Negri v. Slotkin

• Decision Date: 08 July 1976
• Docket Number: No. 18,18
• Citation: 244 N.W.2d 98,397 Mich. 105
• Parties: George B. NEGRI, III, Plaintiff-Appellant, v. Todd James SLOTKIN and Hugo Slotkin, Defendants-Appellees. 397 Mich. 105, 244 N.W.2d 98
• Court: Michigan Supreme Court

Page 98

244 N.W.2d 98

George B. NEGRI, III, Plaintiff-Appellant, v. Todd James SLOTKIN and Hugo Slotkin, Defendants-Appellees.

No. 18.

397 Mich. 105, 244 N.W.2d 98

Supreme Court of Michigan July 8, 1976.

Lopatin, Miller, Bindes & Freedman by Michael A. Gantz and Michael Gagleard, Detroit, for plaintiff-appellant.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by Jeannette A. Paskin, Charles A. Huckabay, Detroit, for defendants-appellees.

WILLIAMS, Justice.

Leave to appeal was granted in the instant proceeding to consider a single issue: whether a decision rendered by less than four justices who nevertheless constitute a majority of a legally constituted quorum is binding on the Court of Appeals and the trial courts. It is our opinion that the lower tribunals are bound by such a decision.

Plaintiff was injured while a guest passenger in an automobile driven by defendant Todd James Slotkin and owned by defendant Hugo Slotkin. An action was filed in Oakland Circuit Court. Despite plaintiff's objections at trial that the guest passenger act was unconstitutional, the matter was sent to the jury and a judgment of no cause of action was entered based on the trial court's submission of this cause to the jury on the unconstitutional guest passenger act's theory of gross negligence and wilful and wanton misconduct only.

The Court of Appeals initially held this matter in abeyance pending our decision in Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975). However, on October 31, 1975 the Court of Appeals denied plaintiff's motion for peremptory reversal reasoning that:

'this panel considers that the decision reached in Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975), is applicable as the law of that case only. See People v. Jackson, 390 Mich. 621, 627, 212 N.W.2d 918 (1973).'

We granted leave on March 29, 1976, 396 Mich. 844.

Section 211(3) of the Revised Judicature Act provides: '(a) majority of the justices shall constitute a quorum for hearing cases and transacting business.' ¹ Four justices constitute a quorum and a decision rendered by a majority of that quorum not only disposes of the case but is binding on the lower courts. Sullivan v. Scott, 164 Mich. 467, 468--469, 129 N.W. 864, 865 (1911) is instructive:

'This court was made a tribunal of eight justices by Act No. 250, Pub.Acts 1903. Previous to that time there were five, of whom three constituted a quorum (1 Comp.Laws, § 185), and two being a majority of the quorum their concurrence in an opinion was an adjudication. * * * By these provisions of the statute five now constitute a quorum, and when three of the five concur in an opinion it disposes of the case, and judgment may be entered upon the opinion although only three concur, and if no motion for rehearing be made it stands as valid as any judgment or decree. We have even held that four out of seven not only may make a valid judgment, but that it is Stare decisis. Dolph v. Norton, 158 Mich. 417, 123 N.W. 13.' ²

See also Commonwealth v. Mason, 456 Pa. 602, 322 A.2d 357, 358 (1974).

This Court has recently passed through an extended period of time during which the Court has, without a full complement of justices, presided over and disposed of many matters. While at present seven justices are sitting, there always exists the possibility of reductions through death or resignation or more temporary reductions through disqualifications in particular cases or illness in the future. Where we to hold that 3--2 or 3--1 decisions are not binding on the Court of Appeals and trial courts, the functioning of our judicial system would be adversely affected. Urgent matters would be held in limbo until such time as a majority of for justices could be mustered.

The United States Supreme Court's recent treatment of Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), is instructive. In Fuentes, a 4--3 decision authored by Justice Stewart, the majority struck down the replevin laws of two states because writs could be issued by a court clerk without notice to the debtor of opportunity for a hearing. Then in Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the Supreme Court upheld Louisiana's sequestration law. In Mitchell the Court sought to distinguish Fuentes. ³

Noteworthy in this context is that none of the justices at any time suggested that Fuentes was not a precedent of which lower courts must and the Supreme Court itself should take cognizance.

In denying plaintiff's motion for peremptory reversal, the Court of Appeals relied upon People v. Jackson, 390 Mich. 621, 212 N.W.2d 918 (1973). Its reliance was misplaced. In Jackson we considered the impact on this Court of a case in which a majority of the justices sitting failed to concur in the reasoning for the decision. ⁴ In Manistee Bank & Trust Co., a majority of the justices sitting Did concur in the reasoning.

