Lead Opinion
Wе granted leave to appeal in this case to determine the parties against whom attorney fees may be prorated under MCL 418.315(1). We conclude that the term “prorate” in MCL 418.315(1) applies only to employers and their insurance carriers. Accordingly, we affirm the judgment of the Court of Appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case involves a dispute over workers’ compensation benefits. Plaintiff Rick Petersen began working
In November 1997, plaintiff was injured when he fell from a flatbed truck while securing a load of Christmas trees. After the accident, he underwent surgery on his right foot and applied for workers’ compensation benefits. The following year, he required treatment for back pain, which his treating physician believed was caused by the November 1977 fall.
Several questions were taken to a workers’ compensation magistrate: (1) who was plaintiffs employer at the time of his injury, BCN or Koleaseco? (2) was Midwest Employers Casualty Company the relevant insurer for workers’ compensation purposes? (3) was plaintiff disabled? and (4) if so, which injury caused his disability? The magistrate bifurcated these issues into two trials.
In the first trial, the magistrate ruled that plaintiff was a Koleaseco employee on the date of his injury despite the fact that BCN paid his wages. Thus, because BCN had stipulated that it was plaintiffs employer, the magistrate ruled that both BCN and Koleaseco were plaintiffs employers and both were liable for plaintiffs workers’ compensation benefits. On appeal, the Workers’ Compensation Appellate Commission (WCAC) affirmed that ruling.
In the second trial, the magistrate considered (1) was plaintiffs counsel entitled to an attorney fee of 30 percent of plaintiffs medical bills unpaid by defendant? and (2) who was responsible for paying plaintiffs future medical and weekly benefits? With respect to plaintiffs attorney fees, the magistrate ruled:
*305 [Although Midwest... was paying the plaintiff weekly benefits, it refused to pay medical bills related to [plaintiffs] injury.... The total amount of the medical bills incurred... which defendant refused to pay is $153,448.54.1 find that plaintiffs counsel is entitled to a 30 percent attorney fee for these unpaid medical bills under Section 315(1).
With respect to whether BCN or Koleaseco was responsible for paying plaintiffs ongoing medical and weekly benefits, the magistrate ruled that BCN and its insurance carrier, Midwest, were primarily responsible.
Again, both parties appealed to the WCAC, which affirmed the award of attorney fees, observing:
While the magistrate failed to explicitly so find, in this case ... defendant knew of the medical bills in question well in advance of trial, and simply refused to pay them claiming they were not work related. Once the magistrate so found, given that prior knowledge and refusal to pay, the action in awarding attorney fees was within his discretion and hence proper.
Magna Corporation, another “employee leasing” company insured by Midwest, and Midwest sought leave to appeal both WCAC orders. The Court of Appeals initially deniеd the applications.
On remand, the Court of Appeals affirmed the WCAC.
The Court concluded, “[W]here the remainder of [§ 315(1)] discusses the employer and/or the [insurance] carrier, it follows that the attorney fees are to be calculated or divided between those entities. The plain language of the statute does not mandate that the health care provider assume responsibility for any portion of those fees.”
II. MCL 418.315(1)
The proper interpretation and application of a statute presents a question of law that we review de novo.
The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed.... After 10 days from the inception of medical care as provided in this section, the employee may treat with a physician of his or her own choice by giving to the employer the name of the physician and his or her intention to treat with the physician. The employer or the employer’s carrier may file a petition objecting to the named physician selected*307 by the employee and setting forth reasons for the objection. If the employer or carrier can show cause why the employee should not continue treatment with the named physician of the employee’s choice,... the ... magistrate may order that the employee discontinue treatment with the named physician or pay for the treatment received from the physician.... If the employer fails, neglects, or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by the employee, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the workers’ compensation magistrate. The workers’ compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee. [Emphasis added.]
A. STATUTORY INTERPRETATION
This is a case of statutory interpretation. The primary goal of such interpretation is to give effect to the intent of the Legislature.
However, when statutory language is ambiguous, this Court has consistently held that a court construing it
In this case, the Court of Appeals held that the last sentence of § 315(1) is ambiguous in that it is unclear who is responsible for an injured employee’s attorney fees. Thus, the threshold question is whether, in light of the plain language of the entire provision, the last sentence of § 315(1) is ambiguous.
Section 315(1) gives magistrates the discretionary authority to prorate attorney fees at the contingent fee rate paid by the employee. “Prorate” means “to divide, distribute, or calculate proportionately.”
I agree with the Court of Appeals conclusion that the final sentence of § 315(1) applies only to employers and their insurance carriers. This is because that interpretation harmonizes the final sentence with the remainder of § 315(1). The final sentence does not stand alone.
Here is how that construction operates. Section 315(1) concerns employer liability to pay medical benefits to workers injured in the course of employment. The statute as a whole provides a process for employers and their insurance carriers to object to the medical treatment that an injured employee seeks. Hence, “prorate” in the final sentence of § 315(1), when read with the remainder of the statute, applies to the parties who might contest the payment of medical benefits: employers and their insurance carriers.
I now consider the Legislature’s use of the word “may” with respect to prorating attorney fees. The word “may” is permissive in nature. As applied to “prorate,” “may” indicates that magistrates have discretion in determining whether to award attorney fees. Hence, magistrates are allowed to award attorney fees, but they are not required to do so.
Nonetheless, as evidenced by the dissents in this cаse, competing reasonable interpretations of § 315(1) exist when its language alone is considered.
1. LANSING MAYOR v PUB SERVICE COMM
This Court’s most recent pronouncement on the
The Court stated that statutory provisions are not ambiguous unless one “irreconcilably conflicts” with another or unless a term is “equally susceptible to more than a single meaning.”
Lansing Mayor’s definition of “ambiguity” is unsupported by any Michigan law whatsoever, having been derived, as it were, from thin air.
Furthermore, the Lansing Mayor majority made two explicit and glaring misstatements of law. First, it cited Klapp for the proposition that a finding of “ambiguity is a finding of last resort.”
Second, I note that the Lansing Mayor majority expressly rejected the “reasonable minds” standard for discerning ambiguity as applied by the dissent in that
Because it was based on a mythical definition of “ambiguity” and egregious misstatements of law, I reject Lansing Mayor’s standard for discerning statutory ambiguity.
i. STARE DECISIS
Because I conclude that Lansing Mayor’s definition
Stare decisis is short for stare decisis et non quieta movere, which means “stand by the thing decided and do not disturb the calm.” Stare decisis attempts to balance two competing considerations: the need of the community for stability in legal rules and decisions and the need of courts to correct past errors.
Alexander Hamilton wrote that, to “avoid an arbitrary discretiоn in the courts, it is indispensable that [courts] should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before
Although any rule is only as solid as its boundaries are clear, it was not until recently that this Court formally established a test to determine when it should depart from stare decisis. In 2000, in Robinson v Detroit,
Although the Robinson test was implemented as a mechanism for determining when a prior decision of the Court should be upheld, its application has proven superficial and cursory.
These facts alone suffice to show that Robinson is insufficiently respectful of precedent. Therefore, I
I would hold that a stare decisis analysis should always begin with the presumption that upholding the precedent involved is the preferred course of action. The presumption should be retained until effectively rebutted by the conclusion that a compelling justification exists to overturn the precedent.
Robinson, by contrast, contained no such presumption. Moreover, the Court’s applications of Robinson suggest that such a presumption was never considered. Even if it had been initially applied, once a case was deemed to have been wrongly decided, any presumption in favor of upholding precedent disappeared.
The question arises what deference should be paid to cases in which Robinson was used to overturn existing precedent. I believe that a lower level of deference should be accorded to these cases because they represent a departure from the traditional notions of stare decisis. In
It is worth pointing out the difference between the applications of stare decisis in this case and in Planned Parenthood of Southeastern Pa v Casey. Casey explained how considerations of stare decisis inform the decision whether to overrule a long-established precedent that has become integrated into the fabric of the law. Overruling precedent of that kind naturally may have consequences for “the ideal of the rule of law.” In addition, such precedent is likely to have engendered substantial reliance, as was true in Casey itself. (“[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”). But in this case, as we have explained, we do not face a precedent of that kind, because Metro Broadcasting itself departed from our prior cases — and did so quite recently. By refusing to follow Metro Broadcasting, then, we do not depart from the fabric of the law; we restore it. We also note that reliance on a case that has recently departed from precedent is likely to be minimal, particularly where, as here, the rule set forth in that case is unlikely to affect primary conduct in any event[50 ]
Furthermore, the Court stated:
Our past practice in similar situations supports our action today. In United States v Dixon, we overruled the recent case of Grady v Corbin, because Grady “lack[ed] constitutional roots” and was “wholly inconsistent with earlier Supreme Court precedent.” In Solorio v United States, we overruled O’Callahan v Parker, which had caused “confusion” and had rejected “an unbroken line of*319 decisions from 1866 to 1960.” And in Continental TV, Inc v GTE Sylvania Inc, we overruled United States v Arnold, Schwinn & Co, which was “an abrupt and largely unexplained departure” from precedent, and of which “[t]he great weight of scholarly opinion ha[d] been critical.” See also, e.g., Payne v Tennessee (overruling Booth v Maryland, and South Carolina v Gathers, Monell v New York City Dept of Social Servs (partially overruling Monroe v Pape, because Monroe was a “departure from prior practice” that had not engendered substantial reliance); Swift & Co v Wickham (overruling Kesler v Department of Public Safety of Utah, to reaffirm “pre- Kesler precedent” and restore the law to the “view. . . which this Court has traditionally taken” in older cases).[51 ]
Thus, there is substantial support for applying a decreased presumption in favor of precedent when that precedent itself represents a recent departure from prior established caselaw.
The next inquiry should be whether there exists a compelling justification for overruling precedent.
These criteria include, but are not limited to: (1) whether the rule has proven to be intolerable because it defies practical workability, (2) whether reliance on the rule is such that overruling it would cause a special hardship and inequity, (3) whether related principles of law have so far developed since the rule was pronounced that no more than a remnant of the rule has survived, (4) whether facts and circumstances have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification, (5) whether other jurisdictions have decided similar issues in a different manner, (6) whether upholding the rule is likely to result in serious detriment prejudicial to public interests, and (7) whether the prior decision was an abrupt and largely unexplained departure from precedent.
Not all of these factors will be applicable in every case. Nor is there a magic number of factors that must favor overruling a case in order to establish the requisite compelling justification. Rather, I believe that the conclusion about whether these factors support finding a compelling justification should be reached on a case-by-case basis.
ii. APPLICATION OF STARE DECISIS TO LANSING MAYOR
As stated above, I begin my stare decisis analysis with a presumption in favor of upholding precedent.
