Petersen v. Magna Corp.

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

FILED JULY 31, 2009

RICK PETERSEN,

Plaintiff-Appellee,

v Nos. 136542, 136543

MAGNA CORPORATION and MIDWEST
EMPLOYERS CASUALTY COMPANY,

Defendants-Appellants.

and

KOLEASECO and THE ACCIDENT FUND
COMPANY; MAGNA CORPORATION and
TIG INSURANCE COMPANY; BCN
TRANSPORTATION SERVICES and TIG
INSURANCE COMPANY; KOLEASECO,
INCORPORATED and CITIZENS
INSURANCE COMPANY; BCN
TRANSPORTATION SERVICES; SERTA
RESTOKRAFT MATTRESS COMPANY,
INCORPORATED and HARLEYSVILLE
LAKE STATES INSURANCE COMPANY,

Defendants-Appellees.

BEFORE THE ENTIRE BENCH

KELLY, C.J.

We granted leave to appeal in this case to determine the parties against

whom attorney fees may be prorated under MCL 418.315(1). We conclude that
the term “prorate” in MCL 418.315(1) applies only to employers and their

insurance carriers. Accordingly, we affirm the judgment of the Court of Appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case involves a dispute over workers’ compensation benefits. Plaintiff

Rick Petersen began working for codefendant Koleasco, a trucking company, in

February 1997. In March 1997, Koleasco hired codefendant BCN Transportation

Services (BCN), a human resources “employee leasing” company, to administer

its employee benefits.

In November 1997, plaintiff was injured when he fell from a flatbed truck

while securing a load of Christmas trees. After the accident, he underwent surgery

on his right foot and applied for workers’ compensation benefits. The following

year, he required treatment for back pain, which his treating physician believed

was caused by the November 1977 fall.

Several questions were taken to a workers’ compensation magistrate: (1)

who was plaintiff’s employer at the time of his injury, BCN or Koleaseco? (2) was

Midwest the relevant insurer for workers’ compensation purposes? (3) was

plaintiff disabled? and (4) if so, which injury caused his disability? The magistrate

bifurcated these issues into two trials.

In the first trial, the magistrate ruled that plaintiff was a Koleaseco

employee on the date of his injury despite the fact that BCN paid his wages. Thus,

because BCN had stipulated that it was plaintiff’s employer, the magistrate ruled

that both BCN and Koleaseco were plaintiff’s employers and both were liable for

2
plaintiff’s workers’ compensation benefits. On appeal, the Workers’

Compensation Appellate Commission (WCAC) affirmed that ruling.

In the second trial, the magistrate considered (1) was plaintiff’s counsel

entitled to an attorney fee of 30 percent of plaintiff’s medical bills unpaid by

defendant? and (2) who was responsible for paying plaintiff’s future medical and

weekly benefits? With respect to plaintiff’s attorney fees, the magistrate ruled:

[A]lthough Midwest . . . was paying the plaintiff weekly
benefits, it refused to pay medical bills related to [plaintiff’s] injury.
. . . The total amount of the medical bills incurred . . . which
defendant refused to pay is $153,448.54. I find that plaintiff’s
counsel is entitled to a 30 percent attorney fee for these unpaid
medical bills under Section 315(1). . . .

With respect to whether BCN or Koleaseco was responsible for paying plaintiff’s

ongoing medical and weekly benefits, the magistrate ruled that BCN and its

insurance carrier, Midwest, were primarily responsible.

Again, both parties appealed to the WCAC, which affirmed the award of

attorney fees, observing:

While the magistrate failed to explicitly so find, in this case . .
. defendant knew of the medical bills in question well in advance of
trial, and simply refused to pay them claiming they were not work
related. Once the magistrate so found, given that prior knowledge
and refusal to pay, the action in awarding attorney fees was within
his discretion and hence proper.

3
Magna Corporation, another “employee leasing” company insured by Midwest,

and Midwest sought leave to appeal both WCAC orders. The Court of Appeals

initially denied the applications.1 We remanded the case as on leave granted.2

On remand, the Court of Appeals affirmed the WCAC.3 The Court found

that competent evidence supported the factual findings of both the magistrate and

WCAC with respect to plaintiff’s employment. Regarding the assessment of

attorney fees, the Court held that § 315(1) is ambiguous because it does not

identify the entity against which the magistrate may assess such fees.4

The Court concluded, “[W]here the remainder of [§ 315(1)] discusses the

employer and/or the [insurance] carrier, it follows that the attorney fees are to be

calculated or divided between those entities. The plain language of the statute

does not mandate that the health care provider assume responsibility for any

1
Petersen v Magna Corp, unpublished order of the Court of Appeals,
entered April 11, 2006 (Docket No. 266037); Petersen v Magna Corp,
unpublished order of the Court of Appeals, entered April 11, 2006 (Docket No.
266177).
2
Petersen v Magna Corp No 1, 477 Mich 871 (2006); Petersen v Magna
Corp No 2, 477 Mich 871 (2006).
3
Petersen v Magna Corp, unpublished opinion per curiam of the Court of
Appeals, issued April 17, 2008 (Docket Nos. 273293 and 273294), at 8.
4
Id. at 9.

4
portion of those fees.”5 We granted leave to appeal to consider the proper

interpretation of § 315(1).6

II. MCL 418.315(1)

The proper interpretation and application of a statute presents a question of

law that we review de novo.7 MCL 418.315(1), part of the Worker’s Disability

Compensation Act (WDCA),8 provides in pertinent part:

The employer shall furnish, or cause to be furnished, to an
employee who receives a personal injury arising out of and in the
course of employment, reasonable medical, surgical, and hospital
services and medicines, or other attendance or treatment recognized
by the laws of this state as legal, when they are needed. . . . After 10
days from the inception of medical care as provided in this section,
the employee may treat with a physician of his or her own choice by
giving to the employer the name of the physician and his or her
intention to treat with the physician. The employer or the
employer’s carrier may file a petition objecting to the named
physician selected by the employee and setting forth reasons for the
objection. If the employer or carrier can show cause why the
employee should not continue treatment with the named physician of
the employee’s choice, . . . the . . . magistrate may order that the
employee discontinue treatment with the named physician or pay for
the treatment received from the physician . . . . If the employer fails,
neglects, or refuses so to do, the employee shall be reimbursed for
the reasonable expense paid by the employee, or payment may be
made in behalf of the employee to persons to whom the unpaid
expenses may be owing, by order of the workers’ compensation
magistrate. The workers’ compensation magistrate may prorate

5
Id. at 10.
6
Petersen v Magna Corp, 482 Mich 994 (2008).
7
Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
8
MCL 418.101 et seq.

5
 attorney fees at the contingent fee rate paid by the employee.
[Emphasis added.]

A. Statutory Interpretation

This is a case of statutory interpretation. The primary goal of such

interpretation is to give effect to the intent of the Legislature.9 The first step in

ascertaining such intent is to focus on the language of the statute itself. If statutory

language is unambiguous, the Legislature is presumed to have intended the

meaning expressed in the statute.10 The words of a statute provide the most

reliable evidence of the Legislature’s intent, and as far as possible, effect should

be given to every phrase, clause, and word in a statute.11 If the statutory language

is certain and unambiguous, judicial construction is neither required nor permitted,

and courts must apply the statute as written.12

However, when statutory language is ambiguous, this Court has

consistently held that a court construing it may go beyond the plain language of

the statute.13 In fact, where the language leaves the statute’s meaning ambiguous,

it is the duty of the courts to construe it, giving it an interpretation that is

9
Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007).
10
Id.
11
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999)
(quotation marks and citations omitted).
12
Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995).
13
Id. at 236, citing Luttrell v Dep’t of Corrections, 421 Mich 93; 365
NW2d 74 (1984).

6
reasonable and sensible.14 Therefore, a finding of ambiguity has important

interpretive ramifications.

In this case, the Court of Appeals held that the last sentence of § 315(1) is

ambiguous in that it is unclear who is responsible for an injured employee’s

attorney fees. Thus, the threshold question is whether, in light of the plain

language of the entire provision, the last sentence of § 315(1) is ambiguous.

Section 315(1) gives magistrates the discretionary authority to prorate

attorney fees at the contingent fee rate paid by the employee. “Prorate” means “to

divide, distribute, or calculate proportionately.”15 In § 315(1), the term “prorate”

could reasonably apply to employers, their insurance carriers, health care

providers, employees seeking workers’ compensation benefits, or to any

combination of them. Moreover, neither § 315 as a whole nor any other

provisions of the WDCA indicates the parties to whom a division or distribution of

attorney fees applies.

I agree with the Court of Appeals conclusion that the final sentence of §

315(1) applies only to employers and their insurance carriers. This is because that

interpretation harmonizes the final sentence with the remainder of § 315(1). The

14
Crary v Marquette Circuit Judge, 197 Mich 452, 454; 163 NW 905
(1917).
15
Random House Webster’s College Dictionary (2001).

7
final sentence does not stand alone.16 It must be construed in the context of §

315(1) in its entirety and harmonized with the statute’s other provisions to satisfy

the purpose intended by the Legislature.17

Here is how that construction operates. Section 315(1) concerns employer

liability to pay medical benefits to workers injured in the course of employment.

The statute as a whole provides a process for employers and their insurance

carriers to object to the medical treatment that an injured employee seeks. Hence,

“prorate” in the final sentence of § 315(1), when read with the remainder of the

statute, applies to the parties who might contest the payment of medical benefits:

employers and their insurance carriers.18 This interpretation unifies the last

sentence of § 315(1) with the remainder of the statute.

I now consider the Legislature’s use of the word “may” with respect to

prorating attorney fees. The word “may” is permissive in nature. As applied to

“prorate,” “may” indicates that magistrates have discretion in determining whether

16
Under the doctrine of noscitur a sociis, the meaning of an unclear word
or phrase should be determined by the words immediately surrounding it. People
v Couzens, 480 Mich 240, 250; 747 NW2d 849 (2008).
17
Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76
(1993).
18
Justice Markman would hold medical providers responsible for a
proration of attorney fees. In support of this claim, he cites MCL 418.827, which
provides a basis for nonparty employers to recover through the efforts of an
employee’s attorney pursuing a third-party liability action. Had the Legislature
intended a scheme in § 315 similar to that provided in § 827, it could have used
similar or identical language. However, it did not do so.

8
to award attorney fees. Hence, magistrates are allowed to award attorney fees, but

they are not required to do so.19

Likewise, the word “may” bears on whether a proration must occur if a

magistrate does award attorney fees. I would hold that the use of the word “may”

grants magistrates the discretion to prorate attorney fees among employers and

their insurance carriers. Should a magistrate determine that only one of those

parties is liable, the magistrate may impose attorney fees against only that party.

Conversely, should the magistrate find multiple parties liable, fees may be

prorated accordingly. This interpretation affords the phrase “may prorate” its full

meaning.20

Nonetheless, as evidenced by the dissents in this case, competing

reasonable interpretations of § 315(1) exist when its language alone is

considered.21 In fact, the words of § 315(1), in light of the entire statute and the

19
The Legislature often vests discretion in magistrates using the word
“may.” Other provisions of the WDCA that vest discretion in magistrates using
the word “may” include MCL 418.321, MCL 418.335, MCL 418.345, and MCL
418.835.
20
Contrary to Justice Markman’s contention, this interpretation does not
“read[] an authorization into the statute.” Post at 8. Nothing in the definition of
“prorate” indicates that one party cannot be apportioned zero liability. A
“division” or “distribution” does not require that both parties subject to that
division receive an assessment of liability. For example, liability could be
allocated on a 50-50, 75-25, or 100-0 basis, depending on the magistrate’s
allocation of fault and the number of parties involved.
21
Justice Markman claims that I “withdraw[] from the process of statutory
interpretation once other interpretations are presented.” Post at 17. This is

9
WDCA, do not clearly indicate the parties to whom a proration of attorney fees

applies. As a consequence, I am unable to ascertain the intent of the Legislature

based solely on the language of the statute. I turn next to the question whether §

315(1) is ambiguous.

1. Lansing Mayor v Pub Service Comm

This Court’s most recent pronouncement on the proper standard for

discerning whether statutory language is ambiguous was espoused in Lansing

Mayor v Pub Service Comm.22 In that case, the Court examined MCL 247.183 to

determine whether it required a company to obtain local government consent

before beginning pipeline construction. Critical to the Court’s analysis was its

discussion of the proper method for discerning statutory ambiguity.

The Court stated that statutory provisions are not ambiguous unless one

“irreconcilably conflicts” with another or unless a term is “equally susceptible to

more than a single meaning.”23 Applying this definition, the Lansing Mayor

majority observed that “[o]nly a few provisions are truly ambiguous.”24

incorrect. Section 315(1) refers to multiple parties and lacks an indication of
which of them is subject to a proration of attorney fees. No other provision in the
WDCA resolves the question. From that I conclude that the statute is capable of
being understood by reasonably well-informed persons in two or more different
senses. See infra at 33-34.
22
Lansing Mayor v Pub Serv Comm, 470 Mich 154; 680 NW2d 840 (2004).
23
Id. at 166. Since having announced this exceedingly narrow definition of
“ambiguity,” the Court has declined to find any statutory language ambiguous.
24
Id.

10
 Lansing Mayor’s definition of “ambiguity” is unsupported by any Michigan

law whatsoever, having been derived, as it were, from thin air.25 Rusinek v

Schultz, Snyder & Steele Lumber Co is the only Michigan case predating Lansing

Mayor that employs the language “equally susceptible.”26 However, Rusinek did

not state that language is ambiguous only if it is equally susceptible to different

interpretations. Instead, Rusinek simply held that statutes in derogation of

common law must be strictly construed.27

Also unsupported as a threshold for finding ambiguity is the “irreconcilably

conflicts with another provision” language found in Lansing Mayor. The Lansing

Mayor majority cited Klapp v United Ins Group Agency, Inc28 for this definition of

“ambiguity,” but Klapp simply states that language is ambiguous when “its

provisions are capable of conflicting interpretations.”29 It neither requires an

irreconcilable conflict nor that the language be equally susceptible to more than

one interpretation. Thus, the two-pronged “equally susceptible” and

25
See Kelly and Postulka, The fatal weakness in the Michigan Supreme
Court majority’s textualist approach to statutory construction, 10 TM Cooley J
Prac & Clinical L 287, 289 (2008).
26
Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502; 309
NW2d 163 (1981).
27
Id. at 507-508.
28
Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663 NW2d 447
(2003).
29
Id. at 467.

11
“irreconcilably conflicts” test adopted in Lansing Mayor has no basis in Michigan

law.

Furthermore, the Lansing Mayor majority made two explicit and glaring

misstatements of law. First, it cited Klapp for the proposition that a finding of

“ambiguity is a finding of last resort.”30 Klapp did not say this. Instead, Klapp

held that the rule of contra proferentum31 is a rule of last resort. Indeed, Klapp

concluded that the language at issue in that case was ambiguous, without

commenting on whether such a conclusion was a “good” or a “bad” thing.32

Wholly absent from Klapp, or other Michigan law, is any indication that

consideration of whether language is ambiguous should be given only as a last

resort.

Second, I note that the Lansing Mayor majority expressly rejected the

“reasonable minds” standard for discerning ambiguity as applied by the dissent in

that case. The majority stated, “[t]hat is not, and has never been, the standard

either for resolving cases or for ascertaining the existence of an ambiguity in the

30
Lansing Mayor, supra at 165 n 6, citing Klapp, supra at 474.
31
“Contra proferentum” is a rule of contract interpretation stating that
ambiguities will be construed against the drafter of a contract. 2 Restatement
Contracts, 2d, § 206, p 105.
32
I reject the Lansing Mayor majority’s implication that a finding of
ambiguity is inherently a “bad” thing, as it is nothing more than an aid to statutory
construction. See Lansing Mayor, supra at 165-166.

12
law.”33 However, the Court cited no authority for this proposition. In fact, this

holding was a blatant misstatement of the law.34

Because it was based on a mythical definition of “ambiguity” and egregious

misstatements of law, I reject Lansing Mayor’s standard for discerning statutory

ambiguity.35

33
Id. at 165-166.
34
See part II(A)(2) of this opinion.
35
Unable to cite caselaw in support of its definition of “ambiguity,” the
Lansing Mayor majority invented its own definition. This definition was premised
on the majority’s implication that a finding of ambiguity is a “bad” thing because
it enables judges to use “presumptive ‘rules of policy’” or “engage in a largely
subjective and perambulatory reading of ‘legislative history.’” Lansing Mayor,
supra at 164-165. These approaches were disdained because they supposedly
allowed judges to “substitut[e] their own policy preferences for those of the
Legislature.” Id. at 164.

However, the Lansing Mayor majority failed to acknowledge that its “plain
meaning” approach to statutory interpretation is equally susceptible to subjective
and arbitrary determinations of legislative intent. For example, such an approach
may lead to the selection of one dictionary definition among many for a specific
term. Lacking may be any sound explanation why the chosen definition was the
one that the Legislature intended to use. See, e.g., Liberty Hill Housing Corp v
Livonia, 480 Mich 44, 56-57; 746 NW2d 282 (2008) (“We conclude that the
second meaning [out of six] is the one the Legislature intended.”). Therefore, this
approach is erroneous in the same way as is an approach that stretches to find
ambiguity where none exists. I agree that it is inappropriate to inject policy
considerations into the reading of an unambiguous statute.

13
 i. Stare Decisis36

Because I conclude that Lansing Mayor’s definition of “ambiguous” is

unsupported by Michigan law, I must now determine whether it ought to remain

the controlling method for discerning ambiguity in the laws of this state. I treat

the definition as governed by stare decisis for purposes of analysis.

Stare decisis is short for stare decisis et non quieta movere, which means

“stand by the thing decided and do not disturb the calm.” Stare decisis attempts to

balance two competing considerations: the need of the community for stability in

legal rules and decisions and the need of courts to correct past errors.37 This

36
I stated in my concurring opinion in Fluor Enterprises v Dep’t of
Treasury, 477 Mich 170; 730 NW2d 722 (2007), that tools of statutory
interpretation, such as the definition of “ambiguity,” are not “binding” in the same
sense as is the holding in a case. Therefore, they are not entitled to the same level
of deference, and stare decisis does not apply to them. However, Lansing Mayor
purported to “hold” that its definition of “ambiguity” was the only applicable
method for discerning statutory ambiguity. Furthermore, the Lansing Mayor
majority explicitly stated in Fluor that “our current law [regarding ambiguity] is
set forth in [Lansing Mayor].” Fluor, supra at 177 n 3. Perhaps for those reasons,
this Court, as well as the Court of Appeals, has treated Lansing Mayor’s definition
of “ambiguity” like any other binding precedent. See, e.g., People v Gardner, 482
Mich 41, 50; 753 NW2d 78 (2008); Toll Northville, LTD v Northville, 480 Mich 6,
15 n 2; 743 NW2d 902 (2008); Batko v Batko, 477 Mich 992; 725 NW2d 462
(2007) (Markman, J., dissenting); Casco Twp v Secretary of State, 472 Mich 566,
591; 701 NW2d 102 (2008); Wayne Co v Wayne Co Retirement Comm, 267 Mich
App 230, 244; 704 NW2d 117 (2005). Although I disagree with that conclusion, I
apply a stare decisis analysis to the Lansing Mayor definition of “ambiguity” for
purposes of analysis.
37
Am Jur, Courts, § 131.

14
doctrine has been part of the American legal landscape since the country’s

formation.38

Alexander Hamilton wrote that, to “avoid an arbitrary discretion in the

courts, it is indispensable that [courts] should be bound down by strict rules and

precedents which serve to define and point out their duty in every particular case

that comes before them . . . .”39 In the early twentieth century, Justice (then-

Judge) Cardozo wrote that the “labor of judges would be increased almost to the

breaking point if every past decision could be reopened in every case, and one

could not lay one’s own course of bricks on the secure foundation of the courses

laid by others who had gone before him.”40

Although any rule is only as solid as its boundaries are clear, it was not

until recently that this Court formally established a test to determine when it

should depart from stare decisis. In 2000, in Robinson v Detroit,41 the Court held

that the first question in deciding whether to overrule precedent is whether an

earlier decision was wrongly decided.42 Next, according to Robinson, courts

38
The doctrine can be traced back to medieval England. Healy, Stare
decisis as a constitutional requirement, 104 W Va L R 43, 56-62 (2001).
39
The Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter ed,
1961).
40
Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven:
Yale University Press, 1921), p 149.
41
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).
42
Id. at 464.

15
should review (1) whether the decision defies practical workability, (2) whether

reliance interests would work an undue hardship if the decision were overturned,

and (3) whether changes in the law or facts no longer justify the decision.43 Thus,

Robinson enunciated a test premised on whether the questioned decision was

wrongly decided, to be followed by a three-pronged analysis of whether stare

decisis nonetheless counsels upholding it.

