Paige v. City of Sterling Heights

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 31, 2006

RANDALL G. PAIGE (Deceased),

Plaintiff-Appellee,

v No. 127912

CITY OF STERLING HEIGHTS, Self-
Insured,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

TAYLOR, C. J.

In this case involving the Worker’s Disability Compensation Act (WDCA),

MCL 418.101 et seq., the first issue is whether the phrase “the proximate cause” in

MCL 418.375(2) means the sole proximate cause, i.e., “the one most immediate,

efficient, and direct cause of the injury or damage.” We conclude that it does, as we

did in construing the identical phrase in the governmental tort liability act (GTLA),

MCL 691.140 et seq., in Robinson v Detroit, 462 Mich 439, 462; 613 NW2d 307

(2000). We therefore overrule Hagerman v Gencorp Automotive, 457 Mich 720; 579

NW2d 347 (1998), which incorrectly construed the phrase to mean “a proximate
cause” that is a substantial factor in causing the event. Accordingly, we vacate the

decision of the Workers’ Compensation Appellate Commission (WCAC) and remand

this case to the WCAC for reconsideration. The second issue is when, in the

circumstance of a parent-employee’s death, a child of that person is entitled to a

presumption of whole dependency. We conclude that a child is only entitled to the

presumption if he or she was under the age of 16 at the time of the parent-employee’s

death. Because the WCAC erred in holding to the contrary, on remand, the WCAC

must make the necessary factual determinations to apply this holding.

I. FACTS AND PROCEEDINGS BELOW

Randall G. Paige worked as a firefighter for the city of Sterling Heights

(hereafter defendant). On October 12, 1991, Paige was sent to the scene of a severe

automobile accident. After extracting a three-year-old girl from an automobile and

carrying her to an ambulance, Paige began experiencing an ache in his right arm.

Approximately 30 minutes later, after he had returned to the fire station, Paige was

completing a report of the automobile accident when he again experienced pain in his

right arm. This time, the pain in his arm was accompanied by chest pains and

profuse sweating. Paige was transported to a hospital, where he was diagnosed as

having suffered a myocardial infarction. He did not return to work after this incident.

In 1993, he was granted an open award of workers’ compensation benefits by

magistrate Donald Miller.1

1
This award of workers’ compensation benefits, however, was made subject
to Paige’s election of like benefits in lieu of workers’ compensation benefits under
(continued…)
2

 Paige suffered a second myocardial infarction on August 15, 2000. He was

diagnosed as having coronary artery disease, and underwent a quadruple coronary

artery bypass on August 21, 2000. On January 4, 2001, Paige died in his sleep. An

autopsy report prepared by the Oakland County Medical Examiner’s office noted that

Paige suffered from occlusions of the left anterior descending coronary artery, right

coronary artery, and four coronary bypass grafts. The deputy forensic pathologist

who conducted the autopsy opined that Paige “died of arteriosclerotic[2]

cardiovascular disease (heart attack).” The certificate of death that was completed by

Paige’s treating cardiologist, Dr. Mark Goldberg, lists the immediate cause of Paige’s

death as acute myocardial infarction, and further lists coronary artery disease as an

underlying cause that existed for “years” before Paige’s death and led to the

immediate cause of death.

Paige’s son, Adam Paige, who was eight years old when Paige suffered his

first heart attack and 17 when Paige died, filed a claim for workers’ compensation

death dependency benefits pursuant to MCL 418.375(2).3 Under this statute, the

(…continued)
MCL 418.161(1)(c). Because Paige elected to receive duty disability pension
benefits from Sterling Heights, and the amount of duty disability pension benefits
exceeded his weekly workers’ compensation benefit amount, he never in fact
received workers’ compensation benefits.
2
Arteriosclerosis is a hardening of the arteries. Stedman’s Online Medical
Dictionary, (accessed April 14, 2006).
3
MCL 418.375(2) provides:
If the injury received by such employee was the proximate cause
of his or her death, and the deceased employee leaves dependents, as
hereinbefore specified, wholly or partially dependent on him or her for
(continued…)
3

child of a deceased employee is entitled to death dependency benefits if he or she

was dependent on the deceased employee and a work-related injury was the

proximate cause of the parent-employee’s death. In making his claim for death

dependency benefits, Adam claimed that as a minor he had been dependent on his

father for support. Further, he claimed that the work-related heart attack in 1991 had

contributed to his father’s death by weakening his heart and, therefore, constituted

“the proximate cause” of his father’s death under Hagerman, which held that the

phrase does not mean the sole proximate cause of death but, rather, requires only a

cause that is a substantial factor in the employee’s death. Hagerman, supra at 728,

736. Defendant opposed the claim for death dependency benefits, arguing that Adam

had not introduced evidence establishing that he was, in fact, dependent on his father.

Moreover, defendant argued that Hagerman had been impliedly overruled by

Robinson, which held that the phrase “the proximate cause” means the sole

proximate cause or, in other words, “the one most immediate, efficient, and direct

cause of the injury or damage. Robinson, supra at 462. Accordingly, defendant

(…continued)
support, the death benefit shall be a sum sufficient, when added to the
indemnity which at the time of death has been paid or becomes payable
under the provisions of this act to the deceased employee, to make the
total compensation for the injury and death exclusive of medical,
surgical, hospital services, medicines, and rehabilitation services, and
expenses furnished as provided in sections 315 and 319, equal to the
full amount which such dependents would have been entitled to receive
under the provisions of section 321, in case the injury had resulted in
immediate death. Such benefits shall be payable in the same manner as
they would be payable under the provisions of section 321 had the
injury resulted in immediate death.

4

asserted that under the Robinson definition Randall Paige’s work-related 1991 heart

attack was not “the proximate cause” of his death.

Magistrate Andrew Sloss resolved both issues in Adam’s favor. First, he

determined that the Hagerman definition of “the proximate cause” applied and,

therefore, the work-related heart attack that Randall Paige suffered in 1991 did not

have to be the sole or most immediate cause of his death but, rather, only needed to

be a substantial factor in the events leading to his death. He determined that the 1991

heart attack was a substantial factor in Paige’s death, stating that all three doctors

who testified at the hearing on Adam’s claim “agreed that it was a combination of

underlying coronary artery disease together with the cumulative damage to the heart

that began with his work-related myocardial infarction in 1991” that caused Randall

Paige’s death in 2001. The magistrate concluded by determining that Adam was

entitled to death dependency benefits as long as he qualified as a dependent. Noting

that Adam’s status as a dependent is to be determined as of the date of his father’s

1991 work-related injury, MCL 418.341,4 Magistrate Sloss recognized that

Magistrate Miller had listed Adam as Randall Paige’s dependent in his 1993 order

granting Randall Paige an open award of benefits. He held that this determination of

4
MCL 418.341 provides, in pertinent part:
Questions as to who constitutes dependents and the extent of
their dependency shall be determined as of the date of the injury to the
employee, and their right to any death benefit shall become fixed as of
such time, irrespective of any subsequent change in conditions except
as otherwise specifically provided in sections 321, 331 and 335.

5

dependency was controlling, and granted Adam’s request for death dependency

benefits.

Defendant appealed Magistrate Sloss’s ruling to the WCAC. Again,

defendant argued that the magistrate should have applied the Robinson definition of

“the proximate cause.” The WCAC, however, rejected defendant’s argument,

concluding that Hagerman was controlling because it specifically addressed MCL

418.375(2) while Robinson, on the other hand, involved a provision of the GTLA.

Defendant also again challenged Adam’s status as a dependent. Although it did not

directly challenge Magistrate Sloss’s reliance on Magistrate Miller’s determination

that Adam was, in fact, dependent on his father at the time of the 1991 work-related

injury, defendant argued that Magistrate Sloss had erred by failing to address the

extent of Adam’s dependency. Specifically, defendant asserted that under this

Court’s decision in Runnion v Speidel, 270 Mich 18; 257 NW 926 (1934), the

magistrate was required to make a factual determination regarding whether Adam

was wholly or partially dependent on his father at the time of the 1991 work-related

injury and, because Magistrate Sloss did not do so, and no evidence of whole or

partial dependency existed in the record, the correct weekly compensation amount

could not be calculated. The WCAC, however, rejected defendant’s assertion that

Runnion required such a factual determination of dependency and, instead, relied on

Murphy v Ameritech, 221 Mich App 591; 561 NW2d 875 (1997), for the proposition

that Adam was entitled to the conclusive presumption set forth in MCL 418.331(b)

6

that he was wholly dependent because he had been under the age of 16 at the time of

his father’s work-related heart attack in 1991.

Defendant applied for leave to appeal the WCAC’s ruling in the Court of

Appeals, again raising the proximate causation and dependency issues. The Court of

Appeals, however, denied defendant’s application for leave to appeal for lack of

merit in the grounds presented. Unpublished order of the Court of Appeals, entered

January 10, 2005 (Docket No. 256451). Defendant then applied for leave to appeal

in this Court. We scheduled oral argument on whether to grant defendant’s

application or take other peremptory action permitted by MCR 7.302(G)(1), and

directed the parties to address whether Robinson overruled Hagerman, and whether

the WCAC erred by failing to follow Runnion and make a factual determination of

the extent of Adam’s dependency on his father at the time of his father’s injury. 474

Mich 862 (2005).

II. STANDARD OF REVIEW

Resolution of the issues in this case involves the interpretation of provisions of

the WDCA. Statutory interpretation is a question of law that we review de novo.

Reed v Yackell, 473 Mich 520, 528; 703 NW2d 1 (2005). As we stated in Reed,

supra at 528-529:

Our fundamental obligation when interpreting statutes is “to
ascertain the legislative intent that may reasonably be inferred from the
words expressed in the statute.” Koontz v Ameritech Services, Inc, 466
Mich 304, 312; 645 NW2d 34 (2002). If the statute is unambiguous,
judicial construction is neither required nor permitted. In other words,
“[b]ecause the proper role of the judiciary is to interpret and not write
the law, courts simply lack authority to venture beyond the
unambiguous text of a statute.” Id.