First, I consider whether the method for discerning ambiguity in Lansing Mayor has proven intolerable because it defies practical workability. I believe that it does. Intrinsically, an analytical approach to interpreting statutes on the basis of their “plain meaning,” where reasonable minds disagree on what that meaning is, is unworkable. This standard gives judges unfettered discretion to pick and choose among available “plain meanings” or dictionary definitions, and thus sheds little light on what the Legislature intended statutory language to mean.
Moreover, the mere fact that different justices of this Court, judges of the Court of Appeals, and trial judges disagree on the meaning of statutory language suggests that ambiguity exists. Allowing a judge to pick one meaning among severál equally plausible meanings without using the rules of statutory construction is quite simply an exercise in speculation. As Justice Stevens of the United States Supreme Court stated:
[T]he “minimalist” judge who holds that the purpose of [a] statute may be learned only from its language retains greater discretion than the judge who will seek guidance*322 from every reliable source. A method of statutory interpretation that is deliberately uninformed, and hence unconstrained, increases the risk that the judge’s own policy preferences will affect the decisional process.[55 ]
I share Justice Stevens’s concerns and believe that Lansing Mayor’s definition of “ambiguity” is inherently unworkable.
I also note that application of Lansing Mayor’s definition of “ambiguity” has never once led the Court to find statutory language ambiguous.
Second, I examine whether reliance on the rule is such that overruling it would cause a special hardship and inequity. I believe that litigants have reasonably relied on Lansing Mayor’s definition of “ambiguity.”
However, I also recognize that litigants have continued to rely on previous standards for discerning ambiguity. This reliance is also reasonable given the inconsistent application of Lansing Mayor’s definition,
Nevertheless, because Lansing Mayor stands as thе most recent declaration of how to discern statutory ambiguity, litigants reasonably relied on it for this point. I therefore conclude that this factor weighs moderately in favor of upholding the definition.
Third, I consider whether related principles of law have so far developed since the Lansing Mayor definition of “ambiguity” was pronounced that only a remnant of the definition has survived. This factor is inapplicable to the stare decisis analysis in this case. The definition of “ambiguity” is a tool of judicial construction. Its only relevance is to discern ambiguity or the lack of it in a given statute. Thus, the definition of “ambiguity” stands alone and is not inherently related to other principles of law. Accordingly, this factor weighs neither in favor of nor against replacing the Lansing Mayor definition.
Fourth, I examine whether facts and circumstances have so changed, or have come to be seen so differently, as to rob the old definition of significant justification. This factor focuses on real-world practicalities.
Fifth, I consider whether other jurisdictions have decided similar issues in a different manner. My review indicates that Lansing Mayor’s definition of “ambiguity” is unsupported by any other jurisdiction. In fact, not a single jurisdiction, state or federal, requires an irreconcilable conflict between provisions or that language be equally susceptible to more than one meaning before finding statutory ambiguity.
I note that the sixth factor, whether upholding the Lansing Mayor definition is likely to result in serious detriment prejudicial to public interests, has no bearing on this case. As previously stated, the definition of “ambiguity” is merely a tool of statutory interpretation. As such, its application has no relevance to public interests because the definition of “ambiguity,” standing alone, does not dictate any course of action in a particular case.
Finally, I consider whether the prior decision was an abrupt and largely unexplained departure from precedent. As noted earlier, Lansing Mayor’s definition of “ambiguity” is nothing more than a legal fiction, wholly unsupported by any law. Furthermore, it represented a decisive and abrupt shift from precedent without recognition of the prior standards for discerning statutory ambiguity. Accordingly, this factor weighs heavily in favor of abrogating Lansing Mayor’s definition of “ambiguity.”
Having rejected the Lansing Mayor definition of “ambiguity,” I now iterate the proper method of discerning statutory ambiguity. Before Lansing Mayor was decided, Michigan courts used several analogous variations of statutory interpretation. For example, in In re MCI Telecom Complaint,
Finally, this Court has used a “susceptible” standard. Applying this method of interpretation, we held that “[i]t is only where a statute is unclear and susceptible to more than one interpretation that judicial construction is allowed.”
These historical standards for discerning ambiguity are easily reconcilable and analogous. The crux of the “reasonable minds” standard is that, when two persons reasonably afford different meanings to statutory language, it is ambiguous. As for the “doubtful” standard, it suggests that a statute is ambiguous when its language is of questionable or unclear meaning. The “susceptible” standard is self-
I adopt a definition of “ambiguity” that encompasses all three of the aforementioned well-established standards for determining ambiguity.
[W]hen there can be reasonable disagreement over a statute’s meaning, or, as others have put it, when a statute is capable of being understood by reasonably well-informed persons in two or more different senses, [a] statute is ambiguous. For example, this Court has concluded that statutes [are] ambiguous when one word in the statute has an unclear meaning, when a statute’s interaction with another statute has rendered its meaning unclear, or when application of the statute to facts has rendered the correct application of the statute uncertain.[72 ]
This standard gleans the fundamental principles from the “reasonable minds,” “doubtful,” and “susceptible”
B. APPLICATION TO § 315(1)
I believe that § 315(1) is ambiguous because the statute is capable of being understood by reasonably well-informed persons in two or more different senses. As mentioned before, the term “prorate” could reasonably be understood to apply to employers, their insurance providers, health care providers, and to employees seeking workers’ compensation benefits. Indeed, § 315 and the entire WDCA are entirely silent as to who, among these parties, is subject to a proration of attorney fees. Absent extra-textual sources, any determination of the Legislature’s intent becomes a mere exercise in speculation. Thus, having found that § 315(1) is ambiguous, I may now look to extra-textual sources to aid in its interpretation.
I seek an interpretation of § 315(1) that is in accord with the principles underlying the WDCA as a whole. The act is remedial in nature.
The WCAC has explicitly recognized the importance of holding employers and their insurance carriers responsible for a proration of attorney fees pursuant to § 315(1). In Harvlie v Jack Post Corp, the WCAC stated, “[T]he purpose of [the] attorney fee provisions ... is not merely to assure that a claimant’s attorney is paid, but also to deter employers from breaching their statutory duty to provide medical treatment to injured workers.”
I find this reasoning persuasive and applicable to this case. If employers and their insurance carriers are not held accountable for a prorated share of attorney fees, they will have an incentive to deny medical benefits.
Likewise, if injured workers were forced to pay a prorated portion of their own attorney fees, their ultimate recovery could be reduced below their actual costs of securing medical treatment. Such a result would violate the remedial goal of the WDCA.
2. CASELAW HAS EMPLOYED SIMILAR REASONING
Caselaw also supports my interpretation of § 315(1). I find persuasive the fact that every previous case that has analyzed § 315(1) with respect to the proration of attorney fees has employed reasoning similar to mine.
The Court of Appeals first considered the proration of attorney fees pursuant to § 315(1) in Boyce v Grand
Finally, the Court noted that Administrative Rule 14 of the Bureau of Workers’ Compensation, which was in effect when the plaintiff was injured, precluded attorneys from recovering a percentage fee for accrued medical services.
On appeal, the Court of Appeals reversed, holding that the imposition of attorney fees under § 315(1) would be unconscionable. It noted that the plaintiffs medical expenses had been timely paid and that there had been no neglect, breach of duty, or failure to provide medical care.
In contrast to Watkins, defendants in this case did not timely pay plaintiffs medical expenses such that there was no neglect, breach of duty, or failure to provide
Finally, in Harvlie v Jack Post Corp,
Here, the WCAC majority’s construction of § 315(1) is consistent with a harmonious reading of the last two sentences of § 315(1). The third sentence of § 315(1) provides that “the... magistrate may prorate attorney fees at the contingent fee rate paid by the employee.” Standing alone, this sentence contains ambiguity because it fails to identify whom the magistrate may order to pay the attorney fees. This sentence is not to be construed in isolation, however, but instead must be read in the context of the whole statute and harmonized with the statute’s other provisions in a manner that effectuates the purpose intended by the Legislature. The second sentence of § 315(1) addresses the consequences of an employer’s failure to pay medical expenses and authorizes a magistrate to order the employer to reimburse either the injured claimant or the claimant’s medical insurance provider for the reasonable medical expenses incurred. This second sentence addresses the consequences to a nonpaying employer that “fails, neglects, or refuses” to provide reasonable medical services. The WCAC properly construed the final two sentences of § 315(1) and provided a unity of purpose for this statute.[91 ]
In sum, I agree with the magistrate, the WCAC, the Court of Appeals, and established caselaw that employers and their insurance carriers are the only parties subject to a proration of attorney fees under § 315(1). This interpretation harmonizes the last sentence of § 315(1) with the preceding sentences of the provision as well as with the remedial goals of the WDCA. Workers’ compensation magistrates may thus prorate an employee’s attorney fees incurred in procuring payment for medical expenses against an employer, or against its insurance carrier, or against both.
Here, the magistrate’s proration of attorney fees against defendants was appropriate, given defendants’ failure to pay plaintiffs medical services as mandated by § 315(1). Accordingly, I conclude that the magistrate properly prorated plaintiffs attorney fees under § 315(1) against Midwest and Magna.
III. THE INAPPLICABILITY OF THE AMERICAN RULE
Finally, I note that Michigan courts follow the so-called “American rule” with respect to the payment of attorney fees.
Here, § 315(1) explicitly grants magistrates the discretionary authority to prorate attorney fees related to an employer’s failure to provide services in accordance with the statute. Thus, the statute contemplates that a party other than a plaintiff could, in the discretion of the magistrate, be ordered to pay attorney fees in connection with a plaintiffs suit. Accordingly, § 315(1) constitutes an express statutory authorization of attorney fees, which trumps the otherwise applicable American rule.
IV CONCLUSION
I recommend that the Court modify and expand the principles set forth in Robinson v Detroit governing when the Court should depart from the principle of stare decisis. A stare decisis analysis should always begin with a presumption that upholding precedent is the preferred course of action. Next, the Court should determine whether a compelling justification exists to overturn the precedent. A compelling justification is not a mere belief that the precedential case was wrongly decided or that the Court as currently composed would have decided the case differently. The factors listed in this opinion should be used on a case-by-case basis to determine whether a compelling justification exists to overrule an existing precedent.
However, consistent with United States Supreme Court precedent, I would accord a lower level of deference to cases that represent a recent departure from the traditional notions of stare decisis.