Although the Robinson test was implemented as a mechanism for

determining when a prior decision of the Court should be upheld, its application

has proven superficial and cursory.44 In fact, an examination of cases applying the

Robinson test demonstrates that not once has the Court cited it as a basis for

upholding a prior decision.45 Robinson’s statement that a wrongly decided case

43
Id.
44
See, e.g., Paige v Sterling Hts, 476 Mich 495, 513; 720 NW2d 219
(2006) (“we need not consider whether changes in the law and facts no longer
justify [the precedent] because [the precedent] itself was never justified.”); People
v Hickman, 470 Mich 602, 610 n 6; 684 NW2d 267 (2004), and Mack v Detroit,
467 Mich 186, 203 n 19; 649 NW2d 47 (2002) (citing Robinson only as an
afterthought in a footnote).
45
See, e.g., Gardner, supra at 61; People v Ream, 481 Mich 223, 240; 750
NW2d 536 (2008); People v Barrett, 480 Mich 125, 138; 747 NW2d 797 (2008);
Trentadue v Buckler Lawn Sprinkler, 479 Mich 378, 393; 738 NW2d 664 (2007);
Renny v Dep’t of Transportation, 478 Mich 490, 503; 734 NW2d 518 (2007);
People v Smith, 478 Mich 292, 315; 733 NW2d 351 (2007); Karaczewski v
Farbman Stein & Co, 478 Mich 28, 38; 732 NW2d 56 (2007); Al-Shimmari v
Detroit Med Ctr, 477 Mich 280, 297; 731 NW2d 29 (2007); Rowland v
Washtenaw Co Rd Comm, 477 Mich 197, 214; 731 NW2d 41 (2007); Haynes v
Neshewat, 477 Mich 29, 39; 729 NW2d 488 (2007); Paige, supra at 510; Grimes v
Dep’t of Transportation, 475 Mich 72, 87; 715 NW2d 275 (2006); People v

16
should “invariably” be overruled was a chilling signal that a conclusion that

precedent has been wrongly decided is sufficient justification for overruling it.46

These facts alone suffice to show that Robinson is insufficiently respectful

of precedent. Therefore, I would modify it by shifting the balance back in favor of

precedent and expanding on Robinson’s list of factors to consider in applying stare

decisis.

I would hold that a stare decisis analysis should always begin with the

presumption that upholding the precedent involved is the preferred course of

action. The presumption should be retained until effectively rebutted by the

conclusion that a compelling justification exists to overturn the precedent.

Robinson, by contrast, contained no such presumption. Moreover, the

Court’s applications of Robinson suggest that such a presumption was never

Hawthorne, 474 Mich 174, 183; 713 NW2d 724 (2006); Devillers v Auto Club Ins
Ass’n, 473 Mich 562, 584; 702 NW2d 539 (2005); People v Schaefer, 473 Mich
418, 434; 703 NW2d 774 (2005); People v Starks, 473 Mich 227, 236; 701 NW2d
136 (2005); Garg v Macomb Mental Health, 472 Mich 263, 285; 696 NW2d 646
(2005); People v Davis, 472 Mich 156, 169; 695 NW2d 45 (2005); Neal v Wilkes,
470 Mich 661, 667; 685 NW2d 648 (2004); Hickman, supra at 610; People v
Lively, 470 Mich 248, 256; 680 NW2d 878 (2004); People v Moore, 470 Mich 56,
69; 679 NW2d 41 (2004); Hayne v Dep’t of State Police, 468 Mich 302, 314; 664
NW2d 129 (2003); Mack, supra at 203; Sington v Chrysler Corp, 467 Mich 144,
161; 648 NW2d 624 (2002); People v Petit, 466 Mich 624, 633; 648 NW2d 193
(2002); People v Cornell, 466 Mich 335, 358; 646 NW2d 127 (2002); Robertson v
Daimler Chrysler Corp, 465 Mich 732, 756; 641 NW2d 567 (2002); Pohutski v
City of Allen Park, 465 Mich 675, 693; 641 NW2d 219 (2002); Nawrocki v
Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000); Mudel v Great
Atlantic & Pacific Tea Co, 462 Mich 691, 708; 614 NW2d 607 (2000).
46
Robinson, supra at 465.

17
considered. Even if it had been initially applied, once a case was deemed to have

been wrongly decided, any presumption in favor of upholding precedent

disappeared.47 I would reject this approach and reiterate that a rebuttable

presumption exists in favor of upholding precedent.48

The question arises what deference should be paid to cases in which

Robinson was used to overturn existing precedent. I believe that a lower level of

deference should be accorded to these cases because they represent a departure

from the traditional notions of stare decisis. In Adarand Constructors, Inc v

Pena,49 the United States Supreme Court expressly addressed the distinction

between consideration of well established law and cases representing a recent

departure from precedent:

It is worth pointing out the difference between the
applications of stare decisis in this case and in Planned Parenthood
47
See, e.g., Paige, supra at 512 n 21 (“the only instances in which we
might decline to overrule [erroneous precedent] . . . is when it would produce
chaos.”) (emphasis added); Hickman, supra at 610 n 6 (noting that no special
justification is necessary to overrule erroneous precedent); People v Nutt, 469
Mich 565, 575, 591; 677 NW2d 1 (2004) (concluding that the court is compelled
to overrule erroneous precedent); Petit, supra at 633-34 (stating that courts should
overturn erroneous decisions).
48
I recognize and agree with Robinson that stare decisis is “not to be
applied mechanically to forever prevent the Court from overruling earlier
erroneous decisions,” nor is it “an inexorable command.” Robinson, supra at 463-
464. However, I again note that, if our stare decisis analysis leads to the Court
overruling precedent every time it is applied, stare decisis becomes not an
“inexorable command,” but rather a meaningless exercise.
49
Adarand Constructors, Inc v Pena, 515 US 200; 115 S Ct 2097; 132 L Ed
2d 158 (1995).

18
 of Southeastern Pa v Casey. Casey explained how considerations of
stare decisis inform the decision whether to overrule a long-
established precedent that has become integrated into the fabric of
the law. Overruling precedent of that kind naturally may have
consequences for “the ideal of the rule of law.” In addition, such
precedent is likely to have engendered substantial reliance, as was
true in Casey itself. (“[F]or two decades of economic and social
developments, people have organized intimate relationships and
made choices that define their views of themselves and their places
in society, in reliance on the availability of abortion in the event that
contraception should fail.”). But in this case, as we have explained,
we do not face a precedent of that kind, because Metro Broadcasting
itself departed from our prior cases—and did so quite recently. By
refusing to follow Metro Broadcasting, then, we do not depart from
the fabric of the law; we restore it. We also note that reliance on a
case that has recently departed from precedent is likely to be
minimal, particularly where, as here, the rule set forth in that case is
unlikely to affect primary conduct in any event.[50]

Furthermore, the Court stated:

Our past practice in similar situations supports our action
today. In United States v Dixon, we overruled the recent case of
Grady v Corbin, because Grady “lack[ed] constitutional roots” and
was “wholly inconsistent with earlier Supreme Court precedent.” In
Solorio v United States, we overruled O’Callahan v Parker, which
had caused “confusion” and had rejected “an unbroken line of
decisions from 1866 to 1960.” And in Continental TV, Inc v GTE
Sylvania Inc, we overruled United States v Arnold, Schwinn & Co,
which was “an abrupt and largely unexplained departure” from
precedent, and of which “[t]he great weight of scholarly opinion
ha[d] been critical.” See also, e.g., Payne v Tennessee (overruling
Booth v Maryland, and South Carolina v Gathers; Monell v New
York City Dept of Social Servs (partially overruling Monroe v Pape,
because Monroe was a “departure from prior practice” that had not
engendered substantial reliance); Swift & Co v Wickham (overruling
Kesler v Department of Public Safety of Utah, to reaffirm “pre-

50
Id. at 233-234 (citations altered or omitted).

19
 Kesler precedent” and restore the law to the “view . . . which this
Court has traditionally taken” in older cases).[51]

Thus, there is substantial support for applying a decreased presumption in favor of

precedent when that precedent itself represents a recent departure from prior

established caselaw.52

The next inquiry should be whether there exists a compelling justification

for overruling precedent.53 A compelling justification is not a mere belief that a

precedential case was wrongly decided or that the Court, as currently composed,

would have decided the case differently. Rather, in determining whether a

51
Id. at 232-233 (citations altered or omitted).
52
Other United States Supreme Court decisions also implicitly
acknowledge that precedent that itself overruled recent precedent is entitled to a
reduced presumption. See, e.g., Randall v Sorrell, 548 US 230, 244; 126 S Ct
2479; 165 L Ed 2d 482 (2006) (stating that precedent should only be overruled in
exceptional cases, and that “[t]his is especially true where, as here, the principle
has become settled through iteration and reiteration over a long period of time.”)
(emphasis added); United States v IBM, 517 US 843, 856; 116 S Ct 1793; 135 L
Ed 2d 124 (1996) (the Court declined to overrule a case because it had “been
controlling precedent for over 80 years.”) (emphasis added); Welch v Texas Dep’t
of Highways and Pub Transportation, 483 US 468, 493-494; 107 S Ct 2941; 97 L
Ed 2d 389 (1987) (declining to overrule precedent that had “been adhered to
without exception by this Court for almost a century”) (emphasis added); and
CBOCS West, Inc v Humphries, ___ US ___; 128 S Ct 1951, 1958; 170 L Ed 2d
864 (2008) (declining to overturn “the well-embedded interpretation” of the statute
at issue).
53
Requiring a compelling justification to overrule precedent is consistent
not only with most other jurisdictions, but also with United States Supreme Court
precedent. See, e.g., Planned Parenthood v Casey, 505 US 833, 864; 112 S Ct
2791; 120 L Ed 2d 674 (1992).

20
compelling justification exists, the Court should consider several evaluative

criteria, none of which, standing alone, is dispositive.

These criteria include, but are not limited to: (1) whether the rule has

proven to be intolerable because it defies practical workability, (2) whether

reliance on the rule is such that overruling it would cause a special hardship and

inequity, (3) whether related principles of law have so far developed since the rule

was pronounced that no more than a remnant of the rule has survived, (4) whether

facts and circumstances have so changed, or come to be seen so differently, as to

have robbed the old rule of significant application or justification, (5) whether

other jurisdictions have decided similar issues in a different manner, (6) whether

upholding the rule is likely to result in serious detriment prejudicial to public

interests, and (7) whether the prior decision was an abrupt and largely unexplained

departure from precedent.

Not all of these factors will be applicable in every case. Nor is there a

magic number of factors that must favor overruling a case in order to establish the

requisite compelling justification. Rather, I believe that the conclusion about

whether these factors support finding a compelling justification should be reached

on a case-by-case basis.

ii. Application of stare decisis to Lansing Mayor

As stated above, I begin my stare decisis analysis with a presumption in

favor of upholding precedent. Only if a compelling justification exists should the

21
Court overrule the prior decision. Although Lansing Mayor was wrongly decided

with respect to the definition of ambiguity, this fact does not constitute the

requisite compelling justification to overrule it. Instead, we must examine

additional factors to determine whether there exists a compelling justification to

overrule it.

First, I consider whether the method for discerning ambiguity in Lansing

Mayor has proven intolerable because it defies practical workability. I believe that

it does. Intrinsically, an analytical approach to interpreting statutes on the basis of

their “plain meaning,” where reasonable minds disagree on what that meaning is,

is unworkable. This standard gives judges unfettered discretion to pick and

choose among available “plain meanings” or dictionary definitions, and thus sheds

little light on what the Legislature intended statutory language to mean.54 It also

potentially leads to arbitrary outcomes and injects instability into the law.

Moreover, the mere fact that different justices of this Court, judges of the

Court of Appeals, and trial judges disagree on the meaning of statutory language

suggests that ambiguity exists. Allowing a judge to pick one meaning among

several equally plausible meanings without using the rules of statutory

construction is quite simply an exercise in speculation. As Justice Stevens of the

United States Supreme Court stated:

54
See, e.g., Fluor, supra at 189 n 4 (Kelly, J., concurring) (“It is a bizarre
notion that the language of a statute can have only one reasonable meaning when
four separate independent entities have split on its correct interpretation.”).

22
 [T]he “minimalist” judge who holds that the purpose of [a]
statute may be learned only from its language retains greater
discretion than the judge who will seek guidance from every reliable
source. A method of statutory interpretation that is deliberately
uninformed, and hence unconstrained, increases the risk that the
judge’s own policy preferences will affect the decisional process.[55]

I share Justice Stevens’s concerns and believe that Lansing Mayor’s definition of

“ambiguity” is inherently unworkable.

I also note that application of Lansing Mayor’s definition of “ambiguity”

has never once led the Court to find statutory language ambiguous.56 If a rule of

55
BedRoc Ltd, LLC v United States, 541 US 176, 192; 124 S Ct 1587
(2004) (Stevens, J., dissenting) (citations and quotation marks omitted).
56
See, e.g. Dimmit & Owens Fin, Inc v Deloitte & Touche, 481 Mich 618;
752 NW2d 37 (2008); Ross v Blue Care Network, 480 Mich 153; 747 NW2d 828
(2008); Wesche v Mecosta Co Rd Comm, 480 Mich 75; 746 NW2d 847 (2008);
Ernsting v Ave Maria College, 480 Mich 985 (2007); Trentadue v Buckler Lawn
Sprinkler, 479 Mich 378; 738 NW2d 664 (2007); Lash v Traverse City, 479 Mich
180; 735 NW2d 628 (2007); Brown, supra; Renny v Dep’t of Transportation, 478
Mich 490; 734 NW2d 518 (2007); South Haven v Van Buren Co Bd of Comm’rs,
478 Mich 518; 734 NW2d 533 (2007); Omdahl v West Iron Co Bd of Ed, 478
Mich 423; 733 NW2d 380 (2007); Bukowski v Detroit, 478 Mich 268; 732 NW2d
75 (2007); Karaczewski, supra; Fluor, supra; Rowland, supra; People v Peals,
476 Mich 636; 720 NW2d 196 (2006); Paige, supra; Cameron v Auto Club Ins
Ass’n, 476 Mich 55; 718 NW2d 784 (2006); Ford Motor Co v Woodhaven, 475
Mich 425; 716 NW2d 247 (2006); People v Derror, 475 Mich 316; 715 NW2d
822 (2006); People v Williams, 475 Mich 245; 716 NW2d 208 (2006); People v
Yamat, 475 Mich 49; 714 NW2d 335 (2006); Grimes, supra; Michigan v Monaco,
474 Mich 48; 710 NW2d 46 (2006); Ostroth v Warren Regency, GP, LLC, 474
Mich 36; 709 NW2d 589 (2006); Co Rd Ass’n v Governor, 474 Mich 11; 705
NW2d 680 (2005); Devillers, supra; Reed v Yackell, 473 Mich 520; 703 NW2d 1
(2005); Ayar v Foodland Distributors, 472 Mich 713; 698 NW2d 875 (2005);
Casco Twp, supra; Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851
(2005); Jarrad v Integon Nat’l Ins Co, 472 Mich 207; 696 NW2d 621 (2005);
Roberts v Atkins, 470 Mich 679; 684 NW2d 711 (2004); Neal, supra; People v

23
statutory interpretation inevitably leads to the same result in each case in which it

is applied, such a rule is innately unworkable. Accordingly, this factor weighs

strongly in favor of abrogating the Lansing Mayor definition.

Second, I examine whether reliance on the rule is such that overruling it

would cause a special hardship and inequity. I believe that litigants have

reasonably relied on Lansing Mayor’s definition of “ambiguity.”57 Its application

potentially leads to a different statutory interpretation than one based on

alternative definitions. Hence, I conclude that rejecting the definition may

prejudice current litigants who have relied on it.

However, I also recognize that litigants have continued to rely on previous

standards for discerning ambiguity. This reliance is also reasonable given the

inconsistent application of Lansing Mayor’s definition,58 as well as the

Barbee, 470 Mich 283; 681 NW2d 348 (2004); Lively, supra; People v Laney, 470
Mich 267; 680 NW2d 888 (2004); Lansing Mayor, supra.
57
A review of filings in this Court and lower courts demonstrates that in
post-2004 cases involving statutory interpretation, litigants often cite Lansing
Mayor for the applicable definition of “ambiguity.”
58
Compare, e.g., Kinder Morgan Michigan, LLC v City of Jackson, 277
Mich App 159, 163-164; 744 NW2d 184 (2007) (“[W]hen a statute is ambiguous
on its face and reasonable minds can differ with respect to its meaning, judicial
construction is necessary to determine the intent of the Legislature.”), with Village
of Holly v Holly Twp, 267 Mich App 461, 474; 705 NW2d 532 (2005) (“Although
reasonable minds may differ on the interpretation of subsection 3, that is not the
test to determine whether a statutory ambiguity justifies judicial construction . . .
[r]ather, a provision of the law is ambiguous only if it ‘irreconcilably confict[s]’
with another provision . . . or when it is equally susceptible to more than a single
meaning.”) (citations omitted).

24
disagreement over the proper definition of “ambiguity” among the justices of this

Court.59 Such reliance is not surprising given that Lansing Mayor’s definition is

so vastly different from the definitions of ambiguity that preceded it for more than

150 years.60 In fact, despite its explicit holding, Lansing Mayor did not overrule

or cite any previous cases that addressed the proper method for discerning

ambiguity.

Nevertheless, because Lansing Mayor stands as the most recent declaration

of how to discern statutory ambiguity, litigants reasonably relied on it for this

point. I therefore conclude that this factor weighs moderately in favor of

upholding the definition.

Third, I consider whether related principles of law have so far developed

since the Lansing Mayor definition of “ambiguity” was pronounced that only a

remnant of the definition has survived. This factor is inapplicable to the stare

decisis analysis in this case. The definition of “ambiguity” is a tool of judicial

As the United States Supreme Court stated in Pearson v Callahan, ___ US
___; 129 S Ct 808, 818; 172 L Ed 2d 565 (2009), “[w]here a decision has been
questioned by members of this Court in later decisions and has defied consistent
application by the lower courts, these factors weigh in favor of reconsideration.”
(internal quotation marks and punctuation omitted). Thus, despite reliance on the
new and old definitions of “ambiguity,” it is noteworthy that the United States
Supreme Court has held that inconsistent application of a new rule favors
reexamination of that rule.
59
See Stone v Williamson, 482 Mich 144, 152, 173 and n 4; 753 NW2d 106
(2008).
60
See, e.g., Bidwell v Whitaker, 1 Mich 469 (1850).

25
construction. Its only relevance is to discern ambiguity or the lack of it in a given

statute. Thus, the definition of “ambiguity” stands alone and is not inherently

related to other principles of law. Accordingly, this factor neither weighs in favor

of nor against replacing the Lansing Mayor definition.

Fourth, I examine whether facts and circumstances have so changed, or

have come to be seen so differently, as to rob the old definition of significant

justification. This factor focuses on real-world practicalities.61 However, the

definition of “ambiguity” is not beholden to the underlying facts and

circumstances of a given case. Accordingly, because the definition of “ambiguity”

does not implicate practical concerns, I do not believe that this factor weighs in

favor of or against replacing the Lansing Mayor definition.

Fifth, I consider whether other jurisdictions have decided similar issues in a

different manner. My review indicates that Lansing Mayor’s definition of

“ambiguity” is unsupported by any other jurisdiction. In fact, not a single

jurisdiction, state or federal, requires an irreconcilable conflict between provisions

or that language be equally susceptible to more than one meaning before finding

61
See, e.g., Casey, supra at 860 (discussing how advancements in medical
treatment since Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1972),
was decided have not rendered the “factual underpinnings” of Roe’s central
holding obsolete).

26
statutory ambiguity.62 Accordingly, this factor weighs strongly in favor of

rejecting the Lansing Mayor definition.

I note that the sixth factor, whether upholding the Lansing Mayor definition

is likely to result in serious detriment prejudicial to public interests, has no bearing

on this case. As previously stated, the definition of “ambiguity” is merely a tool

of statutory interpretation. As such, its application has no relevance to public

interests because the definition of “ambiguity,” standing alone, does not dictate

any course of action in a particular case.

Finally, I consider whether the prior decision was an abrupt and largely

unexplained departure from precedent. As noted earlier, Lansing Mayor’s

definition of ambiguity is nothing more than a legal fiction, wholly unsupported

by any law. Furthermore, it represented a decisive and abrupt shift from precedent

without recognition of the prior standards for discerning statutory ambiguity.

Accordingly, this factor weighs heavily in favor of abrogating Lansing Mayor’s

definition of ambiguity.

Under my analysis of the aforementioned factors, Lansing Mayor’s

definition of “ambiguity” has proven unworkable, is unsupported by other

jurisdictions, and represents an abrupt and unexplained departure from precedent.

Although it has been relied on in Michigan, reliance has been uneven and short-

62
See post at 31.

27
lived. Accordingly, I conclude that a compelling justification exists for replacing

it.63

63
Justice Markman has criticized my stare decisis analysis. I offer the
following response.

(1) As I state supra at 14 n 36, I continue to believe that tools of statutory
interpretation, such as the definition of “ambiguity,” are not entitled to stare
decisis status. However, Justice Markman, other members of this Court, the Court
of Appeals, and lower courts have treated Lansing Mayor’s definition of
“ambiguity” as fully entitled to it. See id. Hence, a thorough analysis of that
case’s definition of ambiguity and its precedential worth is appropriate, even if not
mandated.

(2) My fealty to stare decisis speaks for itself. As evidenced by this
opinion, only because I find that, after a thorough examination of the relevant
factors, a compelling justification exists for overruling precedent do I do so. This
stands in stark contrast to the former majority’s approach to stare decisis, as shown
supra at notes 44 and 47.

(3) Justice Markman claims that “when the previous majority overruled a
precedent, it was to ensure that the decisions of this Court more closely reflected
the judgments of the people’s elected representatives.” Post at 46. This is simply
a reflection of his personal opinion and that of the justices who shared his view in
those cases. As indicated earlier, the former majority’s overrulings showed little
respect for the doctrine of stare decisis and developed a superficial rule in
Robinson to deal with it. They disdained longstanding cases that had stood for
many years before the former majority’s ascension to the bench.

(4) Contrary to Justice Markman’s contention, I have not ignored precedent
in any of the cases to which he cites. For a comprehensive response to Justice
Markman on this issue, see my concurring opinion in Potter v McLeary, ___ Mich
___; ___ NW2d ___ (2009), decided July 31, 2009 (Docket No. 136336).

(5) Justice Markman claims that I have never joined an opinion that
articulates a “compelling justification” for upholding a prior decision that I believe
was wrongly decided. This comes as no surprise, however. The finding of a
compelling justification as a requisite to overruling precedent has never been the
standard in Michigan during my years as a justice. Robinson did not require a
compelling justification to overrule precedent.

