1.4Precedent

A.Vertical Stare Decisis in the Context of Legislative Amendments

“The doctrine of vertical stare decisis . . . is the doctrine that a court must strictly follow decisions handed down by higher courts within the same jurisdiction.” In re AGD, 327 Mich App 332, 339 (2019) (punctuation marks, quotation marks, and citation omitted). Where the Legislature amends a statutory provision, the Michigan Court of Appeals “remains bound to follow the Supreme Court’s interpretation of [the] since-amended statute if the intervening amendment merely ‘undermined’ the foundations of the Supreme Court’s prior decision, but not if the intervening amendment ‘clearly . . . superseded’ the Supreme Court’s interpretation.” Id. at 341. Where the “Legislature has entirely repealed or amended a statute to expressly repudiate a court decision, . . . lower courts have the power to make decisions without being bound by prior cases that were decided under the now-repudiated previous positive law.” Id. at 341, quoting Associated Builders & Contractors v Lansing, 499 Mich 177, 191 n 32 (2016). However, “when the operative statutory language interpreted by the Supreme Court in the previous case remains the same after amendment, the intervening amendment of the statute does not clearly overrule or supersede the Supreme Court’s prior interpretation.” In re AGD, 327 Mich App at 341.¹

B.Michigan Supreme Court

Decisions. A Supreme Court decision is controlling if it is the decision of a majority of the justices who were sitting on the case. Negri v Slotkin, 397 Mich 105, 110 (1976). “‘Plurality decisions in which no majority of the justices participating agree as to the reasoning are not an authoritative interpretation[.]” Id. at 109.

Orders. Michigan Supreme Court orders “that include a decision with an understandable rationale establish binding precedent.” People v Giovannini, 271 Mich App 409, 414 (2006). Furthermore, if a Michigan Supreme Court order “can be understood as adopting the reasoning of [a] dissenting opinion from [the Court of Appeals], . . . that dissent consequently constitutes binding precedent despite originally having been unpublished and not binding pursuant to MCR 7.215(C)(1).” Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 219 (2013), overruled in part on other grounds 498 Mich 68, 74 (2015).²

C.Michigan Court of Appeals

“A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis.” MCR 7.215(C)(2). “The filing of an application for leave to appeal in the Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals.” Id.

“An unpublished opinion [of the Court of Appeals] is not precedentially binding under the rule of stare decisis.” MCR 7.215(C)(1). However, if a Michigan Supreme Court order “can be understood as adopting the reasoning of [a] dissenting opinion from [the Court of Appeals], . . . that dissent consequently constitutes binding precedent despite originally having been unpublished and not binding pursuant to MCR 7.215(C)(1).” Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 219 (2013), overruled in part on other grounds 498 Mich 68, 74 (2015)³.

“A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule.” MCR 7.215(J)(1).

“When a panel is confronted with two conflicting opinions published after November 1, 1990, the panel is obligated to follow the first opinion issued.” Bradley v Westfield Ins Co, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). However, “when the relevant language of a statute is amended, future panels are bound to hold that MCR 7.215(J) does not require them to adhere to earlier opinions that interpreted the pre-amendment version of the statute.” People v Williams, 298 Mich App 121, 126 (2012), overruled in part on other grounds by People v White, 501 Mich 160, 164 (2017).⁴

D.Circuit Court

A circuit court is not bound by the decision of another circuit court. People v Hunt, 171 Mich App 174, 180 (1988).

E.United States Supreme Court

“[S]tate courts are bound by United States Supreme Court decisions construing federal law[.]” People v Gillam, 479 Mich 253, 261 (2007). However, a United States Supreme Court decision that is “‘based on federal evidentiary grounds,’ . . . is not binding on [state courts].” People v Clary, 494 Mich 260, 271 n 7 (2013), quoting Jenkins v Anderson, 447 US 231, 237 n 4 (1980).

“A plurality opinion of the United States Supreme Court . . . is not binding precedent.” People v Beasley, 239 Mich App 548, 559 (2000).

F.Sixth Circuit Court of Appeals

State courts are not bound by the decisions of lower federal courts construing federal law, and Michigan courts “are free to follow or reject their authority.” People v Gillam, 479 Mich 253, 261 (2007).

G.Attorney General

An attorney general’s opinion is not binding authority. People v Kildow, 99 Mich App 446, 449 (1980); however, it can constitute persuasive authority. Risk v Lincoln Charter Twp Bd of Trustees, 279 Mich App 389, 398 (2008).

H.Dicta

Obiter dicta means “any statements and comments in an opinion concerning some rule of law or debated legal proposition not necessarily involved nor essential to determination of the case[.]” People v Case, 220 Mich 379, 382-383 (1922). However, “if a court intentionally addresses and decides an issue that is germane to the controversy in the case, the statement is not dictum even if the issue was not decisive.” People v Ogilvie, 341 Mich App 28, 40 n 8 (2022) (citation omitted). “[O]biter dicta lacks the force of an adjudication and is not binding under the principle of stare decisis.” People v Borchard-Ruhland, 460 Mich 278, 286 n 4 (1999).⁵

I.Retroactivity of Judicial Decisions⁶

“In Michigan, the general rule is that judicial decisions are to be given complete retroactive effect.” People v Robinson, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “But there are well-established exceptions to this rule.” Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 266 (2007) (Kelly, J., concurring in part and dissenting in part) (observing that “courts should consider the equities involved” and “[c]ourt decisions should have the goal of reaching justice”). If “injustice might result from full retroactivity,” the Michigan Supreme Court “has adopted a more flexible approach, giving holdings limited retroactive or prospective effect.” Robinson, ___ Mich App at ___ (quotation marks and citations omitted).