Finally, we would hold that the Legislature intended that the term “prorate” in the last sentence apply only to employers and their insurance carriers. This construction is consistent with well-established principles of statutory interpretation, caselaw, the remedial nature of the WDCA, and the purpose of § 315(1). I would also hold that the American Rule of attorney fees does not apply to § 315(1).
Plaintiffs motion to dismiss defendants’ application for leave to appeal is considered, and it is denied. We affirm the judgment of the Court of Appeals.
Notes
Petersen v Magna Corp, unpublished order of the Court of Appeals, entered April 11, 2006 (Docket No. 266037); Petersen v Magna Corp, unpublished order of the Court of Appeals, entered April 11, 2006 (Docket No. 266177).
Petersen v Magna Corp No 1,
Petersen v Magna Corp, unpublished opinion per curiam of the Court of Appeals, issued April 17, 2008 (Docket Nos. 273293 and 273294), at 8.
Id. at 9.
Id. at 10.
Petersen v Magna Corp,
Estes v Titus,
MCL 418.101 et seq.
Brown v Detroit Mayor,
Id.
Sun Valley Foods Co v Ward,
Turner v Auto Club Ins Ass’n,
Sun Valley, supra at 236, citing Luttrell v Dep’t of Corrections,
Crary v Marquette Circuit Judge,
Random, House Webster’s College Dictionary (2001).
Under the doctrine of noscitur a sociis, the meaning of an unclear word or phrase should be determined by the words immediately sur
Farrington v Total Petroleum, Inc,
Justice Markman would hold medical providers responsible for a proration of attorney fees. In support of this claim, he cites MCL 418.827, which provides a basis for nonparty employers to recover through the efforts of an employee’s attorney pursuing a third-party liability action. Had the Legislature intended a scheme in § 315 similar to that provided in § 827, it could have used similar or identical language. However, it did not do so.
The Legislature often vests discretion in magistrates by using the word “may.” Other provisions of the WDCA that vest discretion in magistrates by using the word “may” include MCL 418.321, MCL 418.335, MCL 418.345, and MCL 418.835.
Contrary to Justice Markman’s contention, this interpretation does not “readf] an authorization into the statute... .” Post at 356. Nothing in the definition of “prorate” indicates that one party cannot be apportioned zero liability. A “division” or “distribution” does not require that both parties subject to that division receive an assessment of liability. For example, liability could be allocated on a 50-50, 75-25, or 100-0 basis, depending on the magistrate’s allocation of fault and the number of parties involved.
Justice Markman claims that I “withdrawn from the process of statutory interpretation once other interpretations are presented.” Post at 365. This is incorrect. Section 315(1) refers to multiple parties and lacks an indication of which of them is subject to a proration of attorney fees. No other provision in the WDCA resolves the question. From that I conclude that the statute is capable of being understood by reasonably well-informed persons in two or more different senses. See infra at 331.
Lansing Mayor v Pub Serv Comm,
Id. at 166. Since having announced this exceedingly narrow definition of “ambiguity,” the Court has declined to find any statutory language ambiguous.
Id.
See Kelly & Postulka, The fatal weakness in the Michigan Supreme Court majority’s textualist approach to statutory construction, 10 TM Cooley J Prac & Clinical L 287, 289 (2008).
Rusinek v Schultz, Snyder & Steele Lumber Co,
Id. at 507-508.
Klapp v United Ins Group Agency, Inc,
Id. at 467.
Lansing Mayor, supra at 165 n 6, citing Klapp, supra at 474.
Contra proferentem is a rule of contract interpretation stating that ambiguities will be construed against the drafter of a contract. 2 Restatement Contracts, 2d, § 206, p 105.
I reject the Lansing Mayor majority’s implication that a finding of ambiguity is inherently a “bad” thing, as it is nothing more than an aid to statutory construction. See Lansing Mayor, supra at 165-166.
Id. at 165-166.
See part 11(A)(2) of this opinion.
Unable to cite caselaw in support of its definition of “ambiguity,” the Lansing Mayor majority invented its own definition. This definition was premised on the majority’s implication that a finding of ambiguity is a “bad” thing because it enables judges to use “presumptive ‘rules of policy’ ” or “engage in a largely subjective and perambulatory reading of ‘legislative history.’ ” Lansing Mayor, supra at 164-165. These approaches were disdained because they supposedly allowed judges to “substitut[e] their own policy preferences for those of the Legislature.” Id. at 164.
However, the Lansing Mayor majority failed to acknowledge that its “plain meaning” approach to statutory interpretation is equally susceptible to subjective and arbitrary determinations of legislative intent. For example, such an approach may lead to the selection of one dictionary definition among many for a specific term. Lacking may be any sound explanation why the chosen definition was the one that the Legislature intended to use. See, e.g., Liberty Hill Housing Corp v Livonia,
I stated in my concurring opinion in Fluor Enterprises, Inc v Dep’t of Treasury,
Am Jur, Courts, § 131.
The doctrine can be traced back to medieval England. Healy, Stare decisis as a constitutional requirement, 104 WVaLB 43, 56-62 (2001).
The Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter ed, 1961).
Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), p 149.
Robinson v Detroit,
Id. at 464.
Id.
See, e.g., Paige v Sterling Hts,
See, e.g., Gardner, supra at 61; People v Ream,
Robinson, supra at 465.
See, e.g., Paige, supra at 512 n 21 (“[T]he only instances in which we might decline to overrule [erroneous precedent]... is when it would produce chaos.”) (emphasis added); Hickman, supra at 610 n 6 (noting that no special justification is necessary to overrule erroneous precedent); People v Nutt,
I recognize and agree with Robinson that stare decisis is “not to he applied mechanically to forever prevent the Court from overruling earlier erroneous decisions,” nor is it “an inexorable command.” Robinson, supra at 463-464. However, I again note that, if our stare decisis analysis leads to the Court overruling precedent every time it is applied, stare decisis becomes not an “inexorable command,” but rather a meaningless exercise.
Adarand Constructors, Inc v Pena,
Id. at 233-234 (citations altered or omitted).
Id. at 232-233 (citations altered or omitted).
Other United States Supreme Court decisions also implicitly acknowledge that precedent that itself overruled recent precedent is entitled to a reduced presumption. See, e.g., Randall v Sorrell,
Requiring a compelling justification to overrule precedent is consistent not only with most other jurisdictions, but also with United States
See, e.g., Fluor, supra at 189 n 4 (Kelly, J., concurring) (“It is a bizarre notion that the language of a statute can have only one reasonable meaning when four separate independent entities have split on its correct interpretation.”).
BedRoc Ltd, LLC v United States,
See, e.g., Dimmit & Owens Fin, Inc v Deloitte & Touche,
A review of filings in this Court and lower courts demonstrates that in post-2004 cases involving statutory interpretation, litigants often cite Lansing Mayor for the applicable definition of “ambiguity.”
Compare, e.g., Kinder Morgan Michigan, LLC v City of Jackson,
As the United States Supreme Court stated in Pearson v Callahan,
See Stone v Williamson,
See, e.g., Bidwell v Whitaker,
See, e.g., Casey, supra at 860 (discussing how advancements in medical treatment since Roe v Wade,
See post at 377.
Justice Markman has criticized my stare decisis analysis. I offer the following response.
(1) As I state supra at 313 n 36, I continue to believe that tools of statutory interpretation, such as the definition of “ambiguity,” are not entitled to stare decisis status. However, Justice Markman, other members of this Court, the Court of Appeals, and lower courts have treated Lansing Mayor’s definition of “ambiguity” as fully entitled to it. See id. Hence, a thorough analysis of that case’s definition of “ambiguity” and its precedential worth is appropriate, even if not mandated.
(2) My fealty to stare decisis speaks for itself. As evidenced by this opinion, only because I find that, after a thorough examination of the relevant factors, a compelling justification exists for overruling precedent do I do so. This stands in stark contrast to the former majority’s approach to stare decisis, as shown at notes 44 and 47 of this opinion.
(3) Justice Markman claims that “when the previous majority overruled a precedent, it was to ensure that the decisions of this Court more closely reflected the judgments of the people’s elected legislative representatives . . . .” Post at 391. This is simply a reflection of his personal opinion and that of the justices who shared his view in those cases. As indicated earlier, the former majority’s overrulings showed little respect for the doctrine of stare decisis and developed a superficial rule in Robinson to deal with it. They disdained cases that had stood for many years before the former majority’s ascension to the bench.
(4) Contrary to Justice Markman’s contention, I have not ignored precedent in any of the cases he cites. For a comprehensive response to Justice Markman on this issue, see my concurring opinion in Potter v McLeary,
(5) Justice Markman claims that I have never joined an opinion that articulates a “compelling justification” for upholding a prior decision that I believe was wrongly decided. This comes as no surprise, however. The finding of a compelling justification as a requisite to overruling precedent
(6) Justice Markman’s claim that I “find[] it necessary to depart from the 150-year old standard [regarding stare decisis] that [I] previously hailed” is hopelessly off the mark. Justice Markman himself joined the Court’s opinion in Robinson, which established an unprecedented test for evaluating prior decisions of the Court. Although I objected to it, I followed Robinson in subsequent cases. See, e.g., Perry v Golling Chrysler Plymouth Jeep, Inc,
In re MCI Telecom Complaint,
Id. at 411-412. Justice Cavanagh authored the opinion in In re MCI. Also signing it were then-Chief Justice Weaver, Justices Corrigan, Taylor, and Brickley, and myself. Justice Young did not participate in the case.
See, e.g. People v Petty,
Smith v Grand Rapids City Comm,
Id. at 240-241 (citations omitted).
People v Morris,
See, e.g., In re MCI, supra; Sam, supra; City of Lansing v Lansing Twp,
Justice Markman claims that “[a] facile resort to ambiguity affords the judge a readily available means of acting beyond the scope of his or her authority to exercise exclusively the ‘judicial power.’ ” Post at 366. It seems obvious that the “judicial power” must include the authority to interpret statutes as written and interpret ambiguity where appropriate. Also, misuse of our “judicial power” can certainly occur where ambiguity is never found and judges use few judicial tools to discern what they believe to be plain language.