7

 III. ANALYSIS

If an employee who suffered an injury arising out of and in the course of

employment dies before the period within which the employee is entitled to weekly

workers’ compensation benefits ends, the employee’s death is considered to have

ended the disability and relieves the employer of liability for further weekly benefits

to the injured employee. MCL 418.375(1). However, under MCL 418.375(2), in

lieu of such weekly payments to the employee, the employer is required to pay death

benefits pursuant to MCL 418.3215 if two requirements are met: (1) the work-related

injury was “the proximate cause” of the employee’s death, and (2) the deceased

employee leaves dependents who were wholly or partially dependent upon the

employee for support.6

5
MCL 418.321 provides, in relevant part:
If death results from the personal injury of an employee, the
employer shall pay, or cause to be paid, subject to section 375, in 1 of
the methods provided in this section, to the dependents of the employee
who were wholly dependent upon the employee’s earnings for support
at the time of the injury, a weekly payment equal to 80% of the
employee’s after-tax average weekly wage, subject to the maximum
and minimum rates of compensation under this act, for a period of 500
weeks from the date of death.
6
See also MCL 418.301(1), which provides, in pertinent part:
An employee, who receives a personal injury arising out of and
in the course of employment by an employer who is subject to this act
at the time of the injury, shall be paid compensation as provided in this
act. In the case of death resulting from the personal injury to the
employee, compensation shall be paid to the employee’s dependents as
provided in this act.

8

 A. THE PROXIMATE CAUSE

Primarily at issue in this case is the first requirement of MCL 418.375(2) that

the work-related injury be “the proximate cause” of the employee’s death. In

Hagerman, a majority of this Court relied on Dedes v Asch,7 which involved MCL

691.1407(2)(c) of the GTLA, for the proposition that the Legislature’s use of the

definite article “the” instead of the indefinite article “a” is inconsequential.8 Under

its interpretation of common-law principles of proximate causation, the Hagerman

majority rejected the idea that by using the phrase “the proximate cause,” the

Legislature meant that the work-related injury had to be the sole proximate cause of

the employee’s death in order for the employer to be liable for death benefits under

MCL 418.375(2).9 Instead, the majority held that the employer was liable for death

benefits even if there was more than one proximate cause of the employee’s death, as

long as the work-related injury was a “substantial factor” in the employee’s death.10

In a dissent joined by Justices Weaver and Brickley, I argued that the

Legislature’s use of the phrase “the proximate cause” in MCL 418.375(2)

unambiguously indicated its intent that the work-related injury must be the sole

proximate cause of the employee’s death in order for the employer to be liable for

death benefits. My primary reasons for this conclusion were twofold. First, the term

7
446 Mich 99; 521 NW2d 488 (1994), overruled in part in Robinson, supra at
458-459.
8
Hagerman, supra at 728-729.
9
Id. at 729-734.
10
Id. at 734-738.

9

“proximate cause” had a longstanding definition in Michigan’s jurisprudence before

the enactment of the WDCA.11 Second, the majority’s analysis had improperly

rewritten the statute by failing to recognize the Legislature’s use of the word “the.”12

Two years after Hagerman, in Robinson, supra, which involved MCL

691.1407(2)(c) of the GTLA, this Court overruled the part of Dedes, supra, on which

the Hagerman majority had based its interpretation of MCL 418.375(2) of the

WDCA, and held that the phrase “the proximate cause” as used in MCL

691.1407(2)(c) of the GTLA refers to the sole proximate cause, i.e., “the one most

immediate, efficient, and direct cause preceding an injury.”13 The heart of the

Robinson majority’s rationale, which relied in part on my dissent in Hagerman that

the phrase “the proximate cause” is not synonymous with the phrase “a proximate

cause,” was as follows, Robinson, supra at 460-462:

[T]he Legislature has shown an awareness that it actually knows
that the two phrases are different. It has done this by utilizing the
phrase “a proximate cause” in at least five statutes16 and has used the
phrase “the proximate cause” in at least thirteen other statutes.17 Given
such a pattern, it is particularly indefensible that the Dedes majority felt
free to read “the proximate cause” as if it said “a proximate cause.” The
error will not be compounded, as today this Court corrects the flawed
analysis of the Dedes majority.

11
Although I did not directly reference it in my Hagerman dissent, the
importance of this is that the Legislature has directed that when it uses terms in a
statute that have acquired a peculiar and appropriate meaning in the law before the
statute’s enactment, the courts of this state are to accord those terms such peculiar
and appropriate meaning. MCL 8.3a.
12
Hagerman, supra at 752-757 (Taylor, J., dissenting).
13
Robinson, supra at 458-459.

10

 Nevertheless, the fact that the Legislature sometimes uses “a
proximate cause” and at other times uses “the proximate cause” does
not, of course, answer the question what “the proximate cause” means
other than to show that the two phrases should not be interpreted the
same way. Our duty is to give meaning to the Legislature’s choice of
one word over the other.

We agree with the following analysis found in the dissent in
Hagerman v Gencorp Automotive, 457 Mich 720, 753-754; 579 NW2d
347 (1998):

“Traditionally in our law, to say nothing of our classrooms, we
have recognized the difference between ‘the’ and ‘a.’ ‘The’ is defined
as ‘definite article. 1. (used, esp. before a noun, with a specifying or
particularizing effect, as opposed to the indefinite or generalizing force
of the indefinite article a or an) . . . .’ Random House Webster’s College
Dictionary, p 1382. Further, we must follow these distinctions between
‘a’ and ‘the’ as the Legislature has directed that ‘all words and phrases
shall be construed and understood according to the common and
approved usage of the language . . . .[‘] MCL 8.3a; MSA 2.212(1).
Moreover, there is no indication that the words ‘the’ and ‘a’ in common
usage meant something different at the time this statute was
enacted . . . .”

Further, recognizing that “the” is a definite article, and “cause”
is a singular noun, it is clear that the phrase “the proximate cause”
contemplates one cause. Yet, meaning must also be given to the
adjective “proximate” when juxtaposed between “the” and “cause” as it
is here. We are helped by the fact that this Court long ago defined “the
proximate cause” as “the immediate efficient, direct cause preceding
the injury.” Stoll v Laubengayer, 174 Mich 701, 706; 140 NW 532
(1913). The Legislature has nowhere abrogated this, and thus we
conclude that in MCL 691.1407(2)(c) the Legislature provided tort
immunity for employees of governmental agencies unless the
employee’s conduct amounts to gross negligence that is the one most
immediate, efficient, and direct cause of the injury or damage, i.e., the
proximate cause.
_______________________________________________________
16
See MCL 436.1801(3); MSA 18.1175(801)(3), MCL
600.2947(6)(a); MSA 27A.2947(6)(a), MCL 600.6304(8); MSA
27A.6304(8), MCL 691.1665(a); MSA 12.418(5)(a), and MCL
750.145o; MSA 28.342A(o).
17
See MCL 257.633(2); MSA 9.2333(2), MCL 324.5527; MSA
13A.5527, MCL 324.5531(11); MSA 13A.5531(11), MCL 324.5534;
MSA 13A.5534, MCL 418.375(2); MSA 17.237(375)(2), MCL
11

 500.214(6); MSA 24.1214(6), MCL 600.2912b(4)(e); MSA
27A.2912(2)(4)(e), MCL 600.2912b(7)(d); MSA 27A.2912(2)(7)(d),
MCL 600.2912d(1)(d); MSA 27A.2912(4)(1)(d), MCL 600.2947(3);
MSA 27A.2947(3), MCL 600.5839(1); MSA 27A.5839(1), MCL
691.1407(2)(c); MSA 3.996(107)(2)(c), and MCL 750.90e; MSA
28.285e.
_______________________________________________________

Despite the fact that MCL 418.375(2) of the WDCA, at issue in this case, and

MCL 691.1407(2) of the GTLA, which was at issue in Robinson, both use the phrase

“the proximate cause,” Adam argues that the definition of “the proximate cause”

from Robinson should not be applied to MCL 418.375(2). Adam’s primary argument

in support of this assertion is that the GTLA, as a statute in derogation of the

common law, is generally said to be strictly construed in favor of governmental

immunity,14 while the WDCA, being a remedial statute, is generally said to be

liberally construed to grant, rather than deny, benefits.15 Although we have stated

and utilized these preferential rules of construction in the past, their application is

unnecessary in this case because the proper definition of the phrase “the proximate

cause” can be ascertained solely by reference to the common meaning of the term

“the” and the peculiar meaning that the phrase “proximate cause” has acquired in the

law. These preferential rules of construction do not nullify the general rule that

statutes should be reasonably interpreted consistent with their plain and unambiguous

meaning. See Northern Concrete Pipe, Inc v Sinacola Cos-Midwest, Inc, 461 Mich

316, 320-321; 603 NW2d 257 (1999). More importantly, they do not override the

14
Robinson, supra at 459.

15
Hagerman, supra at 739.

12

Legislature’s clear directive in MCL 8.3a that common words, such as “the,” are to

be construed according to their common meaning and that words that have acquired a

peculiar and appropriate meaning in the law, such as “proximate cause,” are to be

accorded such peculiar and appropriate meaning.

Accordingly, we overrule Hagerman and hold that the phrase “the proximate

cause,” as used in MCL 418.375(2) of the WDCA, refers to the sole proximate cause.

In deciding to overrule Hagerman, we have not only considered the fact that it was

wrongly decided but also whether less injury will result from overruling it than from

following it.16 In making this determination we have considered whether Hagerman

defies “practical workability,” whether reliance interests would work an undue

hardship, and whether changes in the law and facts no longer justify the Hagerman

decision.17

Hagerman defies practical workability because a person reading the statute

surely would not know that he or she cannot rely on what the statute plainly says.

