Order Michigan Supreme Court
Lansing, Michigan
May 21, 2010 Marilyn Kelly,
Chief Justice
139960 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
KIMBERLY IDALSKI, Stephen J. Markman
Plaintiff-Appellant, Diane M. Hathaway,
Justices
v SC: 139960
COA: 287279
Livingston CC: 07-022684-NI
DAVID ALLEN SCHWEDT,
Defendant,
and
STATE FARM MUTUAL INSURANCE
COMPANY,
Defendant-Appellee.
_________________________________________/
On order of the Court, the application for leave to appeal the September 29, 2009
judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral
argument on whether to grant the application or take other peremptory action. MCR
7.302(H)(1). At oral argument, the parties shall address whether Rory v Continental Ins
Co, 473 Mich 457 (2005), should be reconsidered. They may file supplemental briefs
within 42 days of the date of this order, but they should not submit mere restatements of
their application papers.
KELLY, C.J. (concurring).
I agree with the order granting oral argument on whether to grant the application
or take other peremptory action in this case. I write merely to point out that once again
Justice YOUNG inaccurately characterizes recent decisions of this Court as overturning
binding precedent and as representing a retreat from the doctrine of stare decisis.1 In
addition, he quotes a statement I made over two years ago and applies it in an altogether
1
See, e.g., Colaianni v Stuart Frankel Development Corp, 485 Mich 1070 (2010); See
also, Scott v State Farm Mutual Auto Ins Co, 483 Mich 1032, 1035 (2009) (KELLY, C.J.,
concurring) (undertaking a case-by-case analysis to refute the dissent’s accusation that
this Court was ignoring precedent).
2
different context to incorrectly divine my motivation in voting to enter the order in this
case.
YOUNG, J. (dissenting).
I respectfully dissent from the order granting oral argument in this case and
instead would deny leave to appeal. The order directs the parties to discuss whether Rory
v Continental Ins Co2 should be reconsidered. I believe it was correctly decided. While
it is certainly the prerogative of the Court to reconsider this case, this order is another
instance where the majority seems to retreat from its previously stated fidelity to stare
decisis.3
2
473 Mich 457 (2005).
3
See, e.g., Pohutski v City of Allen Park, 465 Mich 675, 712; 641 NW2d 219 (2002)
(KELLY, J., dissenting) (“[I]f each successive Court, believing its reading is correct and
past readings wrong, rejects precedent, then the law will fluctuate from year to year,
rendering our jurisprudence dangerously unstable.”); People v Hawkins, 468 Mich 488,
517-518; 668 NW2d 602 (2003) (CAVANAGH, J., dissenting) (“We have overruled our
precedents when the intervening development of the law has ‘removed or weakened the
conceptual underpinnings from the prior decision, or where the later law has rendered the
decision irreconcilable with competing legal doctrines or policies.’ . . . Absent those
changes or compelling evidence bearing on Congress’ original intent . . . our system
demands that we adhere to our prior interpretations of statutes.”), quoting Patterson v
McLean Credit Union, 491 US 164, 173; 109 S Ct 2363; 105 L Ed 2d 132 (1989) and
Neal v United States, 516 US 284, 295; 116 S Ct 763; 133 L Ed 2d 709 (1996); Rowland
v Washtenaw Co Rd Comm, 477 Mich 197, 278; 731 NW2d 41 (2007) (CAVANAGH, J.,
dissenting) (‘“Under the doctrine of stare decisis, principles of law deliberately examined
and decided by a court of competent jurisdiction become precedent which should not be
lightly departed.’”), quoting People v Jamieson, 436 Mich 61, 79; 461 NW2d 884 (1990);
Devillers v Auto Club Ins Ass’n, 473 Mich 562, 622; 702 NW2d 539 (2005) (WEAVER, J.,
dissenting) (“Correction for correction’s sake does not make sense. The case has not
been made why the Court should not adhere to the doctrine of stare decisis in this case.”);
Todd C. Berg, Hathaway attacks, Michigan Lawyers Weekly, October 27, 2008
(“‘People need to know what the law is,’ Hathaway said. ‘I believe in stare decisis.
Something must be drastically wrong for the court to overrule.’”); Lawyers' election
guide: Judge Diane Marie Hathaway, Michigan Lawyers Weekly, October 30, 2006, in
which Justice HATHAWAY, then running for a position on the Court of Appeals, was
quoted as saying: “[t]oo many appellate decisions are being decided by judicial activists
who are overturning precedent.”
