Opinion
SC: 165170 COA: 360586
09-08-2023
Jason GILLMAN, Jr., Plaintiff-Appellant, v. KENT COUNTY HEALTH DEPARTMENT and Kent County, Defendants-Appellees.
Order
On order of the Court, the application for leave to appeal the November 17, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J. (dissenting).
This Court's decision in In re Certified Questions , 506 Mich. 332, 958 N.W.2d 1 (2020), held that many of the Governor's emergency orders responding to the COVID-19 pandemic were invalid. No matter what one thought about the merits of that case, it seems clear to me that the majority decision did not explicitly or implicitly address whether the holding was limited to prospective application. I therefore dissent from this Court's denial order. I would instead vacate the Court of Appeals’ holding that Certified Questions was expressly limited to prospective application and remand the case to the Court of Appeals to either apply the proper standard for determining whether a decision is prospective only or to resolve the case on the alternative grounds provided by the trial court.
Relying on our decision in Certified Questions , plaintiff in this case challenges the validity of Executive Order No. 2020-38, which extended a public body's deadline to respond to requests under the Freedom of Information Act, MCL 15.231 et seq. , from 5 business days to 10. The trial court granted summary disposition to defendant on the grounds that plaintiff had failed to properly plead a challenge to EO 2020-38 and had failed to include the necessary parties for such a challenge (the state and the Governor). The Court of Appeals avoided these issues by determining that our decision in Certified Questions was intended to be applied only prospectively. But in so holding, the Court relied on only a few stray lines from Certified Questions that fail to address the issue of retroactivity. The first one came near the start of the lead opinion, which stated, "Accordingly, the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law." Certified Questions , 506 Mich. at 338, 958 N.W.2d 1 (opinion by MARKMAN , J.). And the end of the lead opinion stated, "As a consequence, the [Emergency Powers of the Governor Act, MCL 10.31 et seq. ] cannot continue to provide a basis for the Governor to exercise emergency powers." Id. at 385, 958 N.W.2d 1. Neither sentence addresses the concept of retroactivity or overcomes the presumption (which I will discuss in a moment) that decisions are retroactive.
The United States Court of Appeals for the Sixth Circuit also relied on this language to reach the same holding. See Skatemore, Inc v Whitmer , 40 F.4th 727, 736 (6th Cir. 2022).
Another significant problem with the Court of Appeals’ approach is that it misapprehends how to interpret an opinion. A judicial opinion "is not a comprehensive code; it is just an explanation of the Court's disposition. Judicial opinions must not be confused with statutes, and general expressions must be read in light of the subject under consideration." United States v Skoien , 614 F.3d 638, 640 (7th Cir. 2010) ; see also Brown v Davenport , 596 US ––––, ––––, 142 S Ct 1510, 1528, 212 L.Ed.2d 463 (2022) ("This Court has long stressed that ‘the language of an opinion is not always to be parsed as though we were dealing with [the] language of a statute.’ ... We neither expect nor hope that our successors will comb these pages for stray comments and stretch them beyond their context ....") (citation omitted; alteration in original). And even to the extent we should closely parse the phrasing of Certified Questions like a statute, the Court of Appeals overlooked other language in that decision cutting the other way. In particular, part of our holding was that the Governor did have authority to declare an emergency under the Emergency Management Act (EMA), MCL 30.401 et seq. , but only until April 30, 2020. We phrased this holding in a way that suggested its effect applied retroactively to that date: "For these reasons, we conclude that the Governor did not possess the authority under the EMA to renew her declaration of a state of emergency or state of disaster based on the COVID-19 pandemic after April 30, 2020." Certified Questions , 506 Mich. at 347, 958 N.W.2d 1 (opinion of the Court). We made various similar statements throughout the opinion. I therefore do not see anything in Certified Questions that decided the retroactivity issue.