That is, a reader and follower of the statute would, because of Hagerman’s rewrite,

not be behaving in accord with the law. Such a regime is unworkable in a rational

polity. This all gets back to the unrebutted truth that “it is to the words of he statute

itself that a citizen first looks for guidance in directing his actions.”18 Furthermore,

Hagerman is not only inconsistent with the plain language of the statute, it is also

16
Pohutski v City of Allen Park, 465 Mich 675, 693; 641 NW2d 219 (2002).
17
Robinson, supra at 464.
18
Id. at 467.

13

inconsistent with this Court’s decision in Robinson. How are the people of this state

to know what “the proximate cause” means when there is one case from this Court

that states that it means one thing and another case that states that it means something

else? When identical words in the law, lying within a similar statutory context, mean

something altogether different, we do believe that there is a “practical workability”

problem, not in the sense that a court of law cannot render some decision—no

opinion of this Court is “unworkable” in that sense—but in the sense that the law is

made a mockery, meaning one thing in one paragraph and something else in the next.

The law is thereby made less workable in the sense that it is made more confusing

and less decipherable to the ordinary citizen. As we noted this very term in Joliet v

Pitoniak, 475 Mich 30, 40; 715 NW2d 60 (2006), when two decisions from this

Court contain conflicting analysis, this Court is “obligated to resolve this conflict and

decide which decision best reflects the legislative intent expressed in the words of the

statute . . . .” This is true even where, as here, the conflicting decisions address the

same or similar language, but not the same statutes.19

Regarding reliance interests, Hagerman, having been decided just eight years

ago, has not become “so embedded, so accepted, so fundamental, to everyone’s

expectations that to change it would produce not just readjustments, but practical

19
Such was the case in Joliet, in which we overruled Jacobson v Parda Fed
Credit Union, 457 Mich 318; 577 NW2d 881 (1998), a case involving a provision of
the Whistleblowers’ Protection Act, MCL 15.361 et seq., because its analysis
conflicted with that utilized in Magee v DaimlerChrysler Corp, 472 Mich 108; 693
NW2d 166 (2005), a case involving a provision of the Civil Rights Act, MCL
37.2101 et seq.

14

real-world dislocations.”20 Such reliance is only present where the prior decision has

caused a large number of persons to attempt to conform their conduct to a certain

norm. For example, where an entire class of individuals or businesses purchase

insurance and another entire class does not in reliance on a decision by this Court,

this may be viewed as the sort of reliance that could cause “practical real-world

dislocations.” Cf. Pohutski v City of Allen Park, 465 Mich 675; 641 NW2d 219

(2002). There is a significant distinction between merely complying with precedent

and affirmatively altering one’s behavior in reliance on precedent. Where there is

mere compliance with precedent, the overruling of that precedent will not cause

“practical real-world dislocations,” but where a great number of people affirmatively

alter their behavior in reliance on precedent, the overruling of a precedent may cause

“practical real-world dislocations.”21 This Court’s decision in Hagerman cannot be

20
Robinson, supra at 466.
21
In his dissent Justice Cavanagh criticizes our approach as “a standardless,
arbitrary theory” and asserts that it “completely guts” the test set forth in Robinson.
Post at 7. This is not true. This is exactly the same standard that we set forth in
Robinson, and it is not standardless. As we explained in Robinson, the only instances
in which we might decline to overrule a previous decision that erroneously
interpreted a statute is when the previous decision has come to be relied upon by so
many people and to such an extent that to overrule it “would produce chaos.”
Robinson, supra at 466 n 26. One of the several examples we gave in Robinson was
this Court’s initial advisory opinion determining that the no-fault automobile
insurance act is constitutional. In re Constitutionality of 1972 PA 294, 389 Mich
441; 208 NW2d 469 (1973). In reliance on this decision, thousands of Michigan
motorists have purchased mandatory insurance policies that differ in the coverage
they afford from the policies issued in fault-based systems; insurers providing
coverage in Michigan, both Michigan-based and those based out of state, have
completely revised their policies and practices in order to conform to the no-fault act;
the office of the Commissioner of Insurance has altered its procedures, instituted its
own rules and practices, and issued various bulletins dealing with issues arising out
(continued…)
15

said to have caused a great number of persons to affirmatively alter their conduct in

any way, except in the sense that any law requires general compliance with its terms.

It cannot be seriously argued that Randall Paige positioned himself in reliance on

Hagerman. He, as indeed any injured employee we might see, did not script his

unfortunate injuries and illnesses with reference to Hagerman or any other case of

this Court. Nor did his lawyers proceed any differently because of Hagerman.

Furthermore, for most of the duration of this litigation Hagerman’s status was

precarious, and known to be such, because Robinson, which made Hagerman

untenable, was decided only two years after Hagerman.

Finally, we need not consider whether changes in the law and facts no longer

justify Hagerman because Hagerman itself was never justified as it was a change in

the law that this Court had the power, but not the authority, to make. It was not

justified from its inception.

Thus, with Hagerman no longer controlling, we return to the language of the

statute. It is the case that in order for an employer to be liable for death benefits

under MCL 418.375(2), the deceased employee’s work-related injury must have been

“the one most immediate, efficient, and direct cause preceding [the death].”22 We

(…continued)
of the no-fault act. This is the type of widespread reliance that may cause this Court,
as a matter of prudence, to decline to overrule an earlier decision that was
erroneously decided. In such a case, correcting the deficiency in this Court’s prior
ruling would be better left to the Legislature, which has the ability to enact
comprehensive legislation that not only corrects this Court’s error but also alleviates
the problems caused by the extensive reliance interests.
22
Robinson, supra at 459.

16

therefore remand this case to the WCAC for a determination whether Randall Paige’s

work-related injury was “the proximate cause” of his death under this standard.

B. RESPONSE TO JUSTICE CAVANAGH

The dissent of Justice Cavanagh stridently criticizes the positions the majority

has taken. His theme is that our positions are tedious in that we have argued them in

the past, as well as that we are irresponsible. It is true that we have argued them

previously, but in the law consistency is not normally seen as a defect; if it is, the

dissent’s arguments against our rather simple thesis, which holds that one who says

“the proximate cause” has said something different than one who says “a proximate

cause,” are equally shopworn. In attempting to provide buoyancy for his argument

that we are irresponsible, Justice Cavanagh restates the simply incorrect claim that

we have overturned cases at an unprecedented rate. Yet, as we pointed out with

statistics in Sington v Chrysler Corp, 467 Mich 144, 166-170; 648 NW2d 624 (2002),

and Mack v Detroit, 467 Mich 186, 211; 649 NW2d 47 (2002), and as Victor E.

Schwartz has also discussed in his article A critical look at the jurisprudence of the

Michigan Supreme Court,23 we have not done that. Unwilling to rebut either the

statistics or the Schwartz analysis, Justice Cavanagh continues making the claim,

hoping, one surmises, that readers will not know any better. We think they will.

23
85 Mich B J 38, 41 (January, 2006).

17

 With regard to Justice Cavanagh’s claim that history’s judgment of us will be

unkind, this also is not a new claim.24 We think the concern should be his. Our core

argument is that texts should be approached using the same doctrines every time.

This could be described as a “truth in reading” approach. His is the less easily

defended notion that sometimes you read statutes using textual and grammatical rules

that all users of the language normally employ, but on other entirely unpredictable

occasions you do not. Accordingly, while Justice Cavanagh in some cases does use

the textual rules that courts have traditionally employed,25 in others he jumps the

textualist rails and employs interpretive approaches that disregard what the

instrument actually says and instead rely on extratextual sources such as legislative

testimony,26 the perceived intent of the Legislature,27 overarching policy

considerations,28 or even what has been described as the theory of “legislative

24
See, e.g., People v Goldston, 470 Mich 523, 571; 682 NW2d 479 (2004)
(Cavanagh, J., dissenting).
25
See, e.g., People v Barbee, 470 Mich 283; 681 NW2d 348 (2004); Title
Office, Inc v Van Buren Co Treasurer, 469 Mich 516; 676 NW2d 207 (2004);
Stanton v Battle Creek, 466 Mich 611; 647 NW2d 508 (2002); People v Stone, 463
Mich 558; 621 NW2d 702 (2001); In re MCI Telecom Complaint, 460 Mich 396; 573
NW2d 51 (1998); In re Wirsing, 456 Mich 467; 573 NW2d 51 (1999).
26
See, e.g., Mayor of Lansing v Pub Service Comm, 470 Mich 154, 184; 680
NW2d 840 (2004) (Cavanagh, J., dissenting); Haynie v Dep’t of State Police, 468
Mich 302, 331-332; 664 NW2d 129 (2003) (Cavanagh, J., dissenting).
27
See, e.g., Devillers v Auto Club Ins Ass’n, 473 Mich 562, 599-603; 702
NW2d 539 (2005) (Cavanagh, J., dissenting); Mayor of Lansing, supra at 173; Neal v
Wilkes, 470 Mich 661, 674; 685 NW2d 648 (2004) (Cavanagh, J., dissenting).
28
See, e.g., Devillers, supra at 594-613 (Cavanagh, J., dissenting); Lind v
Battle Creek, 470 Mich 230, 235-243; 681 NW2d 334 (2004) (Cavanagh, J.,
dissenting); Veenstra v Washtenaw Country Club, 466 Mich 155, 168-174; 645
NW2d 643 (2002) (Cavanagh, J., dissenting).

18

befuddlement,” which holds that the Legislature can, if we desire, be held to not

know what it is doing and thus we need not do what it directs.29 It bears

emphasizing that he has in the past provided no rationale regarding which technique

he will use in any given case so that litigants, or even citizens attempting to structure

their conduct to accord with the law, have no idea which Justice Cavanagh, the

traditionalist or the deconstructionist, will decide the case. In response to this

assertion, he now argues that he only departs from the traditional approach when a

statute is unclear or ambiguous, post at 17, yet even a casual review of the cases cited

herein reveals that this defense will not bear scrutiny and that in fact he will find a

way, no matter how tendentious (see in particular Mayor of Lansing v Public Service

Comm, 470 Mich 154; 680 NW2d 840 [2004]), to declare that which he wishes to be

ambiguous or unclear to be exactly that. It is an approach of ambiguity by fiat.