3
Since the shift in the Court’s philosophical majority in January 2009, the majority
has pointedly sought out precedents only recently decided4 and has failed to give effect to
other recent precedents of this Court.5 I can only assume that the majority is making
good on our Chief Justice’s pledge she made shortly after the 2008 election that caused a
shift in the Court’s philosophical majority:
4
See, e.g., University of Michigan Regents v Titan Ins Co, 484 Mich 852 (2009)
(directing the parties to consider whether Cameron v ACIA, 476 Mich 55 (2006), was
correctly decided); McCormick v Carrier, 485 Mich 851 (2009) (granting leave to
consider the plaintiff’s request to overrule Kreiner v Fischer, 471 Mich 109 (2004));
Lenawee Co Bd of Rd Comm’rs v State Auto Prop & Cas Ins Co, 485 Mich 853 (2009)
(directing the parties to consider whether Miller v Chapman Contracting, 477 Mich 102
(2007), was correctly decided); Edry v Adelman, 485 Mich 901 (2009) (directing the
parties to consider whether Wickens v Oakwood Healthcare Sys, 465 Mich 53 (2001),
was correctly decided); Hoover v Michigan Mut Ins Co, 485 Mich 881 (2009) (directing
the parties to consider whether Griffith v State Farm Mut Automobile Ins Co, 472 Mich
521 (2005), was correctly decided); Lansing Schools Education Ass’n v Lansing Bd of
Ed, 485 Mich 962 (2009) (directing the parties to consider whether Lee v Macomb Co Bd
of Comm’rs, 464 Mich 726 (2001), was correctly decided); Anglers of the AuSable v
Dep’t of Environmental Quality, 485 Mich 1063 (2010) (directing the parties to consider
whether Michigan Citizens v Nestlé Waters, 479 Mich 280 (2007), and Preserve the
Dunes v DEQ, 471 Mich 511 (2004), were correctly decided); Colaianni v Stuart Frankel
Development Corp, 485 Mich 1066 (2010) (granting to consider whether Trentadue v
Buckler Automatic Lawn Sprinkler, 479 Mich 378 (2007), was correctly decided).
5
See, e.g., Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009), where the
majority failed to follow Boodt v Borgess Med Ctr, 481 Mich 558 (2008); Sazima v
Shepherd Bar & Restaurant, 483 Mich 924 (2009), where it failed to follow Chrysler v
Blue Arrow Transport Lines, 295 Mich 606 (1940), and Camburn v Northwest School
Dist, 459 Mich 471 (1999); Vanslembrouck v Halperin, 483 Mich 965 (2009), where it
failed to follow Vega v Lakeland Hosps, 479 Mich 243, 244 (2007); Juarez v Holbrook,
483 Mich 970 (2009), where it failed to follow Smith v Khouri, 481 Mich 519 (2008);
Beasley v Michigan, 483 Mich 1025 (2009), Chambers v Wayne Co Airport Auth, 483
Mich 1081 (2009), and Ward v Michigan State Univ, 485 Mich 917 (2009) (Docket No.
138380, order entered October 23, 2009), where it failed to follow Rowland v Washtenaw
Co Rd Comm, 477 Mich 197 (2007); Scott v State Farm Automobile Ins Co, 483 Mich
1032 (2009), where it failed to follow Thornton v Allstate Ins Co, 425 Mich 643 (1986),
and Putkamer v Transamerica Ins Corp of America, 454 Mich 626 (1997)); and Esselman
v Garden City Hospital, ___ Mich ___ (2010) (Docket No. 139273, order entered April
23, 2010).
4
We the new majority will get the ship off the shoals and back on
course, and we will undo a great deal of the damage that the Republican-
dominated court has done. Not only will we not neglect our duties, we will
not sleep on the bench.[6]
Today, the Court again orders reconsideration of a case that was decided just five years
ago. Nothing in the law of this State or the rationale of that decision has changed in this
short time. Accordingly, as I have in other similar orders,7 I respectfully dissent from this
order.
CORRIGAN, J., joins the statement of YOUNG, J.
6
She Said, Detroit Free Press, December 10, 2008.
7
See, e.g., University of Michigan Regents, supra, 484 Mich at 853; Lenawee Co Bd of
Rd Comm’rs, supra, 485 Mich at 855; Hoover, supra, 485 Mich at 882; Lansing Schools
Education Ass’n, supra, 485 Mich at 963; Anglers, supra, 485 Mich at 1063; Colaianni,
supra, 485 Mich at 1066.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 21, 2010 _________________________________________
p0518 Clerk