28
 2. The Proper Method of Discerning Ambiguity

Having rejected the Lansing Mayor definition of “ambiguity,” I now iterate

the proper method of discerning statutory ambiguity. Before Lansing Mayor was

decided, Michigan courts used several analogous variations of statutory

interpretation. For example, in In re MCI Telecom Complaint,64 we held that

“[s]hould a statute be ambiguous on its face . . . so that reasonable minds could

differ with respect to its meaning, judicial construction is appropriate to determine

the meaning.”65 This Court has applied the “reasonable minds” standard on

numerous other occasions.66

(6) Justice Markman’s claim that I “find[] it necessary to depart from the
150-year old standard [regarding stare decisis] that [I] previously hailed . . .” is
hopelessly off the mark. Justice Markman himself joined the Court’s opinion in
Robinson, which established an unprecedented test for evaluating prior decisions
of the Court. Although I objected to it, I followed Robinson in subsequent cases.
See, e.g., Perry v Golling Chrysler Plymouth Jeep, Inc, 477 Mich 62, 71; 729
NW2d 500 (2007) (Kelly, J., dissenting). Moreover, my position in Rowland,
supra, is entirely consistent with this opinion. As I stated in Rowland, “the
doctrine [of stare decisis] carries such persuasive force that we have always
required a departure from precedent to be supported by some special justification.”
477 Mich at 253-254, citing United States v IBM, supra. Only now do I expand
upon Robinson and define the boundaries of a “compelling justification” because
of Robinson’s insufficient deference to precedent.
64
In re MCI Telecom Complaint, 460 Mich 396; 596 NW2d 164 (1999).
65
Id. at 411-412. Justice Cavanagh authored the opinion in In re MCI.
Also signing it were then-Chief Justice Weaver and Justices Corrigan, Taylor,
Brickley, and myself. Justice Young did not participate in the case.
66
See, e.g. People v Petty, 469 Mich 108, 114; 665 NW2d 443 (2003);
People v Warren, 462 Mich 415, 427; 615 NW2d 691 (2000); Yaldo v North
Pointe Ins Co, 457 Mich 341, 347; 578 NW2d 274 (1998); Sam v Balardo, 411
Mich 405, 418-419 n 9; 308 NW2d 142 (1981). Petty, authored by Justice

29
 This Court has also employed a “doubtful” standard in deciding whether

ambiguity exists. In Smith v Grand Rapids City Comm,67 we held that

“[w]here . . . the language of a statute is of doubtful meaning, the court should

give it a reasonable construction looking to the purpose to be subserved thereby,

and the object sought to be accomplished and its occasion and necessity.”68

Finally, this Court has used a “susceptible” standard. Applying this method

of interpretation, we held that “[i]t is only where a statute is unclear and

susceptible to more than one interpretation that judicial construction is allowed.”69

These corresponding approaches to evaluating statutes for ambiguity have endured

in Michigan caselaw throughout the nineteenth and twentieth centuries.70

These historical standards for discerning ambiguity are easily reconcilable

and analogous. The crux of the “reasonable minds” standard is that, when two

Cavanagh, was notably signed by then-Chief Justice Corrigan and Justices
Weaver, Taylor, Young, Markman, and myself. Yet Justices Taylor, Corrigan,
Young, and Markman apparently chose to ignore Petty and the “reasonable minds”
standard in Lansing Mayor and its progeny applying Lansing Mayor’s aberrant
definition of “ambiguity.”
67
Smith v Grand Rapids City Comm, 281 Mich 235; 274 NW 776 (1934).
68
Id. at 240-241 (citations omitted).
69
People v Morris, 450 Mich 316, 326; 537 NW2d 842 (1995).
70
See, e.g., In re MCI Telecom Complaint, supra; Sam, supra; City of
Lansing v Lansing Twp, 356 Mich 641; 97 NW2d 804 (1959); People v Detroit,
GH & M R Co, 228 Mich 596; 200 NW 536 (1924); Crary, supra; Borden v
Fletcher’s Estate, 131 Mich 220; 91 NW 145 (1902); Lane v Ruhl, 103 Mich 38;
61 NW 347 (1894); Bidwell, supra.

30
persons reasonably afford different meanings to statutory language, it is

ambiguous. As for the “doubtful” standard, it suggests that a statute is ambiguous

when its language is of questionable or unclear meaning. The “susceptible”

standard is self-explanatory in that, if a statute is susceptible to more than one

interpretation, it is ambiguous.

I adopt a definition of “ambiguity” that encompasses all three of the

aforementioned well-established standards for determining ambiguity.71

Specifically, I would hold:

[W]hen there can be reasonable disagreement over a statute’s
meaning, or, as others have put it, when a statute is capable of being
understood by reasonably well-informed persons in two or more
different senses, [a] statute is ambiguous. For example, this Court
has concluded that statutes [are] ambiguous when one word in the

71
Justice Markman claims that “[a] facile resort to ambiguity affords the
judge a readily-available means of acting beyond the scope of his or her authority
to exercise exclusively the ‘judicial power.’” Post at 19. It seems obvious that the
“judicial power” must include the authority to interpret statutes as written and
interpret ambiguity where appropriate. Also, misuse of our “judicial power” can
certainly occur where ambiguity is never found and judges use few judicial tools
to discern what they believe to be plain language.

Moreover, Justice Markman questions “what . . . arguments [I] have for
substantially expanding the range of judicial decision-making . . . .” Post at 30. I
do not need an “argument,” however, to defend my definition of ambiguity, as it is
supported by a multitude of cases in every state and every federal jurisdiction. See
infra, notes 73, 74 and 75. To the contrary, it is Justice Markman who fails to
advance any justification for the definition of ambiguity that he favors. As
indicated earlier, that definition was based not on any precedent whatsoever, but
rather derived from thin air. While he passionately decries that his definition is
“fair,” post at 33, and “grounded in logic and common sense,” post at 28, whether
a legal principle is “fair” or “logical” is highly subjective. Its fairness comes into
serious question when it has no basis in the law.

31
 statute has an unclear meaning, when a statute’s interaction with
another statute has rendered its meaning unclear, or when
application of the statute to facts has rendered the correct application
of the statute uncertain.[72]

This standard gleans the fundamental principles from the “reasonable minds,”

“doubtful,” and “susceptible” tests. It has been applied, in some variation, by

every other state in the country,73 all the federal circuit courts,74 and by the United

States Supreme Court.75

72
Yellow Freight System, Inc v State, 464 Mich 21, 38; 627 NW2d 236
(2001) (Cavanagh, J., dissenting) (citations omitted), rev’d Yellow Transp Inc v
Michigan, 537 US 36 (2002).
73
See, e.g., AmSouth Bank v Holberg, 789 So 2d 833 (Ala, 2001); Alaska v
Saathoff, 29 P3d 236 (Alas, 2001); State v Gomez, 212 Ariz 55; 127 P3d 873
(2006); Yamaha Motor Corp, USA v Richard’s Honda Yamaha, 344 Ark 44; 38
SW3d 356 (2001); Hughes v Bd of Architectural Exam’rs, 17 Cal 4th 763; 72 Cal
Rptr 2d 624; 952 P2d 641 (1998); Colorado v Nieto, 993 P2d 493 (Colo, 2000);
State v Marsh & McLennan Companies, Inc, 286 Conn 454; 944 A2d 315 (2008);
LeVan v Independence Mall, Inc, 940 A2d 929 (Del, 2007); State v Huggins, 802
So 2d 276, 277 (2001); Aldrich v City of Lumber City, 273 Ga 461, 542 SE2d 102
(2001); Barnett v Hawaii, 91 Hawai’i 20, 979 P2d 1046 (1999); State v Yzaguirre,
144 Idaho 471; 163 P3d 1183 (2007); In re BC, 176 Ill 2d 536; 680 NE2d 1355
(1997); In re Lehman, 690 NE2d 696; 702 (Ind, 1997); City of Waterloo v
Bainbridge 749 NW2d 245 (2008); State v Paul, 285 Kan 658; 175 P3d 840
(Iowa, 2008); Revenue Cabinet v Rohm & Haas Ky Inc, 929 SW2d 741 (Ky App,
1996); Burnette v Stalder, 789 So 2d 573 (La, 2001); In re Estate of Kingsbury,
946 A2d 389 (Me, 2008); Twine v State, 395 Md 539; 910 A2d 1132 (2006); Town
of Falmouth v Civil Serv Comm, 447 Mass 814; 857 NE2d 1052 (2006); Amaral v
Saint Cloud Hosp, 598 NW2d 379 (Minn, 1999); Dawson v Townsend & Sons,
Inc, 735 So 2d 1131 (Miss App, 1999); State v Graham, 204 SW3d 655 (Mo,
2006); Montana Contractors Ass’n, Inc v Dep’t of Highways, 220 Mont 392; 715
P2d 1056 (1986); State ex rel Johnson v Marsh, 149 Neb 1; 29 NW2d 799 (1947);
Chanos v Nevada Tax Comm, 181 P3d 675 (Nev, 2008); In re Baker, 154 NH 186;
908 A2d 806 (2006); Fairway Dodge, LLC v Decker Dodge, Inc, 191 NJ 460; 924
A2d 517 (2007); Maestas v Zager, 141 NM 154; 152 P3d 141 (2007); Charter
Dev Co v City of Buffalo, 6 NY3d 578; 815 NY Supp 2d 13; 848 NE2d 460

32
 B. Application to § 315(1)

I believe that § 315(1) is ambiguous because the statute is capable of being

understood by reasonably well-informed persons in two or more different senses.

As mentioned before, the term “prorate” could reasonably be understood to apply

to employers, their insurance providers, health care providers, and to employees

(2006); Morris v Thomas, 161 NC App 680; 589 SE2d 419 (2003); Walberg v
Walberg, 748 NW2d 702 (ND, 2008); Clark v Scarpelli, 91 Ohio St 3d 271; 744
NE2d 719 (2001); YDF, Inc v Schlumar, Inc, 136 P3d 656 (Okla, 2006); State v
Cooper, 319 Or 162; 874 P2d 822 (1994); Pridgen v Parker Hannifin Corp, 588
Pa 405; 905 A2d 422 (2006); Unistrut Corp v RI Dept of Labor & Training, 922
A2d 93 (RI, 2007); Kennedy v South Carolina Retirement Sys, 345 SC 339, 549
SE2d 243 (2001); Zoss v Schaefers, 598 NW2d 550 (SD, 1999); Sallee v
Barrett, 171 SW3d 822 (Tenn, 2005); In re Missouri P R Co, 998 SW2d 212 (Tex,
1999); Martinez v Media-Paymaster Plus/Church of Jesus Christ of Latter-Day
Saints, 164 P3d 384 (Utah, 2007); Green Mountain Power Corp v Sprint
Communications, 172 Vt 416; 779 A2d 687 (2001); Brown v Lukhard, 229 Va
316; 330 SE2d 84 (1985); Yakima v Int’l Ass’n of Fire Fighters, 117 Wash 2d 655;
818 P2d 1076 (1991); Phillips v Larrys Drive-In Pharmacy, Inc, 220 W Va 484;
647 SE2d 920 (2007); State v Williams, 198 Wis 2d 479; 544 NW2d 400 (1996);
Story v Wyoming, 755 P2d 228 (1988).
74
See, e.g., United States v O’Neil, 11 F3d 292, 297-298 (CA 1, 1993);
Natural Resources Defense Council v Muszynski, 268 F3d 91, 98 (CA 2, 2001);
Dobrek v Phelan, 419 F3d 259, 264 (CA 3, 2005); Newport News Shipbuilding &
Dry Dock Co v Brown, 376 F3d 245, 248 (CA 4, 2004); United States v Lowe, 118
F3d 399, 402 (CA 5, 1997); Saxion v Titan-C-Mfg Inc, 86 F3d 553, 560 (CA 6,
1996); Williams v Banning, 72 F3d 552, 554 (CA 7, 1995); Design Profesionals
Ins Co v Chi Ins Co, 454 F3d 906, 910 (CA 8, 2006); Mt Adams Veneer Co v
United States, 896 F2d 339, 342 (CA 9, 1990); Wright v Fed Bureau of Prisons,
451 F3d 1231, 1235 (CA 10, 2006); Medical Transportation Mgmt Corp v
Comm’r of Internal Revenue Service, 506 F3d 1364, 1368 (CA 11, 2007); United
States v Villanueva-Sotelo, 380 US App DC 11, 515 F3d 1234, 1237 (2008);
Butterbaugh v Dep’t of Justice, 336 F3d 1332, 1339 (CA Fed, 2003).
75
See, e.g., Gonzales v Oregon, 546 US 243, 258; 126 S Ct 904; 163 L Ed
2d 748 (2006); Houghton v Payne, 194 US 88, 99; 24 S Ct 590; 48 L Ed 888
(1904).

33
seeking workers’ compensation benefits. Indeed, § 315 and the entire WDCA are

entirely silent as to who, among these parties, is subject to a proration of attorney

fees. Absent extra-textual sources, any determination of the Legislature’s intent

becomes a mere exercise in speculation. Thus, having found that § 315(1) is

ambiguous, I may now look to extra-textual sources to aid in its interpretation.76

1. Harmonization with the WDCA

I seek an interpretation of § 315(1) that is in accord with the principles

underlying the WDCA as a whole. The act is remedial in nature.77 Thus, where

ambiguity exists and judicial construction of the act is necessary, we construe the

act’s terms liberally to grant rather than deny benefits to injured workers.78 This

canon of statutory construction is deeply embedded in both American and

Michigan jurisprudence.79

76
I find it noteworthy that neither of the dissents in this case characterizes §
315(1) as unambiguous under any of the historical standards for discerning
ambiguity or the definition enunciated in Lansing Mayor.

However, Justice Hathaway, in her concurring opinion, opines that § 315(1)
is unambiguous. A claim that a provision is ambiguous or unambiguous is best
accompanied by a discussion of what constitutes statutory ambiguity, or lack
thereof. Yet Justice Hathaway fails to address this step in the process of statutory
interpretation.
77
Sabotka v Chrysler Corp, 447 Mich 1, 20 n 18; 523 NW2d 454 (1994).
78
Paschke v Retool Industries, 445 Mich 502, 511; 519 NW2d 441 (1994),
citing Bower v Whitehall Leather Co, 412 Mich 172, 191; 312 NW2d 640 (1981).
79
See Haynes, supra at 42-44 (Kelly, J., concurring).

34
 The WCAC has explicitly recognized the importance of holding employers

and their insurance carriers responsible for a proration of attorney fees pursuant to

§ 315(1). In Harvlie v Jack Post Corp, the WCAC stated, “the purpose of [the]

attorney fee provisions . . . is not merely to assure that a claimant’s attorney is

paid, but also to deter employers from breaching their statutory duty to provide

medical treatment to injured workers. . . .”80

I find this reasoning persuasive and applicable to this case. If employers

and their insurance carriers are not held accountable for a prorated share of

attorney fees, they will have an incentive to deny medical benefits.81 They will be

tempted to deny an injured employee’s request for coverage in the hope that, in

80
Harvlie v Jack Post Corp, 2006 Mich ACO 69 at 5, citing Lahti v
Fosterling, 357 Mich 578; 99 NW2d 490 (1959) (emphasis added).
81
The dissents argue that my interpretation of § 315(1) will penalize
employers who validly contest an employee’s claim for benefits. This is not the
case. Nothing in this opinion can be construed as requiring a magistrate to prorate
fees against an employer or the employer’s insurance carrier. Furthermore, even if
there were a wrongful denial of medical treatment under § 315(1), the magistrate
is vested with the discretion not to prorate fees. Thus, the denial of a treatment,
whether valid or not, on its own, does not assure that an employer or its insurance
carrier will be subject to a proration of attorney fees.

Justice Young correctly asserts that “a workers’ compensation claimant is
ordinarily responsible for his own personal attorney fees.” Post at 6. However, §
315(1) deals not with attorney fees for a workers’ compensation claim, generally,
but with attorney fees specifically related to an employer’s failure, neglect, or
refusal to pay for “reasonable medical, surgical, and hospital services and
medicines, or other attendance or treatment recognized by the laws of this state as
legal, when they are needed . . .” MCL 418.315(1). Thus, a workers’
compensation claimant generally remains responsible for his or her attorney fees
unrelated to the matters governed by § 315(1).

35
subsequent litigation, they will not be found liable. And even if they were found

liable, they would be responsible only for actual medical expenses but not for

attorney fees, despite their wrongful denial of valid claims.

Likewise, if injured workers were forced to pay a prorated portion of their

own attorney fees, their ultimate recovery could be reduced below their actual

costs of securing medical treatment. Such a result would violate the remedial goal

of the WDCA.

2. Caselaw Has Employed Similar Reasoning

Caselaw also supports my interpretation of § 315(1). I find persuasive the

fact that every previous case that has analyzed § 315(1) with respect to the

proration of attorney fees has employed reasoning similar to mine.

The Court of Appeals first considered the proration of attorney fees

pursuant to § 315(1) in Boyce v Grand Rapids Asphalt Paving Co.82 There, the

plaintiff argued that his health care provider should be held responsible for a

portion of his attorney fees. The Court rejected this argument, noting that a party

does not become liable for attorney fees merely by accepting the benefits of an

attorney’s services.83 The Court also ruled that § 315(1) could be construed to

82
Boyce v Grand Rapids Paving Co, 117 Mich App 546; 324 NW2d 28
(1982).
83
Id. at 549-550.

36
require either the employer or its insurance carrier to pay a plaintiff’s attorney

fees.

Finally, the Court noted that Administrative Rule 14 of the Bureau of

Workers’ Compensation, which was in effect when the plaintiff was injured,

precluded attorneys from recovering a percentage fee for accrued medical

services.84 The Court questioned the soundness of Rule 14, noting that requiring

employers or insurance carriers to pay attorney fees when they refuse to pay

mandatory medical benefits would serve justice.85

84
Before 1979, Rule 14 provided that a plaintiff’s attorney shall deduct
reasonable expenses before computing a fee. These included expenses for
hospitals, surgery, medical providers, and burials. However, the statute was
amended in 1979 and the Legislature removed these from the expenses an attorney
is precluded from recovering. Thus, Rule 14 no longer prevents attorneys from
recovering a percentage attorney fee assigned by a recovery of medical services.
Watkins v Chrysler Corp, 167 Mich App 122, 131 n 1; 421 NW2d 597 (1988).
85
Boyce, supra at 551-552 n 45. In Zeeland Community Hosp v Vander
Wal, 134 Mich App 815; 351 NW2d 853 (1984), the Court of Appeals applied
analogous reasoning. Examining § 315(1), it noted, “Since the clause concerning
attorney fees follows the clause concerning the employer’s refusal to pay the
employer’s reasonable medical expenses, the final sentence is logically construed
to require either the employer or the insurance carrier to pay a portion of [a
plaintiff’s] attorney fees.” Id. at 823-825. The Court also held that the statute
does not evince an intent by the Legislature to require health care providers to pay
a portion of attorney fees. Id.

The Court of Appeals used the same reasoning in Duran v Sollitt
Construction Co, 135 Mich App 610, 615; 354 NW2d 277 (1984), which noted
that § 315(1) “seems to refer to payment by the employer or his insurer . . . .”
Moreover, the Duran Court agreed with Boyce that the statute precluded an
assessment of attorney fees against a health care provider. Id.

37
 In Watkins v Chrysler Corp,86 the Court of Appeals reaffirmed the principle

expounded in Boyce that the term “prorate” in the final sentence of § 315(1)

applies to employers and their insurance carriers. Watkins involved an injured

plaintiff who sought and was awarded workers’ compensation benefits. He

subsequently requested a hearing regarding his right to attorney fees related to

medical expenses ultimately paid by Blue Cross Blue Shield of Michigan. The

magistrate ruled that he was not entitled to such fees. The Workers’

Compensation Appeal Board (WCAB) reversed the magistrate’s decision and

awarded attorney fees to be paid by the plaintiff’s employer.

On appeal, the Court of Appeals reversed, holding that the imposition of

attorney fees under § 315(1) would be unconscionable. It noted that the plaintiff’s

medical expenses had been timely paid and that there had been no neglect, breach

of duty, or failure to provide medical care.87 Nonetheless, the Court reiterated that

the WCAB had improperly ignored the policy aspect of Boyce that an employer

and its insurer should bear attorney fees when medical expenses are not timely

paid.88

In contrast to Watkins, defendant in this case did not timely pay plaintiff’s

medical expenses such that there was no neglect, breach of duty, or failure to

86
Watkins v Chrysler Corp, 167 Mich App 122; 421 NW2d 597 (1988).
87
Id. at 132.
88
Id. at 131-132, citing Boyce, supra at 551-552 n 45.

