Brian Zahra

Justice Zahra has served on the Michigan Supreme Court since 2011, after being appointed by Governor Rick Snyder (R). He previously served on the Michigan Court of Appeals for 12 years. Justice Zahra said on his campaign website that "My role as a judge is to determine what the law is, not what the law should be

Notable Cases:

• Rouch World, LLC v Department of Civil Rights (2022): Wrote dissent in a case where the majority held that discrimination on the basis of "sex" included discrimination on the basis of "sexual orientation" in places of public accommodation. (From syllabus) Justice Zahra "took no issue with the merits of the policy adopted by the majority, but stated that under the Michigan Constitution and its separation of powers, it is the ultimate responsibility of the Legislature or the people to write, amend, or repeal the laws, while the Supreme Court’s duty is to say what the law is rather than what it ought to be. He stated that the majority’s conclusion that the ELCRA prohibits discrimination based on sexual orientation construed 'because of . . . sex' to mean something that nobody in 1976 thought it meant, according to lay dictionaries and linguistic evidence of the period, and he noted that none of the entities charged with enforcing the ELCRA understood it to prohibit sexual-orientation discrimination until 2018. The fact that the Legislature specifically and explicitly considered adding sexual orientation to the ELCRA but ultimately chose not to do so materially distinguished this case from Bostock, thereby requiring a different outcome. Justice ZAHRA concluded that the ELCRA’s use of “sex” refers to whether one is a biological male or a biological female and that defendants did not prevail under that narrower definition. For these reasons, he would have affirmed the Court of Claims’ conclusion that sexual orientation is not a protected class under the ELCRA."
  
• Midwest Institute of Health, PLLC v. Governor of Michigan (2020): Signed Justice Markman's majority opinion. Held that Emergency Management Act (EMA) did not give the governor authority to declare a state of emergency after April 30, 2020, and Emergency Power of the Governor Act (EPGA) was unconstitutional (6). Said that EMA required the governor to terminate the state of emergency after 28 days (which was April 30), and this requirement would be “a nullity” if the governor could immediately redeclare a state of emergency (which is what the governor attempted to do). Said that “historical context and rationale, while often helpful in giving reasonable meaning to a statute, cannot ultimately take priority over its actual language” (20). Defined public safety to include public health, since COVID-19 threatens lives (22). Borrowed principles from the federal courts about how to decide when a delegation of power violates the separation of powers (27-31). Held that the EPGA gave broad powers to the governor with constitutionally insufficient limitations on how the governor was to use that power (39-40). Struck down the entire EPGA instead of part of it (41).
  

• Rafaeli, LLC v. Oakland County (2022): Wrote the majority opinion. Two plaintiffs were delinquent on their property taxes, so the state sold their properties and kept all the proceeds (6-7). The court held that it was unconstitutional for the state to keep all the proceeds instead of reimbursing the state for the delinquent taxes and giving the surplus proceeds back the plaintiffs (7). The primary purpose of constitutional interpretation is “to determine the text’s original meaning to the ratifiers, the people, at the time of ratification” (26). Said that the plaintiffs’ claimed property right to the surplus proceeds was recognized in the Magna Carta and elsewhere in English common law (33-4). 

• In re Sanders (2014): Signed Justice McCormack's majority opinion. Held that MI’s one-parent doctrine was unconstitutional under the 14th Amendment’s Due Process Clause for violating Laird’s fundamental right as a fit parent to direct the care of his children without a trial finding him unfit (7). The one parent doctrine said that if one parent were adjudicated to be unfit, then it would not be necessary that the State prove the other to be unfit as well prior to proceeding with a dispositional hearing (14). Cited SCOTUS’ Matthews v. Eldridge for guidance on when a fundamental right could be burdened (16). Cited SCOTUS’ Stanley v. Illinois precedent, which held that “all parents ‘are constitutionally entitled to a hearing on their fitness before their children are removed from their custody’” (17-18) Cited that temporary deprivation of custody is an “intrusion into the family sphere,” and held that such deprivation plainly infringed on Laird’s parental rights per Troxel (footnote on 19). Rejected State’s argument that the subsequent dispositional hearing was a sufficient fitness hearing process for Laird under Eldridge because due process requires that every parent receive an adjudication hearing before the court can interfere with his/her parental rights (20-21). Held that the “when applicable” phrase in MCR 3.973(A) (governing dispositional hearings) included affording proper respect to the rights of fit parents (20). Held that the State gained no benefit from separating a child from a fit parent (23). Noted that children facing imminent threats of harm may face an expedited procedure for removal (footnote on 22). Noted that there is no presumption of fitness for non-adjudicated parents at dispositional hearings (23). Held case was not moot because incarcerated parents can still exercise their rights (26).

Info from Other Sources:

• Justice Zahra posted a photo of his son wearing a Reagan Bush '84 shirt and standing next to a statute of Ronald Reagan

Judge Voter Guide gave 1 star.