Bankey v. Storer Broadcasting Co.

Boyle, J.

(concurring). The district court found as a matter of law that an enforceable obligation of discharge for cause was created by the 1980 Personnel Policy Digest. The certified question posits that enforceable obligations arose "outside the operation of normal contract principles.” Ante, pp 447-448.1 agree, therefore, that contract theory is not appropriate in this situation. The certified question, which asks only whether in these circumstances a discharge-for-cause policy may be unilaterally changed to an employment-at-will policy, should be answered "yes.” Since the pure legitimate expectations leg of Toussaint was founded on the Court’s common-law authority to recognize the enforceability of obligations that were not contractual, I agree that the Court may now require that reasonable notice be uniformly given to affected employees.

Archer, J., concurred with Boyle, J.

Levin, J. (separate opinion). I am in substantial agreement with the conclusion and the views stated in the majority opinion. I write separately to express the basis of my agreement and to express concerns relating to certified questions.

i

Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579, 599, 613-615, 619; 292 NW2d 880 (1980), protects "legitimate expectations [of an employee] grounded in his employer’s written policy statements.” An employee could not legiti*459mately expect that there will be no change in policy statements.1

Although an employer may change the policies stated in an employee manual2—including a discharge-for-cause policy—the employer may do so in respect to an employee who worked under the discharge-for-cause policy only to the extent the change does not defeat the legitimate expectations of such an employee.

An employee who worked for a significant period of time under a discharge-for-cause policy before the change in policy to one of employment at will *460and is terminated without cause after the change might be entitled to some relief or remedy in respect to legitimate expectations of job security that arose during his employment under the discharge-for-cause policy.3

If the court4 determines that legitimate expectations of job security arose before the change in policy from discharge for cause to termination at will, the court should provide a remedy. The question what relief or remedy may be awarded an employee who worked under a discharge-for-cause policy in consequence of a change from discharge *461for cause to termination at will has not been briefed or argued and hence cannot be decided.5 The resolution of that question depends on the facts and circumstances of particular cases.

It has been suggested that the certified question sought an answer to the question whether a change in policy from just cause to termination at will could be made without consequence to the employer and therefore we should answer either yes or no and not "it depends.”

Putting aside that the majority, in requiring reasonable notice of a change of policy, has not responded simply yes or no, and has apparently thereby indicated that there may be a consequence to an employer who failed to give reasonable notice of a change in policy, it is not unusual for litigants to take extreme positions or for a court to find a resolution somewhere between the extremes. If a resolution somewhere between the extremes is the correct judicial response, it is no less correct because, before studying the question and putting pen to paper, we may have been under the impression that we could respond with a simple yes or no.

ii

Although Bankey’s action against Storer Broadcasting has been tried to a jury verdict for Bankey, we may not, in responding to the certified question, stated as purely one of law, consider the record on appeal to the United States Court of Appeals for the Sixth Circuit. Nor will our response to the certified question decide Bankey v Storer Broadcasting Co. The United States Court of Appeals for the Sixth Circuit or the United States District Court, on remand, will decide the *462meaning and effect to be given our response in light of the record made in the district court.

The question presented is not purely one of law. The statement in the majority opinion that "reasonable notice of [a] change must be uniformly given to affected employees”6 introduces a factual component and evokes the legitimate expectations of employees who worked under the just-cause policy.