Supplementing all these extratextual tools Justice Cavanagh uses to reach a

desired outcome is his utilization of the notion of legislative acquiescence, which he

deploys when an effort is made to overrule a past case where the law was not

followed. On such occasions, he argues, as he does in this case, that this Court

should retain the previous interpretation of a statute that is clearly wrong simply

because the Legislature has not amended the statute to correct our error.30 However,

29
Robinson, supra at 460.
30
See, e.g., Devillers, supra at 613-614; Neal, supra at 676-677; Jones v Dep’t
of Corrections, 468 Mich 646, 665; 664 NW2d 717 (2003) (Cavanagh, J.,
dissenting); Mack v Detroit, 467 Mich 186, 222; 649 NW2d 47 (2002) (Cavanagh, J.,
dissenting); Robertson v DaimlerChrysler Corp, 465 Mich 732, 767-768; 641 NW2d
567 (2002) (Cavanagh, J., dissenting).

19

as this Court explained in Donajkowski v Alpena Power Co, 460 Mich 243, 261; 596

NW2d 574 (1999), the doctrine of legislative acquiescence is not recognized in this

state for the sensible reason that “sound principles of statutory construction require

that Michigan courts determine the Legislature’s intent from its words, not from its

silence.” (Emphasis in original.)31 Not content to merely ignore Donajkowski, he

advances a new argument for legislative acquiescence, which is the startling notion

that once this Court “‘interprets a statute, then the statute becomes what this Court

has said it is’” and that “‘it is neither more nor less than an amendment,’”32 therefore

making it impermissible for this Court to ever revisit its interpretation of the statute.

This is an odd argument for Justice Cavanagh to make, and undeniably inconsistent

with his own practices, given that he has in other cases in the last several years

supported this Court’s decisions to correct erroneous interpretations given to statutes

in the past.33 Moreover, his authority for this audacious statement is an

unenthusiastice reference to United States Supreme Court Justice Hugo Black’s lone

dissenting statement in the 1970 case of Boys Markets, Inc v Retail Clerks Union,

Local 770.34 This is an unconvincing authority to cite, as even he seems to

31
See also Boys Markets, Inc v Retail Clerks Union, Local 770, 398 US 235,
242; 90 S Ct 1583; 26 L Ed 2d 199 (1970) (“[T]he mere silence of Congress is not a
sufficient reason for refusing to reconsider the decision.”).
32
Post at 14, quoting Boys Markets, supra at 257-258 (Black, J., dissenting).
33
See, e.,g, People v Williams, 475 Mich 245, 265; 716 NW2d 208 (2006)
(Cavanagh, J., concurring in the result only); People v Schaefer, 473 Mich 418, 450-
451; 703 NW2d 774 (2005) (Cavanagh, J., concurring).
34
Justice Cavanagh also attempts to support his position by selectively
quoting from Douglass v Pike Co, 101 US 677, 687; 25 L Ed 968 (1879). Douglass,
(continued…)
20

acknowledge, because the majority did not share Justice Black’s view35 and, in that

very case, overruled an earlier case that had improperly construed the statute at

issue.36 The consequential point, however, is that this dubious view of judicial

power, even if it could be construed as defensible under the United States

Constitution, is not defensible under the Michigan Constitution. Our Constitution

strictly forbids a court from exercising legislative power by providing that “[n]o

person exercising the powers of one branch [of government] shall exercise powers

properly belonging to another branch . . . .”37 In short, we cannot “amend” statutes

and Justice Cavanagh’s view is directly at odds with our own Constitution.

With the claimed federal authorities exposed as no authority at all, we return

to the fact that Justice Cavanagh chooses to ignore the holding of this Court in

(…continued)
however, does not support Justice Cavanagh’s assertion that a judicial construction of
a statute becomes part of the statute itself, thereby barring a court from revisiting its
decision in the future. Rather, Douglass says only that a judicial construction of a
statute becomes binding “so far as contract rights acquired under it are concerned.”
Id.
35
Moreover, we would point out that Justice Black’s conclusion to never
revisit statutory construction cases is easier to square with the United States
Constitution’s separation of powers jurisprudence if it is seen, although he evidently
did not, as an exercise of prudence. To not revisit a statute once construed is a
utilitarian discipline perhaps compelled by that Court’s need to devote itself
primarily to constitutional adjudications. This “tyranny of the urgent” argument, if it
pertains to the United States Supreme Court, which accepts appeals from 13 federal
courts of appeals and all 50 states, surely does not pertain to this or any other state
supreme court, and to our knowledge has never been asserted by one in this nation.
We are frankly surprised that Justice Cavanagh would, in light of these difficulties,
advance it in our state.
36
Boys Market, supra at 237-238.
37
Const 1963, art 3, § 2.

21

Donajkowski, just as he has ignored this Court’s holdings rejecting his unprincipled

approach to declaring statutes ambiguous.38 In doing so, Justice Cavanagh reveals

how little fidelity he has to precedent when he does not like the precedent. His

argument on stare decisis then is, and should be seen as, entirely inconsistent. His

test on when to leave the text and search for meaning elsewhere is really no more

sophisticated than doing so when the desired outcome is one the text alone will not

allow. This is, of course, an indefensible theory of jurisprudence even superficially.

Further, it is dangerous because with it comes the death of predictability in the law.

If institutionalized as a practice, our citizens could never tell in advance which judge,

and thus what preferences, will control. If fully implemented in the law, our courts

would be seen as only a scramble for jackpots. Much more can be said negatively of

this “judicial supremacist” approach, and we have,39 but at root it gives to judges, not

to the people through the Legislature, control of public policy.40 Our constitutions

38
A by no means exhaustive list would include Mayor of Lansing, supra at
164-167; Twichel v MIC General Ins Corp, 469 Mich 524, 535; 676 NW2d 616
(2004); People v Spann, 469 Mich 904 (2003); In re Certified Question (Kenneth
Henes Special Projects v Continental Biomass Industries, Inc), 468 Mich 109, 114-
117; 659 NW2d 597 (2003); Klapp v United Ins Group Agency, Inc, 468 Mich 459,
474; 663 NW2d 447 (2003); People v Jackson, 467 Mich 939 (2003); Sington, supra;
Dan De Farms v Sterling Farm Supply, Inc, 467 Mich 857 (2002); Koontz v
Ameritech Services, Inc, 466 Mich 304, 317-318; 645 NW2d 34 (2002); Lesner v
Liquid Disposal, Inc, 466 Mich 95, 103 n 9; 643 NW2d 553 (2002); Crowe v Detroit,
465 Mich 1, 13-16; 631 NW2d 293 (2001); Nawrocki v Macomb Co Rd Comm, 463
Mich 143, 175 n 30; 615 NW2d 702 (2000); DiBenedetto v West Shore Hosp, 461
Mich 394, 403-407; 605 NW2d 300 (2000).
39
See, e.g., Devillers supra at 592-593; Cameron v Auto Club Ins Ass’n, 476
Mich __; __ NW2d __ (Docket No. 127018, decided July 28, 2006), slip op at 8-11.
40
Sington, supra at 169-170; Halloran v Bahn, 470 Mich 572, 579; 683
NW2d 129 (2004); Van v Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999).

22

have never authorized such a usurpation,41 and the cultivation and seizure of such

power, we believe, itself invites history’s reproach.

This response has also prompted Justice Cavanagh to claim that we are

attacking him personally and being insufficiently respectful of our predecessors on

this Court. This is not only inaccurate but peculiar coming from a justice who

himself has this term accused the majority of writing an opinion to advance the

majority members’ interests,42 and has, in the past, accused the justices in the

majority of making “unforgivable” fabrications,43 basing decisions on the view of

what is “socially acceptable behavior,”44 and having a “complete lack of respect” for

civil rights.45

All we are doing is pointing out the problems with his methodology of

deciding cases. That is not a personal attack. His claim should be seen as the latest

volley in a years-long effort by the remnants of the pre-1999 Court and its supporters

to do what they can to bring back the less disciplined approach of that Court.

41
Hagerman, supra at 764-766 (Taylor, J., dissenting); Rehnquist, The
Supreme Court, (New York: William Morrow and Company, Inc, 1987), p 275.
42
In re Haley, 476 Mich __, __; __ NW2d __ (Docket No. 127453, decided
July 31, 2006), slip op at 1 n 1 (Cavanagh, J., concurring).
43
Henry v Dow Chemical Co, 473 Mich 63, 117; 701 NW2d 684 (2005)
(Cavanagh, J., dissenting).
44
Shinholster v Annapolis Hosp, 471 Mich 540, 601; 685 NW2d 275 (2004)
(Cavanagh, J., dissenting).
45
Lind v Battle Creek, 470 Mich 230, 236; 681 NW2d 334 (2004) (Cavanagh,
J., dissenting).

23

 In that era, Justice Cavanagh was much more influential because he had more

colleagues who shared his approach. His influence has waned and with it the

influence of those who benefit from the legal regime of which he was an

unquestioned leader—a regime where the decisions were highly unpredictable,

inconsistent, and virtually any claim was a possible winner. He and they are very

unhappy with the changes and have not accommodated well to the current situation.

The fact that we point out that Justice Cavanagh has articulated no consistent legal

principles or methodology for deciding cases is neither a personal attack nor an

occasion for martyrdom. However, for Justice Cavanagh, it is an inconvenient fact.

We close by returning to this case and what should not be lost sight of here.

That is that in Justice Cavanagh’s world it is perfectly normal, indeed correct, that

sometimes absolutely identical phrases in our statutes, here “the proximate cause,”

have different meanings in different statutes. To express the notion is to expose its

flaw. To the extent that Justice Cavanagh continues to espouse it and its justifying

nostrums, we will continue to do our best to write of their shortcomings and to

expose how compromising to the development of a principled jurisprudence they are.

C. DEPENDENCY

If the work-related injury qualifies as “the proximate cause” of the employee’s

death under the definition we have set forth above, the next inquiry under MCL

418.375(2) is whether the employee left dependents and, if so, whether they were

“wholly or partially dependent on him or her for support . . . .” The answers to these

questions are provided in MCL 418.341, which provides, in relevant part:

24

 Questions as to who constitutes dependents and the extent of
their dependency shall be determined as of the date of the injury to the
employee, and their right to any death benefit shall become fixed as of
such time, irrespective of any subsequent change in conditions except
as otherwise specifically provided in sections 321, 331 and 335.

