Tebo v. Havlik

Ryan, J.

(concurring). One of the functions of an appellate court is to authoritatively declare the meaning of the language of legislative enactments. One, but only one, of the purposes of that function is to enable practicing lawyers to advise their clients with a reasonable degree of certainty and predictability as to action which may be taken by those clients in their daily personal and economic affairs. In the course of construing and interpreting countless statutes, this state’s appellate courts have repeatedly held that legislative language does not always mean what it seems plainly to say. Every judge and practicing lawyer of any experience knows that our courts have often told the bench and bar that the language of a legislative enactment means what the appellate courts say it means and not necessarily what the words used in the statute seem to mean.

Practicing law in such a jurisprudence involves very real risks. An appellate court may never be called upon to interpret a particular statute or, if asked, may receive the request only after years of "unauthoritative” interpretation and application by thousands of practicing lawyers who have been required to advise clients whether and how to proceed without the guidance of judicial interpretation of the statute in question. If the appellate court, when a request for construction of a statute is presented to it, construes the enactment in a way which is at odds with the reading theretofore given it by practicing lawyers, the latecoming judicial construction is nevertheless ordinarily accepted by all, including those who have "misperceived” the correct meaning of the statute, as the correct interpretation ab initio. The general rule is *370one of retroactivity. Such corrective judicial hindsight is understood and accepted by bench and bar as an ordinary risk indigenous to a profession in which service to a client rests largely upon the vicissitudes of analysis, scholarship, judgment, and prediction — the essence of the practice of law. Practicing lawyers live every day with the understanding that they may be reading a statute in a way with which an appellate court will subsequently disagree. They accept that risk.

However, when a Michigan appellate court does construe a statute and unequivocally declares what it means, the bench and bar are entitled, indeed obligated, to accept that construction as authoritative, and lawyers can be expected to render professional advice consistent with that interpretation in the confidence that the risk of misinterpretation of the statutory language has been lifted from their shoulders.1 While risk is ever present that a higher appellate court may disagree with an intermediate appellate court’s interpretation of the meaning of a statute, a lawyer and his client should not be expected to assume that that will happen. When it does happen, it is the higher court’s duty to determine whether the decisional error of the lower court, considered in the light of traditional doctrines of appellate review and notions of fundamental fairness, requires that the higher court decision be given retroactive, limited retroactive, or even only prospective effect. When, as in Buxton v Alexander, 69 Mich App 507; 245 NW2d 111 (1976), lv den 399 Mich 827 (1977), the Supreme Court, upon being asked to review the Court of Appeals construction of the statute, de*371dines the opportunity for corrective review, the bench and bar should be free to accept and act upon the intermediate court’s interpretation, no matter how aberrant, in the confidence that the rules of the game will not be later rewritten retroactively.

While nice scholarly distinctions may be made and unimpeachably sound jurisprudential hairsplitting undertaken in defense and application of the canons that intermediate appellate court decisions are always subject to modification and reversal by higher authority, and that Supreme Court denial of leave to appeal is nonprecedential and does not amount to affirmation of the lower court decision, the fact is that practicing lawyers must give advice here and now to real clients about real claims of pain and suffering and related damages, involving real dollars. For them and their clients, the truism that nothing an intermediate appellate court ever says is set in jurisprudential concrete is no help.

In Buxton, supra, the intermediate appellate level of Michigan’s one court of justice erroneously concluded that the name and retain provision of MCL 436.22; MSA 18.993 did not mean what it plainly and unequivocally said. Putney v Haskins, 414 Mich 181; 324 NW2d 729 (1982). In so holding, it misadvised and misled bench and bar. While this Codrt’s subsequent order denying the defendant’s interlocutory application for leave to appeal should not, in any sense, have been taken as an approval of the Court of Appeals decision,2 the only common-sense inference a practicing lawyer *372could have drawn was that Buxton was surely the law. The logic of that inference was repeatedly fortified when at least four other panels of the Court of Appeals3 followed Buxton’s patently erroneous holding, despite the fact that it was obviously at odds with the plain language of the statute. The result is that for six years, until this Court’s decision in Putney, supra, the clear, direct, and unequivocal mandate of the Legislature that the actually intoxicated person was to be "retained in the action” was disregarded. There is simply no way of knowing how many litigants, acting upon the understandable advice of judicially guided counsel, followed the rule of Buxton and its progeny, or how many millions of dollars in damages have been paid in partial settlement of dramshop cases, followed by litigation of the remaining claims, in disregard of MCL 436.22; MSA 18.993 and subsequently decided Putney.

The question now is whether to give Putney the retroactive effect traditional rules of appellate review dictate, or only the prospective application plaintiffs in these cases contend fairness requires. If we give Putney merely prospective effect, we compound the mischief done in Buxton by effectively suspending for six years an otherwise valid statute, and retroactively penalizing the litigants and their counsel who followed the letter of MCL 436.22; MSA 18.993, declining the opportunity to settle claims against the actually intoxicated person separately, often going to trial with its inherently uncertain and sometimes unjust results.4

*373If we give Putney retroactive effect, we vindicate the judgment of those attorneys and their clients who, despite judicial construction to the contrary, followed the letter of the statute, ignored the Court of Appeals decision in Buxton and its progeny and resisted the pressure to settle a portion of multiple dramshop claims separately. In following that course, however, we would unfairly penalize those who accepted the invitation of five panels of the Court of Appeals to ignore the plain language of the statute and settled a portion of a dramshop claim with the implied assurance that the balance of the claim could be safely litigated later. Included in that category are those countless lawyers and litigants who faced and succumbed to the "settlement juggernaut” to which my brother Levin refers, and which is indeed a part of the real-world practice of law in many circuits in this state. It is obvious, therefore, that the appellate judicial error of Buxton has created a dilemma from which there can be no extrication assuring absolute fairness to all.

Arguments abound for and against taking either course. The error which requires that we make a choice is judicially induced and on balance seems to call for whatever resolution minimizes the resultant injustice. It is enough that lawyers and their clients must run the risk and pay the price of erroneously anticipating judicial decisions interpreting the meaning of statutory language. They should not, at least in these cases, be penalized for following such decisions.

For those reasons, and those reasons only, I concur in the Court’s judgment for limited prospectivity of MCL 436.22; MSA 18.993.

I likewise concur in the Court’s disposition of the collateral-source rule issue.

People v Phillips, 416 Mich 63, 74; 330 NW2d 366 (1982); People v George, 399 Mich 638; 250 NW2d 491 (1977), explicate the niceties of the point at which an intermediate appellate court judgment is final, binding, and precedential.

Orders denying leave to appeal express no opinion on the merits of the case. Frishett v State Farm Mutual Automobile Ins Co, 378 Mich 733 (1966) (order); Great Lakes Realty Corp v Peters, 336 Mich 325, 328-329; 57 NW2d 901 (1953); Malooly v York Heating & Ventilating Corp, 270 Mich 240, 247; 258 NW 622 (1935).

See Cussans v Harris, 118 Mich App 567; 325 NW2d 793 (1982); Putney v Gibson, 94 Mich App 466; 289 NW2d 837 (1979), rev’d sub nom Putney v Haskins, supra; Rowan v Southland Corp, 90 Mich App 61; 282 NW2d 243 (1979); Denham v Bedford, 82 Mich App 107; 266 NW2d 682 (1978), aff'd 407 Mich 517; 287 NW2d 168 (1980).

Similarly disadvantaged are those who, in obedience to the statute, settled the claim against the actually intoxicated person and were thus forced to abandon any claim against the dramshop.