We have been greatly hampered in responding to the certified question by the abstract form of the question and the absence of the options an appellate court generally has both in the development of the law and the disposition of an appeal when the entire record is before the appellate court. The common-law tradition is to develop the law case by case with reference to the particular facts of the case.

iii

This Court has not been asked to consider whether MCR 7.305(B), concerning certified questions from a federal court, is consistent with constitutional limitations on the authority of the Court. It appears there is a substantial question whether the Court has jurisdiction to respond to the certified question in this case. Since that question concerns the subject matter jurisdiction of the Court, we are obliged to notice and consider it, although it has not occurred to us before to question our jurisdiction to respond to a certified question and the parties have not raised or briefed the question.7

In 1976, this Court amended the court rules to *463establish a procedure whereby it could respond to "a question that Michigan law may resolve” propounded by a federal court or a state appellate court.8 The rule provides that the certifying court shall provide this Court with a certificate containing "a factual statement” and "the question to be answered.” The rule does not in terms require that the response to the certified question be determinative of the controversy, and, indeed, in the instant case it will not be. It is again relevant that the United States Court of Appeals or the United States District Court, on remand, will decide the meaning and effect to be given this Court’s response in light of the record made in the district court.

The constitution provides that "[t]he judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction” established by the Legislature.9 (Emphasis added.) It is further provided that "the supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court.”10 (Emphasis added.)

Clearly, in responding to a certified question, this Court would not be exercising its power of “general superintending control over all courts.” The constitution does not confer any authority on this Court to exercise superintending control over federal courts.

Nor would the Court be exercising its power to *464issue, hear and determine prerogative and remedial writs. No order, judgment or writ has ever been issued or could ever be issued on the basis of a response to a certified question.

In Holden v NL Industries, Inc, 629 P2d 428, 431 (Utah, 1981), the Supreme Court of Utah held that its "appellate jurisdiction” did not include responding to a certified question because "[appellate jurisdiction is that power and jurisdiction to review and correct those proceedings of inferior courts . . . .” The court said that this was the widely accepted meaning of the term appellate jurisdiction.11

*465The Supreme Judicial Court of Maine, in sustaining the constitutionality of a statute providing a certification procedure, considered a number of decisions of this Court including two concerning the constitutionality of statutory procedures providing for declaratory judgments, and concluded that a response to a certified question would "be in the nature of a declaratory judgment” and within the "judicial power” if the response was "determh native of the cause.” The Court concluded that its response would not be so determinative in the case presented:

If we are to participate and yet not render purely advisory opinions, we think it will be incumbent upon us to respond to questions only when it is apparent from the certification itself that all material facts have been either agreed upon or found by the court and that the case is in such posture in all respects that our decision as to the applicable Maine law will in truth and in fact be "determinative of the cause” as the statute conferring jurisdiction upon us requires. Such is not the case here.[12] [Emphasis added.]

*466MCR 7.305(B) does not, in contrast with the Maine statute, require that the response to the certified question "be determinative of the cause.”13 The Maine court referred approvingly to this Court’s decision in Daniels v People, 6 Mich 381, 388 (1859), where this Court said: "By the judicial power of courts is generally understood the power to hear and determine controversies between adverse parties, and questions in litigation” (emphasis added), and to this Court’s decision in Underwood v McDuffee, 15 Mich 361, 368 (1867), where this Court said: "It is the inherent authority not only to decide, but to make binding orders or judgments, which constitutes judicial power” (emphasis added), and to Anway v Grand Rapids R Co, 211 Mich 592, 603, 622; 179 NW 350 (1920), where, in holding unconstitutional an act of the Legislature providing for a declaration of rights, the Court, in a lengthy opinion, observed that the power "to enter a ñnal judgment and enforce such judgment by process, [is] an essential element of the judicial power” and that it had consistently declined to decide abstract questions of law "where our conclusions could not be made effective by final judgment, decree, and process” (emphasis added), and to Washington-Detroit Theatre Co v Moore, 249 Mich 673, 680-682; 229 NW 618 (1930), where in upholding the constitutionality of the amended declaratory judgment law, this Court declared:

When an actual controversy exists between par*467ties, it is submitted in formal proceedings to a court, the decision of the court is binding upon the parties and their privies and is res adjudicata of the issue in any other proceeding in court in which it may be involved, what else can the decision be but the exercise of judicial power?
Whether consequential relief be granted upon the original or a subsequent petition, and whether an order of enforcement be had of course or on application, go merely to the practice, not to the power of the court.
So the court has the authority to grant the relief necessary to end the controversy and to enforce its judgment by appropriate means where compulsion is necessary, it would seem sufficient. No reasonable test of judicial power can demand that the judgment must carry unwarranted or unnecessary relief or process of enforcement. [Emphasis added.]

