IN RE PROPOSED AMENDMENT OF RULE 7.305, 462 Mich. 1208 (2000)

98-10.Supreme Court of Michigan.
June 16, 2000. As corrected June 20, 2000.

Order Entered June 16, 2000:

On order of the Court, notice and an opportunity for comment in writing and at public hearings having been provided, and consideration having been given to the comments received, the Court is not persuaded that subrule 7.305(B) of the Michigan Court Rules should be repealed.

WEAVER, C.J. (dissenting).

I would repeal MCR 7.305(B) because I believe it represents an unconstitutional expansion of judicial power and, therefore, I dissent from the majority decision to retain the rule.

MCR 7.305(B) allows a federal court or state appellate court, and after the effectiveness of file no. 98-24, a tribal court, to certify a question to the Michigan Supreme Court when considering “a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent. . . .” By its express terms, MCR 7.305(B) purports to authorize this Court to issue an interpretation of law with no binding effect on either the certifying court or on this Court; the rule requires only that “Michigan law may resolve” the certified question.

As noted by Justice Levin in In re Certified Question, 432 Mich. 438, 468 (1989), the response to the certified question in that case “would not be determinative of the cause or controversy and, even if it were, the response cannot be enforced through an order or judgment of this Court. . . .” Justice Levin therefore concluded

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that the response to a certified question resembles an advisory opinion.[1] The same analysis and conclusion can, I believe, be applied to all certified questions.

The people of the state of Michigan vested the “judicial power” of the state exclusively in one court of justice, but did not define the term or the scope of the power. Const 1963, art 6, § 1. The people did, however, expressly retain the common law in force and not repugnant to the Michigan Constitution of 1963. Const 1963, art 3, § 7. Therefore, it is proper to examine the common-law understanding of “judicial power” in order to determine whether the scope of that power included the power to interpret the law without binding effect.

At common law, “judicial power” has long been understood and defined as “the power of the court to decide and pronounce its judgments and to carry it into effect between persons and parties who bring a case before it for decision. Goetz v Black, 256 Mich. 564, 569-570 (1932), citing Muskrat v United States, 219 U.S. 346
(1911). See also Daniels v People, 6 Mich. 381, 388
(1859) (“judicial power” is “the power to hear and determine controversies between adverse parties, and questions in litigation”); Underwood v McDuffee, 15 Mich. 361, 368 (1867) (“judicial power” is “the inherent authority not only to decide, but to make binding orders or judgments”). See also Amway v Grand Rapids R Co, 211 Mich. 592, 603 (1920). However, MCR 7.305(B) authorizes this Court to render an interpretation of law that may not decide a case between contending parties and may not determine legal rights. As succinctly summarized by Justice Levin in In re Certified Question, supra at 467:

[T]he response to the certified question will not determine the controversy. No binding order or judgment will be entered. The response will not be made effective by a final judgment, decree or process of this Court. No decision of this Court that will be binding on the parties or that will be res judicata of an issue will be entered by the Court. The response does not end the controversy, and this Court has no way of enforcing its response to the certified question by appropriate means.

For these reasons, I believe that MCR 7.305(B) unconstitutionally expands the judicial power of the Court.

That the people would not have understood “judicial power” to include the power to issue interpretations of law without binding effect is supported by their vesting this Court with an expressly limited advisory power. Under Const 1963, art 3, § 8, this Court can issue advisory opinions as follows:

Either house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon

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solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date.

Because the people specifically choose to empower the judiciary to interpret the law with no binding effect in these limited circumstances, it can be inferred that the people would not otherwise have understood “judicial power” to include this authority. Thus, it must be concluded that this Court’s judicial power does not include the more expansive advisory authority found in MCR 7.305(B).[2] Accordingly, I would repeal MCR 7.305(B).

Young, Jr., J., joins in the statement of Weaver, C.J.