FILED JULY 31, 2009 

RICK PETERSEN, 

 Plaintiff-Appellee, 

v Nos. 136542, 136543 

MAGNA CORPORATION and MIDWEST 

EMPLOYERS CASUALTY COMPANY, 

 Defendants-Appellants. 

and 

KOLEASECO and THE ACCIDENT FUND 

COMPANY; MAGNA CORPORATION and 

TIG INSURANCE COMPANY; BCN 

TRANSPORTATION SERVICES and TIG 

INSURANCE COMPANY; KOLEASECO, 

INCORPORATED and CITIZENS 

INSURANCE COMPANY; BCN 

TRANSPORTATION SERVICES; SERTA 

RESTOKRAFT MATTRESS COMPANY, 

INCORPORATED and HARLEYSVILLE 

LAKE STATES INSURANCE COMPANY, 

 Defendants-Appellees. 

BEFORE THE ENTIRE BENCH 

KELLY, C.J. 

We granted leave to appeal in this case to determine the parties against 

whom attorney fees may be prorated under MCL 418.315(1). We conclude that 

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice: 

Marilyn Kelly 

Justices: 

Michael F. Cavanagh 

Elizabeth A. Weaver 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

Diane M. Hathaway
2

the term “prorate” in MCL 418.315(1) applies only to employers and their 

insurance carriers. Accordingly, we affirm the judgment of the Court of Appeals. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case involves a dispute over workers’ compensation benefits. Plaintiff 

Rick Petersen began working for codefendant Koleasco, a trucking company, in 

February 1997. In March 1997, Koleasco hired codefendant BCN Transportation 

Services (BCN), a human resources “employee leasing” company, to administer 

its employee benefits. 

In November 1997, plaintiff was injured when he fell from a flatbed truck 

while securing a load of Christmas trees. After the accident, he underwent surgery 

on his right foot and applied for workers’ compensation benefits. The following 

year, he required treatment for back pain, which his treating physician believed 

was caused by the November 1977 fall. 

Several questions were taken to a workers’ compensation magistrate: (1) 

who was plaintiff’s employer at the time of his injury, BCN or Koleaseco? (2) was 

Midwest the relevant insurer for workers’ compensation purposes? (3) was 

plaintiff disabled? and (4) if so, which injury caused his disability? The magistrate 

bifurcated these issues into two trials. 

In the first trial, the magistrate ruled that plaintiff was a Koleaseco 

employee on the date of his injury despite the fact that BCN paid his wages. Thus, 

because BCN had stipulated that it was plaintiff’s employer, the magistrate ruled 

that both BCN and Koleaseco were plaintiff’s employers and both were liable for 
3

plaintiff’s workers’ compensation benefits. On appeal, the Workers’ 

Compensation Appellate Commission (WCAC) affirmed that ruling. 

 In the second trial, the magistrate considered (1) was plaintiff’s counsel 

entitled to an attorney fee of 30 percent of plaintiff’s medical bills unpaid by 

defendant? and (2) who was responsible for paying plaintiff’s future medical and 

weekly benefits? With respect to plaintiff’s attorney fees, the magistrate ruled: 

[A]lthough Midwest . . . was paying the plaintiff weekly 

benefits, it refused to pay medical bills related to [plaintiff’s] injury. 

. . . The total amount of the medical bills incurred . . . which 

defendant refused to pay is $153,448.54. I find that plaintiff’s 

counsel is entitled to a 30 percent attorney fee for these unpaid 

medical bills under Section 315(1). . . . 

With respect to whether BCN or Koleaseco was responsible for paying plaintiff’s 

ongoing medical and weekly benefits, the magistrate ruled that BCN and its 

insurance carrier, Midwest, were primarily responsible. 

 Again, both parties appealed to the WCAC, which affirmed the award of 

attorney fees, observing: 

While the magistrate failed to explicitly so find, in this case . . 

. defendant knew of the medical bills in question well in advance of 

trial, and simply refused to pay them claiming they were not work 

related. Once the magistrate so found, given that prior knowledge 

and refusal to pay, the action in awarding attorney fees was within 

his discretion and hence proper. 
4

Magna Corporation, another “employee leasing” company insured by Midwest, 

and Midwest sought leave to appeal both WCAC orders. The Court of Appeals 

initially denied the applications.1

 We remanded the case as on leave granted.2

 On remand, the Court of Appeals affirmed the WCAC.3

 The Court found 

that competent evidence supported the factual findings of both the magistrate and 

WCAC with respect to plaintiff’s employment. Regarding the assessment of 

attorney fees, the Court held that § 315(1) is ambiguous because it does not 

identify the entity against which the magistrate may assess such fees.4

The Court concluded, “[W]here the remainder of [§ 315(1)] discusses the 

employer and/or the [insurance] carrier, it follows that the attorney fees are to be 

calculated or divided between those entities. The plain language of the statute 

does not mandate that the health care provider assume responsibility for any 

 1 Petersen v Magna Corp, unpublished order of the Court of Appeals, 

entered April 11, 2006 (Docket No. 266037); Petersen v Magna Corp, 

unpublished order of the Court of Appeals, entered April 11, 2006 (Docket No. 