Accordingly, under this statute, the workers’ compensation magistrate must

determine whether there were persons dependent on the deceased employee, and the

extent of such dependency, by looking at the circumstances at the time of the work-

related injury—not at the time of death. In the present case, Magistrate Miller listed

Adam Paige as a dependent of Randall Paige when he issued his 1993 order granting

Randall Paige an open award of benefits. Defendant did not appeal Magistrate

Miller’s 1993 order. Therefore, the issue whether Adam was dependent on his father

at the time of the work-related injury is res judicata,46 and defendant may not

challenge it now. But, as defendant correctly argues, Magistrate Miller did not

determine the extent of Adam’s dependency on his father at the time of the work-

related injury, i.e., whether Adam was wholly or partially dependent upon Randall

Paige. Without such a determination being made, the rate of any weekly death

benefits to which Adam may be entitled cannot be calculated.

46
The doctrine of res judicata applies where: (1) there has been a prior
decision on the merits, (2) the issue was either actually resolved in the first case or
could have been resolved in the first case if the parties, exercising reasonable
diligence, had brought it forward, and (3) both actions were between the same parties
or their privies. Baraga Co v State Tax Comm, 466 Mich 264, 269; 645 NW2d 13
(2002); Gursten v Kenney, 375 Mich 330, 335; 134 NW2d 764 (1965).

25

 The WCAC rejected defendant’s argument and held that Adam is conclusively

presumed to be wholly dependent under MCL 418.331, which provides, in pertinent

part:

The following persons shall be conclusively presumed to be
wholly dependent for support upon a deceased employee:

* * *

(b) A child under the age of 16 years . . . upon the parent with
whom he or she is living at the time of the death of that parent. . . . In
all other cases questions of dependency, in whole or in part, shall be
determined in accordance with the fact, as the fact may be at the time of
the injury.

The WCAC’s conclusion that Adam, who was under the age of 16 at the time

of the injury but over the age of 16 at the time of the death, is entitled to the

conclusive presumption of whole dependency was erroneous. In Runnion, supra, we

interpreted the predecessor of MCL 418.331(b), which was substantively similar,47

consistently with its plain terms, i.e., that the presumption of whole dependency

applies only if the child was under the age of 16 at the time of the employee’s death.

If the child was, like Adam in this case, over the age of 16 at the time of the

47
1929 CL 8422 provided:
The following persons shall be conclusively presumed to be
wholly dependent for support upon a deceased employee:

* * *

(b) A child or children under the age of sixteen years, . . . upon
the parent with whom he is or they are living at the time of the death of
such parent . . . . In all other cases questions of dependency, in whole
or in part, shall be determined in accordance with the fact, as the fact
may be at the time of the injury.

26

employee’s death, the fact that the child was under the age of 16 at the time of the

injury does not entitle the child to the conclusive presumption of whole dependency.

Instead, “[w]hether there was actual dependency, total or in part, at the time of the

injury is a question of fact.”48

In the present case, the WCAC noted our decision in Runnion but essentially

ignored it, relying instead on statements made by the Court of Appeals in Murphy,

supra, to conclude that a child is entitled to the presumption as long as the child was

under the age of 16 at the time of the work-related injury. There are two problems

with the WCAC’s having disregarded Runnion and relied on Murphy. First, Runnion

directly addressed the proper interpretation of MCL 418.331(b) with regard to the

issue presented here, while Murphy involved an altogether different issue implicating

MCL 418.335.49 Second, and more important, even if Murphy had directly addressed

the statute and issue presented in this case, the WCAC would not be justified in

choosing to follow Murphy instead of Runnion. The obvious reason for this is the

fundamental principle that only this Court has the authority to overrule one of its

prior decisions. Until this Court does so, all lower courts and tribunals are bound by

that prior decision and must follow it even if they believe that it was wrongly decided

or has become obsolete. Boyd v W G Wade Shows, 443 Mich 515, 523; 505 NW2d

48
Runnion, supra at 24.

49
Murphy concerned the amount of discretion afforded a magistrate by MCL

418.335 to order an employer to continue paying benefits until the dependent turns
18, even though the normal 500-week benefit period has expired. Murphy, supra at
596-601. Obviously, this had nothing to do with the proper interpretation of MCL
418.331(b).

27

544 (1993). In short, the WCAC may not, as it has attempted to do here, presume to

overrule this Court by disregarding Runnion and seeking to impose its own

construction of MCL 418.331(b).

Accordingly, should the WCAC determine on remand that Randall Paige’s

work-related injury was the proximate cause of his death, we direct it to further

determine the extent of Adam Paige’s dependency on Randall Paige at the time

Randall Paige suffered the work-related injury.

IV. CONCLUSION
We hold that the definition of the phrase “the proximate cause” set forth in
Robinson, supra, applies to MCL 418.375(2) of the WDCA. In so holding, we
overrule Hagerman, supra. Accordingly, we vacate the decision of the WCAC and
remand this case to the WCAC for a determination of whether Randall Paige’s work-
related injury was “the proximate cause” of his death under the Robinson definition.
Furthermore, the WCAC erred in determining that Adam Paige is entitled to a
conclusive presumption of whole dependency under MCL 418.331(b). If, on
remand, the WCAC determines that Randall Paige’s work-related injury was “the
proximate cause” of his death, we direct the WCAC to determine the extent of Adam
Paige’s dependency upon Randall Paige at the time Randall Paige suffered the work-
related injury in accordance with Runnion, supra.50
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

50
Our disposition of this case makes consideration of defendant’s third issue
unnecessary.

28

29

 STATE OF MICHIGAN

SUPREME COURT

RANDALL G. PAIGE (Deceased),

Plaintiff-Appellee,

v No. 127912

CITY OF STERLING HEIGHTS, Self-
Insured,

Defendant-Appellant.

WEAVER, J. (concurring).

I concur in the majority’s result and analysis, except part III(B), which is the

majority’s response to Justice Cavanagh’s partial dissent.

Elizabeth A. Weaver
 STATE OF MICHIGAN

SUPREME COURT

RANDALL G. PAIGE (Deceased),

Plaintiff-Appellee,

v No. 127912

CITY OF STERLING HEIGHTS, Self-
Insured,

Defendant-Appellant.

CAVANAGH, J. (concurring in part and dissenting in part.)

Today, a majority of this Court vacates the decision of the Workers’

Compensation Appellate Commission and remands this case for reconsideration in

light of Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000). In doing so, the

majority overrules Hagerman v Gencorp Automotive, 457 Mich 720; 579 NW2d 347

(1998). I firmly believe that Hagerman was properly decided and correctly

interpreted the phrase “proximate cause” as it is used in MCL 418.375(2).1

1
MCL 418.375(2) provides:
If the injury received by such employee was the proximate cause
of his or her death, and the deceased employee leaves dependents, as
hereinbefore specified, wholly or partially dependent on him or her for
support, the death benefit shall be a sum sufficient, when added to the
indemnity which at the time of death has been paid or becomes payable
under the provisions of this act to the deceased employee, to make the
total compensation for the injury and death exclusive of medical,
surgical, hospital services, medicines, and rehabilitation services, and
expenses furnished as provided in sections 315 and 319, equal to the
full amount which such dependents would have been entitled to receive
under the provisions of section 321, in case the injury had resulted in
(continued…)
Specifically, this Court correctly considered and rejected the interpretation adopted

today; namely, use of the article “the” before the term “proximate cause” does not

compel the conclusion that the phrase means sole cause. Hagerman, supra at 728-

729. Further, this Court wisely reasoned that the interpretation adopted today would

not only ignore the text of the statute, it would also be inconsistent with concurrent

causation principles predating the enactment of MCL 418.375(2). Hagerman, supra

at 729-734. Indeed, a sole proximate cause requirement would contradict the law’s

longstanding recognition that there may be more than one proximate cause, and there

is no evidence that the Legislature intended to deviate from this principle in MCL

418.375(2). Therefore, Hagerman correctly held that the current majority’s

interpretation of MCL 418.375(2) has neither textual nor historical support. Instead,

Hagerman held that death is within the range of compensable consequences if the

injury was a substantial factor in the death, and such a determination will almost

always depend on the facts presented in a given case. Hagerman, supra at 736.

Accordingly, I must respectfully dissent from today’s decision.

Despite my disagreement with the majority’s interpretation of MCL

418.375(2) and its election to overrule Hagerman, I agree with the majority that the

presumption of whole dependency applies if the child was less than 16 years old at

(…continued)
immediate death. Such benefits shall be payable in the same manner as
they would be payable under the provisions of section 321 had the
injury resulted in immediate death.

2

the time of the employee’s death. MCL 418.331(b); Runnion v Speidel, 270 Mich

18; 257 NW 926 (1934).

I could take this opportunity to further explain why Hagerman was correctly

decided and should not be overruled. Specifically, I could dissect Hagerman and

explain why a decision from this Court issued just eight years ago and examining the

very same issue that is implicated in this case is now being improperly overruled.

Further, similarly to how the majority crafts its opinion in this case, I suppose I could

simply cut and paste the relevant portions of the Hagerman majority opinion in

support of my view that Hagerman remains good law. Additionally, like the current

majority does, I could quote at length from the dissents in Robinson to show why

Hagerman was properly decided. But I believe that my views on this issue are well-

documented, as are the majority’s views. Accordingly, such an approach would not

add much, if any, value to our jurisprudence. In other words, simply rehashing the

same differences of opinion that this Court detailed just eight and six years ago does

not benefit the bench and bar in any meaningful way. And more importantly, this

regurgitation process would still not truly answer the question at hand: Why is a

decision of this Court issued just eight years earlier and involving the same issue now

being overruled?

Unfortunately, today’s majority does not adequately answer that question.