38
provide medical care. Midwest failed to pay medical expenses despite the fact that

it was paying other workers’ compensation benefits to plaintiff. As the WCAC

noted, Midwest knew of plaintiff’s medical bills well in advance of trial, yet

simply refused to pay them. Thus, the employer “fail[ed], neglect[ed], or

refus[ed]” to furnish reasonable medical expenses for plaintiff’s injuries under §

315(1).89

Finally, in Harvlie v Jack Post Corp,90 the Court of Appeals found a unity

of purpose for § 315(1) by holding that its last sentence authorizes a magistrate to

prorate attorney fees among an employer and its insurance carrier. The Court

held:

Here, the WCAC majority’s construction of § 315(1) is
consistent with a harmonious reading of the last two sentences of §
315(1). The third sentence of § 315(1) provides that “the . . .
magistrate may prorate attorney fees at the contingent fee rate paid
by the employee.” Standing alone, this sentence contains ambiguity
because it fails to identify whom the magistrate may order to pay the
attorney fees. This sentence is not to be construed in isolation,
however, but instead must be read in the context of the whole statute
and harmonized with the statute’s other provisions in a manner that
effectuates the purpose intended by the Legislature. The second
sentence of § 315(1) addresses the consequences of an employer’s
failure to pay medical expenses and authorizes a magistrate to order
the employer to reimburse either the injured claimant or the
claimant’s medical insurance provider for the reasonable medical
expenses incurred. This second sentence addresses the
consequences to a nonpaying employer that “fails, neglects, or
refuses” to provide reasonable medical services. The WCAC

89
See id. at 132.
90
Harvlie v Jack Post Corp, 280 Mich App 439; 760 NW2d 277 (2008).

39
 properly construed the final two sentences of § 315(1) and provided
a unity of purpose for this statute.[91]

The Court noted that its holding was consistent with prior interpretations of

315(1).92

In sum, I agree with the magistrate, the WCAC, the Court of Appeals, and

established caselaw that employers and their insurance carriers are the only parties

subject to a proration of attorney fees under § 315(1). This interpretation

harmonizes the last sentence of § 315(1) with the preceding sentences of the

provision as well as with the remedial goals of the WDCA. Workers’

compensation magistrates may thus prorate an employee’s attorney fee incurred in

procuring payment for medical expenses against an employer, or against its

insurance carrier, or against both.

Here, the magistrate’s proration of attorney fees against defendants was

appropriate, given defendants’ failure to pay plaintiff’s medical services as

mandated by § 315(1). Accordingly, I conclude that the magistrate properly

prorated plaintiff’s attorney fees under § 315(1) against Midwest and Magna.

III. THE INAPPLICABILITY OF THE AMERICAN RULE

Finally, I note that Michigan courts follow the so-called “American rule”

91
Id. at 445-446 (citations omitted).
92
Id. at 446.

40
with respect to the payment of attorney fees.93 We have held that, “[u]nder the

American rule, attorney fees are not recoverable from the losing party as costs in

the absence of an exception set forth in a statute or court rule expressly authorizing

such an award.”94 This rule is codified at MCL 600.2405(6), which provides that

among items that may be taxed as costs are “[a]ny attorney fees authorized by

statute or court rule.”95

Here, § 315(1) explicitly grants magistrates the discretionary authority to

prorate attorney fees related to an employer’s failure to provide services in

accordance with the statute. Thus, the statute contemplates that a party other than

a plaintiff could, in the discretion of the magistrate, be ordered to pay attorney fees

in connection with a plaintiff’s suit. Accordingly, § 315(1) constitutes an express

statutory authorization of attorney fees, which trumps the otherwise applicable

American rule.

IV. CONCLUSION

I recommend that the Court modify and expand the principles set forth in

Robinson v Detroit governing when the Court should depart from the principle of

stare decisis. A stare decisis analysis should always begin with a presumption that

93
Haliw v Sterling Hts, 471 Mich 700, 706; 691 NW2d 753 (2005).
94
Id. at 707.
95
The American rule stands in contrast to the English rule. Under the
English rule, the losing party pays the prevailing party’s attorney fees and costs
absent an exception. Id.

41
upholding precedent is the preferred course of action. Next, the Court should

determine whether a compelling justification exists to overturn the precedent. A

compelling justification is not a mere belief that the precedential case was wrongly

decided or that the Court as currently composed would have decided the case

differently. The factors listed in this opinion should be used on a case-by-case

basis to determine whether a compelling justification exists to overrule an existing

precedent.

However, consistent with United States Supreme Court precedent, I would

accord a lower level of deference to cases that represent a recent departure from

the traditional notions of stare decisis.

I also reject as unworkable the definition of statutory ambiguity espoused in

Lansing Mayor. I conclude that MCL 418.315(1) is ambiguous because it is

capable of being understood by reasonably well-informed persons in two or more

different senses. As a consequence, the statute fails to clearly indicate the parties

among whom attorney fees may be prorated.

Finally, we would hold that the Legislature intended that the term “prorate”

in the last sentence apply only to employers and their insurance carriers. This

construction is consistent with well-established principles of statutory

interpretation, caselaw, the remedial nature of the WDCA, and the purpose of §

315(1). I would also hold that the American Rule of attorney fees does not apply

to § 315(1).

42
 Plaintiff’s motion to dismiss defendant’s application for leave to appeal is

considered, and it is denied. We affirm the judgment of the Court of Appeals.

Marilyn Kelly
Michael F. Cavanagh

43
 STATE OF MICHIGAN

SUPREME COURT

RICK PETERSEN,

Plaintiff-Appellee,

v Nos. 136542, 136543

MAGNA CORPORATION and MIDWEST
EMPLOYERS CASUALTY COMPANY,

Defendants-Appellants,

and

KOLEASECO and THE ACCIDENT FUND
COMPANY, MAGNA CORPORATION and
TIG INSURANCE COMPANY, BCN
TRANSPORTATION SERVICES and TIG
INSURANCE COMPANY, KOLEASECO,
INCORPORATED and CITIZENS
INSURANCE COMPANY, BCN
TRANSPORTATION SERVICES, SERTA
RESTOKRAFT MATTRESS COMPANY,
INCORPORATED and HARLEYSVILLE
LAKE STATES INSURANCE COMPANY,

Defendants-Appellees.

HATHAWAY, J. (concurring).

I concur in the lead opinion only to the extent that it concludes that the term

“prorate” in MCL 418.315(1) applies exclusively to employers and their insurance

carriers. I write separately because I do not find MCL 418.315(1) to be

ambiguous. Section 315(1), when read as a whole, indicates that the term
“prorate” in MCL 418.315(1) applies only to employers and their insurance

carriers.

This is a case of statutory interpretation. The proper interpretation and

application of a statute presents a question of law, which receives de novo review.1

Assuming that the Legislature has acted within its constitutional authority, the

purpose of judicial statutory construction is to discern and give effect to the intent

of the Legislature.2 In determining the intent of the Legislature, this Court must

first look to the language of the statute.3 The Court must, first and foremost,

interpret the language of a statute in a manner that is consistent with the intent of

the Legislature.4 As far as possible, effect should be given to every phrase, clause,

and word in the statute.5 The statutory language must be read and understood in

its grammatical context, unless it is clear that something different was intended.6

Moreover, when considering the correct interpretation, the statute must be read as

a whole.7 Individual words and phrases, while important, should be read in the

1
Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
2
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
3
Id.
4
Id.
5
Id. at 237.
6
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).
7
Sun Valley, supra at 237.

2
context of the entire legislative scheme.8 While defining particular words in

statutes, we must consider both the plain meaning of the critical word or phrase, as

well as its placement and purpose in the statutory scheme.9 A statute must be read

in conjunction with other relevant statutes to ensure that the legislative intent is

correctly ascertained.10 The statute must be interpreted in a manner which ensures

that it works in harmony with the entire statutory scheme.11

To determine the intent of MCL 418.315(1), the plain language of the

statute must first be examined. Section 315(1) provides in pertinent part:

The employer shall furnish, or cause to be furnished, to an
employee who receives a personal injury arising out of and in the
course of employment, reasonable medical, surgical, and hospital
services and medicines, or other attendance or treatment recognized
by the laws of this state as legal, when they are needed. . . . After 10
days from the inception of medical care as provided in this section,
the employee may treat with a physician of his or her own choice by
giving to the employer the name of the physician and his or her
intention to treat with the physician. The employer or the
employer’s carrier may file a petition objecting to the named
physician selected by the employee and setting forth reasons for the
objection. If the employer or carrier can show cause why the
employee should not continue treatment with the named physician of
the employee’s choice, . . . the . . . magistrate may order that the
employee discontinue treatment with the named physician or pay for
the treatment received from the physician . . . . If the employer fails,
neglects, or refuses so to do, the employee shall be reimbursed for

8
Herman, supra at 366.
9
Id., quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L
Ed 2d 472 (1995).
10
Wayne Co v Auditor General, 250 Mich 227, 233; 229 NW 911 (1930).
11
Id. at 234.

3
 the reasonable expense paid by the employee, or payment may be
made in behalf of the employee to persons to whom the unpaid
expenses may be owing, by order of the workers’ compensation
magistrate. The workers’ compensation magistrate may prorate
attorney fees at the contingent fee rate paid by the employee.
[Emphasis added.]

Section 315(1) gives magistrates the discretionary authority to prorate

attorney fees at the contingent fee rate paid by the employee. The question in this

case is against whom attorney fees can be prorated.

Although I disagree with the lead opinion that the final sentence of § 315(1)

is ambiguous, I agree with its conclusion that the final sentence of § 315(1) applies

only to employers and their insurance carriers. This interpretation of the statute

harmonizes the individual sentences and phrases in § 315(1) with each other. The

final sentence of § 315(1) cannot be construed to stand alone without reading it in

the context of the entire statute.12 It must be examined and analyzed as part of the

particular statutory provision and then harmonized with the statute’s other

provisions to satisfy the purpose intended by the Legislature.13

Section 315(1) pertains to employer liability to pay medical benefits to

workers injured in the course of employment. Section 315(1) mandates that

employers furnish an employee with medical treatment needed for an injury

arising out of and in the course of employment. The statute also enumerates

12
People v Couzens, 480 Mich 240, 250; 747 NW2d 849 (2008).
13
Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76
(1993).

4
certain types of treatment for which reimbursement costs can be contested by

employers and their insurance carriers. However, if an employer fails, neglects, or

refuses to provide covered medical expenses, the employer must reimburse the

employee for the expenses, or make a payment to a medical provider for unpaid

expenses that may be owing. The last sentence of § 315(1) gives a magistrate the

discretion to prorate attorney fees at the contingent fee rate paid by the employee

to recoup costs expended to recover medical expenses. Thus, the term “prorate” in

the final sentence of the § 315(1), when read with the rest of the statute, applies to

parties who might contest the payment of medical benefits: employers and their

insurance carriers. This interpretation provides a unity of purpose for § 315(1).

In closing, I concur only with of the lead opinion’s conclusion that the term

“prorate” in MCL 418.315(1) applies exclusively to employers and their insurance

carriers. I write separately because I do not find that § 315(1) is ambiguous.

Section 315(1), when read as a whole, indicates that the term “prorate” in § 315(1)

applies only to employers and their insurance carriers. This interpretation

harmonizes the final sentence of the statute with the entire statute as a whole.

Diane M. Hathaway
Elizabeth A. Weaver

5
 STATE OF MICHIGAN

SUPREME COURT

RICK PETERSEN,

Plaintiff-Appellee,

v Nos. 136542, 136543

MAGNA CORPORATION and MIDWEST
EMPLOYERS CASUALTY COMPANY,

Defendants-Appellants.

and

KOLEASECO and THE ACCIDENT FUND
COMPANY; MAGNA CORPORATION
and TIG INSURANCE COMPANY; BCN
TRANSPORTATION SERVICES and TIG
INSURANCE COMPANY; KOLEASECO,
INCORPORATED and CITIZENS
INSURANCE COMPANY; BCN
TRANSPORTATION SERVICES; SERTA
RESTOKRAFT MATTRESS COMPANY,
INCORPORATED and HARLEYSVILLE
LAKE STATES INSURANCE COMPANY,

Defendants-Appellees.

CORRIGAN, J. (dissenting).

I fully join Justice Markman’s dissenting opinion. I also join part II(B) of

Justice Young’s dissenting opinion.

Maura D. Corrigan
 STATE OF MICHIGAN

SUPREME COURT

RICK PETERSEN,

Plaintiff-Appellee,

V Nos. 136542, 136543

MAGNA CORPORATION and MIDWEST
EMPLOYERS CASUALTY COMPANY,

Defendants-Appellants.

and

KOLEASECO and THE ACCIDENT FUND
COMPANY; MAGNA CORPORATION
and TIG INSURANCE COMPANY; BCN
TRANSPORTATION SERVICES and TIG
INSURANCE COMPANY; KOLEASECO,
INCORPORATED and CITIZENS
INSURANCE COMPANY; BCN
TRANSPORTATION SERVICES; SERTA
RESTOKRAFT MATTRESS COMPANY,
INCORPORATED and HARLEYSVILLE
LAKE STATES INSURANCE COMPANY,

Defendants-Appellees.

YOUNG, J. (dissenting).

I fully join in parts IV(A), IV(C) through (F), and V of Justice Markman’s

dissenting opinion. I further dissent from the majority’s conclusion that “the term

‘prorate’ in MCL 418.315(1) applies only to employers and their insurance
carriers,”1 and with Chief Justice Kelly’s conclusion that a workers’ compensation

claimant may never be deemed responsible for a portion of the attorney fees

incurred because doing so would “violate the remedial goal of the WDCA.”2

Normally, a workers’ compensation claimant is responsible for bearing the

costs of his portion of the litigation, including attorney fees.3 I believe that MCL

418.315(1) serves as an exception to this general rule, permitting the magistrate to

prorate attorney fees between the claimant and the employer when the employer

refuses to pay “reasonable” and “needed” medical expenses for an injury “arising

out of and in the course of employment.” When an employer unjustifiably refuses

to fulfill its statutory duty to pay for medical expenses incurred as a result of a

work-related injury, it is entirely appropriate for the magistrate to consider

whether to exercise the discretionary powers the Legislature has provided to

prorate the fees between the parties according to the respective merits of their

positions. In sum, the discretionary authority to prorate is a fee shifting power that

reduces the claimant’s usual obligation to bear the entire burden of his own

attorney fees.

1
Ante at 2.
2
Ante at 36 (emphasis added).
3
Gilroy v Gen Motors Corp (After Remand), 438 Mich 330, 340; 475
NW2d 271 (1991) (“As in any other civil litigation, a workers’ compensation
claimant is ordinarily responsible for personal attorney fees.”) See also Gross v
Great Atlantic & Pacific Tea Co, 87 Mich App 448; 274 NW2d 817 (1978).

2
 In contrast, the majority allows only proration between the employer and its

insurer, while the claimant is relieved of paying any portion of his attorney fees.

As such, the majority position must be predicated on the assumption that every

claim for benefits is meritorious and that any contest of such a claim venal. The

reality is that some claims have merit and some should be contested; others may

involve unresolved factual and legal questions under the Worker’s Disability

Compensation Act that can be definitively resolved only by the magistrate and the

Workers’ Compensation Appellate Commission (WCAC). In consideration of this

reality, I believe that the proration provision was a legislative recognition that

neither the employer nor the claimant may have entirely meritorious positions in a

particular case. Thus, the magistrate has been authorized to “split the baby” and

divide the claimant’s fees when the respective merits of the party’s positions

warrant this. The majority does not prorate so much as shift the entire attorney fee

burden from the claimant to the employer in every case.

I. STATUTORY CONSTRUCTION

The statute at issue, MCL 418.315(1), provides in relevant part:

The employer shall furnish, or cause to be furnished, to an
employee who receives a personal injury arising out of and in the
course of employment, reasonable medical, surgical, and hospital
services and medicines, or other attendance or treatment recognized
by the laws of this state as legal, when they are needed. . . . If the
employer fails, neglects, or refuses so to do, the employee shall be
reimbursed for the reasonable expense paid by the employee, or
payment may be made in behalf of the employee to persons to whom
the unpaid expenses may be owing, by order of the worker’s
compensation magistrate. The worker’s compensation magistrate

3
 may prorate attorney fees at the contingent fee rate paid by the
employee.

It is clear that an employer has an affirmative statutory obligation to furnish

“reasonable” medical treatment for personal injuries “arising out of and in the

course of employment” when such treatment is “needed.” However, if the

employer fails to do so, the statute provides two options. If the claimant has paid

the medical expenses, the “employee shall be reimbursed for the reasonable

expense.” However, if the expenses remain “unpaid,” “payment may be made in

behalf of the employee to persons to whom the unpaid expenses may be owing, by

order of the worker’s compensation magistrate.” This sentence gives the

magistrate the discretion to direct payment to the third-party medical provider on

“behalf of the employee.” The last sentence provides that the “worker’s

compensation magistrate may prorate attorney fees at the contingent fee rate paid

by the employee.” As I agree with the majority that the word “prorate” simply

means to divide or distribute proportionately, the question in this case is simply

whether the attorney fees are to be divided between the claimant and the employer,

or the claimant and the medical provider.4

4
For the reasons explained earlier, I believe that the majority has simply
concluded that the employer must always pay the claimant’s attorneys fees. While
Justice Markman’s interpretation of the statute is certainly plausible, I do not
believe that the structure or language of MCL 418.315(1) evinces any legislative
intent to impose attorney fees upon third-party medical creditors who are not
parties to the litigation, did not contract with or agree to the services of plaintiff’s
attorney, and are entitled to the entirety of their fees (subject only to the cost

4
 Reading the first sentence of the statutory provision together with the last

two sentences leads to the conclusion that the fees may be prorated between the

claimant and the employer. The first sentence establishes an affirmative duty on

the employer to pay reasonable medical expenses for work-related injuries.

However, if the employer “fails, neglects, or refuses so to do,” payment can be

compelled, either by reimbursing the claimant or paying the claimant’s medical

creditors directly. The last sentence of the statute relates to the sentence preceding

it, permitting the proration of attorney fees between the parties when the employer

“fails, neglects, or refuses” to pay needed and reasonable medical expenses related

to the claimant’s work-related injury. In effect, this provision permits shifting to

the employer some of the attorney fee burden that the claimant would otherwise

bear.

II. ANALYTIC PROBLEMS WITH THE MAJORITY

A

Contrary to the majority’s analysis, there is no principled basis to

distinguish an employer from its insurance carrier for the purposes of prorating

attorney fees. It makes little sense to suggest, as the majority does, that the

claimant’s attorney fees can only be prorated between the employer and its

containment rules) both as a matter of statute and as a matter of contract. See MCL
418.315(2); Boyce v Grand Rapids Asphalt Paving Co, 117 Mich App 546; 324
NW2d 28 (1982); Zeeland Community Hosp v Vander Wal, 134 Mich App 815;
351 NW2d 853 (1984); and Duran v Sollitt Construction Co, 135 Mich App 610;
354 NW2d 277 (1984).

5
carrier. The reasons are fairly obvious. The statute does not say that proration can

only occur between an employer and its insurer. Moreover, when an employer is

insured, its carrier is merely its agent: the insurer’s duty is to indemnify and

defend its insured according to the terms of the insurance contract.5 In the case of

a self-insured employer, the majority’s analysis makes even less sense since there

is only one entity—the employer—and thus no one with whom to prorate as the

majority has exempted the claimant from the proration equation. En fin, whether

the employer is self-insured or insured, the claim is paid from the same pocket.

Thus, the majority deprives the word “prorate” of any value under any

circumstance, and employers will always bear the entire cost of attorney fees. If

the Legislature had intended that only the employer pay a claimant’s attorney fees,

it could have easily said as much and presumably would have done so in much

more direct language.

B

As noted, this Court and the WDCA have long recognized that a workers’

compensation claimant is ordinarily responsible for paying his own personal

attorney fees.6 The majority’s holding that workers’ compensation claimants are

categorically excluded from ever paying any portion of their attorney fees under

5
Blackwell v Citizens Ins Co of America, 457 Mich 662; 579 NW2d 889
(1998).
6
See n 3, supra. The majority does not mention this authority nor does it
overrule it.

6
MCL 418.315(1) represents a major departure from our caselaw and is

inconsistent with MCL 418.858, which permits the director to limit the “maximum

attorney fees” “paid by the employee.”7 This legislative enactment, permitting the

limitation of attorney fees for those representing injured workers in a workers’

compensation claim, applies exclusively to disputes between attorneys and their

clients8 and recognizes that attorney fees are generally payable by the claimant.9

Thus, contrary to the majority’s claim that requiring a claimant to pay a portion of

his attorney fees would “violate the remedial goal of the WDCA,” decades of

caselaw, as well as the plain language of MCL 418.858(2), indicate otherwise.

C

The majority holds that the term “prorate” is limited to “the parties who

might contest the payment of medical benefits: employers and their insurance

carriers.”10 As an initial matter, nothing in the language of this provision limits

the term “prorate” to the party “contesting” the payment of medical benefits, to

7
MCL 418.858(2). The predecessor of this statutory provision was first
enacted in 1912. See 1912 (1st Ex Sess) PA 10, part III, § 10; Mackin v Detroit-
Timkin Axle Co, 187 Mich 8; 153 NW 49 (1915).
8
See Gross v Great Atlantic & Pacific Tea Co, supra at 451 (MCL 418.858
“applies to disputes between attorneys and their clients; it does not apply to
disputes between parties.”).
9
See May v Charles Hoertz & Son, 204 Mich 432; 170 NW 305 (1919);
Pearson v Gillard, 231 Mich 541; 204 NW 725 (1925); Vellenoweth v Gen Motors
Bldg Corp, 247 Mich 274; 225 NW 522 (1929); Rench v Kalamazoo Stove &
Furnace Co, 290 Mich 476; 287 NW 884 (1939).
10
Ante at 8.

7
the exclusion of the party “seeking” the payment of medical benefits. The majority

adds language to the statute because the majority imagines that an employer might

“be tempted to deny an injured employee’s request for coverage in the hope that,

in subsequent litigation, they would not be found liable.”11 However, contrary to

the apparent beliefs of the majority, an employer is not statutorily liable for every

medical expense submitted by a claimant. Rather, pursuant to MCL 418.315, an

employer is only obligated to pay reasonable and needed medical expenses for

work-related injuries. I find nothing strange or reprehensible, much less unlawful,

about an employer declining to pay medical expenses that it had no legal

obligation to pay.