For example, we stated, "Given that we conclude that the Governor did not possess the authority under the EMA to renew her declaration of a state of emergency or state of disaster based on the COVID-19 pandemic after April 30, 2020, it is unnecessary for us to decide whether the EMA violates the Michigan Constitution, a question also certified to this Court." Id. at 347 n 9, 958 N.W.2d 1. We elsewhere noted that a majority held "that the Governor lacked the authority to declare a ‘state of emergency’ or a ‘state of disaster’ under the EMA after April 30, 2020 ...." Id. at 385 n 25, 958 N.W.2d 1 (opinion by Markman , J.); see also id. at 385, 958 N.W.2d 1 ("We conclude that the Governor lacked the authority to declare a ‘state of emergency’ or a ‘state of disaster’ under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic.").
Our failure to address retroactivity was understandable given the unique posture in which the case was presented. Plaintiffs in that case were seeking declaratory relief rather than an application of our decision to particular facts; i.e., they were not seeking a judgment that past efforts to enforce the orders were invalid. In addition, the matter came to us through the certified question process from federal court. In that posture, we had no occasion even to apply our ruling to the facts. In certified question cases, there is no formal requirement that our decision be determinative in the case, In re Certified Question , 432 Mich. 438, 463, 443 N.W.2d 112 (1989) (opinion by LEVIN , J.), and we have no power to compel the federal court to apply our decision, In re Certified Question from the US Court of Appeals for the Sixth Circuit , 472 Mich. 1225, 1229, 696 N.W.2d 687 (2005) ( YOUNG , J., concurring). Accordingly, any ambiguities in the phrasing in Certified Questions likely stem from the fact that this was a certified question case in which the plaintiffs sought declaratory relief. The phrasing might also reflect the fact, noted above, that we held that the Governor properly exercised emergency powers under the EMA for a period, and thus it was her continued exercise of those powers that was improper. By latching onto a few lines in the opinion, the Court of Appeals also disregarded the exceptional nature of declaring that an opinion is not retroactive. While I have joined in decisions that are limited to prospective application, I acknowledge that strong questions have been raised concerning such application:
While we used similar phrasing in House of Representatives v Governor , 506 Mich. 934, 949 N.W.2d 276 (2020), which was not a certified question case, we were simply mirroring the phrasing from Certified Questions .
Moreover, "there is a serious question as to whether it is constitutionally legitimate for this Court to render purely prospective opinions, as such rulings are, in essence, advisory opinions." Wayne Co. v Hathcock , 471 Mich. 445, 485 n 98, 684 N.W.2d 765 (2004). This is because "to accord a holding only prospective application is, essentially, an exercise of the legislative power to determine what the law shall be for all future cases, rather than an exercise of the judicial power to determine what the existing law is and apply it to the case at hand." Devillers v Auto Club Ins Ass'n , 473 Mich. 562, 587 n 57, 702 N.W.2d 539 (2005). [ League of Women Voters of Mich. v Secretary of State , 508 Mich. 520, 623-624 (2022) ( CLEMENT , J., concurring in part and dissenting in part) (emphasis omitted).]
This reflects the historical view, shared by Lord Blackstone and Justice Story, that judicial opinions simply say what the law has always been. See Kay, Retroactivity and Prospectivity of Judgments in American Law , 62 Am J Comp L 37, 38 (2014). I believe these concerns should give us pause when deciding whether to limit a decision to prospective application. Indeed, the normal factors applied to determine whether a decision should have prospective-only application seem to reflect these concerns by requiring, in the civil context, that the holding clearly establish a new principle of law before its application can be limited. See Pohutski v City of Allen Park , 465 Mich. 675, 696, 641 N.W.2d 219 (2002) (noting the three factors to be considered—"(1) the purpose to be served by the new rule, (2) the extent of reliance on the old rule, and (3) the effect of retroactivity on the administration of justice"—and that in the civil context there is a "threshold question whether the decision clearly established a new principle of law").
It may be that, under the Pohutski factors, our decision in Certified Questions would be deemed prospective only. But that analysis has not been conducted here. For these reasons, I would vacate the Court of Appeals judgment and remand the case to that court to either apply the proper test for retroactivity or address the issues decided by the trial court. I therefore dissent.