Moreover, Justice Markman questions “what... arguments [I] have for substantially expanding the range of judicial decision-making____” Post at 376. I do not need an “argument,” however, to defend my definition of “ambiguity,” as it is supported by a multitude of cases in every state and every federal jurisdiction. See notes 73, 74, and 75 of this opinion. To the contrary, it is Justice Markman who fails to advance any justification for the definition of “ambiguity” that he favors. As indicated earlier, that definition was based not on any precedent whatsoever, but rather derived from thin air. While he passionately decries that his definition is “fair,” post at 379, and “grounded in logic and common sense,”post at 375, whether a legal principle is “fair” or “logical” is highly subjective. Its fairness comes into serious question when it has no basis in the law.
Yellow Freight System Inc v Michigan,
See, e.g., AmSouth Bank v Holberg, 789 So 2d 833 (Ala, 2001); State v Saathoff,
See, e.g., United States v O’Neil,
See, e.g., Gonzales v Oregon,
I find it noteworthy that none of the dissents in this case characterizes § 315(1) as unambiguous under any of the historical standards for discerning ambiguity or the definition enunciated in Lansing Mayor.
Sabotka v Chrysler Corp,
Paschke v Retool Industries,
See Haynes, supra at 42-44 (Kelly, J., concurring).
Harvlie v Jack Post Corp, 2006 Mich ACO 69, p 5, citing Lahti v Fosterling,
The dissents argue that my interpretation of § 315(1) will penalize employers who validly contest an employee’s claim for benefits. This is
Justice Young correctly asserts that “a workers’ compensation claimant is ordinarily responsible for his own personal attorney fees.” Post at 347. However, § 315(1) deals not with attorney fees for a workers’ compensation claim generally, but with attorney fees specifically related to an employer’s failure, neglect, or refusal to pay for “reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed.” MCL 418.315(1). Thus, a workers’ compensation claimant generally remains responsible for his or her attorney fees unrelated to the matters governed by § 315(1).
Boyce v Grand Rapids Asphalt Paving Co,
Id. at 549-550.
Before 1979, Rule 14 provided that a plaintiffs attorney shall deduct reasonable expenses before computing a fee. These included expenses for hospitals, surgery, medical providers, and burials. However, the statute was amended in 1979, and the Legislature removed these from the expenses an attorney is precluded from recovering. Thus, Rule 14 no longer prevents attorneys from recovering a percentage attorney fee assigned by a recovery of medical services. Watkins v Chrysler Corp,
Boyce, supra at 551-552 n 45. In Zeeland Community Hosp v Vander Wal,
Watkins v Chrysler Corp,
Id. at 132.
Id. at 131-132, citing Boyce, supra at 551-552 n 45.
See Watkins, supra at 132.
Harvlie v Jack Post Corp,
Id. at 445-446 (citations omitted).
Id. at 446.
Haliw v Sterling Hts,
Id. at 707.
The American rule stands in contrast to the English rule. Under the English rule, the losing party pays the prevailing party’s attorney fees and costs absent an exception. Id.
Concurrence Opinion
oconcurring). I concur in the lead opinion only to the extent that it concludes that the term “prorate” in MCL 418.315(1) applies exclusively to employers and their insurance carriers. I write separately because I do not find MCL 418.315(1) to be ambiguous. Section 315(1), when read as a whole, indicates that the term “prorate” in MCL 418.315(1) applies only to employers and their insurance carriers.
This is a case of statutory interpretation. The proper interpretation and application of a statute presents a question of law, which receives de novo review.
The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed... . After 10 days from the inception of medical care as provided in this section, the employee may treat with a physician of his or her own choice by giving to the employer the name of the physician and his or her intention to treat with the physician. The employer or the employer’s carrier may file a petition objecting to the named physician selected by the employee and setting forth reasons for the objection. If the employer or carrier can show cause why the employee should not continue treatment with the named physician of the employee’s choice,.. . the ... magistrate may order that the employee discontinue treatment with the named physician or pay for the treatment received from the physician .... If the employer fails, neglects, or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by the employee, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the workers’ compensation magistrate. The workers’ compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee. [Emphasis added.]
Section 315(1) gives magistrates the discretionary authority to prorate attorney fees at the contingent fee rate paid by the employee. The question in this case is against whom attorney fees can be prorated.
Although I disagree with the lead opinion that the final sentence of § 315(1) is ambiguous, I agree with its conclusion that the final sentence of § 315(1) applies only to employers and their insurance carriers. This interpretation of the statute harmonizes the individual
Section 315(1) pertains to employer liability to pay medical benefits to workers injured in the course of employment. Section 315(1) mandates that employers furnish an employee with medical treatment needed for an injury arising out of and in the course of employment. The statute also enumerates certain types of treatment for which reimbursement costs can be contested by employers and their insurance carriers. However, if an employer fails, neglects, or refuses tо provide covered medical expenses, the employer must reimburse the employee for the expenses, or make a payment to a medical provider for unpaid expenses that may be owing. The last sentence of § 315(1) gives a magistrate the discretion to prorate attorney fees at the contingent fee rate paid by the employee to recoup costs expended to recover medical expenses. Thus, the term “prorate” in the final sentence of the § 315(1), when read with the rest of the statute, applies to parties who might contest the payment of medical benefits: employers and their insurance carriers. This interpretation provides a unity of purpose for § 315(1).
In closing, I concur only with of the lead opinion’s conclusion that the term “prorate” in MCL 418.315(1) applies exclusively to employers and their insurance carriers. I write separately because I do not find that
Estes v Titus,
Sun Valley Foods Co v Ward,
Id.
Id.
Id. at 237.
Herman v Berrien Co,
Sun Valley, supra at 237.
Herman, supra at 366.
Id., quoting Bailey v United States,
Wayne Co v Auditor General,
Id. at 234.
People v Couzens,
Farrington v Total Petroleum, Inc,
Dissenting Opinion
(dissenting). I fully join in part IV of Justice MARKMAN’S dissenting opinion. I further dissent from the majority’s conclusion that “the term ‘prorate’ in MCL 418.315(1) applies only to employers and their insurance carriers,”
Normally, a workers’ compensation claimant is responsible for bearing the costs of his portion of the litigation, including attorney fees.
In contrast, the majority allows only proration between the employer and its insurer, while the claimant is relieved of paying any portion of his attorney fees. As such, the majority position must be predicated on the assumption that every claim for benefits is meritorious and that any contest of such a claim venal. The reality is that some claims have merit and some should be contested; others may involve unresolved factual and legal questions under the Worker’s Disability Compensation Act (WDCA) that can be definitively resolved only by the magistrate and the Workers’ Compensation Appellate Commission (WCAC). In considerаtion of this reality, I believe that the proration provision was a legislative recognition that neither the employer nor the claimant may have entirely meritorious positions in a particular case. Thus, the magistrate has been authorized to “split the baby” and divide the claimant’s fees when the respective merits of the party’s positions warrant this. The majority does not prorate so much as shift the entire attorney fee burden from the claimant to the employer in every case.
I. STATUTORY CONSTRUCTION
The statute at issue, MCL 418.315(1), provides in relevant part:
*345 The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed.... If the employer fails, neglects, or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by the employee, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the worker’s compensation magistrate. The worker’s compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee.
It is clear that an employer has an affirmative statutory obligation to furnish “reasonable” medical treatment for personal injuries “arising out of and in the course of employment” when such treatment is “needed.” However, if the employer fails to do so, the statute provides two options. If the claimant has paid the medical expenses, the “employee shall be reimbursed for the reasonable expense.” However, if the expenses remain “unpaid,” “payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the worker’s compensation magistrate.” This sentence gives the magistrate the discretion to direct payment to the third-party medical provider on “behalf of the employee.” The last sentence provides that the “worker’s compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee.” As I agree with the majority that the word “prorate” simply means to divide or distribute proportionately, the question in this case is simply whether the attorney fees are to be divided between the claimant and the employer, or the claimant and the medical provider.
II. ANALYTIC PROBLEMS WITH THE MAJORITY
A
Contrary to the majority’s analysis, there is no principled basis to distinguish an employer from its insurance carrier for the purposes of prorating attorney fees. It makes little sense to suggest, as the majority does, that the claimant’s attorney fees can only be prorated
B
As noted, this Court and the WDCA have long recognized that a workers’ compensation claimant is ordinarily responsible for paying his own personal attorney fees.
c
The majority holds that the term “prorate” is limited to “the parties who might contest the payment of medical benefits: employers and their insurance carriers.”
Where there are legitimate legal or factual disputes to be resolved on disputed workers’ compensation claims, the hearing before the workers’ compensation magistrate is the sole mechanism that settles those disputes and determines whether the medical treatment was needed and reasonable, and whether the medical treatment was related to “a personal injury arising out of and in the course of employment.” While employers should be discouraged from wrongly denying medical benefits, the majority articulates no legal or logical basis for concluding that an employer should be discouraged from or punished for correctly denying claims to which a claimant is not entitled, or from seeking a resolution of arguable legal or factual disputes that call into question the employer’s obligation to pay.
Here, Chief Justice Kelly’s lead opinion states that “the magistrate’s proration of attorney fees against
Ante at 303.
Ante at 333 (emphasis added).
Gilroy v Gen Motors Corp (After Remand),
For the reasons explained earlier, I believe that the majority has simply concluded that the employer must always pay the claimant’s
Blackwell v Citizens Ins Co of America,
See n 3 supra. The majority does not mention this authority, nor does it overrule it.
MCL 418.858(2). The predecessor of this statutory provision was first enacted in 1912. See 1912 (1st Ex Sess) PA 10, part III, § 10; Mackin v Detroit-Timkin Axle Co, 187 Mich 8;
See Gross, supra at 451 (MCL 418.858 “applies to disputes between attorneys and their clients; it does not apply to disputes between parties.”).
See May v Charles Hoertz & Son,
Ante at 309.
Ante at 333 (emphasis added).
This is consistent with the WCAC’s treatment of MCL 418.315(1), which permitted the award of attorney fees “in cases where an employer or carrier has failed, neglected, or refused to pay for medical services a claimant is clearly entitled to. Thus, an attorney fee may be awarded only where there was non-payment in the face of a ‘clear entitlement.’ ” Beattie v Wells Aluminum Corp, 2005 ACO 157 at 10-11 (emphasis added). See also Scheland v Jet Box Co, 1995 ACO 242; Gessner v Keeler Brass Co, 1997 ACO 548; Gronley v St Clair Fiberglass, Inc, 2001 ACO 298; Sikkema v Taylor Carving, Inc, 1992 ACO 469.
Ante at 337.
Dissenting Opinion
(dissenting). Because I disagree with the majority interpretation of the statute in controversy, MCL 418.315, I respectfully dissent.