Where there are legitimate legal or factual disputes to be resolved on

disputed workers’ compensation claims, the hearing before the workers’

compensation magistrate is the sole mechanism that settles those disputes and

determines whether the medical treatment was needed and reasonable, and

whether the medical treatment was related to “a personal injury arising out of and

in the course of employment.” While employers should be discouraged from

wrongly denying medical benefits, the majority articulates no legal or logical basis

for concluding that an employer should be discouraged from or punished for

correctly denying claims to which a claimant is not entitled, or from seeking a

11
Ante at 35-36 (emphasis added).

8
resolution of arguable legal or factual disputes that call into question the

employer’s obligation to pay.12

Here, Chief Justice Kelly’s lead opinion states that “the magistrate’s

proration of attorney fees against defendants was appropriate, given defendants’

failure to pay plaintiff’s medical services as mandated by § 315(1).”13 However,

in this case, where plaintiff was a “leased” employee, there were genuine factual

and legal issues to be resolved regarding whether Koleaseco or BCN

Transportation was plaintiff’s employer, and whether a valid workers’

compensation insurance policy existed between BCN Transportation and Midwest

Employers Casualty Company. In light of these unresolved issues, it is unclear

that Midwest unreasonably refused to pay plaintiff’s medical benefits. Moreover,

the magistrate did not find that Midwest unreasonably refused to pay medical

benefits as the basis for assessing attorney fees against Midwest. Rather, the

magistrate assessed attorney fees against Midwest on the basis of the “substantial

amount of work” and time expended by plaintiff’s counsel in litigating the case.

12
This is consistent with the WCAC’s treatment of MCL 418.315(1), which
permitted the award of attorney fees “in cases where an employer or carrier has
failed, neglected, or refused to pay for medical services a claimant is clearly
entitled to. Thus, an attorney fee may be awarded only where there was non-
payment in the face of a ‘clear entitlement.’” Beattie v Wells Aluminum Corp,
2005 ACO 157 at 10-11 (emphasis added). See also Scheland v Jet Box Co, 1995
ACO 242; Gessner v Keeler Brass Co, 1997 ACO 548; Gronley v St Clair
Fiberglass, Inc, 2001 ACO 298; Sikkema v Taylor Carving, Inc, 1992 ACO 469.
13
Ante at 40.

9
However, awarding attorney fees based on the amount of work and time expended

by the attorney is in direct contravention of the last sentence of § 315(1), which

contemplates the payment of attorney fees on a contingent rather than hourly

system. I would remand this case to the magistrate to assess the issue of attorney

fees under the appropriate legal standard.

Robert P. Young, Jr.

10
 STATE OF MICHIGAN

SUPREME COURT

RICK PETERSEN,

Plaintiff-Appellee,

v Nos. 136542-43

MAGNA CORPORATION and MIDWEST
EMPLOYERS CASUALTY COMPANY,

Defendants-Appellants,
and

BCN TRANSPORTATION SERVICES,
INC.; KOLEASECO, INC. and CITIZENS
INSURANCE COMPANY OF AMERICA;
KOLEASECO, INC. and ACCIDENT
FUND OF AMERICA; BCN
TRANSPORTATION SERVICES and TIG
INSURANCE COMPANY; MAGNA
CORPORATION and TIG INSURANCE
COMPANY; and SERTA RESTOKRAFT
MATTRESS COMPANY, INC. and
HARLEYSVILLE LAKE STATES
INSURANCE COMPANY,

Defendants-Appellees.

MARKMAN, J. (dissenting).

Because I disagree with the majority interpretation of the statute in

controversy, MCL 418.315, I respectfully dissent.1

1
By the “majority interpretation,” I refer only to the result reached by a
majority of this Court in the opinions of the Chief Justice (joined by Justice
 I. BACKGROUND

Plaintiff, a truck driver, fell off his truck and injured his back while

working. He sought workers’ compensation benefits under the Worker’s

Disability Compensation Act (WDCA), MCL 418.101 et seq. The magistrate

granted benefits and medical costs to plaintiff, and also imposed $46,034 against

defendants for plaintiff’s attorney fees pursuant to MCL 418.315(1).2 The

Workers’ Compensation Appellate Commission (WCAC) affirmed.

The Court of Appeals initially denied leave to appeal, but this Court

remanded for consideration as on leave granted on the division of defendants’

liabilities and the assessment of attorney fees. 477 Mich 871 (2006). On remand,

the Court of Appeals affirmed the WCAC’s imposition of liability against certain

defendants, and that issue is not the subject of this appeal. The Court of Appeals

also affirmed the WCAC’s assessment of attorney fees against defendants.

Unpublished opinion per curiam of the Court of Appeals, issued April 17, 2008

(Docket Nos. 273293 and 273294). The majority determined that attorney fees

could be imposed on employers and their insurers under § 315(1), while Judge

Zahra, in dissent, concluded that § 315(1) did not allow such imposition. This

Court granted leave to appeal to consider the meaning of § 315(1), 482 Mich 994

Cavanagh) and Justice Hathaway (joined by Justice Weaver).
2
Defendants are various business entities that were either found to be
plaintiff’s “employer” for purposes of the WDCA or else liable for those payments
as insurers.

2
(2008), and now affirms the Court of Appeals. Because I believe the Court of

Appeals dissent is correct, I dissent.

II. STANDARD OF REVIEW

Questions of statutory interpretation are reviewed de novo. Brackett v

Focus Hope, Inc, 482 Mich 269, 275; 753 NW2d 207 (2008).

III. STATUTE

MCL 418.315(1) provides, in part:

The employer shall furnish, or cause to be furnished, to an
employee who receives a personal injury arising out of and in the
course of employment, reasonable medical, surgical, and hospital
services and medicines, or other attendance or treatment recognized
by the laws of this state as legal, when they are needed . . . The
employer shall also supply to the injured employee dental service,
crutches, artificial limbs, eyes, teeth, eyeglasses, hearing apparatus,
and other appliances necessary to cure, so far as reasonably possible,
and relieve from the effects of the injury. If the employer fails,
neglects, or refuses so to do, the employee shall be reimbursed for
the reasonable expense paid by the employee, or payment may be
made in behalf of the employee to persons to whom the unpaid
expenses may be owing, by order of the worker’s compensation
magistrate.[3] The worker’s compensation magistrate may prorate
attorney fees at the contingent fee rate paid by the employee.

The instant dispute centers on the meaning of the final sentence, specifically what

it means for the magistrate to be allowed to “prorate attorney fees.” Plaintiff

contends, and a majority of this Court agrees, that this sentence allows a

magistrate, when granting a recovery under the penultimate sentence, to order the

3
Presumably, if the employee has not paid the reasonable expenses for
“medical, surgical, and hospital services,” then the medical providers of those
services are the “persons to whom the unpaid expenses may be owing.”

3
employer to pay, in addition to the amount awarded for reimbursement of unpaid

medical expenses, the employee’s attorney fees attributable to the unpaid

benefits.4 Defendants, however, argue that the final sentence allows a magistrate,

when ordering an employer to pay unpaid medical expenses to “persons to whom

the unpaid expenses may be owing,” to deduct a proportionate share from those

payments for the employee’s attorney fees.5

The primary goal of statutory interpretation is to discern and give effect to

the Legislature’s intent. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648

(2004). A court first looks at the statute’s language, Brown v Detroit Mayor, 478

Mich 589, 593; 734 NW2d 514 (2007), from which “the Legislature’s intent must

be gathered,” Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511,

515; 573 NW2d 611 (1998) (quotation marks omitted). When reviewing the

statute, “[a]ll words and phrases shall be construed and understood according to

the common and approved usage of the language,” MCL 8.3a, and “a word or

4
Under this approach, if the magistrate ordered the employer to pay either
the employee or a medical provider $2,000 for unpaid expenses, the magistrate
could also order the employer to pay the employee’s attorney fees for the
contingency fee on that amount. Assuming a 30% contingency fee, the employer
would pay $2,600 total, with $2,000 paid to the employee or medical provider and
$600 paid to the employee’s attorney.
5
Under this approach, if the magistrate ordered the employer to pay a
medical provider $2,000 for unpaid expenses, the magistrate would apportion an
amount based on the employee’s contingency fee from that payment to go towards
the employee’s attorney fees. Assuming a 30% contingency fee, the employer
would pay $2,000, with $600 paid to the employee’s attorney and $1,400 paid to
the medical provider.

4
phrase is given meaning by its context or setting,”6 Koontz v Ameritech Services,

Inc, 466 Mich 304, 318; 645 NW2d 34 (2002).

I agree with the Court of Appeals dissent, and with defendants, that the

better interpretation of § 315(1)’s final sentence is that a magistrate can apportion

an amount of the employee’s attorney fees from an employer’s payment to the

medical care providers. This interpretation rests principally on the meaning of

“prorate,” which means “to divide, distribute, or calculate proportionately.”

Random House Webster’s College Dictionary (1997). Thus, the final sentence can

be read to allow the magistrate to either divide or distribute proportionately

attorney fees. That the division or distribution must be proportionate necessarily

implies that there must be some basis, or rational calculation, upon which the total

amount of attorney fees can be divided or distributed. This basis becomes

increasingly apparent when § 315(1)’s final sentence is considered with the

previous sentence, in which the magistrate is directed to order the employer to

make “payment . . . in behalf of the employee to persons to whom the unpaid

expenses may be owing.” Thus, payments will be made to medical providers in

the amount of the unpaid expenses owed by the employee. These payments

logically supply the basis upon which the attorney fees can be proportionately

divided, because each payment constitutes a portion of the whole on which the

6
“It is only, therefore, within a context that a word, any word, can
communicate an idea.” Leach v FDIC, 860 F2d 1266, 1270 (CA 5, 1988).

5
employee’s attorney fees are calculated.7 That is, if the magistrate orders payment

to multiple medical providers, then a share of the employee’s attorney fees is

deducted from each payment based on the proportion of the whole that each

payment represents.

The Legislature’s use of the word “may” to confer upon the magistrate the

authority to “prorate attorney fees” lends further support to this interpretation. By

this word choice, the Legislature has indicated that there are times when a

magistrate might not “prorate attorney fees.” If “prorate” is interpreted to allow a

division of fees between medical care providers, then the use of “may” in this

context makes sense. In those instances that the magistrate directs payment to the

medical providers, the magistrate would divide the fees, but when the magistrate

only ordered reimbursement to the employee for his or her “reasonable expenses

paid,” the magistrate would not divide the fees. Thus, the final sentence

recognizes that under the penultimate sentence the magistrate may direct payment

either to the employee, in which case the division of attorney fees would be

inappropriate, or the magistrate may direct payment to multiple medical care

7
This interpretation reflects the common understanding of the term
“prorate” as often used, for example, in rental arrangements. A landlord will often
“prorate” the tenant’s rent when the lease does not begin on the first of the month.
The tenant pays a prorated amount of the monthly rent based on the number of
days (out of the whole month) that the tenant will be living in the apartment before
the beginning of the next month.

6
providers, or to the employee and medical care providers, in which case division

of the attorney fees would be appropriate.

By contrast, the majority interpretation of § 315(1)’s final sentence allows a

magistrate to impose attorney fees against the employer, in addition to the

payment for unpaid medical expenses, with utterly no direction concerning the

circumstances in which the magistrate should do so. That is, the majority

interpretation accords the magistrate the discretion to assess attorney fees against

an employer when the employer “fails, neglects, or refuses” to pay benefits, but

provides no guidance for ascertaining when that discretion should or should not be

exercised. Had the Legislature truly intended for the magistrate to impose

attorney fees against an employer, it seems likely that the Legislature would have

included some standard for determining the circumstances under which fees

should be assessed.8

Even more troubling is that the Chief Justice apparently finds the entire

final sentence of § 315(1) irrelevant in concluding that a magistrate can impose

attorney fees against an employer. She states:

8
The Chief Justice asserts that giving the magistrate such standardless
discretion is supported by “[o]ther provisions of the WDCA that vest similar
discretion in magistrates using the word ‘may.’” Ante at 9 n 19. Contrary to her
assertion, however, those other provisions do not similarly vest in a magistrate
standardless discretion; rather, they provide at least some specific direction by
which the magistrate is to exercise his discretion. With regard to the final
sentence of § 315(1), this dissent finds that direction in the penultimate sentence of
§ 315(1); by contrast, the Chief Justice finds the penultimate sentence to be
irrelevant to her analysis.

7
 [T]he word ‘may’ bears on whether a proration must occur if
a magistrate does award attorney fees. . . . Should a magistrate
determine that only one [party] is liable, the magistrate may impose
attorney fees against only that party. Conversely, should the
magistrate find multiple parties liable, fees may be prorated
accordingly. [Ante at 8-9.]

Thus, the Chief Justice interprets § 315(1) to allow a magistrate to impose attorney

fees absent any “proration” of the fees because she interprets “may” as according

the magistrate the discretion to decide “whether a proration must occur,” after he

has already decided to award attorney fees. If the magistrate determines that the

attorney fees should be imposed on “multiple parties,” then the magistrate can

“prorate” or divide the fees among those parties. However, if “only one [party] is

liable,” the magistrate can impose the fees “against only that party” without

having to “prorate” or divide the fees at all. This completely fails to recognize that

§ 315(1) only allows the magistrate to “prorate” or not “prorate” attorney fees.

Interpreting § 315(1) to allow the magistrate to impose attorney fees without

relying on the specific authority to “prorate” reads an authorization into the statute

that clearly does not exist.

The Chief Justice supports her interpretation by reasoning that because the

“statute . . . provides a process for employers and their insurance carriers to object

to the medical treatment that an injured employee seeks,” the final sentence “when

read with the remainder of the statute, applies to the parties who might contest the

payment of medical benefits: employers and their insurance carriers.” Ante at 8.

That is, to “harmonize[] the final sentence with the remainder of § 315,” and to

8
avoid the final sentence “stand[ing] alone,” § 315(1)’s final sentence must be read

to impose additional liability on employers and their insurers, in order to maintain

a “unity of purpose.” Ante at 7-8; see also ante at 4 (Hathaway, J., concurring).

Contradicting this pursuit of “harmony” and “unity,” however, are fundamental

differences between § 315(1)’s final sentence and the preceding sentences, which

clearly establish an employer’s liability for particular expenses. In these

preceding sentences, the Legislature states that the employer “shall furnish, or

cause to be furnished,” various reasonable medical expenses and that the employer

“shall also supply” various correctional devices (e.g., eyeglasses, artificial limbs,

crutches). MCL 418.315(1). If the employee pays these reasonable expenses,

then under the penultimate sentence the employee “shall be reimbursed” for the

reasonable expense paid by the employee. Id. Thus, the penultimate sentence

relates back to the listed expenses that an employer “shall” pay. Attorney fees are

not included in those expenses; yet the majority interpretation effectively gives the

phrase “may prorate” the same meaning as the phrases “shall furnish” and “shall

supply” so that the final sentence imposes an additional payment obligation upon

the employer. This conclusion is contrary to the logical assumption that, had the

Legislature intended to affirmatively impose payment of attorney fees upon an

employer, it would have done so with at least approximately the same clarity with

which it imposed liability for other expenses upon the employer earlier within the

9
same subsection.9 Instead, the Legislature chose to use considerably different

language in the final sentence than in the immediately preceding sentences.10

The final sentence is much better read, in my judgment, as an adjunct to the

magistrate’s ability to direct payment to medical providers established in the

penultimate sentence. The legislative amendment adding the final sentence to §

315(1) specifically supports such a relationship. Before this amendment, the then-

final sentence of former MCL 412.4, which is now § 315(1)’s penultimate

sentence, only allowed the employee to receive payment for medical expenses:

If the employer shall fail, neglect or refuse so to do, such
employee shall be reimbursed for the reasonable expense incurred by
or on his behalf in providing the same, by an award of the
commission. [MCL 412.4, as amended by 1955 PA 250.]

When the Legislature amended the statute to allow payment to also be directed to

the medical providers, it added the now-final sentence in dispute here:

If the employer shall fail, neglect or refuse so to do, such
employee shall be reimbursed for the reasonable expense paid by
him, or payment may be made in behalf of such employee to persons
to whom such unpaid expenses may be owing, by an award of the
9
Indeed, the Legislature has been fairly consistent throughout the WDCA
when it imposes liability against the employer. For example, § 301(1) states that
an employee “shall be paid compensation as provided in this act”; § 345 states that
“the employer shall pay, or cause to be paid, the reasonable expense of the
employee’s last sickness, funeral, and burial”; and § 351(1) states that “the
employer shall pay” weekly compensation when the employee is totally
incapacitated from work. (Emphasis added.)
10
Although the Chief Justice and Justice Hathaway purport to “read [§
315(1)’s final sentence] with the remainder of the statute,” ante at 8 and ante at 5
(Hathaway, J. concurring), both fail to even give consideration to the language in
the immediately preceding sentence.

10
 commission. The commission may prorate attorney fees in such
cases at the contingent fee rate paid by such employee and it may
also prorate such payments in the event of redemptions. [MCL
412.4, as amended by 1963 PA 199.]

Thus, the magistrate’s ability to “prorate attorney fees” directly accompanied the

magistrate’s ability to direct payments to medical providers.11 This association

seems to indicate that the Legislature recognized that when medical providers

received payment from the employer, the medical providers themselves could

fairly be said to have been enriched by the work of the employee’s attorney.

Prior to the amendment, a medical provider was relegated to seeking

payment from the employee through a separate cause of action. Even if the

medical providers recovered the full amount in the action, each would still have to

pay its own attorney costs due to the longstanding “American Rule” regarding

11
Recognizing that “not all legislative history is of equal value,” In re
Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003), this
amendment of the statute constitutes the legislative action that established the
present relationship between § 315(1)’s penultimate and final sentences that can
be gleaned from the sentences themselves. See supra at 6-7. As such, the fact of
this amendment represents what is clearly the most compelling form of legislative
history, because it is derived purely from the enacted words of the statute. On the
other hand, relying on legislative history based upon a legislative analysis, see,
e.g., Adrian School Dist v Michigan Pub School Employees’ Retirement Sys, 458
Mich 326, 335; 582 NW2d 767 (1998) (Kelly, J.); Omne Financial, Inc v Shacks,
Inc, 460 Mich 305, 315 n 12; 596 NW2d 591 (1999) (Kelly, J.), created by staff
offices within the Legislature is significantly less compelling, In re Certified
Question, 468 Mich at 115 n 5, and legislative history that relies exclusively upon
the statements of a single one of 110 members of the House of Representatives, or
a single one of 38 members of the state Senate, is even less compelling.

11
attorney fees.12 In effect, the Legislature set forth a shortcut to this practice in §

315(1). Rather than requiring medical providers to hire their own attorneys and

commence separate actions against the employee, § 315(1) now allows the

medical provider to recover through the action instituted by the employee.13

12
In Haliw v Sterling Hts, 471 Mich 700, 706-707; 691 NW2d 753 (2005),
we stated:
Michigan follows the “American rule” with respect to the
payment of attorney fees and costs. Under the American rule,
attorney fees generally are not recoverable from the losing party as
costs in the absence of an exception set forth in a statute or court rule
expressly authorizing such an award. [Citation omitted.]
13
This is similar to the arrangement provided by § 821(2), which allows an
employee to assign a portion of his workers’ compensation award to an insurance
company, health maintenance organization, or medical care and hospital service
corporation that makes an advance or payment to the employee under an insurance
policy that provides that benefits are not payable for workers’ compensation
injuries. Upon enforcement of that assignment, the insurance company, health
maintenance organization, or medical care and hospital service corporation shall
pay “a portion of the attorney fees of the attorney who secured the worker’s
compensation recovery.” MCL 418.821(2). Thus, the employee retains an
attorney to recover benefits, and the recovery subject to the assignment helps pay
the employee’s attorney fees.

Likewise, pursuant to § 827, a nonparty employer can recover through the
efforts of an employee’s attorney pursuing a third-party liability action, whereby
an employee can seek recovery for the same damages he “would be entitled to
recover in an action in tort.” MCL 418.827(5). If the employee recovers, then he
shall first “reimburse the employer or carrier for any amounts paid or payable”
under the WDCA, reduced by “expenses of recovery,” id., which include
“reasonable expenditures, including attorney fees, incurred in effecting recovery,”
MCL 418.827(6). Thus, the employer does not recover the full amount it paid
under its workers’ compensation policy. Rather, the full amount is less any
attorney fees, which the employer would have had to pay had it sued the third
party for recovery as it is entitled to do. MCL 418.827(1) (employer can bring suit
against third party in name of employee if one year has passed since the

12
Medical providers receive the same reimbursement amount as they did before the

amendment, while employees retain more of the recovery to which they are

entitled.14

The majority interpretation would impose an additional cost upon the

workers’ compensation process by penalizing employers and forcing them to pay

not only for their own attorneys, but also for their employees’ attorneys. This

employee’s injury). This reduction of the recovery amount is the same as when a
magistrate “prorates” pursuant to § 315(1)’s final sentence.
14
The financial outcome for medical providers remains the same, whereas,
by eliminating the need for providers to hire attorneys, the employee actually
keeps more of his medical expenses. For example, assume that an employee has
paid $3,000 in medical expenses provided for in § 315(1) and still owes a medical
provider $2,000 for such expenses. Further assume that attorney fees are 30% of
any recovery. Prior to the addition of § 315(1)’s final sentence, an employee
would seek recovery of $5,000 from the employer and, upon receiving that
amount, would owe his attorney $1,500. After the medical provider commenced
an action for the $2,000 and obtained a judgment for that amount, the employee
would be left with $1,500, half of what he paid. The medical provider would owe
its attorney $600, meaning that the medical provider recovered $1,400 for its
$2,000 bill. Thus, the employee retained $1,500, the medical provider retained
$1,400, and the attorneys (employee’s and medical provider’s) went home with
$2,100. On the other hand, after the addition of § 315(1)’s final sentence as
interpreted in this dissent, the magistrate would direct payment of $2,000 to the
medical provider but with $600 appropriated for the employee’s attorney. The
magistrate would also direct payment of $3,000 to the employee but with $900
appropriated for the employee’s attorney. As a result, the medical provider
recovers the same amount that it would have recovered in a separate action against
the employee, but the employee is left with $2,100, which is $600 more than he
would have recovered under the old system. The $600 is available because the
Legislature provided a way in which recovery could be realized by both the
employee and the medical provider without requiring both to hire their own
attorneys.

