Supreme Court Orders As Binding Precedent

• Published date: 07 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Dickinson Wright PLLC
• Author: Mr Phillip DeRosier

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to receive actual notice of his or her right to seek a home loan modification, see MCL 600.3205a to MCL 600.3205d [repealed by 2012 PA 521], the Court of Appeals is mistaken.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v Crall.³ In Crall, the Supreme Court held that the Court of Appeals erred in rejecting a Supreme Court order as "not binding precedent."⁴ The order, issued in People v Bailey,⁵ found that "[t]he defendant waived the issue of entrapment by not raising it prior to sentencing."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...