Supreme Court Orders as Binding Precedent

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]

On order of the Court, the application for leave to appeal the September 9, 2014 judgment of the Court of Appeals is considered and, pursuant to MCR 7.30[5](H)(1),[[2]] in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals. The Court of Appeals erred in holding that a genuine issue of material fact existed regarding notice.  To the extent that the Court of Appeals rested its holding on the proposition that MCL 600.3204(4)(a), as amended by 2009 PA 29, requires a borrower to receive actual notice of his or her right to seek a home loan modification, see MCL 600.3205a to MCL 600.3205d [repealed by 2012 PA 521], the Court of Appeals is mistaken. As Judge Riordan's dissenting opinion correctly observes, MCL 600.3205a(3) simply requires that notice be given “by regular first-class mail and by certified mail, return receipt requested, with delivery restricted to the borrower, both sent to the borrower's last known address.” Because it is undisputed that defendants complied with the statutory requirements by providing plaintiffs with both forms of mailed notice, summary disposition in favor of defendants was proper. For these reasons, we REINSTATE the May 31, 2012 judgment of the St. Clair Circuit Court that granted the defendants' motion for summary disposition.

Does a peremptory order issued by the Supreme Court constitute binding precedent in the same manner as a full-blown opinion?  The answer depends on whether the order contains a rationale that can be understood.

Const 1963, art 6, § 6 provides that “[d]ecisions of the supreme court . . . shall be in writing and shall contain a concise statement of the facts and reasons for each decision.” The seminal Supreme Court decision construing this provision is People v Crall.[3]  In Crall, the Supreme Court held that the Court of Appeals erred in rejecting a Supreme Court order as “not binding precedent.”[4]  The order, issued in People v Bailey,[5] found that “[t]he defendant waived the issue of entrapment by not raising it prior to sentencing.”  Finding “no basis” for the Court of Appeals’ conclusion that the order in Bailey was not binding precedent, the Supreme Court in Crall observed that “[t]he order in Bailey was a final Supreme Court disposition of an application, and the order contains a concise statement of the applicable facts and the reason for the decision.”[6]  Thus, the Crall Court held that the Court of Appeals should have followed Bailey and rejected a similarly unpreserved entrapment issue.[7]

Numerous Court of Appeals decisions since Crall have variously stated that a peremptory Supreme Court order constitutes binding precedent if the Court of Appeals “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 rationale.”[10] 

This also includes situations where the Supreme Court’s “rationale” is actually contained in another decision incorporated into the order by reference.  In DeFrain v State Farm Mut Auto Ins Co,[11] the Supreme Court confirmed that the requirements of Const 1963, art 6, § 6 “can be satisfied by referring to another opinion.”[12]   The Court of Appeals has recognized this as well.  In Mullins v St Joseph Mercy Hosp,[13] the Court of Appeals observed that it “consistently has adhered to the principle that the Michigan Supreme Court’s summary disposition orders constitute binding precedent when they finally dispose of an application and are capable of being understood, even by reference to other published decisions.”[14] 

Sometimes a Supreme Court order may even reference a Court of Appeals dissenting opinion—as in DiLuigi. Such orders constitute binding precedent as well.  As the Supreme Court explained in DeFrain, when the Court references a Court of Appeals dissent, it has “adopted the applicable facts and reasons supplied by the dissenting judge as if they were its own.”[15] Thus, in Evans & Luptak, PLC v Lizza,[16] the Court of Appeals relied on an analysis of an ethical rule contained in a Court of Appeals dissent because the Supreme Court’s order reversing the Court of Appeals majority’s decision expressly stated that it “agree[d] with the Court of Appeals dissent’s discussion of [the] principles pertaining to [the ethical rule].”[17] 

In sum, so long as the Supreme Court’s rationale for a decision can be understood and applied beyond the circumstances of the particular case, it is binding precedent regardless whether the decision takes the form of an order or an opinion.