13
increased expense is at odds with § 801(3), in which the Legislature has already

provided a penalty for unpaid medical benefits:

If medical bills or travel allowance are not paid within 30
days after the carrier has received notice of nonpayment by certified
mail, in cases where there is no ongoing dispute, $50.00 or the
amount of the bill due, whichever is less, shall be added and paid to
the worker for each day over 30 days in which the medical bills or
travel allowance are not paid. Not more than $1,500.00 in total may
be added pursuant to this subsection.

The majority interpretation would establish a new penalty provision with §

315(1)’s final sentence that is inconsistent with the WDCA’s actual penalty

provision, in which the Legislature expressly provides for a penalty payment only

“where there is no ongoing dispute.” Nothing in the majority interpretation

prevents the attorney-fees penalty from operating even in the presence of a

dispute, which is directly contrary to when the Legislature has stated a penalty

should apply. If the Legislature intended § 315(1) to operate as a penalty

provision, then it would seem that such penalty would at least be assessed

consistently with the penalty provided under § 801(3). This lack of consistency

casts further doubt on the majority interpretation.

With respect to the magistrate’s authority over medical providers that are

not parties to the action, § 315(2) implies that the magistrate indeed does have

authority over medical providers when they are operating in the context of § 315

by providing that any recovery by a medical provider can be reduced by the

magistrate to the “maximum charge established under the rules.” (Emphasis

added.) Thus, the magistrate may reduce the provider’s recovery even if the

14
provider is not a party to the action. It follows that the magistrate has the same

ability to reduce the recovery to pay for an employee’s attorney fees when the

statute grants the magistrate such authority in § 315(1).15

In conclusion, several clues supplied by § 315(1) and the WDCA support

the interpretation set forth in this dissent. Particularly relevant in this regard are:

(1) the use of “prorate,” the proportionality of the division this term conveys, and

the fact that there is some logical standard or basis for calculating proportions

under this interpretation, but not under the majority interpretation; (2) the use of

“may” in describing the magistrate’s authority to prorate, and the fact that there is

15
I also respectfully disagree with Justice Young’s interpretation that §
315(1) “permit[s] the magistrate to prorate attorney fees between the claimant and
the employer . . . .” Ante at 2. First, he does not account for why the magistrate’s
authority to “prorate attorney fees” is only triggered “when an employer
unjustifiably refuses to fulfill its statutory duty to pay for medical expenses . . . .”
Ante at 2. It would seem more logical under his interpretation that a magistrate
could impose attorney fees against an employer any time the employer “fails,
neglects, or refuses” to pay for the medical expenses. Nowhere does the statute
include the caveat that the refusal must be “unjustified” before the magistrate can
“prorate” the fees. Second, the statute directs proration “at the contingent fee rate
paid by the employee,” MCL 418.315(1), not “according to the respective merits
of [the parties’] positions,” ante at 2. Third, the penultimate sentence “provides
two options”-- the magistrate can direct payment to the employee or to medical
providers-- and Justice Young, in my judgment, fails to recognize that these
options provide an obvious statutory basis upon which the magistrate can exercise
his discretion to “prorate attorney fees.” Finally, although medical providers are,
in fact, “entitled to the entirety of their fees” before litigation, ante at 4 n 4, the
reality is that a recovery will always be subject to attorney fees. Rather than
“impos[ing]” fees against the providers, the Legislature created a mechanism
whereby the fees are simply deducted from the recovery being paid to the
provider, and whereby the number of “parties to the litigation” can be reduced,
without affecting the outcome to those potential parties.

15
some logical standard or basis for exercising this authority under this

interpretation, but not under the majority interpretation; (3) the consistency of this

interpretation, and the lack of consistency of the majority interpretation, with the

penalty provision in § 801(3); (4) the fact that the majority interpretation reads

words into § 315(1) that are absent and nullifies words that are present; (5) the

significant differences in language between the introductory sentences of § 315(1),

which clearly establish an employer’s liability for particular expenses, and its final

sentence, which does nothing equivalent; (6) the logical implications drawn from §

315(1)’s final sentence being positioned after the penultimate sentence, and the

legislative amendment of § 315(1); and (7) the similarity in the arrangement

between employees’ attorneys and medical providers set forth in this dissent and

the arrangement between employees’ attorneys and nonparties set forth in §§ 821

and 827.

IV. RESPONSE TO THE CHIEF JUSTICE

Not content with merely misconstruing the law, the Chief Justice adopts an

approach to statutory interpretation that can only be described as bizarre. She

begins her interpretation by asserting that the “threshold question is whether

. . . the last sentence of § 315(1) is ambiguous.” Ante at 7.16 After an entirely

gratuitous citation to the dictionary definition of “prorate,” one that promptly

proves to be irrelevant to any subsequent analysis, the Chief Justice determines

16
I note that this approach has not garnered majority support on this Court.

16
that “the term ‘prorate’ could reasonably apply to employers, their insurance

carriers, health care providers, and to employees seeking workers’ compensation

benefits, or to any combination of them.” Ante at 7. This finding should come as

no surprise considering the Chief Justice’s focus on the word “prorate” without

regard to its context. Next, the Chief Justice initially determines that “neither §

315 as a whole nor the statute’s other provisions indicates the parties to whom a

division or distribution of attorney fees applies,” but nevertheless proceeds to

adopt her own interpretation because it “unifies the last sentence of § 315(1) with

the remainder of the statute.” Ante at 8. Satisfied that her interpretation also gives

effect to the word “may,” cf. supra at 7-8, the Chief Justice then concludes that her

interpretation “affords the phrase ‘may prorate’ its full meaning.” Ante at 9. After

all this, the Chief Justice continues to answer her “threshold question” in the

affirmative, concluding that the statute is ambiguous because other “interpretations

of § 315(1) exist.” Ante at 9. That is, rather than even giving the appearance that

she has reached the conclusion that the statute is “ambiguous” based upon her

difficulty in ascertaining its meaning, the Chief Justice withdraws from the process

of statutory interpretation once other interpretations are presented. It is apparently

much easier to summarily declare “ambiguity,” and thereby avoid the

inconvenience of having to actually carry out one’s judicial duties by deciding

what the statute or contract actually states.17

17
Because interpreting either statutes or contracts requires a court to give

17
 A. Ambiguity

As evident from her “interpretation” here, the Chief Justice’s dependence

on an extraordinarily low threshold for finding ambiguity, and her resultant

conclusion that § 315(1) is, of course, “ambiguous,” are essential to her analysis.

The Chief Justice then proceeds on the assumption that, once ambiguity has been

established, a judge is essentially unencumbered by any serious restraints imposed

by the language of a statute or contract and effectively has carte blanche to utilize

whatever factors are deemed appropriate in reaching a result.

I disagree with this approach to “interpretation,” not merely because it

divorces the interpretative process from the law that is purportedly being

“interpreted,” but also because it raises the unavoidable suspicion that a judge is

reaching the result he or she would personally prefer rather than the result

compelled by the law. That is, instead of abiding by the traditional exercise of the

“judicial power” in which the judge, employing the statute or contract itself as the

lodestar, says only what the law “is,” the Chief Justice by her understanding of

ambiguity would effectively exercise the “legislative power” to say what the law

“ought to be” by arbitrarily picking and choosing among a practically limitless

meaning to specific language, the interpretative approach signaled by a particular
view of ambiguity “applies with equal force whether the court is interpreting a
statutory text or a contractual one.” Mayor of Lansing v Pub Service Comm, 470
Mich 154, 165 n 6; 680 NW2d 840 (2004). See also Ellis v Farm Bureau Ins Co,
482 Mich 1119, 1120-1121; 760 NW2d 212 (2008); Zahn v Kroger of Michigan,
483 Mich 34, 40 n 8; 764 NW2d 207 (2009).

18
variety of available extra-textual considerations.18 For the Chief Justice, the

concept of ambiguity is one to be both casually and peremptorily invoked-- as in

this case in which no party has even asserted that the statute is ambiguous-- to

avoid the discipline of the traditional judicial process, while maintaining at least

some appearance that this process has been respected. The lower the barrier to

finding ambiguity, the more effortlessly a judge can dispense with the hard work

of giving meaning to difficult and complex provisions of statutes and contracts,

and the less risk that this regular process of interpretation will lead to the “wrong”

results. A facile resort to ambiguity affords the judge a readily-available means of

acting beyond the scope of his or her authority to exercise exclusively the “judicial

power.”

It is hard to conceive of a much lower barrier to ambiguity than that

propounded by the Chief Justice. A statute, we are instructed, is “ambiguous”

when it is “capable of being understood by reasonably well-informed persons in

two or more different senses.”19 Ante at 33. If this definition does not describe

18
When deciding a case, the judiciary’s role is, and has always been, to
answer the question, “what is the law, and not what ought the law to be.” Detroit
v Blackeby, 21 Mich 84, 118 (1870) (Cooley, J., dissenting); see also Michigan
United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359,
397; 630 NW2d 297 (2001) (Markman, J., concurring), citing Marbury v Madison,
5 US (1 Cranch) 137; 2 L Ed 60 (1803). “It is for the court to declare what the law
is-- not to make it.” Wilson v Arnold, 5 Mich 98, 104 (1858).
19
The Chief Justice also states that a statute is ambiguous when “two
persons reasonably afford [a] different meaning[ ]” to it, or when it is “of
questionable or unclear meaning.” Ante at 31. She has previously opined that a

19
almost all litigation coming before this Court, it certainly describes much of this

litigation. There are relatively few appellate litigants-- most of whom have

undertaken the financial burdens of litigation, accepted the psychological and

emotional tolls of a protracted legal process, and endured trial, intermediate

appeal, Supreme Court appeal, remands, and motions for reconsideration, all while

being represented by attorneys who are ethically obligated to ensure some degree

of meritoriousness in their clients’ legal positions-- whose statutory and

contractual disputes could not be fairly characterized under the Chief Justice’s

definition as entailing ambiguity. Indeed, little would be clearly excluded from the

realm of ambiguity by her definition other than genuinely frivolous lawsuits,

which are both rare and sanctionable. Matters of interpretation are resolved in

judicial venues precisely because statutes and contracts are susceptible to “being

understood by reasonably well-informed persons in two or more different senses.”

statue is ambiguous “when its application to the facts of the case is uncertain,”
DaimlerChrysler Corp v State Tax Comm, 482 Mich 220, 240 n 2; 753 NW2d 605
(2008) (Kelly, J., concurring in the result), or when “there can be reasonable
disagreement over its meaning,” Fluor Enterprises, Inc v Dep’t of Treasury, 477
Mich 170, 186; 730 NW2d 722 (2007) (Kelly, J., concurring). As with her latest
definition of ambiguity in this case, what would be truly remarkable about any of
these definitions would be if they served to exclude many statutory or contractual
disputes from their purview. “Uncertainty” and “disagreement” are what draw
parties into litigation in the first place. See also Nat’l Pride at Work, Inc v
Governor, 481 Mich 56, 95 n 34; 748 NW2d 524 (2008) (Kelly, J., dissenting), in
which the Chief Justice asserted that a general provision of Michigan’s
constitution was “ambiguous” because it did not expressly set forth every specific
circumstance to which it was applicable. The majority responded, “If that were
the case, almost all constitutional provisions would be rendered ambiguous.” Id.
at 81 n 21.

20
 Even more remarkable, however, is that the Chief Justice’s own “analysis”

in this case does not even satisfy her own low threshold for discerning ambiguity,

since there is nothing therein that suggests that either the plaintiff’s or the

defendants’ position is “reasonable.” In fact, the Chief Justice never once

compares any interpretation other than her own to the statute. She simply notes

the “exist[ence]” of competing interpretations and declares ambiguity. Ante at 9.

Essentially, the Chief Justice’s standard for discerning ambiguity is more

accurately stated as: “A statute is ambiguous when parties offer conflicting

interpretations.”20

The Chief Justice has previously observed that, “I find frequent ambiguity

in statutory language.” Haynes v Neshewat, 477 Mich 29, 40; 729 NW2d 488

(2007) (Kelly, J., concurring).21 This is not surprising. For once a statute or

20
Such disagreement between parties is hardly a precedent-shattering event
in this Court.
21
At least in this regard, she is unquestionably correct. See, for example,
the following list of cases enumerated in footnote 56 of the Chief Justice’s opinion
to get some sense of the breadth of the matters that she apparently views as
“ambiguous” among our published opinions over the past five years alone. With
regard to each of these “examples,” the dissenting justices in this case are
implicitly chastised for having “declined” to find ambiguity:

See, e.g., Dimmit & Owens Fin, Inc v Deloitte & Touche, 481
Mich 618; 752 NW2d 37 (2008); Ross v Blue Care Network, 480
Mich 153; 747 NW2d 828 (2008); Wesche v Mecosta Co Rd Comm,
480 Mich 75; 746 NW2d 847 (2008); Ernsting v Ave Maria College,
480 Mich 985 (2007); Trentadue v Buckler Lawn Sprinkler, 479
Mich 378; 738 NW2d 664 (2007); Lash v Traverse City, 479 Mich
180; 735 NW2d 628 (2007); Brown [v Detroit Mayor, 478 Mich

21
contract has been deemed “ambiguous,” this Court “may go beyond the plain

language of the statute [or contract],” ante at 6, and then employ decision-making

589; 734 NW2d 514 (2007)]; Renny v Dep’t of Transportation, 478
Mich 490; 734 NW2d 518 (2007); South Haven v Van Buren Co Bd
of Comm’rs, 478 Mich 518; 734 NW2d 533 (2007); Omdahl v West
Iron Co Bd of Ed, 478 Mich 423; 733 NW2d 380 (2007); Bukowski v
Detroit, 478 Mich 268; 732 NW2d 75 (2007); Karaczewski v
[Farbman Stein & Co, 478 Mich 28; 732 NW2d 56 (2007)]; Fluor
[Enterprises, Inc v Dep’t of Treasury, 477 Mich 170; 730 NW2d 722
(2007)]; Rowland [v Washtenaw Co Rd Comm, 477 Mich 197; 731
NW2d 41 (2007)]; People v Peals, 476 Mich 636; 720 NW2d 196
(2006); Paige [v Sterling Hts, 476 Mich 495; 720 NW2d 219
(2006)]; Cameron v Auto Club Ins Ass’n, 476 Mich 55; 718 NW2d
784 (2006); Ford Motor Co v Woodhaven, 475 Mich 425; 716
NW2d 247 (2006); People v Derror, 475 Mich 316; 715 NW2d 822
(2006); People v Williams, 475 Mich 245; 716 NW2d 208 (2006);
People v Yamat, 475 Mich 49; 714 NW2d 335 (2006); Grimes [v
Dep’t of Transportation, 475 Mich 72; 715 NW2d 275 (2006)];
Michigan v Monaco, 474 Mich 48; 710 NW2d 46 (2006); Ostroth v
Warren Regency, GP, LLC, 474 Mich 36; 709 NW2d 589 (2006);
Co Rd Ass’n v Governor, 474 Mich 11; 705 NW2d 680 (2005);
Devillers [v Auto Club Ins Ass’n, 473 Mich 562; 702 NW2d 539
(2005)]; Reed v Yackell, 473 Mich 520; 703 NW2d 1 (2005); Ayar v
Foodland Distributors, 472 Mich 713; 698 NW2d 875 (2005);
Casco Twp [v Secretary of State, 472 Mich 566; 701 NW2d 102
(2005)]; Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851
(2005); Jarrad v Integon Nat’l Ins Co, 472 Mich 207; 696 NW2d
621 (2005); Roberts v Atkins, 470 Mich 679; 684 NW2d 711 (2004);
Neal [v Wilkes, 470 Mich 661; 685 NW2d 648 (2004)]; People v
Barbee, 470 Mich 283; 681 NW2d 348 (2004); [People v] Lively,
[470 Mich 248; 680 NW2d 878 (2004)]; People v Laney, 470 Mich
267; 680 NW2d 888 (2004); Lansing Mayor [v Pub Service Comm,
470 Mich 154; 680 NW2d 840 (2004)].

It should be clearly understood that in each of these cases, as well as in all other
cases in which ambiguity is found, justice under the law would be replaced by the
personal “justice” of the men and women who comprise the Court’s majority.
This is the “rule of men [and women],” not the rule of law.

22
factors that would ordinarily be unavailable in the interpretative process. There is

no lack of variety in these newly-available factors. As I offered in my concurring

opinion in Haynes:

Having reached the proper result in this case through a proper
legal analysis, Justice Kelly in a concurrence to her own majority
opinion proceeds to demonstrate that she could have reached the
same result through less disciplined means. Not content to rely, as
she does in her majority opinion, on the actual language of the law,
Justice Kelly invokes an array of alternative techniques to “interpret”
the law in her concurring opinion. She relies upon a “liberal
construction” of the statute in question; she relies upon
characterizations of the statute as “broad” and “remedial”; she relies
upon a summary description of the law as “ambiguous,” therefore
apparently affording her the discretion to pick and choose the law
she prefers; she relies upon the Legislature’s inaction in the wake of
an earlier court decision, equating this to approval of the Court’s
decision; she disparages the value of dictionaries as an essential tool
in the interpretative process; and she relies upon an extraordinarily
broad understanding of “legislative history.” For the sake of future
reference, a further catalogue of language-avoidance “interpretative”
techniques would include the following: divining the “spirit of a
statute”; relying upon considerations of “public policy”;
standardlessly applying “equity”; characterizing statutes with which
a judge disagrees as “absurd”; and concocting creative “balancing”
and “totality of circumstances” tests. Innovatively applied, each of
these techniques can be relied upon to avoid the hard task of having
to discern a statute’s meaning from its actual language. [Haynes,
477 Mich at 48-49 (Markman, J., concurring).]

The use of these and other factors to reach a decision far more closely resembles

the exercise of the constitution’s “legislative power” than its “judicial power.” It

is an undisciplined and standardless approach to giving meaning to the law,

enabling the judge at his or her discretion to determine which factors to take into

23
account, and what priority to give those factors.22 It is an approach that

disrespects the separation of powers23 and that enhances the power of judges at the

expense of the rule of law. 24

B. Dissent and Ambiguity

The Chief Justice’s definition of ambiguity stands in contrast to what has

been the predominant approach in our state. In Mayor of Lansing v Pub Service

Comm, 470 Mich 154, 166; 680 NW2d 840 (2004), this Court stated that “a

provision of the law is ambiguous only if it ‘irreconcilably conflict[s]’ with

another provision or when it is equally susceptible to more than a single meaning.”

(Citation omitted.) Similarly, in Klapp v United Ins Group Agency, Inc, 468 Mich

459, 467; 663 NW2d 447 (2003), this Court found a contract to be ambiguous

because two provisions “irreconcilably conflict[ed]” with each other.25 Such an

22
“It is only by interpretations of the law that are in accord with the words
of the lawmaker-- that is, interpretations in which judges look outside themselves
for a source of law-- that the decisions of courts are truly removed from the realm
of politics and policymaking.” Robertson v DaimlerChrysler Corp, 465 Mich 732,
761; 641 NW2d 567 (2002).
23
“The powers of government are divided into three branches legislative,
executive and judicial. No person exercising powers of one branch shall exercise
powers properly belonging to another branch except as expressly provided in this
constitution.” Const 1963, art 3, § 2.
24
“[I]t is to the words of the statute itself that a citizen first looks for
guidance in directing his actions. This is the essence of the rule of law: to know in
advance what the rules of society are.” Robinson v Detroit, 462 Mich 439, 467;
613 NW2d 307 (2000).
25
In her assertion that this Court “has declined [during a four-year period]
to find any statutory language ambiguous,” ante at 10 n 23, the Chief Justice fails

24
understanding of ambiguity restricts the judge to saying what the law “is” based

on the words chosen by the Legislature in all but the most extraordinary

circumstances. While the Chief Justice suggests that the relative rarity of a finding

that a law or contract is ambiguous under this definition constitutes its vice, ante at

23, by preserving a broader realm within which the ordinary process of

interpretation may proceed, and in which deference will be shown to the decisions

of the lawmaker, this may be better understood as its principal virtue.

Many disputes before this Court involve difficult or complex interpretations

of statutes and contracts, yet it remains our responsibility to sort out these

difficulties and complexities and finally determine what constitutes the most

reasonable, if not always the perfect or the crystalline, meaning of the law.

Judges have traditionally approached this responsibility by looking to the language

of a statute or contract, considering relevant dictionary definitions of words and

to mention that this Court found the contract in Klapp itself to be ambiguous and
then resolved this ambiguity by the application of the traditional rule contra
proferentem (resolving a contract dispute against its drafter). See also Stone v
Williamson, 482 Mich 144, 157; 753 NW2d 106 (2008). Perhaps more to the
point, however, it is odd that the Chief Justice would make a virtue of a judge
quickly throwing up his or her hands in the face of even a slightly difficult statute
and dispensing with his or her obligation to say what the law means, while making
a vice of a judge laboring hard to determine what even a highly difficult statute
means in order to ensure that the legislative decisions of the people’s
representatives are respected.