Prospective application of a holding is appropriate when it decides an issue of first impression, and the resolution of the issue was not clearly foreshadowed, or when it overrules settled precedent. People v Parker, 267 Mich App 319, 327 (2005).⁷ Accordingly, “complete prospective application has generally been limited to decisions which overrule clear and uncontradicted case law.” Hyde v Univ of Mich Bd of Regents, 426 Mich 223, 240 (1986); see also Rowland, 477 Mich at 267 (opinion of the Court) (“[A] holding that overrules settled precedent may properly be limited to prospective application.”).

“Therefore, in determining retroactivity, courts must first address the threshold question of whether a decision amounts to a new rule of law.” Robinson, ___ Mich App at ___ (cleaned up). “If so, the factors to be considered in determining whether the general rule should not be followed are (1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice.” Rowland, 477 Mich at 220 (opinion of the Court) (quotation marks and citation omitted).

“Judicial decisions which express new rules normally are not applied retroactively to other cases that have become final.” Robinson, ___ Mich App at ___ (cleaned up). “New legal principles, even when applied retroactively, do not apply to cases already closed because at some point, the rights of the parties should be considered frozen and a conviction final.” Id. at ___ (cleaned up). “A rule of law is new for purposes of resolving the question of its retroactive application either when an established precedent is overruled or when an issue of first impression is decided which was not adumbrated by any earlier appellate decision.” Id. at ___ (cleaned up). “A judicial decision’s rule is considered to be new if it breaks new ground or imposes a new obligation on the States or the Federal Government. In other words, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Id. at ___ (quotation marks and citation omitted). In Robinson, the Court of Appeals concluded that People v Peeler, 509 Mich 381 (2022), “did not establish any new rule because the [Michigan Supreme] Court did not announce a new rule that was not dictated by precedent.” Robinson, ___ Mich App at ___ (holding that Peeler “did not involve a retroactive change in the law” because the decision “was based on the proper interpretation of longstanding statutory authority in existence since well before [the defendant’s] indictment and conviction in this case”).

The Michigan Supreme Court “does not announce a new rule of law when it overrules a decision of the Court of Appeals that misinterpreted a statute contrary to the statute’s plain language, legislative intent, and existing precedent because in that situation, the Supreme Court has reaffirmed the existing law that was misinterpreted by the Court of Appeals.” Flamont v Dep’t of Corrections, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). In Flamont, the Court of Appeals observed that Christie v Wayne State Univ, 511 Mich 39 (2023), which overruled Tyrrell v Univ of Mich, 335 Mich App 254 (2020), “clearly declared the meaning of the law as it existed, based on the unambiguous statutory language, and corrected a relatively short-lived misinterpretation of the law that had served to thwart the legislative intent and the mandated result.” Flamont, ___ Mich App at ___ (quotation marks and citation omitted) (concluding that Christie had full retroactive effect because its holding did not constitute a new rule). See Landin v Dep’t of Health and Human Servs, ___ Mich App ___, ___ (2024) (taking “no issue with Flamont’s application of Christie to cases not affected by the Tyrrell decision” but reasoning that “because Tyrrell, despite being wrongly decided, was binding precedent at the relevant time . . . , the decision in Christie was a new rule of law as to it and similarly-situated cases” and “plaintiff’s reliance interest was such that the Christie decision should not be applied retroactively as to her”). See also Hudson v Dep’t of Corrections, ___ Mich App ___, ___ (2024) (concluding that Landin was binding and controlling precedent but “call[ing] for the convening of a special panel under MCR 7.215(J)(3) to consider the conflict between Flamont and that of Landin relative to the retroactivity of Christie”; were it not for Landin, the Hudson Court would have affirmed the trial court, “consistent with the holding in Flamont that the rule in Christie was not a new rule of law because the Supreme Court does not announce a new rule of law when it overrules a decision of the Court of Appeals that misinterpreted a statute contrary to the statute’s plain language, legislative intent, and existing precedent”) (quotation marks and citation omitted).

A defendant’s right to due process may be violated when “‘[t]he retroactive application of an unforeseeable interpretation of a criminal statute’” works to the defendant’s detriment. People v Johnson, 302 Mich App 450, 464 (2013), quoting People v Brown, 239 Mich App 735, 750 (2000) (alterations in original). “[D]ue process is violated when the retroactive application of a judicial decision acts or operates as an ex post facto law[.]” Johnson, 302 Mich App at 464-465. However, a defendant is not “deprived of ‘due process of law in the sense of fair warning that his contemplated conduct constitutes a crime’” when judicial interpretation of an applicable statute does not have “the effect of criminalizing previously innocent conduct.” Id. at 465, quoting Bouie v City of Columbia, 378 US 347, 355 (1964) (emphasis omitted).