I. BACKGROUND
Plaintiff, a truck driver, fell off his truck and injured his back while working. He sought workers’ compensation benefits under the Worker’s Disability Compensation
The Court of Appeals initially denied leave to appeal, but this Court remanded for consideration as on leave granted on the division of defendants’ liabilities and the assessment of attorney fees.
II. STANDARD OF REVIEW
Questions of statutory interpretation are reviewed de novo. Brackett v Focus Hope, Inc,
III. STATUTE
MCL 418.315(1) provides, in part:
*352 The employer shall furnish, or cause to be furnished, to an employee who receives a personal injury arising out of and in the course of employment, reasonable medical, surgical, and hospital services and medicines, or other attendance or treatment recognized by the laws of this state as legal, when they are needed . .. The employer shall also supply to the injured employee dental service, crutches, artificial limbs, eyes, teeth, eyeglasses, hearing apparatus, and other appliances necessary to cure, so far as reasonably possible, and relieve from the effects of the injury. If the employer fails, neglects, or refuses so to do, the employee shall be reimbursed for the reasonable expense paid by the employee, or payment may be made in behalf of the employee to persons to whom the unpaid expenses may be owing, by order of the worker’s compensation magistrate.[3 ] The worker’s compensation magistrate may prorate attorney fees at the contingent fee rate paid by the employee.
The instant dispute centers on the meaning of the final sentence, specifically what it means for the magistrate to be allowed to “prorate attorney fees.” Plaintiff contends, and a majority of this Court agrees, that this sentence allows a magistrate, when granting a recovery under the penultimate sentence, to order the employer to pay, in addition to the amount awarded for reimbursement of unpaid medical expenses, the employee’s attorney fees attributable to the unpaid benefits.
The primary goal of statutory interpretation is to discern and give effect to the Legislature’s intent. Neal v Wilkes,
I agree with the Court of Appeals dissent, and with defendants, that the better interpretation of § 315(l)’s final sentence is that a magistrate can apportion an amount of the employee’s attorney fees from an employer’s payment to the medical care providers. This interpretation rests principally on the meaning of “prorate,” which means “to divide, distribute, or calculate proportionately.” Random House Webster’s College Dictionary (1997). Thus, the final sentence can be read to allow the
The Legislature’s use of the word “may” to confer upon the magistrate the authority to “prorate attorney fees” lends further support to this interpretation. By this word choice, the Legislature has indicated that there are times when a magistrate might not “prorate attorney fees.” If “prorate” is interpreted to allow a division of fees between medical care providers, then the use of “may” in this context makes sense. In those
By contrast, the majority interpretation of § 315(l)’s final sentence allows a magistrate to impose attorney fees against the employer, in addition to the payment for unpaid medical expenses, with utterly no direction concerning the circumstances in which the magistrate should do so. That is, the majority interpretation accords the magistrate the discretion to assess attorney fees against an employer when the employer “fails, neglects, or refuses” to pay benefits, but provides no guidance for ascertaining when that discretion should or should not be exercised. Had the Legislature truly intended for the magistrate to impose attorney fees against an employer, it seems likely that the Legislature would have included some standard for determining the circumstances under which fees should be assessed.
[T]he word “may” bears on whether a proration must occur if a magistrate does award attorney fees.... Should a magistrate determine that only one [party] is liable, the magistrate may impose attorney fees against only that party Conversely, should the magistrate find multiple parties liable, fees may be prorated accordingly. [Ante at 310.]
Thus, the Chief Justice interprets § 315(1) to' allow a magistrate to impose attorney fees absent any “proration” of the fees because she interprets “may” as according the magistrate the discretion to decide “whether a proration must occur,” after he has already decided to award attorney fees. If the magistrate determines that the attorney fees should be imposed on “multiple parties,” then the magistrate can “prorate” or divide the fees among those parties. However, if “only one [party] is hable,” the magistrate can impose the fees “against only that party” without having to “prorate” or divide the fees at all. This completely fails to recognize that § 315(1) only allows the magistrate to “prorate” or not “prorate” attorney fees. Interpreting § 315(1) to allow the magistrate to impose attorney fees without relying on the specific authority to “prorate” reads an authorization into the statute that clearly does not exist.
The Chief Justice supports her interpretation by reasoning that because the “statute . . . provides a process for employers and their insurance carriers to object to the medical treatment that an injured employee seeks,” the final sentence “when read with the remainder of the statute, applies to the parties who might contest the payment of medical benefits: employers and their insurance carriers.” Ante at 309. That is, to
The final sentence is much better read, in my judgment, as an adjunct to the magistrate’s ability to direct payment to medical providers established in the penultimate sentence. The legislative amendment adding the final sentence to § 315(1) specifically supports such a relationship. Before this amendment, the then-final sentence of former MCL 412.4, which is now § 315(l)’s penultimate sentence, only allowed the employee to receive payment for medical expenses:
If the employer shall fail, neglect or refuse so to do, such employee shall be reimbursed for the reasonable expense incurred by or on his behalf in providing the same, by an award of the commission. [MCL 412.4, as amended by1955 PA 250 .]
When the Legislature amended the statute to allow payment to also be directed to the medical providers, it added the now-final sentence in dispute here:
If the employer shall fail, neglect or refuse so to do, such employee shall be reimbursed for the reasonable expense paid by' him, or payment may be made in behalf of such employee to persons to whom such unpaid expenses may be owing, by an award of the commission. The commission may proratе attorney fees in such cases at the contingent fee rate paid by such employee and it may also prorate such payments in the event of redemptions. [MCL 412.4, as amended by1963 PA 199 .]
Prior to the amendment, a medical provider was relegated to seeking payment from the employee through a separate cause of action. Even if the medical providers recovered the full amount in the action, each would still have to pay its own attorney costs due to the longstanding “American Rule” regarding attorney fees.
If medical bills or travel allowance are not paid within 30 days after the carrier has received notice of nonpayment by certified mail, in cases where there is no ongoing dispute, $50.00 or the amount of the bill due, whichever is less, shall be added and paid to the worker for each day over 30 days in which the medical bills or travel allowance are not paid. Not more than $1,500.00 in total may be added pursuant to this subsection.
The majority interpretation would establish a new penalty provision with § 315(l)’s final sentence that is
With respect to the magistrate’s authority over medical providers that are not parties to the action, § 315(2) implies that the magistrate indeed does have authority over medical providers when they are operating in the context of § 315 by providing that any recovery by a medical provider can be reduced by the magistrate to the “maximum charge established under the rules.” (Emphasis added.) Thus, the magistrate may reduce the provider’s recovery even if the provider is not a party to the action. It follows that the magistrate has the same ability to reduce the recovery to pay for an employee’s attorney fees when the statute grants the magistrate such authority in § 315(1).
IV RESPONSE TO THE CHIEF JUSTICE
Not content with merely misconstruing the law, the Chief Justice adopts an approach to statutory interpretation that can only be described as bizarre. She begins her interpretation by asserting that the “threshold question is whether . . . the last sentence of § 315(1) is ambiguous.” Ante at 308.
a. ambiguity
As evident from her “interpretation” here, the Chief Justice’s dependence on an extraordinarily low threshold for finding ambiguity, and her resultant conclusion that § 315(1) is, of course, “ambiguous,” are essential to her analysis. The Chief Justice then proceeds on the assumption that, once ambiguity has been established, a judge is essentially unencumbered by any serious restraints imposed by the language of a statute or contract and effectively has carte blanche to utilize whatever factors are deemed appropriate in reaching a result.
I disagree with this approach to “interpretation,” not merely because it divorces the interpretative process from the law that is purportedly being “interpreted,” but also because it raises the unavoidable suspicion that
It is hard to conceive of a much lower barrier to ambiguity than that propounded by the Chief Justice. A statute, we are instructed, is “ambiguous” when it is “capable of being understood by reasonably well-
Even more remarkable, however, is that the Chief Justice’s own “analysis” in this case does not even satisfy her own low threshold for discerning ambiguity, since there is nothing therein that suggests that either the plaintiffs or the defendants’ position is “reasonable.” In fact, the Chief Justice never once compares any interpretation other than her own to the statute. She simply notes the “existence]” of competing interpretations and declares ambiguity. Ante at 310. Essentially, the Chief Justice’s standard for discerning ambiguity is more accurately stated as: “A statute is ambiguous when parties offer conflicting interpretations.”
The Chief Justice has previously observed, “I find frequent ambiguity in statutory language.” Haynes v Neshewat,
Having reached the proper result in this case through a proper legal analysis, Justice Kelly in a concurrence to her own majority opinion proceeds to demonstrate that she*370 could have reached the same result through less disciplined means. Not content to rely, as she does in her majority opinion, on the actual language of the law, Justice KELLY invokes an array of alternative techniques to “interpret” the law in her concurring opinion. She relies upon a “liberal construction” of the statute in question; she relies upon characterizations of the statute as “broad” and “remedial”; she relies upon a summary description of the law as “ambiguous,” therefore apparently affording her the discretion to pick and choose the law she prefers; she relies upon the Legislature’s inaction in the wake of an earlier court decision, equating this to approval of the Court’s decision; she disparages the value of dictionaries as an essential tool in the interpretative process; and she relies upon an extraordinarily broad understanding of “legislative history.” For the sake of future reference, a further catalogue of language-avoidance “interpretative” techniques would include the following: divining the “spirit of a statute”; relying upon considerations of “public policy”; standardlessly applying “equity”; characterizing statutes with which a judge disagrees as “absurd”; and concocting creative “balancing” and “totality of circumstances” tests. Innovatively applied, each of these techniques can be relied upon to avoid the hard task of having to discern a statute’s meaning from its actual language. [Haynes,477 Mich at 48-49 (Markman, J., concurring).]
The use of these and other factors to reach a decision far more closely resembles the exercise of the constitution’s “legislative power” than its “judicial power.” It is an undisciplined and standardless approach to giving meaning to the law, enabling the judge at his or her discretion to determine which factors to take into account, and what priority to give those factors.
B. DISSENT AND AMBIGUITY
The Chief Justice’s definition of ambiguity stands in contrast to what has been the predominant approach in our state. In Mayor of Lansing v Pub Service Comm,
Many disputes before this Court involve difficult or complex interpretations of statutes and contracts, yet it remains our responsibility to sort out these difficulties and complexities and finally determine what constitutes the most reasonable, if not always the perfect or the crystalline, meaning of the law. Judges have traditionally approached this responsibility by looking to the language of a statute or contract, considering relevant dictionary definitions of words and phrases,
This should not be understood as a mechanical process, for judges engaged conscientiously in this exercise will sometimes disagree about the meaning of the law, but it is a process in which the focus is directed outwardly toward the language of the statute or contract, rather than inwardly toward the personal predilections of the judge.
