Supreme Court Orders as Binding Precedent – Litigation, Mediation and Arbitration



The Michigan Supreme Court has a well-known practice of issuing peremptory orders on pending applications for leave to appeal that decide the application without actually granting leave. Consider this order in DiLuigi v RBS Citizens NA:1

By order of the Court, the application for leave to appeal from the judgment of the Court of Appeal of September 9, 2014 is considered and, in accordance with MCR 7.30[5](H) (1),[2] instead of granting leave to appeal, we WAIVE the judgment of the Court of Appeal. The Court of Appeal erred in concluding that there was a genuine question of material fact relating to the notice. To the extent that the Court of Appeal based its decision on the proposition that MCL 600.3204 (4) (a), as amended by 2009 PA 29, requires that a borrower receive effective notice of its right to request a modification of mortgage loan, see MCL 600.3205a to MCL 600.3205d [repealed by 2012 PA 521], the Court of Appeal is wrong. As the dissenting opinion of Riordan J. correctly observes, MCL 600.3205a (3) simply requires that the notice be given “by ordinary first class mail and by certified mail, with acknowledgment of receipt, with delivery limited to the borrower, both sent to the last address. “Since it is undisputed that the defendants complied with the legal requirements in providing the plaintiffs with both forms of mailed notices, a summary decision in favor of the defendants was appropriate. For reasons, we RETURN the judgment of May 31, 2012 of the St. Clair Circuit Court which allowed the defendants’ motion for a summary decision.

Does a peremptory order issued by the Supreme Court constitute a binding precedent like a full opinion? The answer depends on whether the order contains a rationale that can be understood.

Const 1963, art 6, § 6 provides that “[d]Supreme Court decisions. . . must be in writing and must contain a concise statement of the facts and reasons for each decision.
People vs. Crall.3 In
yell, the Supreme Court ruled that the Court of Appeal erred in dismissing a Supreme Court order as “non-binding precedent”.4 The order, issued in People Against Bailey,5 found this “[t]the defendant waived the entrapment issue by not raising it before sentencing.
Bailey was not a binding precedent, the Supreme Court of
yell observed that “[t]he orders in Baileywas a final decision of the Supreme Court on an application, and the order contains a concise statement of the applicable facts and the reason for the decision. “6So the yell The Court held that the Court of Appeal should have followed Bailey and dismissed a similar entrapment issue not preserved.7

Numerous decisions of the Court of Appeal since yell have repeatedly stated that a peremptory order of the Supreme Court constitutes a binding precedent if the Court of Appeal “can determine the applicable facts and the reason for the decision”,8 if the order “can be understood”,9 or if the order contains “an understandable justification”.ten

This also includes situations where the Supreme Court’s “rationale” is in fact contained in anotherdecision incorporated in the order by reference. In DeFrain v State Farm Mut Auto Ins Co,11the Supreme Court confirmed that the requirements of Const 1963, art 6, § 6 “may be satisfied by referring to another opinion.”12 The Court of Appeal also recognized this. In Mullins vs. St Joseph Mercy Hosp,13 the Court of Appeal observed that it “has consistently adhered to the principle that the Michigan Supreme Court’s summary resolution orders set a binding precedent when they finally dispose of a claim and are likely to be understood. even by reference to other published decisions ”.14

Sometimes a Supreme Court order may even refer to a dissenting opinion of the Court of Appeal – as in DiLuigi. Such orders also set a binding precedent. As the Supreme Court explained in DeFrain, when the Court referred to a dissent from the Court of Appeal, it “adopted the applicable facts and the reasons provided by the dissenting judge as if they were its own”.15 So in Evans & Luptak, PLC v Lizza,16the Court of Appeal relied on an analysis of an ethical rule contained in a dissent from the Court of Appeal because the order of the Supreme Court reversing the decision of the majority of the Court of Appeal expressly stated that she “suits[d] with the dissenting discussion of the Court of Appeal on [the] principles relating to
[the ethical rule]. “17

In short, as long as the justification for a Supreme Court decision can be understood and applied beyond the circumstances of the particular case, it constitutes a binding precedent, whether the decision takes the form of an order or an opinion. .


1. See DiLuigi v RBS Citizens NA, 497 Mich 1042; 864 NW2d 146 (2015).

2. Formerly MCR 7.302 (H) (1).

3. People vs. Crall, 444 Mich 463; 510 NW2d 182 (1993).

4. Username. at 464 n ° 8.

5. People Against Bailey, 439 Mich 897; 478 NW2d 480 (1991).

6. yell, 444 Mich at 464, n 8.

7. Username.

8. Weschler vs. Wayne Co Road Comm’n, 215 Mich App 579, 591 no.9; 546 NW2d 690 (1996), remanded on other grounds 455 Mich 863 (1997). See also Dykes vs. William Beaumont Hospital, 246 Mich 471, 483; 633 NW2d 440 (2001) (“An order which is a final decision of the Supreme Court on an application and which contains a concise statement of the applicable facts and the reasons for the decision constitutes a binding precedent.”).

9. People Against Edgett, 220 Mich App 686, 693 # 7; 560 NW2d 360 (1996). See also People c. Phillips (after second referral), 227 Mich App 28, 38 n 11; 575 NW2d 784 (1997) (“Peremptory orders of the Supreme Court set a binding precedent where they can be understood.”); Brooks v Engine Power Components, Inc, 241 Mich App 56, 61; 613 NW2d 733 (2000) (idem), overturned for other reasons Kurtz vs. Faygo Beverages, Inc, 466 Mich 186; 644 NW2d 710 (2002).

ten. People against Giovannini, 271 Mich App 409, 414; 722 NW2d 237 (2006) (dismissing the use of a Supreme Court order because it could not be “understood as expressing an opinion as to how the matter should be decided”).

11. DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359; 817 NW2d 504 (2012).

12. Username. to 369.

13. Mullins vs. St Joseph Mercy Hosp, 271 Mich App 503; 722 NW2d 666 (2006), revised for other reasons 480 Mich 948 (2007).

14. Username. at 508; see also People against Ackley, ___ Mich App ___; ___ NW2d ___; 2021 WL 1150195, at * 2 (2021) (“The peremptory orders of our Supreme Court set a binding precedent to the extent that they can be understood, although that understanding is to be obtained by seeking and analyzing other opinions.” ), citing
Woodring vs. Phoenix Ins Co, 325 Mich App 108, 115; 923 NW2d 607 (2018).

15. DeFrain, 491 Mich at 369.

16. Evans & Luptak, PLC v Lizza, 251 Mich App 187; 650 NW2d 364 (2002).

17. See Abrams vs. Susan Feldstein, PC, 456 Mich 857 (1997). See also Love vs. Detroit City, 270 Mich App 563, 566; 716 NW2d 604 (2006) (relying on a peremptory order of the Supreme Court which in turn adopted the dissent of the Court of Appeal).

A version of this article was previously published in the Michigan Defense Quarterly, Vol. 38, n ° 1 (2021).

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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