Negri v. Slotkin

Leave to appeal was granted in the instant proceeding to consider a single issue: whether a decision rendered by less than four justices who nevertheless constitute a majority of a legally constituted quorum is binding on the Court of Appeals and the trial courts. It is our opinion that the lower tribunals are bound by such a decision.

Plaintiff was injured while a guest passenger in an automobile driven by defendant Todd James Slotkin and owned by defendant Hugo Slotkin. An action was filed in Oakland Circuit Court. Despite plaintiffs objections at trial that the guest passenger act was unconstitutional, the matter was sent to the jury and a judgment of no cause of action was entered based on the trial court’s submission of this cause to the jury on the unconstitutional guest passenger act’s theory of gross negligence and wilful and wanton misconduct only.

The Court of Appeals initially held this matter in abeyance pending our decision in Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975). However, on October 31, 1975, the Court of Appeals denied plaintiffs motion for peremptory reversal reasoning that:

"this panel considers that the decision reached in Manistee Bank & Trust Co v McGowan, 394 Mich 655 (1975), is applicable as the law of that case only. See People v Jackson, 390 Mich 621, 627 [212 NW2d 918] (1973).”

We granted leave on March 29, 1976, 396 Mich 844.

Section 211(3) of the Revised Judicature Act provides: "[a] majority of the justices shall constitute a quorum for hearing cases and transacting business”. Four justices constitute a quorum and a decision rendered by a majority of that quorum not only disposes of the case but is binding on the lower courts. Sullivan v Scott, 164 Mich 467, 468-469; 129 NW 864 (1911) is instructive:

"This court was made a tribunal of eight justices by Act No. 250, Pub. Acts 1903. Previous to that time there were five, of whom three constituted a quorum (1 Comp. Laws, § 185), and two being a majority of the quorum their concurrence in an opinion was an adjudication. * * * By these provisions of the statute five now constitute a quorum, and when three of the five concur in an opinion it disposes of the case, and judgment may be entered upon the opinion although only three concur, and if no motion for rehearing be made it stands as valid as any judgment or decree. We have even held that four out of seven not only may make a valid judgment, but that it is stare decisis. Dolph v. Norton, 158 Mich. 422 (123 NW 13) [1909].”

See also Common wealth v Mason, 456 Pa 602; 322 A2d 357, 358 (1974).

This Court has recently passed through an extended period of time during which the Court has, without a full complement of justices, presided over and disposed of many matters. While at present seven justices are sitting, there always exists the possibility of reductions through death or resignation or more temporary reductions through disqualifications in particular cases or illness in the future. Were we to hold that 3-to-2 or 3-to-l decisions are not binding on the Court of Appeals and trial courts, the functioning of our judicial system would be adversely affected. Urgent matters would be held in limbo until such time as a majority of four justices could be mustered.

The United States Supreme Court’s recent treatment of Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972), is instructive. In Fuentes, a 4-to-3 decision authored by Justice Stewart, the majority struck down the replevin laws of two states because writs could be issued by a court clerk without notice to the debtor of opportunity for a hearing. Then in Mitchell v WT Grant Co, 416 US 600; 94 S Ct 1895, 40 L Ed 2d 406 (1974), the Supreme Court upheld Louisiana’s sequestration law. In Mitchell the Court sought to distinguish Fuentes.

Noteworthy in this context is that none of the justices at any time suggested that Fuentes was not a precedent of which lower courts must and the Supreme Court itself should take cognizance.

In denying plaintiffs motion for peremptory reversal, the Court of Appeals relied upon People v Jackson, 390 Mich 621; 212 NW2d 918 (1973). Its reliance was misplaced. In Jackson we considered the impact on this Court of a case in which a majority of the justices sitting failed to concur in the reasoning for the decision. In Manistee Bank & Trust Co, a majority of the justices sitting did concur in the reasoning.

Plurality decisions in which no majority of the justices participating agree as to the reasoning are not an authoritative interpretation binding on this Court under the doctrine of stare decisis. See People v Anderson, 389 Mich 155, 170; 205 NW2d 461 (1973), and cases cited therein.

We hold that a three-to-two decision of this Court such as that reached in Manistee Bank & Trust Co is binding on the Court of Appeals and the trial courts until overruled by a later decision of this Court, including, if that be the case, a later three-to-two decision of this Court. We limit our decision to the question before us, namely are lower courts bound by majority decisions of this Court of less than four justices. We, of course, answer that affirmatively.

The Court of Appeals and trial court are reversed and the matter is remanded for further action not inconsistent with this opinion.

Kavanagh, C. J., and Levin, Fitzgerald, Lindemer, and Ryan, JJ., concurred with Williams, J.

MCLA 600.211(3); MSA 27A.211(3).

But see concurring opinion of Souris, J., in Keenan v Midland County, 377 Mich 57, 61; 138 NW2d 759 (1966).

The Court, seeking to distinguish Fuentes, said:

"As in Bell v Burson, (402 US 535; 91 S Ct 1586; 29 L Ed 2d 90 (1971)] where a driver’s license was suspended without a prior hearing, when the suspension was premised on a fault standard, see Vlandis v Kline, 412 U. S. 441, 446-447 [93 S Ct 2230; 37 L Ed 2d 63] (1973), in Fuentes this fault standard for replevin was thought ill-suited for preliminary ex parte determination. In Louisiana, on the other hand, the facts relevant to obtaining a writ of sequestration are narrowly confined. As we have indicated, documentary proof is particularly suited for questions of the existence of a vendor’s lien and the issue of default. There is thus far less danger here that the seizure will be mistaken and a corresponding decrease in the utility of an adversary hearing which will be immediately available in any event.

"Of course, as in Fuentes, consideration of the impact on the debtor remains. Under Louisiana procedure, however, the debtor, Mitchell, was not left in limbo to await a hearing that might or might not "eventually” occur, as the debtors under the statutory schemes before the Court in Fuentes. Louisiana law expressly provides for an immediate hearing and dissolution of the writ 'unless the plaintiff proves the grounds upon which the writ was issued.’ Art. 3506.” 416 US 617, 618.

The case discussed in Jackson was People v Thomas, 387 Mich 368; 197 NW2d 51 (1972). In Thomas the Court split 3-3-1. Justice Black concurred in the result reached by Justices Brennan, Williams and Adams. Thus there was a majority only with regard to the result which was to affirm the trial court.