25
phrases,26 assessing the existence and meanings of “terms of art,”27 evaluating the

context of words28 and grammatical, syntactical, and punctuational clues,29

comparing related and companion provisions of the law,30 discerning the

organization and structure of statutes and contracts,31 invoking traditional default

rules and maxims of interpretation,32 and applying proper understandings of legal

purpose and precedent. 33

26
See Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34
(2002) (stating that a court “may consult dictionary definitions” to help ascertain
the meaning of terms not defined in the statute).
27
“It is a cardinal rule in the interpretation of statutes that words which
have acquired a well-defined technical meaning, are to be understood in their
technical sense . . . .” Pitcher v People, 16 Mich 142, 147 (1867); see also MCL
8.3a.
28
“[A] word or phrase is given meaning by its context or setting.” Tyler v
Livonia Pub Schools, 459 Mich 382, 391; 590 NW2d 560 (1999).
29
See Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119
(1999) (stating that “statutory language must be read and understood in its
grammatical context”).
30
“[I]n the interpretation of the statutes, we are to take into view all such
parts as relate to the same subject.” Malonny v Mahar, 1 Mich 26, 28 (1847).
31
See Lash v Traverse City, 479 Mich 180, 190; 735 NW2d 628 (2007)
(rejecting an argument regarding the statute’s purported purpose as being
“completely contrary to the structure of the statute”).
32
See, e.g., In re Haley, 476 Mich 180, 198; 720 NW2d 246 (2006)
(“[W]here a statute contains a specific statutory provision and a related, but more
general, provision, the specific one controls.”).
33
See Pohutski v City of Allen Park, 465 Mich 675, 694; 641 NW2d 219
(2002) (emphasizing that a crucial aspect to the proper understanding of precedent

26
 This should not be understood as a mechanical process, for judges engaged

conscientiously in this exercise will sometimes disagree about the meaning of the

law, but it is a process in which the focus is directed outwardly toward the

language of the statute or contract, rather than inwardly toward the personal

predilections of the judge.34 As Justice Felix Frankfurter once remarked, “the

is that it “should not be applied mechanically to prevent this Court from overruling
erroneous decisions regarding the meaning of a statute”).
34
The Chief Justice disparages this approach by stating that a “‘plain
meaning’ approach to statutory interpretation is equally susceptible to subjective
and arbitrary determinations of legislative intent [because] such an approach may
lead to the selection of one dictionary definition among many for a specific term.”
Ante at 13 n 35. The Chief Justice thus damns the very enterprise of judging by
suggesting that it can never be anything other than “subjective” and “arbitrary,”
for words may sometimes have multiple meanings. The Chief Justice then
defends her own approach to the judicial role by effectively declaring that all
interpretation is nothing but a fiction in which the judge, one way or another, gets
to impose his own personal will. That is, since interpretations of the law can
sometimes be difficult, and may entail the application of judgment and
discernment, a “plain meaning” approach to interpretation (a characterization
incidentally never used by any of the justices dissenting in this case) has no
superior stature to a post-ambiguity approach to interpretation in which words are
given no respect whatsoever. By equating the imperfections inherent in a human
process in which language is taken seriously with the fundamental defects inherent
in a process in which language is subordinate to a judge’s personal sense of which
results are to be preferred, it is hard to imagine a more mistaken, and cynical, view
of the judicial enterprise, albeit one that encapsulates well the persistent
constitutional and jurisprudential divide between the justices in the majority and
the dissenting justices.

Concerning Liberty Hill Housing Corp v City of Livonia, 480 Mich 44, 57;
746 NW2d 282 (2008), which the Chief Justice cites as somehow exemplifying
the defects of the “plain meaning” approach, this Court explained:

The third, fourth, and fifth meanings in the definition are
clearly not relevant here. The first meaning defines “occupy” as “to
have, hold, . . . possess, . . . or claim[.]” These parts of the definition

27
highest exercise of judicial duty is to subordinate one’s personal will and one’s

private views to the law.”

C. Premises of Ambiguity Rule

Despite the Chief Justice’s view that an understanding of ambiguity does

not constitute “binding precedent,” she nonetheless undertakes a strenuous effort

to identify precedents in support of her position, while undertaking no discernible

effort to actually justify her own understanding. Rather than constituting an

“aberrant” approach to interpretation, ante at 30 n 66, Mayor of Lansing and

Klapp set forth a rule of statutory interpretation that, as with most other such rules,

is grounded in logic and common sense, and is designed to faithfully ascertain the

intentions of the Legislature. The understanding of ambiguity articulated in

are synonymous with ownership. Because the statute uses the
conjunctive term “owned and occupied,” however, the Legislature
must have intended different meanings for the words “owned” and
“occupied.” Otherwise, the word “occupied” would be mere
surplusage.

See also id. at 57 n 12. Thus, Liberty Hill relied on the maxim that the Court
should avoid rendering a portion of the statute nugatory or surplusage, i.e., the
Court should give effect to all the words of the Legislature. Thus, contrary to the
Chief Justice’s assertion, Liberty Hill demonstrated that a responsible judge,
attempting faithfully to give meaning to the law, does not have “unfettered
discretion to pick and choose among available ‘plain meanings,’” ante at 22, but
rather is bound by existing rules, and by interpretative approaches, that are well-
known both to the judge and the parties beforehand. While such an
“interpretivist” or “textualist” approach cannot dispense entirely with the exercise
of judgment, unlike the approach preferred by the Chief Justice, the interpretative
“rules of the game” under the former approach will be known in advance and are
designed to reasonably ascertain the intentions of the lawmaker.

28
Mayor of Lansing and Klapp is premised upon longstanding principles of sound

constitutional government that are suggested by the following inquiries directed

toward those who would advocate a broader understanding:

-- When ambiguity is discerned, ordinary rules of interpretation no
longer apply-- as the Chief Justice asserts, a court may then “go
beyond the plain language of a statute [or contract]”-- and judges are
accorded broad and arbitrary discretion to pick and choose from
among a wide variety of factors as to how the law should be given
meaning. Why would any responsible legal system wish to depart
from its ordinary processes, from ordinary rules of interpretation and
traditional exercises of the judicial power, with any greater
frequency than is absolutely required?

-- When ambiguity is discerned, ordinary rules of interpretation no
longer apply-- as the Chief Justice asserts, a court may then “go
beyond the plain language of a statute [or contract]”-- and judges are
accorded broad and arbitrary discretion to pick and choose from
among a wide variety of factors as to how the law should be given
meaning. Why would any responsible legal system wish to replace a
reasonably predictable rule of law with arbitrary, and possibly
idiosyncratic, determinations of judges any more often than is
absolutely required?

-- When ambiguity is discerned, ordinary rules of interpretation no
longer apply-- as the Chief Justice asserts, a court may then “go
beyond the plain language of a statute [or contract]”-- and judges are
accorded broad and arbitrary discretion to pick and choose from
among a wide variety of factors as to how the law should be given
meaning. Why would any responsible legal system wish to
minimize the realm in which judges are bound by the written law
and instead maximize the realm in which written law is subrogated
to a variety of indeterminate factors at a judge’s disposal?

-- When ambiguity is discerned, ordinary rules of interpretation no
longer apply-- as the Chief Justice asserts, a court may then “go
beyond the plain language of a statute [or contract]”-- and judges are
accorded broad and arbitrary discretion to pick and choose from
among a wide variety of factors as to how the law should be given
meaning. Why would any responsible legal system wish to instill in
litigants and the public the idea that the personal preferences of a

29
 judge, rather than the requirements of the law, are what is most
important to the resolution of a legal dispute?

-- When ambiguity is discerned, the “judicial power,” the only
power properly exercised by a judge under the Constitution, is
exercised in a manner incompatible with its usual exercise-- as the
Chief Justice asserts, a court may then “go beyond the plain
language of a statute [or contract].” Why would any responsible
legal system wish to depart from traditional constitutional norms or
to obscure the Constitution’s separation of powers?

By contrast, what logical or other arguments does the Chief Justice have for

substantially expanding the range of judicial decision-making within which courts

“may go beyond the plain language of the statute [or contract],” and within which

“it is the duty of the courts,” instead of the lawmaker, to give a “reasonable and

sensible” interpretation to the law? Ante at 6. What conceivable arguments does

the Chief Justice have for favoring an expansion in the range of judicial decision-

making within which judges are empowered to devise, at their discretion, ad hoc

and unpredictable criteria for determining how the law will be defined? Hers is a

hollow opinion, evidenced not only by her failure to abide even by her own

standards for identifying ambiguity, but also by her failure to articulate even a

minimal justification for these standards.35

35
The Chief Justice asserts that she need not justify her standard in light of
the fact that other jurisdictions utilize similarly worded standards. Ante at 31 n 71.
Whatever the relevance of this observation, one doubts that any of these variants
have been applied in other jurisdictions in the wildly-overreaching manner
reflected by the instant decision, reflected by the breadth of potentially
“ambiguous” cases cited at n 21 supra, and reflected in the Chief Justice’s own
passion for finding “frequent ambiguity” in the law. Haynes, 477 Mich at 40
(Kelly, J., concurring).

30
 D. Logic of Ambiguity Rule

The Chief Justice asserts that language is ambiguous when it is “capable of

being understood by reasonably well-informed persons in two or more different

senses,” ante at 33, but she never supplies any explanation for how this definition

is to operate practically in the real world. She fails to answer, or even ask,

whether there is some threshold beyond which it can be said that an interpretation

is “capable of being understood by reasonably well-informed persons in two or

more different senses.” Is it sufficient, for example, in finding ambiguity that 10%

or 20% or 30% of all “reasonably well-informed persons” might subscribe to a

particular interpretation? Indeed, is it sufficient that the parties merely disagree, or

must the Court intervene to determine that the position of each side is itself

reasonable?

Given that the Mayor of Lansing/Klapp standard can be quantified as a 50%

test-- i.e., if there are two equally reasonable interpretations, a law is ambiguous;

otherwise it is not-- how would the Chief Justice characterize her standard? What

is the approximate threshold at which a law should be found ambiguous? Unless

any disagreement by any single “reasonably well-informed person” would be

sufficient to trigger a finding of ambiguity, where is this threshold point? If 90

percent of all “reasonably well-informed persons” believe that the proper

interpretation of a statute is X, and 10 percent believe that it is Y, or if a judge is

90% persuaded that the more reasonable interpretation is X, and 10% persuaded

that it is Y, is there ambiguity? Obviously, the Chief Justice’s threshold for

31
finding ambiguity falls somewhere below 50%, but approximately where? Are

there any other areas of the law in which a judge, in the exercise of his

fundamental obligation to interpret the law, must subordinate his or her own

judgment concerning the meaning of the law to that of “reasonably well-informed

[other] persons,” or to any other group of persons?

Given that the Chief Justice’s threshold must necessarily be less than 50%,

why should that level ever be deemed sufficient to allow a judge to dispense with

the language of a statute or contract as the dispositive factor in determining its

meaning? That is, if a judge is 51% or 61% or 71% persuaded that some

interpretation of the law is the better, or the “most reasonable,” interpretation,

what is the rationale for allowing a judge to interpret the law in some different

fashion? Why would a judge ever adopt an interpretation that he or she believes is

the second-best, or the second most reasonable, interpretation? If any

interpretation of the law, concerning which a judge is less than 100% certain-- say

a 95% certainty-- will ever permit that judge to adopt such interpretation as the

better, or the “most reasonable” interpretation, what is the reason why a 51% or

61% or 71% interpretation should not prevail over a 29% or 39% or 49%

interpretation-- much less with respect to what the Chief Justice describes as

“more” interpretations that might be offered, see ante at 31, none of which may

draw their legitimacy from the words of a statute or contract? Why shouldn’t the

better, or the “most reasonable,” interpretation always prevail? Absent a perfectly

clear statute or contract, why should a judge not prefer the 51% or 61% or 71%

32
interpretation? Why should a 29% or 39% interpretation ever be placed on par

with a 71% or 61% interpretation? Indeed, why should a definition of ambiguity

be adopted that allows a judge to determine that neither the 75% nor the 25%

“most reasonable” interpretations will be adopted? Ante at 31. Why isn’t it fair to

conclude that the better, or the “most reasonable,” interpretation-- which may be

the 51% interpretation-- is simply the correct interpretation of the law?

The Chief Justice has little interest in parsing § 315(1), little interest in

explaining why either of the parties’ interpretations are “reasonable” or

“unreasonable,” and little interest in explaining why, in either constitutional or

logical terms, her understanding of ambiguity makes sense, much less why it

makes better sense than what Mayor of Lansing and Klapp have set forth. Instead,

the Chief Justice is content to proceed, without explanation, upon her

deconstruction of the law of Michigan.

E. No Previously-Established Rules

After her “analysis” of § 315(1)-- one consuming nearly a full paragraph

and in which a sideways glance at the sentence immediately preceding the one in

dispute is apparently seen as excessively rigorous-- the Chief Justice deems the

statute “ambiguous,” i.e., alternative interpretations could “reasonably apply.”

She then proceeds to select from among the available “interpretative” tools and

adopt those that purportedly support her result. Apparently, for every ambiguous

statute or contract reaching this Court, and there will be many such statutes and

contracts if the Chief Justice’s position ever prevails, she will re-embark upon this

33
“interpretative” process, picking and choosing at her discretion from among some

uncertain array of tools lying “beyond the plain language of the statute [or

contract].” See Haynes, 477 Mich at 48-49 (Markman, J., concurring), for a

partial listing of such tools. The litigants will, of course, have no notice

beforehand of which tools are to be employed, for the justices themselves will not

know this beforehand. Among the universe of potential tools extending “beyond

the plain language of the statute [or contract],” the Chief Justice will, by some

means never quite explained, determine which of these are deemed to be relevant

in interpreting the statute or contract in that case, and after several turns and twists

of the mechanisms of her own internal Enigma machine, some result will emerge.

One result will emerge if the “relevant” legislative history, for example, is the

Senate committee report, another result will emerge if the “relevant” legislative

history is the House committee report. Still other results will emerge if the

“relevant” legislative history is comprised of the statements of the Senate or House

committee chairman, the floor statements of the Senate or House majority leader,

the committee testimony of witness A in the Senate or that of witnesses B, C, or D

in the House, the staff analyses of the House or the Senate, or the floor colloquy of

two random members of the House or two other random members of the Senate.36

36
See, e.g., Nat’l Pride, in which the Chief Justice in her dissent proposed
to give meaning to an allegedly “ambiguous” provision of our constitution by
assessing the language of campaign brochures by private organizations, statements
of the Michigan Civil Rights Commission, the results of a private telephone
survey, and a “wealth of extrinsic information available.” Nat’l Pride, 481 Mich

34
All in all, this is a fine process, except that it is not a legal or judicial process.

Instead, it is a process in which judges in the very guise of selecting the tools and

factors to be employed in “interpreting” the law are effectively its formulators-- in

short, judges who are wielding the legislative, not the judicial, power.

A critical strength of a judicial philosophy committed to exercising only the

constitution’s “judicial power” is that reasonably clear rules of decision-making

are established before the fact. That is, a judge essentially promises the parties

that he or she will decide their case, as with all others, by attempting to discern the

reasonable meaning of relevant statutes or contracts and that this will be done by

relying upon recognized rules, and tools, of interpretation. By contrast, under the

Chief Justice’s approach to ambiguity, in which there is essentially a limitless

array of rules, and tools, that may be employed for “defining” the law apart from

its language, there is no consistently applied interpretative process with which the

at 95-96 (Kelly, J., dissenting). In response, the majority rejected her “apparent
proposition that any stray bit of historical flotsam or jetsam can serve as guidance
in giving meaning to the constitution.” Id. at 84 n 25. See also Kelly, The Fatal
Weakness in the Michigan Supreme Court Majority’s Textualist Approach to
Statutory Construction, 10 Thomas M. Cooley J Prac & Clinical L 287, 309
(2008), in which she describes the dissenting justices’ “distrust” of legislative
history, without evidencing any understanding of the basis for this “distrust,” and
without recognizing differing attitudes toward different types of legislative history.
See, e.g., supra note 11. It should not go unremarked that in this case, it is the
dissent that cites legislative history, albeit a uniquely persuasive and statutorily-
grounded type of legislative history, as a relevant factor in interpreting § 315(1),
while the Chief Justice, the presumed advocate of legislative history, for no
apparent reason excludes this from her post-ambiguity toolbox. Why? Apparently
because she can choose to consider this factor if she wants to, and she can choose
not to consider this factor if she does not want to.

35
judge promises beforehand to comply. He or she may promise to be “fair,” and he

or she may seek to be fair, but there are no rules for how this fairness is to be

achieved. There is only the promise that the judge will address each dispute on a

case-by-case basis, using whatever rules, and whichever tools, he or she believes

are required in that instance. And the suspicion simply cannot be avoided that

these varying and indeterminate rules, and tools, may be largely a function of the

outcome preferred by the judge and by his or her personal attitudes toward the

parties and their causes. Any interpretative rules will be identified only after the

fact, and these “rules” may or may not have been invoked in resolving yesterday’s

dispute, and may or may not be employed in resolving tomorrow’s dispute. Any

judge can concoct an after-the-fact rationale for a decision; the judicial process,

however, is predicated upon before-the-fact rationales. An ad hoc process is not a

judicial process at all. In the place of predetermined rules-- otherwise understood

as the rule of law-- the Chief Justice would substitute rules to be determined

later.37

37
The arbitrariness of the Chief Justice’s approach can be glimpsed in
Haynes, 477 Mich at 45 (Kelly, J., concurring), in which we are instructed that
whenever ambiguity arises, a judge may consider another jurisdiction’s statute that
is “substantially similar” to the Michigan statute before him or her. “[Foreign]
case law interpreting [that jurisdiction’s statute] is instructive with regard to the
correct interpretation of our statute.” Id. Yet, shortly thereafter in
DaimlerChrysler Corp v State Tax Comm, 482 Mich at 241 (Kelly, J., concurring
in the result), we are instructed by the same judge that, “[g]iven that these cases
involve statutes that differ from Michigan’s statutes, I find them of little assistance
in determining the proper interpretation of the Michigan statute.” Fair enough;
distinctions may be legitimately made in these kinds of things. But where there

36
 F. Chief Justice’s Tools in This Case

What among the universe of available post-ambiguity tools does the Chief

Justice choose to consider in reaching her decision here? The Chief Justice states

that “caselaw,” among other tools, supports her interpretation of § 315(1). In

evaluating this factor, the Chief Justice mainly invokes broad “public policy”

considerations. For example, the Chief Justice, citing Harvlie v Jack Post Corp,

2006 Mich ACO 69, emphasizes that the “WCAC has explicitly recognized the

importance of holding employers and their insurance carriers responsible for a

proration of attorney fees pursuant to § 315(1).” Ante at 35. Yet, in Harvlie, this

“importance” was drawn from the following: “The attorney fee provision of

Section 315 was designed to promote the assistance of counsel in medical dispute

cases where there are minimal or no wage loss benefits from which to obtain an

attorney fee.” 2006 ACO 69, at 3 (emphasis added). In essence, Harvlie found

that interpreting § 315(1)’s final sentence to require an employer to pay attorney

fees made it more likely that an attorney would take a case in which the only

recovery available was based on medical costs. Thus, the “importance” of

are 49 other state jurisdictions in the United States, and thousands of other local
jurisdictions, and millions of other private contracts entered into in these
jurisdictions, it would not seem terribly difficult to identify somewhere and
someplace a statute or contract whose interpretation can be invoked in support of
an interpretation sought to be obtained in this state. Nor is there any apparent
reason why in an appropriate case one of the Chief Justice’s amorphous post-
ambiguity tools could not consist of a judicial decision from France, New Guinea,
or Azerbaijan. See, generally, Roper v Simmons, 543 US 551; 125 S Ct 1183; 161
L Ed 2d 1 (2005).

37
enforcing the majority interpretation is based on this putative “design” even

though the reasoning in Harvlie in no way bears this out. The majority

interpretation does not obviously “promote the assistance of counsel” because the

employee’s attorney recovers the same amount-- the contingency fee calculated on

the recovered medical expenses-- regardless of who pays his fees. See supra notes

4 and 5. Thus, the supposed “design” set forth in Harvlie is a false one.

Nonetheless, the Chief Justice insists that this reasoning somehow sustains her

interpretation and supplies better guidance than the actual words of § 315(1).38

The Chief Justice next relies on Boyce v Grand Rapids Asphalt Paving Co,

117 Mich App 546, 552; 324 NW2d 28 (1982), in which, after resolving a

workers’ compensation attorney fees dispute on the grounds that an administrative

rule did not allow an employee to recover fees from a medical provider or

employer,39 the court proceeded to opine that such a result did not serve “justice.”

However, whatever an individual judge’s personal sense of “justice,” it is the

38
The Chief Justice also cites Harvlie for her “public policy” argument that
if employers are not held liable for employees’ attorney fees, employers will “have
an incentive to deny medical benefits.” Ante at 35. Yet, she never examines the
consequences of the corollary “public policy” wherein employers would be
penalized by attorney fees even if they have a valid dispute that the employee did
not “receive[] a personal injury arising out of and in the course of employment.”
MCL 418.315(1).
39
The Court of Appeals cases that followed also adhered to this rule.
Duran v Sollitt Constr Co, 135 Mich App 610; 354 NW2d 277 (1984); Zeeland
Community Hosp v Vander Wal, 134 Mich App 815; 351 NW2d 853 (1984);
Nezdropa v Wayne Co, 152 Mich App 451; 394 NW2d 440 (1986).

38
responsibility of that judge to do “justice under law.” Judges have no proper

authority to countermand the decisions of the lawmaker by substituting a personal

sense of “justice” for the justice of the law. I agree that there can be reasonable

disagreement as to whether the position asserted by plaintiff or by defendants in

this case is more “just.” However, that question has never been thought to be

dispositive, or even relevant, in giving meaning to statutes and contracts, and it is

not made more dispositive or relevant because it was addressed by the lower court.