“In Teague v Lane, 489 US 288 (1989), . . . the United States Supreme Court set forth the federal standard for determining whether a rule regarding criminal procedure should be applied retroactively to cases in which a defendant’s conviction has become final.” People v Maxson, 482 Mich 385, 388 (2008). “Teague established the ‘general rule’ that ‘new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.’” Maxson, 482 Mich at 388, quoting Teague, 489 US at 310.

There are two exceptions to the general retroactivity bar set forth in Teague: “‘courts must give retroactive effect to new substantive rules of constitutional law,’” and “‘courts must give retroactive effect to new watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.’” People v Barnes, 502 Mich 265, 269 (2018), quoting Montgomery v Louisiana, 577 US 190, 198 (2016) (additional quotation marks and citations omitted).

J.Lack of Precedent - Case of First Impression

A case of first impression is “‘[a] case that presents the court with an issue of law that has not previously been decided by any controlling legal authority in that jurisdiction.'” Sabbagh v Hamilton Psychological Servs, PLC, 329 Mich App 324, 368 (2019), quoting Black’s Law Dictionary (11th ed) (finding that an issue remains one of first impression where it has only been addressed by unpublished decisions).

K.Overruling Precedent

“Stare decisis ensures ‘uniformity, certainty, and stability in the law[.]’” Stokes v Swofford, ___ Mich ___, ___ (2024) (citation omitted). However, “precedents can be revisited if wrongly decided.” Id. at ___. “A decision is wrongly decided if it misunderstood or misconstrued a plainly worded statute or if it has fallen victim to a subsequent change in the law.” Id. at ___ (quotation marks and citation omitted). Courts apply “a three-part test to examine the effects of overruling a previous incorrect judicial decision: (1) whether the questioned decision defies practical workability, (2) whether reliance interests would work an undue hardship if the decision were overturned, and (3) whether changes in the law or facts no longer justify the decision.” Id. at ___ (quotation marks omitted), citing Robinson v Detroit, 462 Mich 439, 464 (2000).

In Stokes, the Michigan Supreme Court overruled in part Woodward v Custer, 476 Mich 545 (2006), “because the test adopted by the Woodard Court regarding the evaluation of specialists in medical malpractice actions [was] inconsistent with the statutory language in MCL 600.2169.” Stokes, ___ Mich at ___. “Woodard provided a skewed and inaccurate construction of MCL 600.2169, which [had] resulted in highly qualified experts being disqualified.” Stokes, ___ Mich at ___. Specifically, “Woodard incorrectly conflated the terms ‘specialty’ and ‘subspecialty’ in a manner that was inconsistent with and changed the meaning of the plain language of the statute, and it failed to highlight the significant discretion provided to trial courts under MCL 600.2169(2) and (3) to exclude experts even when such experts qualify under [MCL 600.2169(1)].” Stokes, ___ Mich at ___ (holding that “the words ‘specialist’ and ‘specialties’ as used in MCL 600.2169(1) are defined as the specialties recognized by . . . nationally recognized physician umbrella-certifying organizations” and “that the ‘matching’ requirement under MCL 600.2169 is limited to the relevant board certification specialty and does not require matching of subspecialties”).

Addressing the first Robinson factor, the Stokes Court concluded that “Woodard defies practical workability” because its application “led to inconsistent and untenable results in subsequent cases.” Stokes, ___ Mich at ___. Next, the Court found that “reliance interests”—the second Robinson factor—“do not favor retention of Woodard’s interpretation of MCL 600.2169.” Stokes, ___ Mich at ___. “In assessing reliance interests, ‘the Court must ask whether the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations.’” Stokes, ___ Mich at ___, quoting Robinson, 462 Mich at 466. “‘In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest.’” Stokes, ___ Mich at ___, quoting Robinson, 462 Mich at 467 (emphasis omitted). “‘When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court’s misconstruction.’” Id. (holding that “Woodard departed from the plain meaning of MCL 600.2169”).

The Stokes Court observed that “overruling Woodard would not rob litigants of their protected interests in securing appropriate experts, for the right itself is statutorily guaranteed.” Stokes, ___ Mich at ___. Michigan courts do “not recognize the need to alter litigation strategy as a sufficient reliance interest preventing the overruling of precedent.” Id. at ___ (“[T]here is no reliance interest when litigants need to adjust their litigation strategy.”). “Such a circumstance would apply to any overruling of precedent and is not a compelling reason to prevent a flawed interpretation of the law from being corrected.” Id. at ___ (“There is no reason to doubt that Michigan lawyers are well-equipped to modify their expert selections in line with an accurate interpretation of MCL 600.2169[.]”).

Turning to the final Robinson factor, “whether the law or relevant facts have changed such that the prior decision can no longer stand,” the Stokes Court held that “the totality of the remaining factors weigh in favor of overruling Woodard in part” due to “the instability of the decision and its lack of justification moving forward.” Stokes, ___ Mich at ___ (holding that “Woodard was in part wrongly decided and must be overruled in part”).