Instead, it is clear from today’s decision, as well as from Robinson and its progeny,

that the current majority does not like Hagerman. But mere disagreement with a

validly issued opinion of this Court has never served as a legitimate basis for

3

overruling precedent. Something more has always been required. Robinson, supra at

464-465. And the generic justifications the majority provides do not satisfy the

standard it set forth in Robinson for overruling precedent.2 Instead, the majority

devotes considerable effort in explaining why it believes the Hagerman decision was

wrong and in personally attacking me, but little attention is paid to carefully

explaining why Hagerman defies practical workability, whether reliance interests on

Hagerman weigh against overruling it, and whether there has been some legal or

factual change that no longer makes Hagerman justifiable. See Robinson, supra at

464-466. This is both telling and troubling.

Under Robinson, before this Court can overrule established precedent, this

Court must first decide whether the earlier decision was wrong. For the reasons

stated earlier in this dissent, I believe that Hagerman was correctly decided.

Nonetheless, the current majority disagrees. I must note, however, that apart from

recycling Robinson and the Hagerman dissent, the majority does not set forth any

new reasons why Hagerman was wrongly decided other than those that were

expressly rejected in Hagerman. The majority is certainly permitted to reargue the

merits of the Hagerman dissent in support of its conclusion that Hagerman was

wrongly decided. And there is little doubt that the majority is entitled to its view.

2
In Robinson, this Court observed that before established precedent is
overruled, this Court must first decide whether (1) the earlier case was wrongly
decided, (2) the earlier case defies practical workability, (3) reliance interests would
work an undue hardship if the earlier case was overruled, and (4) changes in the law
or facts no longer justify the earlier decision. Robinson, supra at 464-465; see also
Pohutski v City of Allen Park, 465 Mich 675, 694; 641 NW2d 219 (2002).

4

But again, under the doctrine of stare decisis and Robinson, merely believing that

Hagerman was wrongly decided is an insufficient ground to overrule that decision.

Other considerations must factor into the calculus. And in light of these other

considerations, the majority has simply failed to satisfy the standard for overruling

precedent. Therefore, regardless of whether this Court believes that Hagerman was

correctly decided—like I do—or wrongly decided—like the majority does—the

doctrine of stare decisis prevents this Court from overruling Hagerman at this time.

For example, before this Court can overrule established precedent, this Court

must also decide whether, apart from being wrongly decided, the earlier case defies

practical workability. Here, the majority has not specifically demonstrated that

Hagerman defies practical workability. Instead, the majority posits that Hagerman is

unworkable because the majority believes Hagerman is inconsistent with the

language of the statute. According to the majority, Hagerman is unworkable because

a reader and a follower of the statute would not be behaving in accordance with the

law because Hagerman rewrote MCL 418.375(2). But the majority’s rationale with

respect to Hagerman’s workability really goes back to the majority’s belief that

Hagerman was wrongly decided. Indeed, the majority has not demonstrated that

injured employees, insurers, magistrates, or the Workers’ Compensation Appellate

Commission—the primary readers and followers of the statute—have found

Hagerman’s interpretation to be unworkable. Indeed, in this case, neither the

magistrate nor the Workers’ Compensation Appellate Commission had any difficulty

in applying Hagerman and concluding, on the basis of medical testimony, that the

5

earlier heart attack proximately caused the death. Further, the majority’s logic also

ignores the notion that Hagerman’s interpretation was, in fact, the rule of law, and

that the Legislature did not amend the statute because it believed Hagerman proved

to be unworkable. Therefore, because the majority’s rationale regarding Hagerman’s

workability relates solely to its belief that Hagerman was wrongly decided, the

majority has not satisfied the standard set forth in Robinson for overruling precedent.

Under Robinson, this Court must also consider whether reliance interests

would be misplaced and cause an undue hardship if established precedent was

overruled. Here, the majority’s rationale regarding reliance interests is simply

unpersuasive and does not satisfy the standard set forth in Robinson. The majority

tells us that no reliance interests would be disturbed because injured workers, Randall

Paige, and his counsel could not have feasibly relied on Hagerman, the controlling

law at the time of this action. Such an assertion is preposterous because it suggests

that injured workers and attorneys who practice in the area of workers’ compensation

do not, and should not, rely on this Court’s interpretation of the Worker’s Disability

Compensation Act, MCL 418.101 et seq. Moreover, such logic is inconsistent with

the majority’s attempted rationale regarding Hagerman’s workability. Here, the

majority attempts to claim that Hagerman is unworkable because people have a right

to rely on the law; however, in its next breath, the majority posits that no reliance

interest would be unsettled because people do not actually rely on the law.

Further, the majority also attempts to set forth a rather curious position lacking

any legal foundation that “mere compliance with precedent” will never amount to a

6

reliance interest. Rather, the majority posits that reliance interests are only

considered where a “large number of persons,” “an entire class of individuals,” or “a

great number of people” “attempt to conform their conduct to a certain norm.” Ante

at 14-15. But the majority does not provide any standard for what is a “large number

of persons,” “an entire class,” or “a great number of people.” Moreover, the majority

theorizes that “mere compliance with precedent” is insufficient to affect reliance

interests; rather, only where “a great number of people affirmatively alter their

behavior” will reliance interests be considered. Ante at 15 (emphasis in original).

Yet the majority does not provide any guidance on what it is that distinguishes “mere

compliance” from “affirmatively altering . . . behavior.” Nor does the majority

explain why this distinction must pertain when this Court must decide whether to

overrule precedent. Instead, the majority offers a standardless, arbitrary theory that

lacks any principled legal basis. Because such a theory poses a serious threat to the

jurisprudence of this Court, completely guts the test set forth by the majority in

Robinson for overruling precedent, and invites abuse, such a theory is fundamentally

flawed.

Worse still, the majority claims that no reliance interests would be unsettled

because injured employees do not script their injuries and illnesses on the basis of the

opinions of this Court. But such a claim is insulting to those who happen to be

injured on the job, and it demonstrates that the majority’s rationale regarding the

reliance placed on Hagerman starts from a faulty premise. Granted, workers do not

choose to become injured or sick on the basis of the decisions of this Court. Getting

7

hurt or sick is often not a choice; workers simply get injured or sick. But when a

worker suffers an injury or illness arising out of and in the course of employment,

that worker and his counsel then rightfully rely on the rule of law when deciding how

to protect and pursue the worker’s rights. And the rule of law applicable at the time

the worker in this case died was Hagerman. As a validly issued decision of this

Court, Hagerman was the controlling law in this state. And a validly issued decision

from this Court is only rendered “untenable” when it is properly overruled by this

Court. Accordingly, Hagerman’s status was not precarious because Robinson did not

expressly or implicitly overrule Hagerman.3 Therefore, the majority’s rationale

regarding the reliance interests placed on Hagerman does not satisfy the standard it

set forth in Robinson.

Finally, before this Court can overrule established precedent, this Court must

also decide whether changes in the law or facts no longer justify the earlier decision.

Here, the majority simply concludes:

[W]e need not consider whether changes in the law and facts no
longer justify Hagerman because Hagerman itself was never justified

3
In any event, Hagerman was allegedly rendered “untenable” and
“inconsistent” by design. The author of the Hagerman dissent was given the
opportunity to examine an arguably similar issue and pen Robinson. In doing so, the
author relied on his Hagerman dissent. Still, Hagerman was not expressly or
impliedly overruled. Yet the seed was planted, the instant defendant seized this
opportunity, and the author of the Hagerman dissent has now been granted his wish.
Under these circumstances, it cannot honestly be said that this case falls within the
class of cases where it is this Court’s duty to reexamine precedent “‘“where its
reasoning . . . is fairly called into question.”‘“ Sington v Chrysler Corp, 467 Mich
144, 161; 648 NW2d 624 (2002) (emphasis added; citations omitted). Rather, it was
reasonable for the readers and followers of MCL 418.375(2) to rely on Hagerman
until properly overruled.

8

 as it was a change in the law that this Court had the power, but not the
authority, to make. It was not justified from its inception. [Ante at 16.]

Clearly, such an assertion completely ignores the standard for overruling precedent

set forth in Robinson. And importantly, the majority’s rationale in this statement

again reveals its belief that it can properly overrule Hagerman simply because it

believes that Hagerman was wrongly decided. In other words, the majority does not

feel the need to point to any special justification or change to support its election to

overrule Hagerman. Perhaps that is because there has been no change in the law or

the workers’ compensation landscape in the eight years since Hagerman was

decided. The only change has been the composition of this Court. And

unfortunately, this is the only reasonable answer to the question why a decision from

this Court decided just eight years earlier and involving the same issue is now being

overruled. But make no mistake, this answer is alarming, and it has become

increasingly common. See, e.g., Devillers v Auto Club Ins Ass’n, 473 Mich 562; 702

NW2d 539 (2005).

Granted, it is said that stare decisis is not “‘an inexorable command.’”

Robinson, supra at 464 (citation omitted). And under some circumstances,

overruling precedent may be unavoidably necessary. But “this Court has consistently

opined that, absent the rarest circumstances, we should remain faithful to established

precedent.” Brown v Manistee Co Rd Comm, 452 Mich 354, 365; 550 NW2d 215

(1996) (emphasis added). Moreover, this Court “‘will not overrule a decision

deliberately made unless [it] is convinced not merely that the case was wrongly

decided, but also that less injury would result from overruling than from following

9

it.’” Id. (citation omitted). Thus, stare decisis is “‘the preferred course because it

promotes the evenhanded, predictable, and consistent development of legal

principles, fosters reliance on judicial decisions, and contributes to the actual and

perceived integrity of the judicial process.’” Robinson, supra at 463 (citation

omitted).4 Here, overruling Hagerman does not advance any of these principles. In

fact, just the opposite is true.