In the instant case, the response to the certified question will not determine the controversy. No binding order or judgment will be entered. The response will not be made effective by a final judgment, decree or process of this Court. No decision of this Court that will be binding on the parties or that will be res judicata of an issue will be entered by the Court. The response does not end the controversy, and this Court has no way of enforcing its response to the certified question by appropriate means.

The certified question does not ask, nor does the response of the majority state, whether the judgment of the trial court shall be affirmed or reversed. The application of the response to the certified question in Bankey v Storer Broadcasting Co is, again, left to the judgment of the United *468States Court of Appeals or the United States District Court on remand.14

It might be possible to develop a procedure akin to a declaratory judgment whereby this Court’s response is determinative of the cause. But there would still be the problem, unless the federal court were to relinquish15 and this Court assume jurisdiction, that this Court could not, as in the case of a declaratory judgment, enforce its determination by issuing an order or judgment which this Court said, in sustaining in Washington-Detroit Theatre Co the declaratory judgment procedure, was an essential ingredient of the exercise of judicial power.16

It appears that because the response to the certified question in the instant case would not be determinative of the cause or controversy and, even if it were, the response cannot be enforced through an order or judgment of this Court, that the response to this certified question is not the exercise of judicial power but closer to an advisory opinion.

The 1908 Constitution did not authorize this Court to issue advisory opinions. The 1963 Constitution authorizes the Court to provide the Legislature or the Governor with an advisory opinion. *469This provision was recommended to the Constitutional Convention by Chief Judge Robert Danhof, as Chairman to the Committee on Judicial Branch, who said that the provision was "recommended for the purpose of empowering the supreme court to furnish advisory opinions to the governor and each house of the legislature on important questions of law and solemn occasions.” 1 Official Record, Constitutional Convention 1961, p 1480.17 (Emphasis added.)

Advisory opinions are not precedentially binding under the doctrine of stare decisis.18

The Court indeed has the power under the constitution to prescribe rules respecting practice and procedure,19 but it cannot expand the "judicial power” beyond its rightful scope in the guise of a rule prescribing practice and procedure.20

*470It was observed by Justice Frankfurter before he became ah advocate of the certified question procedure as a panacea to the increasingly unworkable abstention doctrine:21

Advisory opinions are rendered upon sterilized and mutilated issues.
It must be remembered that advisory opinions are not merely advisory opinions. They are ghosts that slay. [Frankfurter, A note on advisory opinions, 37 Harv LR 1002, 1006, 1008 (1924).]

I acknowledge that this Court has responded to a number of certified questions22 and that I have participated therein without recognizing the problems adverted to today.23

*471It is nevertheless apparent that the certification question rule, MCR 7.305(B), and policy is in need of further consideration by this Court.24

The United States Supreme Court has not recommended the adoption of a procedure that would permit state courts to certify questions of federal law to a federal court, and is unlikely to bend the United States Constitution to permit a federal court to respond to a certified question.25 Nor may this state’s constitution be bent to achieve comity26 or to accommodate the federal courts27 however much we might, if it were a personal matter, be desirous of doing so._

Toussaint does not require that personnel policies and practices remain static. Employers have a legitimate expectation that they will be able to prospectively alter employment policies to respond to changes in the economy or to implement new business strategies. The principal and overriding concept of Toussaint is that an employer cannot act to defeat an employee’s legitimate expectations arising from the employer’s statements of policy. Id., 599.

