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Sington v. Chrysler Corp.7/31/2002
hored by Justice Kelly without any indication of what part of the rules set forth in Robinson she would alter. Even more consequentially, she has failed to make clear what rules, if any, she would follow in determining when to affirm or reject precedents. What is it, for example, that distinguishes Lesner v Liquid Disposal, 466 Mich 95; 643 NW2d 553 (2002), in which Justice Kelly would overrule an interpretation of a statute, from those cases in which she would not? Today, however, she has apparently set down her rules, and that is to be welcomed. She appears to approve the Robinson standard that stare decisis should not be applied mechanically to forever prevent the Court from overruling earlier erroneous decisions determining the meaning of statutes. As to implementing this approach, the Robinson test asserts that it is a supreme court's duty to re-examine a precedent where its reasoning is fairly called into question or, to put it more simply, when it is wrong. Justice Kelly differs in this regard, however, because, as we understand her position, she would not re-examine a precedent unless the prior decision was "utterly nonsensical," slip op at 10, n 7, or reflected a "drastic error," slip op at 10. Otherwise, she would allow that which even she would concede to be erroneous interpretations of the law to prevail.
Further, under Robinson, if the prior Court decided wrongly , that was not the end of the stare decisis inquiry, because the Court must also consider whether there are reliance interests such that, to overrule the prior case, would produce real world dislocations. Id. at 466. If that were so, then even though a case had been decided incorrectly, stare decisis should be respected and the case should not be overruled. As to this point, Justice Kelly would seem to agree, more or less, as she states in her dissent that she would determine if customs had changed or there were unforeseen practices. Slip op at 9-10.
These, then, are the differences between the Robinson approach and Justice Kelly's approach. Robinson would allow the overruling of a prior case interpreting a statute if it was wrong unless there were reliance interests so great that overruling the prior decision would produce real world dislocations. Justice Kelly, on the other hand, would not overrule such a decision unless the earlier Court was not merely in error, but "drastically" in error, or had rendered a decision that was nonsensical. If so, then Justice Kelly would examine customs and unforeseen practices to determine if overruling was appropriate.
She claims, correctly we acknowledge, that her approach, as contrasted with the Robinson approach, would likely produce fewer cases overruling precedent. Yet, is that the proper measure of the merits of these two approaches? We think not.
We think not because the proper measure of tests of stare decisis is not whether one approach reverses more than another, but rather which approach is more consistent with American constitutionalism. We believe the constitutional arrangement in our state and nation reposes in the legislative body the role of making public policy. That arrangement is distorted when the judiciary misconstrues statutes. The majority's view is that its approach to stare decisis, in overruling our prior erroneous interpretations of statutes, respects the democratic process by yielding to the constitutional authority of the Legislature its right to establish the state's policy.
Justice Kelly's approach is flawed because it gives the earlier Court and its judges far too much power--power beyond that which the constitution gave them. Nothing is clearer under our constitution than that the Legislature, when it has enacted a s
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