IN RE CERTIFIED QUESTIONS US COURT OF APPEALS

• Decision Date: 26 May 2005
• Docket Number: Docket No. 127088.
• Citation: 696 N.W.2d 687,472 Mich. 1225
• Parties: In re CERTIFIED QUESTIONS FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. Sarah Melson, Plaintiff-Appellant, v. Prime Insurance Syndicate, Inc., Defendant-Appellee.
• Court: Michigan Supreme Court

696 N.W.2d 687

472 Mich. 1225

In re CERTIFIED QUESTIONS FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

Sarah Melson, Plaintiff-Appellant, v. Prime Insurance Syndicate, Inc., Defendant-Appellee.

Docket No. 127088.

Supreme Court of Michigan.

May 26, 2005.

On order of the Court, the questions certified by the United States Court of Appeals for the Sixth Circuit are considered, and the Court respectfully declines the request to answer the certified questions.

WEAVER, J., concurs and states as follows:

I concur in the order declining to answer the questions certified by the United States Court of Appeals for the Sixth Circuit because I continue to question this Court's authority to answer such questions. See, e.g., Proposed Amendment of MCR 7.305, 462 Mich. 1208, 617 N.W.2d 329 (2000); In re Certified Question (Wayne Co. v. Philip Morris Inc.), 622 N.W.2d 518 (Mich., 2001); In re Certified Question (Kenneth Henes Special Projects Procurement, Marketing & Consulting Corp. v. Continental Biomass Industries, Inc.), 468 Mich. 109, 659 N.W.2d 597 (2003)

. Justice Young also questions this Court's authority to answer questions certified by the federal courts, post;¹ and Justice Levin has questioned this Court's authority. See In re Certified Question (Bankey v. Storer Broadcasting Co.), 432 Mich. 438, 462-471, 443 N.W.2d 112 (1989) (separate opinion of Levin, J.). Therefore, I decline to answer the questions in this case.

In light of the reasons offered by Justice Markman as support for his opinion that the Court has the authority to answer such questions, as well as the statements that have been made by Justice Levin, Justice Young, and myself on this issue, this Court should open an administrative file to consider the constitutionality of MCR 7.305. After taking public comment on this important issue, the Court can then decide definitively whether or not it has authority to answer certified questions, and, if it decides that it does have authority, clearly identify the basis for that authority because, to date, as Justice Markman notes, no basis has been clearly identified.

YOUNG, J., concurs and states as follows:

I concur in the order declining to answer the questions certified by the United States Court of Appeals for the Sixth Circuit. Any construction of Michigan law that we would have provided by answering the certified questions would have been merely "advisory" because our decision would not have been binding. Absent an express constitutional exception, such as Const. 1963, art. 3, § 8,² any nonbinding decision issued by this Court is beyond the "judicial power" of this Court and, therefore, unconstitutional. In 2000, this Court considered repealing MCR 7.305(B). I joined then-Chief Justice Weaver's dissenting statement, which concluded that the certified question process was unconstitutional.³ I wrote separately and reiterated this position in In re Certified Question (Wayne Co. v. Philip Morris Inc.).⁴ Having realized, however, that my concerns about the constitutionality of MCR 7.305(B) failed to carry the day, I have since honored the majority position of this Court and participated in certified question matters.⁵ However, Justice Markman's lengthy statement justifying MCR 7.305(B) and these particular certified questions warrant an equally thorough response.⁶

I. THIS COURT MAY CONSTITUTIONALLY EXERCISE ONLY "JUDICIAL POWER"

The Michigan Constitution specifically provides that "[t]he judicial power of the state is vested exclusively in one court of justice...."⁷ I agree with Justice Markman that "the entirety of the `judicial power' has been given to this Court" by the people of this state.⁸ I disagree, however, with Justice Markman's apparent belief that the "judicial power" is an unbounded grant of judicial authority that permits this Court to entertain certified questions from courts of other jurisdictions.⁹ The central flaw in Justice Markman's analysis is his belief that the Supremacy Clause¹⁰ and Erie¹¹ doctrine grant to this Court a power that the people of this state did not—the power to issue advisory opinions on Michigan law to the courts of other jurisdictions.