The provisions of an employee manual may not, in a particular case, be terms of the employment contract, whether bilateral or unilateral. In Bullock v Automobile Club of Michigan, 146 Mich App 711; 381 NW2d 793 (1985), the Court of Appeals affirmed the decision of the circuit judge denying summary disposition for aaa because it was for the trier of fact to decide whether the provisions of the manual relied on by aaa were consistent with the terms of the offer and acceptance and a part of Bullock’s employment contract.

Where the employment contract arises from the terms of a policy statement set forth in a manual, the terms of the employment contract will change as the terms of the policy manual are changed, subject to the legitimate expectations of a particular employee grounded in a policy statement under which he worked. Where there is no express contract and the employee relies on a manual stating a policy that employees will have a job as long as they do the job, then the contract obtains, subject to legitimate expectations, only as long as the employer has such a policy or until he changes it. The principle of promissory estoppel may be applicable where an employee, in reliance on a policy statement, leaves or refuses other employment.

Where, however, the employment contract arises not from statements in a policy manual but from an express contract or representation, a change in policy cannot change the contract because the contract is not based on a policy statement but on express agreement or a representation. If an employee accepts an offer of employment as long as the employee does the job, the contract is that he will be employed as long as he does the job because the contract arose out of an express agreement.

Requiring that "reasonable notice of [a] change [revoking a discharge-for-cause policy] must be uniformly given to affected employees” (ante, p 457) protects legitimate expectations of employees who worked under a just-cause policy, but, depending on how the "reasonable notice” concept is applied, may do so inadequately in particular cases.

Since the notice is to be given "uniformly,” it may be contended that a middle-aged employee who worked for twenty years under the discharge-for-cause policy is entitled to no more notice than a young entry-level employee who has worked for one month before the change in policy.

The purpose to be served by providing notice is unclear. Most employees to whom job security may be important do not have the desire, mobility or ability to conduct a search for a discharge-for-cause employer during even a generous "reasonable notice” time span, especially if the employee does not expect that the employer may be considering discharging the employee after the "reasonable notice” expires.

Although an employer is not required to adopt a discharge-for-cause policy and has the right to change such a policy whether or not he reserved the right to do so, if he has adopted such a policy, he has promised more to employees who served under the discharge-for-cause policy than reasonable notice of a change in policy. The legitimate expectations of particular employees grounded in the discharge-for-cause policy may require some other relief or remedy.

The preliminary and central question of what the terms of the employment contract in fact are is clearly a question for the trier of fact, a jury where one has been requested. Contract interpretation may present a question of law. Once the trier of fact has determined what are the terms of the employment contract, the separate question of what legitimate employee expectations were generated by employer policy statements found to be a part of the contract is a question of law for the Court. [Bullock, supra, p 507. (Opinion of Levin, J.)]

Cf. Allen v Duffie, 43 Mich 1; 4 NW 427 (1880).

Ante, p 457.

It would be better to refrain from expressing views before such briefing. It requires, however, a majority to ask for additional briefing.

397 Mich lxxix (1976), adopting GCR 1963, 797, now MCR 7.305(B).

Const 1963, art 6, § 1.

Const 1963, art 6, § 4.

The Supreme Court of Utah said:

This Court has never defined the term “appellate jurisdiction” as it is used in Article VIII, Section 4 of the Utah Constitution, but there are ample authorities defining the term as used in other constitutions. In two cases concerning its jurisdiction to issue a writ of habeas corpus, the United States Supreme Court defined "appellate jurisdiction” as "the revision of a decision of an inferior court.” Ex parte Bollman [8 US] (4 Cranch) 75, 101; 2 L Ed 554 (1807) (Marshall, C.J.); Ex parte Watkins [32 US] (7 Pet) 568, 573; 8 L Ed 786 (1833) (Story, J). Interpreting its constitution, the Oklahoma Supreme Court stated: "Appellate jurisdiction is that power and jurisdiction to review and correct those proceedings of inferior courts . . . .” Other state courts have made nearly identical comments concerning the meaning of "appellate jurisdiction” in their constitutions.
"Appellate jurisdiction” obviously connotes review of the action of an inferior court. "Inferior court” has been appropriately defined as "any court subordinate to the chief appellate tribunal in the particular judicial system.” Federal courts are not "inferior courts” to this Court. Consequently, this Court’s answer to a certified question in a case that originated in or is to be adjudicated in a federal court is not an exercise of "appellate jurisdiction” within the meaning of the Utah Constitution. [Emphasis in original.]

