brian Zahra: Over the course of my service, I think the one opinion that that I will say is indicative of my judicial philosophy is Rafaeli v. Oakland County. The Oakland County treasurer, and treasurers across the state who had properties within their jurisdiction with tax deficiencies, would do a tax foreclosure, sell the property, and then not return the proceeds to the homeowners who were deficient in their taxes.
DT: In that case, what was happening was they were taking the full sale price and not just the taxes that the county was owed.
BZ: Correct. And we concluded that that represented an unlawful taking, an unconstitutional taking of property. That represents, I think, my approach to the law, to look to the words of the Constitution. How do they apply in this particular instance? And I was very proud of that opinion.
DT: You co-chair the Justice for All Commission, which works to make Michigan's civil justice system more accessible. The commission's stated goal is "to implement a comprehensive approach to fill justice gaps." What are those gaps and how are you trying to address them?
BZ: There are so many people who don't even know they have legal issues that can be resolved with legal assistance. And on top of that, there are so many people who go to court without the aid of a lawyer.
Pro bono services can only go so far. We're trying to do more. We've got a giant forms project going on right now. I can tell you, as a member of the Supreme Court, that there are many forms, particularly in the district court, where I would read them and I'd have no idea what exactly they're asking me to do. So if I don't know what's supposed to go in those forms, how is someone who has no legal background at all to know?
There are many areas, Doug, where lawyers have simply priced themselves out of the market. There are some states, Arizona and Utah, that we can look to, where they've permitted paralegals or people with certain experience to go into, for example, a debt collection case or even family court. So we're looking at the possibility of making limited licensed practitioners.
DT: Who is a current or former state or U.S. Supreme Court justice you admire, and what do you admire about their work?
BZ: When I was in law school, I really admired the work of justice and then Chief Justice [William] Rehnquist. He was practical, but he was also very much consistent with my philosophy that judges shouldn't be policymakers.
There's one case, I believe the name of the case was Dickerson[v. United States], and it was a reconsideration of Miranda. And we all know Miranda, right, from any police TV show you see. You have the right to remain silent. You have a right to an attorney. If you can't afford an attorney, an attorney will be provided for you.
Miranda is really not based on anything expressly stated in the Constitution. And so when Dickerson v. Texas came to the court, Chief Justice Rehnquist wrote that opinion. And he said, you know what, there is no constitutional basis for this decision, but it is a constitutional prophylactic. Miranda has now become ingrained in our culture. It will do more to disrupt what we have in our law enforcement practices now than it would to resolve any problems.
That was very insightful to me, and, you know, when cases that you think might have been wrongly decided should be reversed and when you should simply just accept the decision and move on from that.
DT: Justices and candidates can't comment on issues that might come before the court. But I would like to ask you about the complexities of dealing with the legal fallout from Roe v. Wade around the country. The overturning of the Roe decision is reactivating state abortion laws that have been dormant. It's also sparking new abortion legislation and ballot initiatives, as we're seeing with Proposal 3 here in Michigan. What are the unique challenges about tracking and preparing for the related but potentially wide-ranging cases that could come before the court?
BZ: In most high-visibility cases, the court is divided and those concerned about an opinion or decision should read the entirety of the court's work. Not to be persuaded that it's correct, but read them and ask the question: Are these opinions — both majority and dissent — premised on principled interpretations of law?
Throughout the history of our nation, we've had many cases that have upset a large segment of our population. In most instances, the public and legal community came to accept the court's opinion in short order, and we became a stronger society as a result.
But in a handful of cases, the court came to realize that its prior decision was erroneous and needed to be reversed. And even these reversals have not always been warmly received. Sometimes there's been passionate objection to them, as we've seen in the Dobbs case [overturning Roe]. And to the extent the work of the court does not express the will of the people, the political process can, and often does, address this shortcoming.
DT: Right to Life of Michigan, an anti-abortion group, has endorsed you. And regarding Proposal 3, you were one of just two justices who opposed putting Proposal 3 on the ballot, although your dissent was based on the technical merits of the submission — issues with spacing and formatting. If Proposal 3 passes, it's likely the Supreme Court would hear multiple cases to interpret that constitutional amendment. You touched on this, but what would you say to voters who are concerned about the court's ability to set aside politics for one of the most controversial subjects of our time?
BZ: I received the endorsement from Michigan Right to Life without making any application to them. I got the same endorsement from, for example, the Police Officers Association of Michigan and the Michigan Chamber of Commerce and some other organizations. And I've been on the court a long time. There have been many cases that upset people who have endorsed me.
You noted right off the bat that I've been nominated by the Republican Party. Well, there was a provision back in 2012 that was called Protect Our Jobs. And there was a challenge there to putting that on the ballot. I rejected the challenge then and people at the Republican [state] convention were very upset and they wanted to nominate someone else.
I am most concerned with looking at the words of the law, giving them meaning, applying rules of grammar, and trying to give the best interpretation I can to what the drafters of the law intended. And in ballot proposals, that will be what the people voted for.
Editor's note: Quotes in this article have been edited for length and clarity. You can listen to the full interview near the top of this page.
