Order Michigan Supreme Court
Lansing, Michigan
July 31, 2009 Marilyn Kelly,
Chief Justice
136905(43) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
UNIVERSITY OF MICHIGAN REGENTS and Diane M. Hathaway,
UNIVERSITY OF MICHIGAN HEALTH Justices
SYSTEM,
Plaintiffs-Appellants,
v SC: 136905
COA: 276710
Washtenaw CC: 06-000034-CK
TITAN INSURANCE COMPANY,
Defendant-Appellee.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s
November 26, 2008 order is considered, and it is GRANTED. We VACATE our order
dated November 26, 2008. On reconsideration, the application for leave to appeal the
June 5, 2008 judgment of the Court of Appeals is considered, and it is GRANTED. The
parties shall include among the issues to be briefed whether Liptow v State Farm Mutual
Automobile Insurance Co, 272 Mich App 544 (2006), lv den 478 Mich 853 (2007), and
Cameron v ACIA, 476 Mich 55 (2006), were correctly decided.
WEAVER, J. (concurring).
I concur fully in the order granting reconsideration and leave to appeal in this case.
I write separately to respond to the dissent’s statements regarding the decision to grant
reconsideration in this case.
The dissent erroneously asserts that the justices voting to grant reconsideration do
so improperly. The dissent cites Peoples v Evening News Ass’n, 51 Mich 11, 21 (1883),
for the proposition that this Court is precluded from granting rehearing or reconsideration
when the composition of the Court has changed, absent any new arguments from the
parties in the case. However, contrary to the dissent’s assertions, this Court merely stated
in Peoples that a change in the composition of this Court cannot be the basis for granting
rehearing or reconsideration.
2
As such, if the composition of the Court changes, and the composition becomes
such that a majority of the Court sees a reason to grant reconsideration, the majority is
not precluded from granting reconsideration. If, for instance, four justices on the newly
composed Court conclude that the challenged decision was erroneous, those justices can
vote to grant reconsideration. The same holds true whether the deciding vote is a new
justice who joined the Court after the challenged decision was released or whether the
deciding vote comes from a justice who voted for the challenged decision and changed
his or her mind after further consideration.
This practice is consistent with MCR 2.119(F)(3), which creates a “palpable error”
standard for rehearing and reconsidering cases. It is up to the moving party to show
palpable error that would lead to a different disposition in the case. If a majority of the
Court is convinced by the moving party, the Court has the discretion to grant rehearing or
reconsideration. Furthermore, while MCR 2.119(F)(3) states that a motion for
reconsideration generally will not be granted if the motion only presents the same issues
decided in the original disposition of the case, MCR 2.119(F)(3) explicitly refrains from
“restricting the discretion of the court” to grant reconsideration.
Accordingly, I concur in the order to grant reconsideration and leave to appeal.
YOUNG, J. (dissenting).
I dissent from the order granting plaintiffs’ motion for reconsideration in this case.
Since the 19th century, “this Court has adhered to the principle that a motion for
rehearing or reconsideration should be denied unless a party has raised an issue of fact or
law that was not previously considered but which may affect the outcome.”1 We codified
this judicial practice in MCR 2.119(F)(3):
Generally, and without restricting the discretion of the court, a
motion for rehearing or reconsideration which merely presents the same
issues ruled on by the court, either expressly or by reasonable implication,
will not be granted. The moving party must demonstrate a palpable error
by which the court and the parties have been misled and show that a
different disposition of the motion must result from correction of the error.
In this case, plaintiffs have not raised any new issues that may properly be
considered by this Court. Just as in their original application for leave to appeal,
plaintiffs contend that MCL 600.5821(4), which exempts the state and its political
subdivisions from the effect of statutes of limitations when seeking recovery of certain
1
United States Fidelity Ins & Guaranty Co v Michigan Catastrophic Claims Ass’n, 484
Mich ___ (2009) (USF&G) (Young, J., dissenting), slip op at 3, citing Nichols, Shepard
& Co v Marsh, 62 Mich 439, 440 (1886); Thompson v Jarvis, 40 Mich 526, 526 (1879).