C. PREMISES OF AMBIGUITY RULE
Despite the Chief Justice’s view that an understanding of ambiguity does not constitute “binding precedent,” she nonetheless undertakes a strenuous effort to identify precedents in support of her position, while
—-When ambiguity is discerned, ordinary rules of interpretation no longer apply — as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract]” — and judges are accorded broad and аrbitrary discretion to pick and choose from among a wide variety of factors as to how the law should be given meaning. Why would any responsible legal system wish to depart from its ordinary processes, from ordinary rules of interpretation and traditional exercises of the judicial power, with any greater frequency than is absolutely required?
—When ambiguity is discerned, ordinary rules of interpretation no longer apply — as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract]” — and judges are accorded broad and arbitrary discretion to pick and choose from among a wide variety of factors as to how the law should be given meaning. Why would any responsible legal system wish to replace a reasonably predictable rule of law with arbitrary, and possibly idiosyncratic, determinations of judges any more often than is absolutely required?
—-When ambiguity is discerned, ordinary rules of interpretation no longer apply — as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract]” — and judges are accorded broad and arbitrary discretion to pick and choose from among a wide*376 variety of factors as to how the law should be given meaning. Why would any responsible legal system wish to minimize the realm in which judges are bound by the written law and instead maximize the realm in which written law is subrogated to a variety of indeterminate factors at a judge’s disposal?
—When ambiguity is discerned, ordinary rules of interpretation no longer apply — as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract]” — and judges are accorded broad and arbitrary discretion to pick and choose from among a wide variety of factors as to how the law should be given meaning. Why would any responsible legal system wish to instill in litigants and the public the idea that the personal preferences of a judge, rather than the requirements of the law, are what is most important to the resolution of a legal dispute?
—When ambiguity is discerned, the “judicial power,” the only power properly exercised by a judge under the Constitution, is exercised in a manner incompatible with its usual exercise — as the Chief Justice asserts, a court may then “go beyond the plain language of a statute [or contract].” Why would any responsible legal system wish to depart from traditional constitutional norms or to obscure the Constitution’s separation of powers?
By contrast, what logical or other arguments does the Chief Justice have for substantially expanding the range of judicial decision-making within which courts “may go beyond the plain language of the statute [or contract],” and within which “it is the duty of the courts,” instead of the lawmaker, to give a “reasonable and sensible” interpretation to the law? Ante at 307-308. What conceivable arguments does the Chief Justice have for favoring an expansion in the range of judicial decision-making within which judges are empowered to devise, at their discretion, ad hoc and unpredictable criteria for determining how the law will be defined? Hers is a hollow opinion, evidenced not only
D. LOGIC OF AMBIGUITY RULE
The Chief Justice asserts that language is ambiguous when it is “capable of being understood by reasonably well-informed persons in two or more different senses,” ante at 331, but she never supplies any explanation for how this definition is to operate practically in the real world. She fails to answer, or even ask, whether there is some threshold beyond which it can be said that an interpretation is “capable of being understood by reasonably well-informed persons in two or more different senses.” Is it sufficient, for example, in finding ambiguity that 10% or 20% or 30% of all “reasonably well-informed persons” might subscribe to a particular interpretation? Indeed, is it sufficient that the parties merely disagree, or must the Court intervene to determine that the position of each side is itself reasonable?
Given that the Mayor of Lansing/Klapp standard can be quantified as a 50% test — i.e., if there are two equally reasonable interpretations, a law is ambiguous; otherwise it is not — how would the Chief Justice characterize her standard? What is the approximate threshold at which a law should be found ambiguous? Unless any
Given that the Chief Justice’s threshold must necessarily be less than 50%, why should that level ever be deemed sufficient to allow a judge to dispense with the language of a statute or contract as the dispositive factor in determining its meaning? That is, if a judge is 51% or 61% or 71% persuaded that some interpretation of the law is the better, or the “most reasonable,” interpretation, what is the rationale for allowing a judge to interpret the law in some different fashion? Why would a judge ever adopt an interpretation that he or she believes is the second-best, or the second most reasonable, interpretation? If any interpretation of the law, concerning which a judge is less than 100% certain —say a 95% certainty — will ever permit that judge to adopt such interpretation as the better, or the “most reasonable” interpretation, what is the reason why a 51% or 61% or 71% interpretation should not prevail over a 29% or 39% or 49% interpretation — much less with respect to what the Chief Justice describes as “more” interpretations .that might be offered, see ante
The Chief Justice has little interest in parsing § 315(1), little interest in explaining why either of the parties’ interpretations is “reasonable” or “unreasonable,” and little interest in explaining why, in either constitutional or logical terms, her understanding of ambiguity makes sense, much less why it makes better sense than what Mayor of Lansing and Klapp have set forth. Instead, the Chief Justice is content to proceed, without explanation, upon her deconstruction of the law of Michigan.
E. NO PREVIOUSLY ESTABLISHED RULES
After her “analysis” of § 315(1) — one consuming nearly a full paragraph and in which a sideways glance at the sentence immediately preceding the one in dispute is apparently seen as excessively rigorous — the Chief Justice deems the statute “ambiguous,” i.e., alternative interpretations could “reasonably apply.” She then proceeds to select from among the available “interpretative” tools and adopt those that purportedly
A critical strength of a judicial philosophy committed to exercising only the constitution’s “judicial power” is that reasonably clear rules of decision-making are established before the fact. That is, a judge essentially рromises the parties that he or she will decide their case, as with all others, by attempting to discern the reasonable meaning of relevant statutes or contracts and that this will be done by relying upon recognized rules, and tools, of interpretation. By contrast, under the Chief Justice’s approach to ambiguity, in which there is essentially a limitless array of rules, and tools, that may be employed for “defining” the law apart from its language, there is no consistently applied interpretative process with which the judge promises beforehand to comply. He or she may promise to" be “fair,” and
What among the universe of available post-ambiguity tools does the Chief Justice choose to consider in reaching her decision here? The Chief Justice states that “caselaw,” among other tools, supports her interpretation of § 315(1). In evaluating this factor, the Chief Justice mainly invokes broad “public policy” considerations. For example, the Chief Justice, citing Harvlie v Jack Post Corp, 2006 Mich ACO 69, emphasizes that the “WCAC has explicitly recognized the importance of holding employers and their insurance carriers responsible for a proration of attorney fees pursuant to § 315(1).” Ante at 332. Yet, in Harvlie, this “importance” was drawn from the following: “The attorney fee provision of Section 315 was designed to promote the assistance of counsel in medical dispute cases where there are minimal or no wage loss benefits from which to obtain an attorney fee.” 2006 ACO 69, at 3 (emphasis added). In essence, Harvlie found that interpreting § 315(l)’s final sentence to require an employer to pay attorney fees made it more likely that an attorney would take a case in which the only recovery available was based on medical costs. Thus, the “importance” of enforcing the majority interpretation is based on this putative “design” even though the reasoning in Harvlie in no way bears this out. The majority interpretation does not obviously “promote the assistance of counsel” because the employee’s attorney recovers the same amount — the contingency fee calculated on the recovered medical expenses — regardless of who pays his fees. See notes 4 and 5 of this opinion. Thus, the supposed “design” set forth in Harvlie is a false one. Nonetheless, the
The Chief Justice next relies on Boyce v Grand Rapids Asphalt Paving Co,
The Chief Justice also relies on the WDCA’s “remedial . . . nature” to support her interpretation. Ante at 332. The WDCA is indeed remedial, because it provides a remedy for employees injured on the job. Yet, the Chief Justice fails to explain why this purpose, as important as it obviously is, should be elevated above every other purpose of the Legislature. The WDCA is the Legislature’s attempt to fulfill at least two pur
The Chief Justice then asserts that she is empowered to “construe the act’s terms liberally,” ante at 332— rather than merely “reasonably.” As a result of this process, one essentially indistinguishable from a judge asserting his or her right to place a thumb on the scales of justice, the Chief Justice proclaims that plaintiff is entitled under the WDCA to the greatest possible amount of recovery. Ante at 332. Is there anything more to the Chief Justice’s “liberal” construction than that plaintiff prevails on everything? Is this all that is implied by a “liberal” construction? At what point does the Court dеcide that its “liberal” construction has fully accomplished the goals of the WDCA? When the employee receives all that he asks for? When an employer can no longer afford to maintain its insurance, or cannot afford to maintain an employee? Does a “liberal” construction militate in favor even of a recovery of benefits that is not contemplated by the actual language
In short, the Chief Justice invokes her own understanding of ambiguity for the purpose of providing some justification for her preferred course of “going beyond the plain language of the statute,” and thereby avoiding the difficult process of giving fair meaning to a statute, the fair meaning of which may not be to her liking. “No judge should manufacture ambiguity.” Paige v Sterling Hts,
G. STARE DECISIS
After stating that “stare decisis does not apply” to the Mayor of Lansing standard for determining ambiguity, ante at 314 n 36, the Chief Justice nonetheless devotes almost a third of her opinion to rejecting the stare decisis test in Robinson v Detroit,
(1) The Chief Justice has repeatedly criticized other justices for “unnecessarily” overruling precedent.
(2) Given that in this case the Chief Justice would еxpressly overrule, not one, but two of this Court’s prior decisions,
one is naturally tempted to re-inquire, see Rowland v Washtenaw Co Rd Comm,477 Mich 197 , 223-228;731 NW2d 41 (2007) (MARKMAN, J., concurring), whether the ongoing dispute between the [former] majority and Justice KELLY over overrulings of precedent truly concerns attitudes toward stare decisis or merely attitudes toward particular previous decisions of this Court. [People v Smith,478 Mich 292 , 322-323 n 17;733 NW2d 351 (2007).]
“A justice’s perspective on stare decisis is not evidenced by her willingness to maintain precedents with which she agrees, but by her willingness to maintain precedents with which she disagrees.” Rowland,
(3) As I also asserted in Rowland,
[N]o meaningful discussion of a court’s attitude toward precedent can be based solely on an arithmetical analysis in which raw numbers of overrulings are simply counted. Such an analysis obscures that not all precedents are built alike, that some are better reasoned than others, that some are grounded in the exercise of discretionary judgments and others in the interpretation of plain language, that some are thorough in their analyses and others superficial.
