Exit Interview: Justice David Viviano looks back at his tenure on the MI Supreme Court

This is the first in a three-part series of exit interviews with people leaving prominent jobs in Michigan at the end of 2024.

Michigan Supreme Court Justice David Viviano is stepping down at the end of the year. He was originally appointed to the court in 2013 by former Republican Governor Rick Snyder. In 2014 and 2016, Viviano was a Republican Party nominee when Michigan voters elected him to the court.

In late November, Viviano spoke with Michigan Public Morning Edition host Doug Tribou about his tenure on the state Supreme Court.

Doug Tribou: Being a judge runs in the family. Your father, Antonio Viviano, was a longtime judge, and you served together in Macomb County. And your sister, Kathryn Viviano, was also your colleague there. She is still a judge at the Macomb County Circuit Court. How did your father's career influence you and your sister in your own legal pursuits?

Justice David Viviano: I think very much so. First of all, my decision, speaking for myself, to become a lawyer was very much influenced by my father's career. He had spent almost a decade as a prosecutor in Macomb County and then was a criminal defense attorney for about 20 more years before he took the bench. And then we all worked together to help him get elected — the first time he ran in 1992 — to the probate court.

That, of course, opened up my eyes to public service. And it became something that I was very interested in. My father and my mother, both of them, were very interested in politics and in our community and in trying to to improve things and instilled in me that it's an obligation to get involved and try to make a difference.

DT: Well, in addition to your time on the Supreme Court and working as a circuit court judge, you also were an attorney in private practice, so you've had a long legal career. But you're still in your early 50s. Why did you decide not to seek reelection this year?

DV: I have a young family, and so my expenses are going up. And I know judicial compensation is an issue in our state, particularly at the Supreme Court level. But it's also the case that I'm not exactly thrilled with the direction the court has taken the last few years. It should be no surprise because I've written many, many dissents, both to the legal opinions the court has issued, but also to the administrative decisions the court has been making, mostly since COVID.

DT: Could I ask you to say more about the administrative decisions and what you're seeing there that you don't agree with?

DV: One of the things that I found attractive when the governor asked me to join the Supreme Court is that I would be able to work with our then Chief justice Bob Young on improving performance of courts around the state of Michigan. So there was really an intense focus on things like making sure cases were heard and resolved in a timely basis, making sure judges were appearing in court and diligent in running their dockets. And in the time that I've been on the Supreme Court, it really has changed. Part of it because of the change of perspective, I suppose, that some folks have had because of COVID.

We came out of COVID, and the majority of our court decided that we were going to make Zoom hearings the default and make in-person hearings the exception. And as a former trial judge and trial lawyer, it's just not something that I think has been productive. And I think it's going to have a lot of lasting negative consequences for the court system.

DT: Well, you are someone that has been known for some technological advances in the administrative work of the court — pushing for more e-filing. I'm surprised to hear you say that about Zoom. Is there not an opportunity there to process more cases because of the efficiency? It's much easier to click "leave" on the Zoom meeting and move on to the next one than it is to bring in the next round of of people who need to speak before the court.

DV: There's resource differences on all our local courts [which] are locally funded. So they have staffing differences. They have technology differences. And the court is just one stakeholder. There's also resource differences with our litigants who have inconsistent internet service. So people are not on an equal footing when they're Zooming in to the court. The court deals with the public at large, not with any particular segment.

DT: The COVID-19 pandemic and the fallout from it continue to generate legal cases. Earlier this year, the Supreme Court heard a case called the The Gym 24/7 Fitness, LLC v. the State of Michigan. The case focused on fitness centers that were forced to stop operations under pandemic emergency orders. The plaintiffs were arguing that amounted to a regulatory taking or an illegal seizure of their business.

The court ruled in favor of the state and blocked an appeal there. In your dissent, you said that left some novel legal questions unanswered. What do you see as some of the key debates that potentially were lost there?

DV: Well, I'll make a general point. You know, I see this COVID litigation that has arisen. I sort of sense — when you look at some of the opinions dealing with those issues — that we kind of, you know, almost sweep these cases under the rug. And that's just not my view of the world and how we how we're supposed to deal with legal issues.

When I see an interesting legal issue, I try to untangle it. In that case, there are some interesting issues with the Penn Central test — regulatory taking test — out of the U.S. Supreme Court. And without getting too much into the weeds, the U.S. Supreme Court has not provided a very clear test under Penn Central. And so the question is how those factors should be applied. And because they're not clear, people haven't really grappled with them. And I thought that case would provide us an opportunity to really think carefully about how those factors should be applied in this setting.

I've written on other COVID cases. I've written on some of the university closure cases where classes were canceled. And the question is whether students were entitled to refunds or not. You know, the real question was what's the tuition agreement between students and the university? Does it include the mode of teaching? The answer came back, the tuition agreement doesn't require universities to provide any particular type of class, and it doesn't require them to provide it in any particular type of format. And that I thought was ridiculous.

I think everybody knows and understands that there is an implied contract that when somebody signs a tuition agreement with the university, that if the university changes its format entirely — for example, from an engineering program to a performing arts in the middle of the semester — that the student isn't getting the benefit of the bargain. And the same goes with the mode of teaching. So I think there's interesting legal issues that aren't being taken seriously because people kind of want to close the door on COVID and move to the next chapter.

DT: Earlier you referenced the direction of the court. And while candidates for the court are listed without party affiliation, they do receive nominations from the state parties. And the justices who were nominated by the Michigan Democratic Party over the years have a 4-3 majority currently over Republican nominees. That split will grow to 5-2 because both Democratic nominees won in November. Justice Kyra Harris Bolden was elected to retain her seat and Kimberly Ann Thomas won the race to take over your seat against another Republican nominee. Did you give that split any consideration before making your decision to step down?

DV: I did. I did. I mean, I suppose you have to. When I joined the court, as I mentioned already, it was a conservative court, really a strong rule-of-law court. When I say that, to me, the court should be focused on reaching the right decision according to the law, in every case, without the desire to reach certain outcomes on cases, which means that judges sometimes have to reach results that they don't like. And it worries me because I sort of see that part of the social contract seems to be breaking down.

So, of course, it's a concern. I'm hopeful that Justice Bolden and the new member of the court who'll be taking my spot will take their role seriously in applying the law and doing it neutrally. And, you know, if not, there'll be future elections, I suppose, where the voters will have their say.

DT: Well, you've heard and written about many cases in your time in the courts in Michigan, and I would like to ask if there's one or two that stand out to you as maybe the the most significant or maybe the most representative of the type of work that you've tried to do on the court?

DV: You know, we've certainly written on a lot of important topics. As I mentioned, I've had a lot of dissenting opinions. I've been involved in opinions having to do with the [Michigan Independent Citizens] Redistricting Commission. I wrote the opinion that allowed the redistricting commission to go on to the ballot. But then when there was a challenge to the commission — mostly from the press — on transparency issues, I again wrote the opinion that said that they had to provide information to the public, and it was one of the very reasons for their existence was to provide more transparency.

So I've tried to take, as I mentioned before, a balanced approach. Those opinions don't always make people happy on both sides of the political spectrum. But I think it's important for a judge to follow the law.

DT: Well, Justice Viviano, thanks for talking with me this morning and best of luck in the next chapter.

DV: Doug, I appreciate your time and thanks for the interview this morning.

Editor's note: Some quotes in this article have been edited for length and clarity. You can hear the full interview near the top of this page.