Again, the reasons the majority advances in support of overruling Hagerman

are simply unpersuasive. As noted earlier, the current majority offers no new reasons

why Hagerman was wrongly decided other than those duly considered and

4
In its response to this dissent, the majority includes a citation to a text written
by Chief Justice William H. Rehnquist. However, the majority would be well-
advised to read more of the late chief justice’s jurisprudence, particularly his views
on the doctrine of stare decisis. For example, it is no surprise that Chief Justice
Rehnquist was highly critical of the constitutional rule announced in Miranda v
Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). See, e.g., Michigan v
Jackson, 475 US 625, 637-642; 106 S Ct 1404; 89 L Ed 2d 631 (1986) (Rehnquist, J.,
dissenting). But Chief Justice Rehnquist was also the author of the Court’s decision
that later reaffirmed Miranda. Dickerson v United States, 530 US 428; 120 S Ct
2326; 147 L Ed 2d 405 (2000). In Dickerson, Chief Justice Rehnquist wrote:
Whether or not we would agree with Miranda’s reasoning and
its resulting rule, were we addressing the issue in the first instance, the
principles of stare decisis weigh heavily against overruling it now.
While “‘stare decisis is not an inexorable command,’” particularly
when we are interpreting the Constitution, “even in constitutional cases,
the doctrine carries such persuasive force that we have always required
a departure from precedent to be supported by some ‘special
justification.’” [Id. at 443 (citations omitted).]

As explained more fully earlier in this dissent, the majority in this case offers
no “special justification” for overruling Hagerman other than its belief that it was
wrongly decided. Therefore, the majority’s approach in this case appears
inconsistent with the late chief justice’s views.

10

reasonably rejected in Hagerman.5 So it cannot be said that overruling Hagerman

contributes to the development of the law. Rather, overruling Hagerman in the

manner employed today signals that any decision from this Court depends on and is

only as strong as the Court’s composition. When those justices who were once in the

minority find themselves in the majority, today’s decision gives those justices free

license to vindicate their dissents and disregard the doctrine of stare decisis. There is

nothing evenhanded or predictable in this approach. Nothing in such an approach

fosters reliance on this Court’s decisions. And certainly such actions destroy the

actual and perceived integrity of this Court. This Court—including its past, current,

and future members—and the rule of law are entitled to more respect. The mere

dislike of some justices on this Court of decisions rendered by justices who

previously sat in their chairs does not constitute a sufficient ground under the law to

disregard and overrule those past decisions.

Let me be perfectly clear. This dissent cannot properly be characterized as

“sour grapes” simply because I believe that Hagerman was correctly decided and,

importantly, should not be overruled. If that were true, I would be guilty of roughly

the same sin as the majority. Nor can this dissent be appropriately labeled as an

5
The only new “analysis” set forth by the current majority involves its
disapproval of what it considers so-called “preferential rules of construction.” Ante
at 12-13. But I disagree with the views expressed in this discussion. In any event,
the majority’s discussion of these “preferential rules of construction” does not even
come close to establishing a legitimate, independent reason to overrule Hagerman.

11

expression of how I would prefer MCL 418.375(2) to be interpreted. Even a casual

reading of Hagerman refutes such a charge.6

Instead, this dissent is intended to highlight the rather unremarkable principle

that this Court and the laws of this state are larger than any individual justice,

justices, or “philosophy.” This dissent is also intended to urge the majority to follow

the doctrine of stare decisis, a fundamental principle of our law. Further, this dissent

is intended to observe that the doctrine of stare decisis is particularly strong in

matters of statutory interpretation, like Hagerman, because if this Court previously

interpreted a statute incorrectly, the Legislature can subsequently remedy that

interpretation and fix the statute, which it has not done in this case. Moreover, this

dissent is intended as a reminder that adherence to stare decisis in matters of statutory

interpretation where the Legislature has not corrected the interpretation respects

principles of separation of powers, is consistent with the “judicial role,” and avoids

arbitrariness. Finally, this dissent is intended to highlight the principle that the rule

of law also includes this Court’s precedent. Sadly, these principles remain a mystery

to the current Court, and the underlying debate involving these principles has been

going on for some time. See, e.g., Robertson v DaimlerChrysler, 465 Mich 732; 641

NW2d 567 (2002).

Nonetheless, the majority completely misses the point of this dissent. Rather

than adequately explaining why stare decisis is being ignored in this case—the point

6
Interestingly, similar unfounded accusations were lodged by the Hagerman
dissent and prudently rejected by the Hagerman majority. See Hagerman, supra at
(continued…)

12

raised by this dissent—the majority seeks to blur what this case is truly about. In

doing so, the majority confuses the legal issues and simultaneously attempts to

silence those who disagree. But once the histrionics are peeled away, the pretense of

the majority’s decision in this particular case is evident.

For example, the majority speaks of consistency and predictability. But again,

the majority does not adequately explain why it disregards the doctrine of stare

decisis—a doctrine that is fundamentally based on consistency and predictability.

Accordingly, what the majority professes to be a basis for its “philosophy” is at odds

with what the majority is actually doing in this particular case. Moreover, the

majority speaks of constitutional usurpation and separation of powers. But again, the

majority does not adequately explain why it disregards the doctrine of stare decisis in

a matter of statutory interpretation when the Legislature itself has not seen fit in eight

years to correct Hagerman’s allegedly incorrect interpretation. Therefore, the

majority’s rhetoric concerning public policy is at odds with what the majority is

actually doing in this particular case—making a policy choice for the Legislature and

the people.7

In matters of stare decisis, Justice Black summed up his own views on the

issue in his dissent in Boys Markets, Inc v Retail Clerks Union, Local 770, 398 US

(…continued)
734 n 12.
7
See, e.g., Douglass v Pike Co, 101 US 677, 687; 25 L Ed 968 (1879) (“After
a statute has been settled by judicial construction, the construction becomes, so far as
contract rights acquired under it are concerned, as much a part of the statute as the
(continued…)

13

235, 257-258; 90 S Ct 1583; 26 L Ed 2d 199 (1970). And while it is unnecessary to

adopt Justice Black’s views for Michigan law, his views, and the underlying

principles, are at least worthy of consideration. Justice Black observed:

In the ordinary case, considerations of certainty and the equal
treatment of similarly situated litigants will provide a strong incentive
to adhere to precedent.

When this Court is interpreting a statute, however, an additional
factor must be weighed in the balance. It is the deference that this
Court owes to the primary responsibility of the legislature in the
making of laws. Of course, when this Court first interprets a statute,
then the statute becomes what this Court has said it is. Such an initial
interpretation is proper, and unavoidable, in any system in which courts
have the task of applying general statutes in a multitude of situations.
The Court undertakes the task of interpretation, however, not because
the Court has any special ability to fathom the intent of Congress, but
rather because interpretation is unavoidable in the decision of the case
before it. When the law has been settled by an earlier case then any
subsequent “reinterpretation” of the statute is gratuitous and neither
more nor less than an amendment: it is no different in effect from a
judicial alteration of language that Congress itself placed in the statute.

Altering the important provisions of a statute is a legislative
function. And the Constitution states simply and unequivocally: “All
legislative Powers herein granted shall be vested in a Congress of the
United States . . . .” It is the Congress, not this Court, that responds to
the pressures of political groups, pressures entirely proper in a free
society . . . . This Court should, therefore, interject itself as little as
possible into the law-making and law-changing process. Having given
our view on the meaning of a statute, our task is concluded, absent
extraordinary circumstances. When the Court changes its mind years
later, simply because the judges have changed, in my judgment, it takes
upon itself the function of the legislature. [Id. at 257-258 (Black, J.,
dissenting) (emphasis added; citations omitted).][8]

(…continued)

text itself, and a change of decision is to all intents and purposes the same in its effect

on contracts as an amendment of the law by means of a legislative enactment.” ).

8
Remarkably, the majority proclaims that Justice Black’s views are “no
authority at all” and, thus, his views need not even be considered in this debate. Ante
(continued…)
14

(…continued)
at 21. Accordingly, the majority tries mightily to ignore Justice Black’s view that
overruling precedent that previously interpreted a statute always amounts to a
violation of separation of powers. Presumably this is because those in the majority
believe that a separation of powers argument is uniquely theirs to make. But the
majority’s attempts to discount Justice Black’s views are flawed. For example, the
majority claims that Justice Black’s view may be consistent with the United States
Constitution’s separation of powers principles but not our own. Yet the majority
does not explain how the fundamental principle embodied in the United States
Constitution practically differs from Michigan’s: “the doctrine of separation of
powers . . . is set forth in Const 1963, art 3, § 2, which provides that ‘[t]he powers of
government are divided into three branches: legislative, executive and judicial,” and
further provides that “[n]o person exercising powers of one branch shall exercise
powers properly belonging to another branch except as expressly provided in this
constitution.’” Warda v Flushing City Council, 472 Mich 326, 334 n 4; 696 NW2d
671 (2005). Additionally, the majority claims that Justice Black’s view may be
applicable in the United States Supreme Court given the peculiar nature of “that
Court’s need to devote itself primarily to constitutional adjudications.” Ante at 21 n
35. However, contrary to the majority’s understanding, the United States Supreme
Court’s jurisdiction is not so limited:
The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority;—to all
Cases affecting Ambassadors, other public Ministers and Consuls;—to
all cases of admiralty and maritime Jurisdiction;—to Controversies to
which the United States shall be a Party;—to Controversies between
two or more States;—between a State and Citizens of another State
claiming Lands under Grants of different States, and between a State,
or the Citizens thereof, and foreign States, Citizens or Subjects. [US
Const, Art III, § 2.]

See also Scalia, A Matter of Interpretation: Federal Courts and the Law (New
Jersey: Princeton University Press, 1997), pp 13-14 (“[a] very small proportion of
judges’ work is constitutional interpretation in any event. (Even in the Supreme
Court, I would estimate that well less than a fifth of the issues we confront are
constitutional issues—and probably less than a twentieth if you exclude criminal-law
cases.) By far the greatest part of what I and all federal judges do is interpret the
meaning of federal statutes and federal agency regulations.”).
Further, the majority claims that Justice Black’s view may pertain to the
United States Supreme Court, but not state supreme courts, because the United States
Supreme Court’s workload is daunting because that Court accepts appeals from many
lower courts under its jurisdiction. But such an assertion ignores the reality that state
(continued…)
15

 Yet in light of the points raised by this dissent, at its basic core, the majority

nevertheless tells the people of this state that its “philosophy” and “preferences”

should control the outcome of a given case. But the rule of law and the facts of the

case should control the outcome, not any “philosophy.” In matters of statutory

interpretation, I have never wavered from the principle that a plain and unambiguous

statute is to be applied as written. Under some circumstances, however, a statute

may be unclear or ambiguous, which is likely to happen in cases reaching the highest

Court in this state. As such, when a statute is unclear, then well-established,

centuries-old rules of construction often come into play and may help this Court

resolve the controversy and determine the Legislature’s intent.