The chart attached to my concurring opinion in Rowland demonstrates that the former majority’s overrulings of precedent overwhelmingly occurred in cases involving what the then-majority justices viewed as the “misinterpretation of straightforward words and phrases in statutes and contracts, in which words that were not there were read into the law or words that were there were read out of the law.” Id. at 226, 228-247. In contrast, the new majority’s overrulings of precedent has moved toward just the opposite result, replacing decisions that sought to give reasonable
(4) Indeed, since Chief Justice KELLY became a part of the new majority, this majority has dealt with precedents it did not like in an especially inappropriate manner — by simply ignoring them. In the interest of clearing the law of this state of multiple and inconsistent precedents on the same matters of law, the former majority forthrightly and explicitly overruled precedents and never sought to obscure this process or to misleadingly minimize the number of overturned precedents, by either ignoring disfavored precedents or by dubiously “distinguishing” prior case law. Doubtlessly, because it is cognizant of the gap between its past rhetoric extolling the importance of stare decisis and its present actions disregarding stare decisis, the new majority has made an increasingly regular practice of simply ignoring inconvenient precedents.
(5) The Chief Justice concludes that Robinson’s standard for overruling binding precedent is “insufficiently respectful of precedent” because “not once has the Court cited it as a basis for upholding a prior decision.” Ante at 315-316 (emphasis omitted). The Chief Justice, however, fails to illuminate the reader as to the number of occasions on which she has concluded that binding precedent was wrongly decided and yet joined an opinion maintaining that precedent. Perhaps, this is because the answer is “never.” Not once has the Chief Justice joined an
(6) In response to my concurring opinion in Rowland, then-Justice KELLY stated:
Justice MAEKMAN challenges me to develop my “own standards” concerning when I would overturn precedent. But I have no need to create my own standards when well-reasoned standards have been established in the laws of this country for over 150 years. As noted in McDowell [v Oyer], when precedents are “free*394 from absurdity, not mischievous in practice, and consistent with one another,” they should be retained. McDowell, 21 Pa [417, 423 (1853)]. I would not lightly adopt new rules to guide my judicial philosophy when traditional tools used by courts throughout their history continue to serve well. [Rowland,477 Mich at 255 n 8 (Kelly, J., concurring in part and dissenting in part).]
However, the Chief Justice now apparently finds it necessary to depart from the 150-year-old standard that she has previously hailed to fashion her own new “compelling justification” standard, with its seven evaluative criteria, and we are left to ponder why she no longer views the “free from absurdity, not mischievous in practice, and consistent with another” standard as a sufficient test.
Moreover, it is perplexing why the Chief Justice feels that it is necessary to overrule Robinson and replace it with her new test given the similarity of these standards.
V CONCLUSION
I would reverse the Court of Appeals because the final sentence of MCL 418.315(1) does not allow a magistrate to assess an employee’s attorney fees against the employer. Rather, that sentence only allows a magistrate to divide attorney fees among medical providers when the magistrate has ordered direct payment for medical expenses from the employer to those providers.
By the “majority interpretation,” I refer only to the result reached by a majority of this Court in the opinions of the Chief Justice (joined by Justice Cavanagh) and Justice Hathaway (joined by Justice Weaver).
Defendants axe various business entities that were either found to be plaintiffs “employer” for purposes of the WDCA or else liable for those payments as insurers.
Presumably, if the employee has not paid the reasonable expenses for “medical, surgical, and hospital services,” then the medical providers of those services are the “persons to whom the unpaid expenses may be owing.”
Under this approach, if the magistrate ordered the employer to pay either the employee or a medical provider $2,000 for unpaid expenses, the magistrate could also order the employer to pay the employee’s attorney fees for the contingency fee on that amount. Assuming a 30% contingency fee, the employer would pay $2,600 total, with $2,000 paid to the employee or medical provider and $600 paid to the employee’s attorney.
Under this approach, if the magistrate ordered the employer to pay a medical provider $2,000 for unpaid expenses, the magistrate would apportion an amount based on the employee’s contingency fee from that payment to go towards the employee’s attorney fees. Assuming a 30% contingency fee, the employer would pay $2,000, with $600 paid to the employee’s attorney and $1,400 paid to the medical provider.
“It is only, therefore, within a context that a word, any word, can communicate an idea.” Leach v FDIC, 860 F2d 1266, 1270 (CA 5, 1988).
This interpretation reflects the common understanding of the term “prorate” as often used, for example, in rental arrangements. A landlord will often “prorate” the tenant’s rent when the lease does not begin on the first of the month. The tenant pays a prorated amount of the monthly rent based on the number of days (out of the whole month) that the tenant will be living in the apartment before the beginning of the next month.
The Chief Justice asserts that giving the magistrate such standard-less discretion is supported by “[o]ther provisions of the WDCA that vest discretion in magistrates using the word ‘may’... .” Ante at 309 n 19. Contrary to her assertion, however, those other provisions do not similarly vest in a magistrate standardless discretion; rather, they provide at least some specific direction by which the magistrate is to exercise his discretion. With regard to the final sentence of § 315(1), this dissent finds that direction in the penultimate sentence of § 315(1); by contrast, the Chief Justice finds the penultimate sentence to be irrelevant to her analysis.
Indeed, the Legislature has been fairly consistent throughout the WDCA when it imposes liability against the employer. For example, MCL 418.301(1) states that an employee “shall be paid compensation as provided in this act”; MCL 418.345 states that “the employer shall pay, or cause to be paid,
Although the Chief Justice and Justice HATHAWAY purport to “read [§ 315(l)’s final sentence] with the remainder of the statute,” ante at 309 and ante at 342 (Hathaway, J. concurring), both fail to even give consideration to the language in the immediately preceding sentence.
Recognizing that “not all legislative history is of equal value,” In re Certified Question,
In Haliw v Sterling Hts,
Michigan follows the “American rule” with respect to the payment of attorney fees and costs. Under the American rule, attorney fees generally are not recoverable from the losing party as costs in the absence of an exception set forth in a statute or court rule expressly authorizing such an award. [Citation omitted.]
This is similar to the arrangement provided hy § 821(2), which allows an employee to assign a portion of his workers’ compensation award to an insurance company, health maintenance organization, or medical care and hospital service corporation that makes an advance or payment to the employee under an insurance policy that provides that benefits are not payable for workers’ compensation injuries. Upon enforcement of that assignment, the insurance company, health maintenance organization, or medical care and hospital service corporation shall pay “a portion of the attorney fees of the attorney who secured the worker’s compensation recovery.” MCL 418.821(2). Thus, the employee retains an attorney to recover benefits, and the recovery subject to the assignment helps pay the employee’s attorney fees.
Likewise, pursuant to § 827, a nonparty employer can recover through the efforts of an employee’s attorney pursuing a third-party liability action, whereby an employee can seek recovery for the same damages he “would be entitled to recover in an action in tort.” MCL 418.827(5). If the employee recovers, then he shall first “reimburse the employer or carrier for any amounts paid or payable” under the WDCA, reduced by “expenses of recovery,” id., which include “reasonable expenditures, including attorney fees, incurred in effecting recovery,” MCL 418.827(6). Thus, the employer does not recover the full amount it paid under its workers’ compensation policy. Rather, the full amount is less any attorney fees, which the employer would have had to pay had it sued the third party for recovery as it is entitled to do. MCL 418.827(1) (employer can bring suit against third party in name of employee if one year has passed since the employee’s injury). This reduction of the recovery amount is the same as when a magistrate “prorates” pursuant to § 315(l)’s final sentence.
The financial outcome for medical providers remains the same, whereas, hy eliminating the need for providers to hire attorneys, the employee actually keeps more of his medical expenses. For example, assume that an employee has paid $3,000 in medical expenses provided
I also respectfully disagree with Justice Young’s interpretation that § 315(1) “permitís] the magistrate to prorate attorney fees between the claimant and the employer .. ..” Ante at 343. First, he does not account for why the magistrate’s authority to “prorate attorney fees” is only triggered “[w]hen an employer unjustifiably refuses to fulfill its statutory duty to pay for medical expenses ....” Ainte at 344. It would seem more logical under his interpretation that a magistrate could impose attorney fees against an employer any time the employer “fails, neglects, or refuses” to pay for the medical expenses. Nowhere does the statute include the caveat that the refusal must be “unjustified” before the magistrate can “prorate” the fees. Second, the statute directs proration “at the contingent fee rate paid by the employee,” MCL 418.315(1), not
I note that this approach has not garnered majority support on this Court.
Because interpreting either statutes or contracts requires a court to give meaning to specific language, the interpretative approach signaled by a particular view of ambiguity “applies with equal force whether the court is interpreting a statutory text or a contractual one.” Mayor of Lansing v Pub Service Comm,
When deciding a case, the judiciary’s role is, and has always been, to answer the question, “what is the law, and not what ought the law to be.” Detroit v Blackeby,
The Chief Justice also states that a statute is ambiguous when “two persons reasonably afford [a] different meaning[ ]” to it, or when it is “of questionable or unclear meaning. ” Ante at 328. She has previously opined that a statute is ambiguous “when its application to the facts of the case is uncertain,” DaimlerChrysler Corp v State Tax Comm,
Such disagreement between parties is hardly a precedent-shattering event in this Court.