Many persons, including judges, may have a strong personal sense of “justice”--

how public resources should be apportioned, how rights and responsibilities

should be understood, how the limits of government should be defined-- but it is

“justice under law” that is the tool of the trade of the judge and that defines the

judicial power. Moreover, even if ascertaining what constituted abstract “justice”

in the instant case did define this Court’s mission, the Chief Justice never even

purports to explain why her conception of “justice”-- requiring employers to pay

employee’s workers’ compensation attorney fees-- is somehow superior to

alternative conceptions of “justice,” including that of the Legislature which has

chosen to rely upon a different rule than the Chief Justice.40

40
“The people have not forfeited lawmaking authority to a judicial
aristocracy that may simply rewrite laws with which they disagree.” Karaczewski
v Farbman Stein & Co, 478 Mich 28, 43; 732 NW2d 56 (2007). The Chief
Justice’s reliance on her own personal brand of “justice” also suffers from the lack
of virtue of “overturn[ing] compromises made in the legislative process, second-
guess[ing] judgments of the lawmaker, and render[ing] the law increasingly
arbitrary and unpredictable.” Rowland, 477 Mich at 226 (Markman, J.,

39
 The Chief Justice also relies on the WDCA’s “remedial . . . nature” to

support her interpretation. Ante at 34. The WDCA is indeed remedial, because it

provides a remedy for employees injured on the job. Yet, the Chief Justice fails to

explain why this purpose, as important as it obviously is, should be elevated above

every other purpose of the Legislature. The WDCA is the Legislature’s attempt to

fulfill at least two purposes: “to ‘provide . . . not only for employees a remedy

which is both expeditious and independent of proof of fault, but also for employers

a liability which is limited and determinate.’” Simkins v Gen Motors Corp (After

Remand), 453 Mich 703, 710; 556 NW2d 839 (1996) (citations omitted).41 By

arbitrarily establishing priorities among the several purposes of the WDCA, the

Chief Justice undermines the real-world negotiations and compromises that were

engaged in by the Legislature. In the place of a statute enacted by a majority of

concurring). It is also strange that, despite relying upon these post-ambiguity tools
of “justice” and “public policy,” neither the Chief Justice nor any other justice
even made the slightest effort during oral argument to inquire into anything
relevant regarding the “justice” or “public policy” of alternative interpretations of
§ 315(1), such as the economic impact of competing interpretations upon the
health and competitiveness of Michigan’s businesses, or the impact of competing
interpretations upon workers’ compensation insurance premiums. One might have
thought such inquiries to be a useful precondition to judicial decisions predicated
upon “justice” and “public policy.”
41
Most workers’ compensation statutes “represent[] a compromise between
the competing interests of disabled laborers and their employers.” Potomac
Electric Power Co v Office of Workers’ Compensation Programs Director, 449
US 268, 282; 101 S Ct 509; 66 L Ed 446 (1980).

40
the 148 members of the Legislature, the majority interpretation substitutes a statute

approved only by four judges acting well beyond their proper authority.

The Chief Justice then asserts that she is empowered to “construe the act’s

terms liberally,” ante at 34-- rather than merely “reasonably.” As a result of this

process, one essentially indistinguishable from a judge asserting his or her right to

place a thumb on the scales of justice, the Chief Justice proclaims that plaintiff is

entitled under the WDCA to the greatest possible amount of recovery. Ante at 34.

Is there anything more to the Chief Justice’s “liberal” construction than that

plaintiff prevails on everything? Is this all that is implied by a “liberal”

construction? At what point does the Court decide that its “liberal” construction

has fully accomplished the goals of the WDCA? When the employee receives all

that he asks for? When an employer can no longer afford to maintain its

insurance, or cannot afford to maintain an employee? Does a “liberal”

construction militate in favor even of a recovery of benefits that is not

contemplated by the actual language of the WDCA? Having declined from the

outset to attempt any “reasonable” interpretation of § 315(1), the Chief Justice is

far more enthusiastic about proclaiming “ambiguity” and immediately proceeding

to a “liberal” interpretation. That is, in the place of an interpretation that is

grounded in some meaningful way upon the law itself, the Chief Justice much

prefers an “interpretation” that is not really an interpretation at all. She engages in

what is merely a political impulse, rather than any serious construction of the law

as might once have been expected from a justice of the Supreme Court of this

41
state. Rather than working to achieve the “best” possible or “most reasonable”

interpretation of the law, the Chief Justice, apparently fearing that little good

would come from such an approach, instead exercises a power that does not

belong to judges under the pretext that she is actually engaging in some genuine

interpretation of the law, albeit a “liberal” interpretation. While a genuine

interpretation of the law is designed to achieve as perfect an understanding as

possible of what the lawmaker has intended, a “liberal” interpretation appears here

to be little more than a means to achieving a particular result.

In short, the Chief Justice invokes her own understanding of ambiguity for

the purpose of providing some justification for her preferred course of “going

beyond the plain language of the statute,” and thereby avoiding the difficult

process of giving fair meaning to a statute, the fair meaning of which may not be

to her liking. “No judge should manufacture ambiguity.” Paige v City of Sterling

Hts, 476 Mich 495, 542; 720 NW2d 219 (2006) (Cavanagh, J., concurring in part)

(emphasis omitted). Yet, there is no longer any need to “manufacture ambiguity”

in light of the extraordinarily low threshold by which it can be found under the

Chief Justice’s definition. In virtually every instance in which ambiguity is

invoked, the Chief Justice would circumvent the actual language of a statute or

contract in favor of her own notion of how that statute or contract should be

configured.

42
 G. Stare Decisis

After stating that “stare decisis does not apply” to the Mayor of Lansing

standard for determining ambiguity, ante at 14 n 36, the Chief Justice nonetheless

devotes almost a third of her opinion to rejecting the stare decisis test in Robinson

v Detroit, 462 Mich 439; 613 NW2d 307 (2000), constructing a new test, and then

“apply[ing]” it to Mayor of Lansing. It should be emphasized that only one other

justice is in agreement.42 This leads to several reflections concerning the Chief

Justice and precedent:

(1) The Chief Justice has repeatedly criticized other justices for

“unnecessarily” overruling precedent.43 What could be less “necessary” than to

overturn a case she characterizes as nonbinding precedent? The Chief Justice has

also previously stated that a departure from precedent must be supported by some

42
Although the Chief Justice applies her newly-formulated “compelling
justification” standard to conclude that Mayor of Lansing should be overruled, she
neglects even to apply her new stare decisis standard to determine whether
Robinson itself should be overruled. In this regard, see also infra note 47.
43
See, for example, People v Smith, 478 Mich 292, 331; 733 NW2d 351
(2007) (Kelly, J., dissenting); Rowland, 477 Mich at 248 (Kelly, J., concurring in
part and dissenting in part); Joliet v Pitoniak, 475 Mich 30, 46; 715 NW2d 60
(2006) (Kelly, J., dissenting); Rory v Continental Ins Co, 473 Mich 457, 492; 703
NW2d 23 (2005) (Kelly, J., dissenting); People v Hickman, 470 Mich 602, 618;
684 NW2d 267 (2004) (Kelly, J., dissenting); People v Kazmierczak, 461 Mich
411, 427; 605 NW2d 667 (2000); (Kelly, J., concurring in part and dissenting in
part); Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 749; 614 NW2d
607 (2000) (Kelly, J., concurring in part and dissenting in part).

43
“special justification.”44 What “special justification” could exist to overrule a case

that she does not consider formally binding precedent?45

(2) Given that in this case the Chief Justice would expressly overrule, not

one, but two of this Court’s prior decisions,

one is naturally tempted to re-inquire, see Rowland v Washtenaw Co
Rd Comm, 477 Mich 197, 223-228; 731 NW2d 41 (2007)
(Markman, J., concurring), whether the ongoing dispute between the
[former] majority and Justice Kelly over overrulings of precedent
truly concerns attitudes toward stare decisis or merely attitudes
toward particular previous decisions of this Court. [People v Smith,
478 Mich 292, 322-323 n 17; 733 NW2d 351 (2007).]

“A justice’s perspective on stare decisis is not evidenced by her willingness to

maintain precedents with which she agrees, but by her willingness to maintain

precedents with which she disagrees.” Rowland, 477 Mich at 224-225 n 3

(Markman, J., concurring). Now that the Chief Justice is positioned to overrule

decisions with which she disagrees, her actions increasingly demonstrate that her

former claims of fealty toward stare decisis were considerably overstated. Despite

all her rhetoric concerning the importance of stare decisis for the exercise of the

judicial power, see, e.g., her hollow claim that she possessed a “differing [and

44
See, for example, People v Gardner, 482 Mich 41, 85; 753 NW2d 78
(2008) (Kelly, J., dissenting); Rowland, 477 Mich at 254 (Kelly, J., concurring in
part and dissenting in part); People v Davis, 472 Mich 156, 189; 695 NW2d 45
(2005) (Kelly, J., dissenting); Hickman, 470 Mich at 616 (Kelly, J., dissenting);
Robinson, 462 Mich at 476 (Kelly, J., concurring in part and dissenting in part).
45
Contrary to the Chief Justice’s assertion, ante at 28 n 63, nowhere in this
opinion is it stated that a standard for ambiguity is or is not “entitled to [stare
decisis]” consideration.

44
elevated] esteem for stare decisis” than another justice, People v Gardner, 482

Mich 41, 88 n 31; 753 NW2d 78 (2008), such rhetoric was in reality little more

than a means of communicating her opposition to overruling particular past

decisions with which she agreed.46

(3) As I also asserted in Rowland, 477 Mich at 26:

[N]o meaningful discussion of a court’s attitude toward
precedent can be based solely on an arithmetical analysis in which
raw numbers of overrulings are simply counted. Such an analysis
obscures that not all precedents are built alike, that some are better
reasoned than others, that some are grounded in the exercise of
discretionary judgments and others in the interpretation of plain
language, that some are thorough in their analyses and others
superficial.

The chart attached to my concurring opinion in Rowland demonstrates that the

former majority’s overrulings of precedent overwhelmingly occurred in cases

involving what the then-majority justices viewed as the “misinterpretation of

straightforward words and phrases in statutes and contracts, in which words that

were not there were read into the law or words that were there were read out of the

law.” Id. at 226, 228-247. In contrast, the new majority’s overrulings of

46
The Chief Justice also stated in Gardner, 482 Mich at 87, that “stare
decisis requires that we give those [earlier] decisions thoughtful and thorough
consideration before tossing them aside.” See also Rowland, 477 Mich at 256
(“The law has not changed. Only the individuals wearing the robes have changed.
It is amazing how often the members of this majority have declared themselves
more capable of understanding the law and reaching the “right” result than any
justice who sat before.”) (Kelly, J., concurring in part and dissenting in part);
Davis, 472 Mich at 190 (overruling multiple cases “destabilizes our state’s
jurisprudence. It suggests to the public that the law is at the whim of whoever is

45
precedent has moved toward just the opposite result, replacing decisions that

sought to give reasonable meaning to the words of the law with decisions in which

“words that were not there were read into the law or words that were there were

read out of the law.” That is, when the previous majority overruled a precedent, it

was to ensure that the decisions of this Court more closely reflected the judgments

of the people’s elected legislative representatives and it was to more closely align

case law and statutory law. By contrast, when the new majority has overruled, or

at least ignored, a precedent, it has been to create a greater disparity between that

case law and the statutory law.

(4) Indeed, since Chief Justice Kelly became a part of the new majority,

this majority has dealt with precedents it did not like in an especially inappropriate

manner-- by simply ignoring them. In the interest of clearing the law of this state

of multiple and inconsistent precedents on the same matters of law, the former

majority forthrightly and explicitly overruled precedents and never sought to

obscure this process or to misleadingly minimize the number of overturned

precedents, by either ignoring disfavored precedents or by dubiously

“distinguishing” prior case law. Doubtlessly, because it is cognizant of the gap

between its past rhetoric extolling the importance of stare decisis and its present

actions disregarding stare decisis, the new majority has made an increasingly

sitting on the Supreme Court bench. Surely, it erodes the public’s confidence in
our judicial system.”).

46
regular practice of simply ignoring inconvenient precedents.47 As a result for

years to come, the clear rule of law will be stunted in this state as legal

47
See, e.g., Vanslembrouck v Halperin, 483 Mich 965 (2009), an order
entered in which the new majority ignored Vega v Lakeland Hosps, 479 Mich 243;
736 NW2d 561 (2007); Hardacre v Saginaw Vascular Services, 483 Mich 918
(2009), an order in which it failed to follow Boodt v Borgess Med Ctr, 481 Mich
558; 751 NW2d 44 (2008); Sazima v Shepherd Bar & Restaurant, 483 Mich 924
(2009), an order in which it failed to follow Chrysler v Blue Arrow Transport
Lines, 295 Mich 606; 295 NW 331 (1940), and Camburn v Northwest School Dist
(After Remand), 459 Mich 471; 592 NW2d 46 (1999); Juarez v Holbrook, 483
Mich 970 (2009), an order in which it failed to follow Smith v Khouri, 481 Mich
519; 751 NW2d 472 (2008); Beasley v Michigan, 483 Mich 1025 (2009), an order
in which it failed to follow Rowland; Scott v State Farm Mut Automobile Ins Co,
483 Mich 1032 (2009), an order in which it failed to enforce Thornton v Allstate
Ins Co, 425 Mich 643; 391 NW2d 320 (1986), and Putkamer v Transamerica Ins
Corp of America, 454 Mich 626; 563 NW2d 683 (1997); Chambers v Wayne Co
Airport Auth, 483 Mich 1081 (2009), an order in which it again failed to abide by
Rowland; and Bush v Shabahang, 484 Mich ___; ___ NW2d ___ (issued July 29,
2009, Docket Nos. 136617, 136653, and 136983), in which it ignored Roberts v
Mecosta Co Gen Hosp (After Remand), 470 Mich 679; 684 NW2d 711 (2004)
(Roberts II).

In addition to ignoring precedents altogether, see Potter v McLeary, 484
Mich ___; ___ NW2d ___ (issued July 31, 2009, Docket No. 136336), in which
the new majority avoided overruling Roberts II, for an illustration of a seriously
dubious “distinguishing” of precedent. Such treatment of inconvenient
precedents, reflected also in the Chief Justice’s “comprehensive response” to these
charges, ante at 28 n 63, which cites Potter, 484 Mich at ___ (Kelly, C.J.,
concurring), may well reduce the number of occasions on which precedents have
been explicitly overruled, but they do nothing to uphold the values of stare decisis,
which would seem to be the whole purpose of the exercise, while allowing
multiple and inconsistent precedents to define the law of this state. In the end,
there is no shortcut to resolving whether the new majority or the dissenting
justices are correct in their characterizations of what the majority is doing. We
can only identify what we believe to be the questionable decisions of the majority,
identify the relevant precedents, and invite the reader to reach his or her own
conclusions.

47
practitioners and judges will be able to pick and choose between competing and

inconsistent precedents.

(5) The Chief Justice concludes that Robinson’s standard for overruling

binding precedent is “insufficiently respectful of precedent” because “not once has

the Court cited it as a basis for upholding a prior decision.” Ante at 16-17. The

Chief Justice, however, fails to illuminate the reader as to the number of occasions

on which she has concluded that binding precedent was wrongly decided and yet

joined an opinion maintaining that precedent. Perhaps, this is because the answer

is “never.” Not once has the Chief Justice joined an opinion finding a “compelling

justification,” or any other basis, for upholding a prior decision that she believed

was wrongly decided.48 More to the point, however, in disparaging the impact of

Robinson, the Chief Justice disregards that cases in which Robinson would have

been viewed as militating against an overruling of precedent would have been

48
The Chief Justice responds that she has not upheld what she viewed as a
wrongly decided precedent under the “compelling justification” standard because
that “has never been the standard in Michigan during [her] years as a justice.”
Ante at 28 n 63. However, the point is that, even under her own similar “special
justification” standard, see, e.g., Gardner, 482 Mich at 85 (Kelly, J., dissenting),
or under any other standard, the Chief Justice has never joined an opinion to
uphold what she viewed as a wrongly decided precedent. Her application of her
“special justification” standard also belies her claim that she “followed Robinson
in subsequent cases.” Ante at 29 n 63.

48
precisely those cases in which there never would have been an opinion issuing

from this Court in the first place.49

(6) In response to my concurring opinion in Rowland, then-Justice Kelly

stated:

Justice Markman challenges me to develop my “own
standards” concerning when I would overturn precedent. But I have
no need to create my own standards when well-reasoned standards
have been established in the laws of this country for over 150 years.
As noted in McDowell [v Oyer, 21 Pa 417, 423 (1853)], when
precedents are “free from absurdity, not mischievous in practice, and
consistent with one another,” they should be retained. McDowell, 21
Pa at 423. I would not lightly adopt new rules to guide my judicial
philosophy when traditional tools used by courts throughout their
history continue to serve well. [Rowland, 477 Mich at 255 n 8
(Kelly, J., concurring in part and dissenting in part).]

However, the Chief Justice now apparently finds it necessary to depart from the

150-year old standard that she has previously hailed to fashion her own new

“compelling justification” standard, with its seven evaluative criteria, and we are

49
The Chief Justice also neglects to mention that Robinson, 462 Mich at
466 n 26, expressly identified two illustrative cases it likely would not have
overruled even if it believed they had been wrongly decided. Massey v Secretary
of State, 457 Mich 410; 579 NW2d 862 (1998), the case upholding term limits,
and Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208
NW2d 469 (1973), this Court's initial advisory opinion with regard to automobile
no-fault insurance. See also People v Lively, 470 Mich 248, 259; 680 NW2d 878
(2004), (Markman, J., concurring) (finding it unnecessary to determine whether
longstanding precedent should be overruled under Robinson standards); People v
Starks, 473 Mich 227, 251; 701 NW2d 136 (2005) (Markman, J., joining
concurring opinion stating it was unnecessary to overrule a prior case).

49
left to ponder why she no longer views the “free from absurdity, not mischievous

in practice, and consistent with another” standard as a sufficient test.50

Moreover, it is perplexing why the Chief Justice feels that it is necessary to

overrule Robinson and replace it with her new test given the similarity of these

standards.51 Why, to use her own standards, is this “necessary” and what is the

50
It also should not be lost on the reader that these criteria are nothing more
than a hodgepodge thrown together without any prior case law in support. Given
her criticism that the test for ambiguity set forth in Mayor of Lansing was made up
out of “thin air,” ante at 11, one might think the Chief Justice would be especially
careful to identify at least one or two courts that have utilized her own new
criteria.
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Under the Chief Justice’s standard, stare decisis analysis “begin[s] with
the presumption that upholding the precedent involved is the preferred course of
action.” Ante at 17. Under Robinson, “[s]tare decisis is generally ‘the preferred
course.’” Robinson, 462 Mich at 463 (citation omitted). Under the Chief Justice’s
standard, we are to consider whether the precedent “has proven to be intolerable
because it defies practical workability.” Ante at 21. Under Robinson, we
considered “whether the precedent “defies ‘practical workability.’” Robinson, 462
Mich at 464. Under the Chief Justice’s standard, a court is to consider “whether
reliance on the [precedent] is such that overruling it would cause a special
hardship and inequity.” Ante at 21. Under Robinson, we considered “whether
reliance interests would work an undue hardship.” Robinson, 462 Mich at 464.
Under the Chief Justice’s standard, we are to consider “whether related principles
of law have so far developed since the rule was pronounced that no more than a
remnant of the rule has survived.” Ante at 21. Under Robinson, we considered
“whether changes in the law . . . no longer justify the questioned decision.”
Robinson, 462 Mich at 464. Under the Chief Justice’s standard, we are to consider
“whether facts and circumstances have so changed, or come to be seen so
differently, as to have robbed the old rule of significant application or
justification.” Ante at 18. Under Robinson, we considered “whether changes in
the . . . facts no longer justify the questioned decision.” Robinson, 462 Mich at
464. Under the Chief Justice’s standard, we are to consider “whether other
jurisdictions have decided similar issues in a different manner.” Ante at 21.
Under Robinson, we considered both the “practical workability” of the questioned
decision and “changes in the law,” under which decisions from other jurisdictions

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“compelling justification” for doing this? Indeed, given the Chief Justice’s

statements that the “application [of Robinson] has proven superficial and cursory,”

ante at 16, and that Robinson, “as previously applied” is “insufficiently respectful

of precedent,” ante at 17, one has to wonder whether her real concern is not with

the Robinson test itself, but merely with what she views as the misapplication of

that test.

V. CONCLUSION

I would reverse the Court of Appeals because the final sentence of MCL

418.315(1) does not allow a magistrate to assess an employee’s attorney fees

could be used to address each factor. Robinson, 462 Mich at 464. Under the
Chief Justice’s standard, we are to consider “whether upholding the rule is likely
to result in serious detriment prejudicial to public interests.” Ante at 21. Under
Robinson, we considered both the “practical workability” of the questioned
decision and “changes in the law or facts that no longer justify the questioned
decision,” Robinson, 462 Mich at 464, and each of these factors gave
consideration, in the Chief Justice’s language, to “whether upholding the rule is
likely to result in serious detriment prejudicial to public interests.” Ante at 21.

The final factor in the Chief Justice’s new test-- “whether the prior decision
was an abrupt and largely unexplained departure from precedent,” ante at 21--
ignores two aspects of this Court’s former approach to stare decisis. First, by
establishing a “lower level of deference” for cases that themselves have overruled
precedent, the Chief Justice disregards that the particular precedents she so
disfavors themselves often overruled decisions that “depart[ed] from precedent.”
Ante at 21. See the chart in Rowland, 477 Mich at 228-247 (Markman, J.,
concurring), for a list of such decisions. Does the Chief Justice take this into
account in her calculus? Second, I can only invite those interested in the workings
of their judiciary to read the decisions of this Court in which the former majority
overruled precedent, see id. at 223, and compare these with the decisions in which
the new majority has now overruled or ignored precedent, see supra note 47, and
assess which of these have been most “unexplained” or “abrupt.”

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against the employer. Rather, that sentence only allows a magistrate to divide

attorney fees among medical providers when the magistrate has ordered direct

payment for medical expenses from the employer to those providers.

Stephen J. Markman
Maura D. Corrigan

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