(…continued)
supreme courts, including the Michigan Supreme Court, also accept appeals from the
lower courts under their jurisdiction. Additionally and, frankly, comically, the
majority attempts to discount Justice Black’s views simply because he voiced them in
a dissent and the majority in that case rejected his views. But in the very case before
this Court, the majority uses the Hagerman dissent as its primary authority for
concluding that Hagerman was wrongly decided and, therefore, must be overruled.
Finally, the majority attempts to argue that Justice Black’s view is not
defensible under the Michigan Constitution because our Constitution forbids a court
from exercising legislative power. Accordingly, the majority protests and
simplistically asserts that it cannot amend statutes. But this is the very point Justice
Black was attempting to make, and apparently this point is lost on the majority.
Justice Black posits that any “reinterpretation” of a settled statute is effectively an
amendment. And because “we cannot ‘amend’ statutes,” Justice Black asserts that
doing so would violate principles of separation of powers. Ante at 21. Again, it is
not necessary to adopt Justice Black’s view for Michigan’s jurisprudence, and I am
not advocating that we do so now. I do believe, however, that a Court that
consistently preaches the importance of separation of powers should at least consider
the thoughtful points raised on this very issue by a United States Supreme Court
justice.

16

 Accordingly, I encourage readers to examine the sampling of cases that the

majority sets forth and judge my fidelity for themselves. See ante at 18-19 ns 26-29.

For example, sometimes a statute is plain and unambiguous; therefore, the judge

applies the statute as written. People v Barbee, 470 Mich 283; 681 NW2d 348

(2004); Title Office, Inc v Van Buren Co Treasurer, 469 Mich 516; 676 NW2d 207

(2004); Stanton v City of Battle Creek, 466 Mich 611; 647 NW2d 508 (2002); People

v Stone, 463 Mich 558; 621 NW2d 702 (2001); In re MCI Telecom Complaint, 460

Mich 396; 596 NW2d 164 (1999); In re Wirsing, 456 Mich 467; 573 NW2d 51

(1998). Other times a statute may be ambiguous or unclear, and judicial construction

then becomes necessary and the judge must “jump the textualist rails.” See, e.g.,

Lansing Mayor v Public Service Comm, 470 Mich 154, 174; 680 NW2d 840 (2004)

(Cavanagh, J., dissenting) (“I, on the other hand, believe that the statute is ambiguous

and turn to legislative history accompanying the statute to discern the Legislature’s

true intent.”). And other times principles of stare decisis in matters of statutory

interpretation, particularly where the Legislature has not responded to a prior

interpretation, weigh against overruling precedent absent sound and specific

justification. See, e.g., Devillers v Auto Club Ins Ass’n, 473 Mich 562, 613-614; 702

NW2d 539 (2005) (Cavanagh, J., dissenting); Neal v Wilkes, 470 Mich 661, 676-677;

685 NW2d 648 (2004) (Cavanagh, J., dissenting); People v Moore, 470 Mich 56, 78-

79; 679 NW2d 41 (2004) (Cavanagh, J., dissenting); Jones v Dep’t of Corrections,

468 Mich 646, 665; 664 NW2d 717 (2003) (Cavanagh, J., dissenting); Mack v

Detroit, 467 Mich 186, 221-222; 649 NW2d 47 (2002) (Cavanagh, J., dissenting);

17

Robertson, supra at 767-768 (Cavanagh, J., dissenting). Thus, I fail to see how these

universally accepted legal principles are unsound, unpredictable, or unprincipled.

Rather, I believe that the rule of law and the facts of the case should control the

outcome, not ideology or “philosophy.” And if the majority wishes to characterize

this in itself as a “philosophy” or “methodology,” so be it. But as the majority’s own

rhetoric in this case shows, labels can be dangerous and are often misleading.

I have no doubt that the majority firmly believes that it dispenses justice and

that its “philosophy” is the best means to this end and best serves the people of this

state. But far too often the majority merely pays lip service to its stated “philosophy”

or entirely misapplies it. For example, in cases involving issues of statutory

interpretation, the majority and I often disagree whether a particular statute is

ambiguous. But because there are two sound, reasonable interpretations based on the

statutory language, this should signal that the statute may not be as clear as the

majority purports it to be. See, e.g., Yellow Freight System, Inc v Michigan, 464

Mich 21; 627 NW2d 236 (2001), rev’d 537 US 36 (2002), vacated and remanded 468

Mich 862 (2003), on remand 257 Mich App 602; 669 NW2d 553 (2003). In any

event, because it claims to abhor most well-accepted rules of statutory construction,

the majority nonetheless is reluctant in some cases to find ambiguity or conclude that

something is unclear. But no judge should ignore ambiguity when it is present
9
merely to reach a given result, just as no judge should manufacture ambiguity.

9
For example, in Twichel v MIC Gen Ins Corp, 469 Mich 524; 676 NW2d
616 (2004), cited by the majority in this case, the current majority and the dissenters
(continued…)
18

Nonetheless, when in cases of statutory interpretation there is a basic, reasonable

difference of opinion about whether language is ambiguous, the majority’s standard

procedure is to vehemently claim a statute is plain and unambiguous, resort to

numerous dictionary definitions, and accuse the dissenters and past justices of this

Court of legislating from the bench, usurping the role of the Legislature, advancing

their own policy preferences, or some combination of these accusations. This

approach destroys the public’s confidence in this Court.

This case is a perfect example. The majority chooses to criticize me rather

than respond and adequately explain why Hagerman must be overruled under

accepted principles of stare decisis. In turn, this case has become less about stare

decisis and respect for precedent and more about giving the majority another

opportunity to extol the virtues of its “philosophy” while simultaneously disregarding

the principles that supposedly support its “philosophy,” as well as attacking those

(…continued)
disagreed over whether the term “owner” as used in a particular insurance policy was
ambiguous. After selectively consulting numerous dictionary definitions, the
Twichel majority opined that “possession, control, and dominion are among the
primary features of ownership.” Id. at 534 (emphasis deleted). Relying on these
“primary features,” the current majority opined that the term “owner” was plain and,
therefore, concluded that the person who died in that case was not entitled to benefits.
On the other hand, the dissenters concluded that ownership may entail more than
possession, dominion, and control. Rather unremarkably, the dissenters reasoned that
“owner” may also mean the person “‘who has the legal or rightful title, whether he is
the possessor or not.’” Id. at 537 (citation omitted) (Cavanagh, J., dissenting).
Accordingly, the majority’s citation of Twichel, and other similar cases, is
illuminating because, as the majority rightfully suggests, it clearly shows the
differences between the current majority’s and the dissent’s views on ambiguity, as
well as standard rules of judicial construction.

19

who disagree. This blurs what this case is really about: stare decisis and respect for

precedent.

Further, I have no doubt that the majority truly believes that it is fixing what it

perceives to be a wrong in this case. However, I believe that Hagerman was properly

decided. Nonetheless, my disagreement on that point is not really the main thrust of

this dissent. Rather, this dissent is intended to observe that there are larger issues at

stake in this case: the rule of law, respect for precedent, the integrity of this Court,

and judicial restraint. Accordingly, larger institutional issues are implicated in this

case.

This case, like all cases that come before this Court, should be about the rule

of law, not ideology or partisanship. The cases this Court decides are not some sort

of game or political football, complete with “regime[s],” “influence,” and

“winner[s].” Ante at 24. Further, this Court must always be mindful that our

decisions have real implications and affect real people. This Court must also be

mindful that attacking sitting colleagues who happen to disagree, as well as attacking

past justices—who cannot defend themselves—and characterizing them as inferior,

“unpredictable,” and “inconsistent,” does an extreme disservice to this Court and the

citizens of this state. Ante at 24. Such attacks are disrespectful. Such attacks are not

robust legal debate by any definition. And such attacks and rhetoric wound this

Court as an institution.

Nonetheless, far too often, the members of the current majority prefer to attack

and spin. Far too often, the members of the current majority use terms such as

20

“textualism,” “judicial role,” “usurpation,” “separation of powers,” and “policy

preferences” when conducting damage control and to mask the rationale of some of

its opinions, not to mention the results of some of its opinions. When this occurs,

members of this Court must voice their disagreement. And far too often, the majority

will then elect to ignore the legal merits of any disagreement and, instead, choose to

criticize the person who happens to disagree. But the majority is quite right that

history, not me, will ultimately pass judgment on the current Court’s fidelity and

jurisprudence.10 Indeed, long after those in the current majority are gone, their

decisions will remain. And I am sure it is their hope that when future members of

this Court consider their body of work, those future justices will exercise more

respect, wisdom, and restraint than the current majority has shown today.

Michael F. Cavanagh
Marilyn Kelly

10
Likewise, I will leave it to history and others to evaluate my record as well.
Thus, I see no need to “rebut” the majority’s compilation in Sington, supra, or Victor
E. Schwartz’s article in a recent Michigan Bar Journal, A critical look at the
jurisprudence of the Michigan Supreme Court, 85 Mich B J 38 (January, 2006). I
must note, however, that Mr. Schwartz is a renowned “tort-reform” advocate, and
filed an amicus brief in support of the result reached by the majority in Henry v Dow
Chemical Co, 473 Mich 63; 701 NW2d 684 (2005). I must also note that Mr.
Schwartz’s article was part of a point-counterpoint discussion. Thus, I encourage
readers to also explore Professor Miller’s companion piece (Judicial Politics:
Restoring the Michigan Supreme Court) disagreeing with Mr. Schwartz’s
characterization, as well as the countless letters to the editors passionately
disagreeing with Mr. Schwartz’s description of this Court that have appeared in
subsequent issues of the bar journal. See 85 Mich B J 10-12 (March, 2006); 85 Mich
B J 14 (May, 2006).

21