At least in this regard, she is unquestionably correct. See, for example, the following list of cases enumerated in footnote 56 of the Chief Justice’s opinion to get some sense of the breadth of the matters that she apparently views as “ambiguous” among our published opinions over the past five years alone. With regard to each of these “examples,” the dissenting justices in this case are implicitly chastised for having “declined” to find ambiguity:
See, e.g., Dimmit & Owens Fin, Inc v Deloitte & Touche,481 Mich 618 ;752 NW2d 37 (2008); Ross v Blue Care Network,480 Mich 153 ;747 NW2d 828 (2008); Wesche v Mecosta Co Rd Comm,480 Mich 75 ;746 NW2d 847 (2008); Ernsting v Ave Maria College,480 Mich 985 (2007); Trentadue [v Buckler Automatic Lawn Sprinkler Co,479 Mich 378 ;738 NW2d 664 (2007)]; Lash v Traverse City,479 Mich 180 ;735 NW2d 628 (2007); Brown [v Detroit Mayor,478 Mich 589 ;734 NW2d 514 (2007)]; Renny v Dep’t of Transportation,478 Mich 490 ;734 NW2d 518 (2007); South Haven v Van Buren Co Bd of Comm’rs,478 Mich 518 ;734 NW2d 533 (2007); Omdahl v West*369 Iron Co Bd of Ed,478 Mich 423 ;733 NW2d 380 (2007); Bukowski v Detroit,478 Mich 268 ;732 NW2d 75 (2007); Karaczewski [v Farbman Stein & Co,478 Mich 28 ;732 NW2d 56 (2007)]; Fluor [Enterprises, Inc v Dep’t of Treasury,477 Mich 170 ;730 NW2d 722 (2007)]; Rowland [v Washtenaw Co Rd Comm,477 Mich 197 ;731 NW2d 41 (2007)]; People v Peals,476 Mich 636 ;720 NW2d 196 (2006); Paige [v Sterling Hts,476 Mich 495 ;720 NW2d 219 (2006)]; Cameron v Auto Club Ins Ass’n,476 Mich 55 ;718 NW2d 784 (2006); Ford Motor Co v Woodhaven,475 Mich 425 ;716 NW2d 247 (2006); People v Derror,475 Mich 316 ;715 NW2d 822 (2006); People v Williams,475 Mich 245 ;716 NW2d 208 (2006); People v Yamat,475 Mich 49 ;714 NW2d 335 (2006); Grimes [v Dep’t of Transportation,475 Mich 72 ;715 NW2d 275 (2006)]; Michigan v Monaco,474 Mich 48 ;710 NW2d 46 (2006); Ostroth v Warren Regency, GP, LLC,474 Mich 36 ;709 NW2d 589 (2006); Co Rd Ass’n v Governor,474 Mich 11 ;705 NW2d 680 (2005); Devillers [v Auto Club Ins Ass’n,473 Mich 562 ;702 NW2d 539 (2005)]; Reed v Yackell,473 Mich 520 ;703 NW2d 1 (2005); Ayar v Foodland Distributors,472 Mich 713 ;698 NW2d 875 (2005); Casco Twp [v Secretary of State,472 Mich 566 ;701 NW2d 102 (2005)]; Elezovic v Ford Motor Co,472 Mich 408 ;697 NW2d 851 (2005); Jarrad v Integon Nat’l Ins Co,472 Mich 207 ;696 NW2d 621 (2005); Roberts v Atkins,470 Mich 679 ;684 NW2d 711 (2004); Neal [v Wilkes,470 Mich 661 ;685 NW2d 648 (2004)]; People v Barbee,470 Mich 283 ;681 NW2d 348 (2004); [People v] Lively, [470 Mich 248 ;680 NW2d 878 (2004)]; People v Laney,470 Mich 267 ;680 NW2d 888 (2004); Lansing Mayor [v Pub Service Comm,470 Mich 154 ;680 NW2d 840 (2004)].
It should be clearly understood that in each of these cases, as well as in all other cases in which ambiguity is found, justice under the law would be replaced by the personal “justice” of the men and women who comprise the Court’s majority. This is the “rule of men [and women],” not the rule of law.
“It is only by interpretations of the law that are in accord with the words of the lawmaker — that is, interpretations in which judges look outside themselves for a source of law — that the decisions of courts are truly removed from the realm of politics and policymaking.” Robertson v DaimlerChrysler Corp,
“Tjjg powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Const 1963, art 3, § 2.
“[I]t is to the words of the statute itself that a citizen first looks for guidance in directing his actions. This is the essence of the rule of law: to know in advance what the rules of society are.” Robinson v Detroit,
In her assertion that this Court “has declined [during a fоur-year period] to find any statutory language ambiguous,” ante at 311 n 23, the Chief Justice fails to mention that this Court found the contract in Klapp itself to be ambiguous and then resolved this ambiguity by the application of the traditional rule contra proferentem, (resolving a contract dispute against its drafter). See also Stone v Williamson,
See Koontz v Ameritech Services, Inc,
“It is a cardinal rule in the interpretation of statutes that words which have acquired a well-defined technical meaning, are to be understood in their technical sense ... .” Pitcher v People,
“ [A] word or phrase is given meaning by its context or setting. ” Tyler v Livonia Pub Schools,
See Sun Valley Foods Co v Ward,
“[I]n the interpretation of the statutes, we are to take into view all such parts as relate to the same subject.” Malonny v Mahar,
See Lash v Traverse City,
See, e.g., In re Haley,
See Pohutski v City of Allen Park,
The Chief Justice disparages this approach by stating that a “ ‘plain meaning’ approach to statutory interpretation is equally susceptible to subjective and arbitrary determinations of legislative intent” because “such an approach may lead to the selection of one dictionary definition among many for a specific term.” Ante at 313 n 35. The Chief Justice thus damns the very enterprise of judging by suggesting that it can never be anything other than “subjective” and “arbitrary,” for words may sometimes have multiple meanings. The Chief Justice then defends her own approach to the judicial role by effectively declaring that all interpretation is nothing but a fiction in which the judge, one way or another, gets to impose his own personal will. That is, since interpretations of the law can sometimes be difficult, and may entail the application of judgment and discernment, a “plain meaning” approach to interpretation (a characterization incidentally never used by any of the justices dissenting in this case) has no superior stature to a post-ambiguity approach to interpretation in which words are given no respect whatsoever. By equating the imperfections inherent in a human process in which language is taken seriously with the fundamental defects inherent in a
Concerning Liberty Hill Housing Corp v City of Livonia,
The third, fourth, and fifth meanings in the definition are clearly not relevant here. The first meaning defines “occupy” as “to have, hold,. .. possess,... or claim[.]” These parts of the definition are synonymous with ownership. Because the statute uses the conjunctive term “owned and occupied,” however, the Legislature must have intended different meanings for the words “owned” and “occupied.” Otherwise, the word “occupied” would be mere surplusage.
See also id. at 57 n 12. Thus, Liberty Hill relied on the maxim that the Court should avoid rendering a portion of the statute nugatory or surplusage, i.e., the Court should give effect to all the words of the Legislature. Thus, contrary to the Chief Justice’s assertion, Liberty Hill demonstrated that a responsible judge, attempting faithfully to give meaning to the law, does not have “unfettered discretion to pick and choose among available ‘plain meanings,’ ” ante at 321, but rather is bound by existing rules, and by interpretative approaches, that are well-known both to the judge and the parties beforehand. While such an “interpretivist” or “textualist” approach cannot dispense entirely with the exercise of judgment, unlike the approach preferred by the Chief Justice, the interpretative “rules of the game” under the former approach will be known in advance and are designed to reasonably ascertain the intentions of the lawmaker.
The Chief Justice asserts that she need not justify her standard in light of the fact that other jurisdictions utilize similarly worded standards. Ante at 330-331 & nn 73-75. Whatever the relevance of this observation, one doubts that any of these variants have been applied in other jurisdictions in the wildly overreaching manner reflected by the instant decision, reflected by the breadth of potentially “ambiguous” cases cited at n 21 of this opinion, and reflected in the Chief Justice’s own passion for finding “frequent ambiguity” in the law, Haynes,
See, e.g., Nat’l Pride, in which the Chief Justice in her dissent proposed to give meaning to an allegedly “ambiguous” provision of our constitution by assessing the language of campaign brochures by private organizations, statements of the Michigan Civil Rights Commission, the results of a private telephone survey, and a “wealth of extrinsic informa
The arbitrariness of the Chief Justice’s approach can be glimpsed in Haynes, ATI Mich at 45 (Kelly, J., concurring), in which we are instructed that whenever ambiguity arises, a judge may consider another jurisdiction’s statute that is “substantially similar” to the Michigan statute before him or her. “[Foreign] case law interpreting [that jurisdiction’s statute] is instructive with regard to the correct interpretation of our statute.” Id. Yet, shortly thereafter in DaimlerChrysler Corp,
The Chief Justice also cites Harvlie for her “public policy” argument that if employers are not held liable for employees’ attorney fees, employers will “have an incentive to deny medical benefits.” Ante at 332. Yet, she never examines the consequences of the corollary “public policy” wherein employers would he penalized by attorney fees even if they have a valid dispute that the employee did not “receive!] a personal injury arising out of and in the course of employment.” MCL 418.315(1).
The Court of Appeals cases that followed also adhered to this rale. Duran v Sollitt Constr Co,
“Thg people have not forfeited lawmaking authority to a judicial aristocracy that may simply rewrite laws with which they disagree.” Karaczewski,
Most workers’ compensation statutes “represento a compromise between the competing interests of disabled laborers and their employers.” Potomac Electric Power Co v Office of Workers' Compensation Programs Director,
Although the Chief Justice applies her newly formulated “compelling justification” standard to conclude that Mayor of Lansing should be overruled, she neglects even to apply her new stare decisis standard to determine whether Robinson itself should be overruled. In this regard, see also note 47 of this opinion.
See, for example, People v Smith,
See, for example, People v Gardner,
Contrary to the Chief Justice’s assertion, ante at 326 n 63, nowhere in this opinion is it stated that a standard for ambiguity is or is not “entitled to stare decisis” consideration.
The Chief Justice also stated in Gardner,
See, e.g., Vanslembrouck v Halperin,
In addition to ignoring precedents altogether, see Potter v McLeary,
The Chief Justice responds that she has not upheld what she viewed as a wrongly decided precedent under the “compelling justification” standard because that “has never been the standard in Michigan during [her] years as a justice.” Ante at 326-327 n 63. However, the point is that, even under her own similar “special justification” standard, see, e.g., Gardner,
The Chief Justice also neglects to mention that Robinson,
It also should not be lost on the reader that these criteria are nothing more than a hodgepodge thrown together without any prior case law in support. Given her criticism that the test for ambiguity set forth in Mayor of Lansing was made up out of “thin air,” ante at 311, one might think the Chief Justice would be especially careful to identify at least one or two courts that have utilized her own new criteria.
Under the Chief Justice’s standard, stare decisis analysis “begin[s] with the presumption that upholding the precedent involved is the preferred course of action.” Ante at 317. Under Robinson, “[s]tare decisis is generally ‘the preferred course.’ ” Robinson,
The final factor in the Chief Justice’s new test — “whether the prior decision was an abrupt and largely unexplained departure from precedent,” ante at 320 — ignores two aspects of this Court’s former approach to stare decisis. First, by establishing a “lower level of deference” for cases that themselves have overruled precedent, the Chief Justice disregards that the particular precedents she so disfavors themselves often overruled decisions that “departfed] from precedent.” Ante at 317-318. See the chart in Rowland,
Dissenting Opinion
(dissenting). I fully join Justice Markman’s dissenting opinion. I also join part 11(B) of Justice YOUNG’s dissenting opinion.