Plurality decisions in which no majority of the justices participating agree as to the reasoning are not an authoritative interpretation binding on this Court under the doctrine of Stare decisis. See People v. Anderson, 389 Mich. 155, 170, 205 N.W.2d 461 (1973) and cases cited therein.

, We hold that a three-to-two decision of this Court such as that ireached in Manistee Bank & Trust Co. is binding on the Court of Appeals and the trial courts until overruled by a later decision of this Court, including, if that be the case, a later three-to-two decision of this Court. We limit our decision to the question before us, namely are lower courts bound by majority decisions of this Court of less than four justices. We, of course, answer that affirmatively.

The Court of Appeals and trial court are reversed and the matter is remanded for further action not inconsistent with this opinion.

T. G. KAVANAGH, C.J., and FITZGERALD, RYAN, LINDEMER and LEVIN, JJ., concur.

COLEMAN, Justice (dissent).

The doctrine of stare decisis was developed to bring about certainty, stability and predictability of the law. ¹ giving stare decisis effect to a decision signed by less than a majority of the whole Court defeats the purpose of the rule.

Whatever shade of difference there may be between 'stare decisis' and 'binding on the Court of Appeals and trial courts' is primarily one of semantics. We do not delude ourselves. The Supreme Court can change even long-established law with enough votes--and this fact goes to the heart of the problem. How many signatures are 'enough' to void, reverse or change the course of common law?

We can avoid vacillation and achieve optimum stability by giving precedential effect only to opinions with at least four signatures of this seven-person Court.

In Keenan v. Midland County, 377 Mich. 57, 61, 138 N.W.2d 759 (1966), when there were eight justices, Justice Souris discussed the early cases relied upon by the majority (Dolph v. Norton, 158 Mich. 417, 123 N.W. 13 (1909) and Scott v. Sullivan, 164 Mich. 467, 129 N.W. 864 (1911)). In his concurrence in result, he analyzed the cases differently to the end that they did not stand for the proposition that a vote of less than the majority of the Court constitutes stare decisis. He continued:

'Furthermore, the objectives sought to be achieved by the doctrine of stare decisis--stability of law and its concomitant predictability--are far more certain of achievement when a majority of the full Court commits itself to a statement of law binding on all other courts in the State and subject to change thereafter only upon further action by a majority of the full Court, by the people themselves by constitutional amendment, or, in some cases, by legislative action.'

Thus, the holdings of Dolph and Sullivan are subject to a different interpretation.

Further reinforcing the idea that the majority opinion in Dolph does not settle the question, several more recent cases have, without discussion of Dolph, reached an opposite conclusion. In In re Curzenski Estate, 384 Mich. 334, 183 N.W.2d 220 (1971), the majority (4 out of 7) opinion rejected an earlier case as precedent since the then eight-member Court ended in a 4--3 split with one member not sitting. A majority of five in an eight-member Court was mandated for precedent, not just a majority of the participants. 'No opinion of (In Re) Critchell, (Estate (1960), 361 Mich. 432, 105 N.W.2d 417) was endorsed by a majority of our then 8-man Court. The result was no precedent.' In re Curzenski Estate, supra, at 335 n. 1, 183 N.W.2d at 221.

Similarly, in Sommers v. Flint, 355 Mich. 655, 96 N.W.2d 119 (1959), the Court declined to follow an earlier case as stare decisis. The earlier case, Younglas v. Flint, 345 Mich. 576, 77 N.W.2d 84 (1956), tallied four for the Court's opinion, two for the dissent, one concurrence in result and one not participating. The Sommers Court noted:

'The views on this topic have been recently and carefully considered by this Court in the two opinions in Younglas. What has changed is not the reasoning of the members of the Court, but the composition of the Court itself. Younglas was decided too recently and by too close a margin to carry great weight under the doctrine of stare decisis. The majority of this Court as presently constituted feels that the modern and authoritative view on the constitutional questions presented is that of the minority opinion in Younglas which we hereby adopt and incorporate by reference.' (Emphasis added.)

My brothers contend that if 3--2 or 3--1 decisions are not treated as precedent then important questions will remain in limbo. This is not true. The question Is decided since the state of the law remains as before. Only the immediate parties are bound. This is no different from the situation of an evenly divided court, which affirms the result below, or the situation where a majority is achieved through concurrence, not signature. The status quo is maintained until a question...