To be sure the Supreme Court of Utah, in distinguishing the decisions of other courts recognizing a power to respond to a certified question, observed that its constitution granted it "appellate jurisdiction only,” while the constitutions of the other states did not include the limiting "only.” The Constitution of 1908, in describing the jurisdiction of this Court, after referring to the power of general *465superintending control and to issue writs of various kinds stated, "[i]n all other cases it shall have appellate jurisdiction only.” Const 1908, art 7, §4. The omission of the word "only” might be regarded as significant if the Legislature had passed a statute, as have some state legislatures, authorizing this Court to respond to certified questions. It is not questionable, however, whether the Michigan Legislature could constitutionally enact such legislation, since the Michigan Constitution provides that this Court shall have "appellate jurisdiction as provided by rules of the supreme court.” (Emphasis added.)

The question thus remains: What is meant by "appellate jurisdiction?” It appears rather clear that appellate jurisdiction does not include responding to a certified question, because in responding to a certified question, the Court is not reviewing, revising, or correcting the proceedings or decisions of an inferior court.

In re Richards, 223 A2d 827, 833 (Me, 1966).

In subsequent cases, the Supreme Judicial Court of Maine stated that “ '[djeterminative of the cause’ encompasses any disposition by which the Federal controversy is terminated.” Hiram Ricker & Sons v Students Int’l Meditation Society, 342 A2d 262, 264 (Me, 1975) (emphasis in original); White v Edgar, 320 A2d 668 (Me, 1974).

The Uniform Certification of Questions of Law Act speaks, in § 1, of "questions of law of this state which may be determinative of the cause then pending in the certifying court . . . .” 12 ULA 52. It appears that by rule or statute a majority of the states have adopted this formulation. 12 ULA, 1989 Cumulative Annual Pocket Part, p 18.

See Hayburn’s Case, 2 US (2 Dall) 409; 1 L Ed 436 (1792); Chicago & Southern Air Lines v Waterman SS Corp, 333 US 103, 113-114; 68 S Ct 431; 92 L Ed 568 (1948), declining to adjudicate where the "decision” would be subject to revision or review by the executive. There the conflict respecting the nature of judicial power arose out of the doctrine of separation of powers, here it arises out of federalism.

The United States Supreme Court approved a declaratory judgment procedure where the case was "finally determined by the judgment below.” (Emphasis added.) Nashville, C & S L R Co v Wallace, 288 US 249, 264; 53 S Ct 345; 77 L Ed 730 (1933).

Generally the parties are in federal court because that is where one or both of them want and have a right to be. See Meredith v Winter Haven, 320 US 228, 236-238; 64 S Ct 7; 88 L Ed 9 (1943). There may be irreconcilable conflict between their rights, limitations inherent in a federal system and the nature of judicial power.

See n 14.

By amendment this was limited to the constitutionality of Legislature.

Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date. [Const 1963, art 3, § 8.]

Advisory Opinion on Constitutionality of 1975 PA 227, 396 Mich 465; 242 NW2d 3 (1976); Cassidy v McGovern, 415 Mich 483; 330 NW2d 22 (1982), "modified” on other grounds DiFranco v Pickard, 427 Mich 32, 58; 398 NW2d 896 (1986).

The concept that an opinion without an order adjudicating a controversy is not precedentially binding has been recognized in the decisions of this Court and of other courts stating that an advisory opinion is not precedentially binding. "[T]he court does not act as a court in rendering such opinions”; "such opinions are regarded as expressing the views of the justices and not a judicial determination of the questions by the court.” Anway v Grand Rapids R Co, 211 Mich 592, 603; 179 NW 350 (1920). [Riley v Northland Geriatric Center, 425 Mich 668, 686; 391 NW2d 331 (1986) (opinion of Levin, J.).]