3
costs, precludes the application of the no-fault act’s one-year-back rule, MCL
500.3145(1). Accordingly, plaintiffs continue to ask this Court to hold that Cameron v
Auto Club Ins Ass’n2 was wrongly decided and to overrule Liptow v State Farm Mut
Automobile Ins Co.3
The only new issue raised by plaintiffs in their motion for reconsideration is a
policy-based argument regarding the economic effect of the Court’s order given the
state’s current fiscal crisis. However, this Court is neither constitutionally permitted nor
institutionally equipped to conduct a cost-benefit analysis of statutes enacted by elected
legislators in the democratic political process.4 Were we to do so, we would cross the
line into the legislative sphere in violation of the separation of powers.5
The concurring statement of Justice Weaver mischaracterizes the error analysis of
MCR 2.119(F)(3). Under this rule, the Court may grant rehearing or reconsideration only
when there is “‘a palpable error by which the court and the parties have been misled.’”6
Plaintiffs have not raised any new legal arguments in their motion for reconsideration.
Rather, plaintiffs focus solely on the economic effect of the statutes, a policy-based
argument that cannot amount to palpable error. Plaintiffs have cited nothing more than
their disagreement with prior courts’ application of the plain language of the relevant
statutes, plain language which could not mislead either the parties or this Court.
There is one significant change since our November 26, 2008, denial of leave: the
composition of this Court. Justice Hathaway unseated former Chief Justice Taylor in the
2008 election and took office on January 1, 2009, thereby shifting the philosophical
balance on the Court. There is no palpable error, but there is a new philosophical
majority.
Over a century ago, the justices of this Court wisely realized that such a change is not a
proper ground for reconsideration.7 By circumventing this principle, the new
philosophical majority has sub silentio overruled that long venerated precedent.
2
476 Mich 55 (2006).
3
272 Mich App 544 (2006).
4
It is a well established principle that “policy decisions are properly left for the people’s
elected representatives in the Legislature.” Devillers v Auto Club Ins Ass’n, 473 Mich
562, 589 (2005).
5
Id. at 591.
6
See USF&G, supra at ___, slip op at 4 n 6 (Young, J., dissenting) (citation omitted).
7
Peoples v Evening News Ass’n, 51 Mich 11 (1883); see also USF&G, supra at ___, slip
op at 4 (Young, J., dissenting).
4
In the short time since the composition of this Court changed, those in the majority have
exhibited a lack of judicial restraint in acting upon prior orders and opinions of this Court
with which they disagree. They have taken this tack despite their prior professed beliefs
that the composition of the Court should not control its decisions.8 Indeed, then-Justice
Kelly, and Justices Cavanagh and Weaver all dissented from this Court’s prior order
denying leave to appeal in this case.9 Thus, this Court’s order granting reconsideration is
nothing more than the new majority seizing upon this motion to vindicate some of its
members’ dissents. The “judicial restraint” and principles lauded previously by members
of the new majority should not depend on the composition of the Court.
I respectfully dissent.
CORRIGAN, J., joins the statement of YOUNG, J.
8
See, e.g., Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 256 (2007) (Kelly, J.,
dissenting) (“What has changed in that decade to warrant a complete reversal in this law?
There is but one answer, the makeup of the Court. The law has not changed. Only the
individuals wearing the robes have changed.”); Paige v Sterling Hts, 476 Mich 495, 532-
533 (2006) (Cavanagh, J., dissenting) (“The only change has been the composition of this
Court. And unfortunately, this is the only reasonable answer to the question why a
decision from this Court decided just eight years earlier and involving the same issue is
now being overruled.”). See also USF&G, supra at ___, slip op at 5 (Young, J.,
dissenting), for further examples of the new majority’s prior inconsistent protestations.
9
University of Michigan Regents v Titan Ins Co, 482 Mich 1074 (2008).
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.
July 31, 2009 _________________________________________
0728 Clerk