II. "JUDICIAL POWER" DOES NOT ENCOMPASS THE AUTHORITY TO ISSUE NONBINDING ADVISORY OPINIONS

The phrase "judicial power" is a legal term of art. Indeed, it has been used identically in the Michigan constitutions of 1835,¹² 1850,¹³ 1908,¹⁴ and 1963.¹⁵ Because the phrase is a legal term of art, we are to construe the phrase in its "technical, legal sense" in order to give effect to the intent of the ratifiers of Const. 1963, art. 6, § 1, who understood the phrase to have a "peculiar and appropriate meaning in the law."¹⁶ This understanding can only be discerned by "delving into [the] body of case law" interpreting the phrase.¹⁷

An examination of the case law clearly indicates that the phrase "judicial power" does not have the all-encompassing scope that Justice Markman's statement accords it. Instead, the phrase has a much more limited meaning. One such fundamental definitional limitation of judicial authority is that any opinion issued by a Michigan court must be binding. Justice Campbell explained this essential point in 1867 in the case of Underwood v. McDuffee:

The judicial power, even when used in its widest and least accurate sense, involves the power to "hear and determine" the matters to be disposed of; and this can only be done by some order or judgment which needs no additional sanction to entitle it to be enforced. No action which is merely preparatory to an order or judgment to be rendered by some different body, can be properly termed judicial.[¹⁸]

This Court wholly endorsed Underwood and the binding nature of "judicial power" in the 1884 case of Risser v. Hoyt,¹⁹ in which Justice Champlin stated:

[T]he exercise of judicial power in its strict legal sense can be conferred only upon courts named in the Constitution. The judicial power referred to is the authority to hear and decide controversies, and to make binding orders and judgments respecting them.[²⁰]

In fact, just four years before the 1963 Constitution was ratified, this Court again endorsed the Underwood/Risser definition of `judicial power' in the 1959 case of Johnson v. Kramer Bros. Freight Lines, Inc.²¹

It is clear, therefore, that the ratifiers of the 1963 Constitution understood the phrase to be a legal term of art with a very precise meaning—a meaning that had been consistently construed in the case law for approximately one hundred years before the ratification of Const. 1963, art. 6, § 1. Indeed, writing for the Court in Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co,²² Justice Markman recently noted that the phrase "judicial power" was "well understood by scholars, lawyers, judges, and even laymen" at the time of the 1961 constitutional convention.²³

Moreover, in 2001, Chief Justice Taylor, writing for the Court in Lee v. Macomb Co. Bd. of Comm'rs,²⁴ specifically relied on the Risser Court's definition of "judicial power."²⁵ Additionally, just last term in Nat'l Wildlife, Justice Markman aptly noted that "the `judicial power' has traditionally been defined by a combination of considerations," including "the ability to issue proper forms of effective relief...."²⁶

It is undeniable, therefore, that the proper exercise of "judicial power" by this Court must involve a decision that is binding and not merely advisory. A nonbinding decision issued by this Court would be an unconstitutional exercise of power. Justice Markman wisely pointed out in Nat'l Wildlife that, "`judicial power' is a matter of considerable constitutional significance"<sup>27</sup> and that this Court must refrain from "transforming the `judicial power' from a concept of constitutional stature into a mere prudential concept...."²⁸

III. THIS COURT HAS NO POWER TO ENFORCE ANY DECISION IT MAKES ON THE ISSUES CERTIFIED

In the present case, our answers to the Sixth Circuit's certified questions would not have been binding in any way. Such a nonbinding, advisory opinion would have been inconsistent with the "judicial power" granted to this Court by the people of this state and, therefore, an unconstitutional exercise of our power.²⁹ Indeed, no certified question from a court of another jurisdiction could ever pass constitutional muster because this Court would lack authority to force the other jurisdiction to follow our decision. We have absolutely no authority to force a federal court, sister state court, or tribal court to adopt our answer to a certified question.³⁰

In his statement, Justice Markman attempts to overcome this constitutional impediment to the certified question process by asserting that this Court's answers to the certified questions "will be relied upon" by the Sixth Circuit.³¹ While I tend to agree with Justice Markman that it is entirely likely that the Sixth Circuit would have relied on our answers to the certified questions, this is beside the point. The point is not whether the Sixth Circuit would or would not have relied on our answer, but rather that we could not have compelled the Sixth Circuit to rely on our decision. Because we would have no enforcement power, our decision necessarily would have been advisory and nonbinding and therefore not a proper exercise of "judicial power" in the constitutional sense. Even Justice Markman conceded in Nat'l Wildlife that an "advisory opinion" issued by this Court is "potentially beyond the traditional `judicial power.'"³² I agree with his position in Nat'l Wildlife rather than his statement here.

I am also not persuaded by Justice Markman's assertion in his statement that the certified question process is constitutional because "the Michigan Legislature since at least 1963 has statutorily affirmed the jurisdiction of this Court over `any case brought before it for review in accordance with the court rules promulgated by the supreme court, including presumably MCR 7.305(B), MCL 600.215."³³ To...