Const 1963, art 6, § 5.

The Supreme Court of Florida said, in conclusory terms, that the *470Florida rule, restating a Florida statute, was a "valid exercise of our organic power” and spoke of "inherent power” but concluded that in responding to a certified question it was exercising the judicial power. Sun Ins Office, Ltd v Clay, 133 So 2d 735, 741-742 (Fla, 1961). (This was the seminal case on remand from a United States Court of Appeals at the suggestion of the United States Supreme Court in Clay v Sun Ins Office, Ltd, 363 US 207, 212; 80 S Ct 1222; 4 L Ed 2d 1170 [1960].)

The Constitution confers on this Court the judicial power, not organic or inherent power. No organic or inherent power, not within the scope of the judicial power, may rightfully be exercised by any court consistent with the Constitution.

17A Wright, Miller & Cooper, Federal Practice & Procedure (2d ed), § 4248, pp 158-160.

See Burton Drywall, Inc v Kaufman, 402 Mich 366; 263 NW2d 249 (1978); Mathis v Interstate Freight, 408 Mich 164; 289 NW2d 708 (1980); In re Certified Question (Air Products & Chemicals, Inc v J F Cavanaugh Co, Inc), 411 Mich 727; 311 NW2d 731 (1981); In re Certified Question (Ford Motor Co v Lumbermens Mutual Casualty Co), 413 Mich 22; 319 NW2d 320 (1982); In re Certified Question (Wickersham v John Hancock Mutual Life Ins Co), 413 Mich 57; 318 NW2d 456 (1982); In re Certified Questions (Karl v Bryant Air Conditioning Co), 416 Mich 558; 331 NW2d 456 (1982).

This is not the first time that we have had difficulty in responding to a certified question. See In re Certified Question (Jewell Theatre Corp v Oakland Co Prosecutor), 420 Mich 51; 359 NW2d 513 (1984), where this Court, after agreeing to respond, declined to answer the question certified; In re Certified Questions (Odgers v Ortho *471Pharmaceutical Corp), 419 Mich 686; 358 NW2d 873 (1984), where the Court responded that there was no rule of law in Michigan that would answer the questions and declined to decide the questions and to state a rule of law.

In other cases we have been able to do so. See In re Certified Question (Duffey v Foltz), 425 Mich 457; 390 NW2d 620 (1986).

See Boyter v Comm’r of Internal Revenue, 668 F2d 1382, 1385 (CA 4, 1981), where the court declined to certify a question.

The subject matter is extensively considered in 17A Wright, Miller & Cooper, Federal Practice & Procedure (2d ed), § 4248, pp 157-179.

See Committee of Federal Courts Analysis of state laws providing for certification by federal courts of determinative state issues of law, 42 The Record 101, 125 (1987), where the following conclusion is stated:

Because of the increasing availability of certification procedures, federal courts are likely to be faced more often with the question of whether to exercise their discretion to certify determinative, unsettled questions of state law. In the past, federal courts have chosen, and wisely we believe, to certify questions in relatively few cases. While the procedure can be useful in a rare case, we believe it would in most cases merely add to the time and expense of resolving disputes and frustrate litigants who are properly before the federal courts.

The United States Supreme Court has, however, approved and encouraged certification by federal courts to state courts Clay v Sun Ins Office, Ltd, n 20 supra; Lehman Bros v Schein, 416 US 386, 390-391; 94 S Ct 1741; 40 L Ed 2d 215 (1974); Elkins v Moreno, 435 US 647, 668; 98 S Ct 1338; 55 L Ed 2d 614 (1978).

See Sun Ins Office, Ltd v Clay, n 20 supra at 741.

Id.