266177). 

2 Petersen v Magna Corp No 1, 477 Mich 871 (2006); Petersen v Magna 

Corp No 2, 477 Mich 871 (2006). 

3 Petersen v Magna Corp, unpublished opinion per curiam of the Court of 

Appeals, issued April 17, 2008 (Docket Nos. 273293 and 273294), at 8. 

4 Id. at 9. 
5

portion of those fees.”5

 We granted leave to appeal to consider the proper 

interpretation of § 315(1).6

II. MCL 418.315(1) 

The proper interpretation and application of a statute presents a question of 

law that we review de novo.7

 MCL 418.315(1), part of the Worker’s Disability 

Compensation Act (WDCA),8

 provides in pertinent part: 

The employer shall furnish, or cause to be furnished, to an 

employee who receives a personal injury arising out of and in the 

course of employment, reasonable medical, surgical, and hospital 

services and medicines, or other attendance or treatment recognized 

by the laws of this state as legal, when they are needed. . . . After 10 

days from the inception of medical care as provided in this section, 

the employee may treat with a physician of his or her own choice by 

giving to the employer the name of the physician and his or her 

intention to treat with the physician. The employer or the 

employer’s carrier may file a petition objecting to the named 

physician selected by the employee and setting forth reasons for the 

objection. If the employer or carrier can show cause why the 

employee should not continue treatment with the named physician of 

the employee’s choice, . . . the . . . magistrate may order that the 

employee discontinue treatment with the named physician or pay for 

the treatment received from the physician . . . . If the employer fails, 

neglects, or refuses so to do, the employee shall be reimbursed for 

the reasonable expense paid by the employee, or payment may be 

made in behalf of the employee to persons to whom the unpaid 

expenses may be owing, by order of the workers’ compensation 

magistrate. The workers’ compensation magistrate may prorate 

 5 Id. at 10. 

6 Petersen v Magna Corp, 482 Mich 994 (2008). 

7 Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). 

8

 MCL 418.101 et seq. 
6

attorney fees at the contingent fee rate paid by the employee. 

[Emphasis added.]

A. Statutory Interpretation 

This is a case of statutory interpretation. The primary goal of such 

interpretation is to give effect to the intent of the Legislature.9

 The first step in 

ascertaining such intent is to focus on the language of the statute itself. If statutory 

language is unambiguous, the Legislature is presumed to have intended the 

meaning expressed in the statute.10 The words of a statute provide the most 

reliable evidence of the Legislature’s intent, and as far as possible, effect should 

be given to every phrase, clause, and word in a statute.11 If the statutory language 

is certain and unambiguous, judicial construction is neither required nor permitted, 

and courts must apply the statute as written.12

However, when statutory language is ambiguous, this Court has 

consistently held that a court construing it may go beyond the plain language of 

the statute.13 In fact, where the language leaves the statute’s meaning ambiguous, 

it is the duty of the courts to construe it, giving it an interpretation that is 

 9 Brown v Detroit Mayor, 478 Mich 589, 593; 734 NW2d 514 (2007). 

10 Id. 

11 Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999) 

(quotation marks and citations omitted). 

12 Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). 

13 Id. at 236, citing Luttrell v Dep’t of Corrections, 421 Mich 93; 365 

NW2d 74 (1984). 
7

reasonable and sensible.14 Therefore, a finding of ambiguity has important 

interpretive ramifications. 

In this case, the Court of Appeals held that the last sentence of § 315(1) is 

ambiguous in that it is unclear who is responsible for an injured employee’s 

attorney fees. Thus, the threshold question is whether, in light of the plain 

language of the entire provision, the last sentence of § 315(1) is ambiguous. 

Section 315(1) gives magistrates the discretionary authority to prorate 

attorney fees at the contingent fee rate paid by the employee. “Prorate” means “to 

divide, distribute, or calculate proportionately.”15 In § 315(1), the term “prorate” 

could reasonably apply to employers, their insurance carriers, health care 

providers, employees seeking workers’ compensation benefits, or to any 

combination of them. Moreover, neither § 315 as a whole nor any other 

provisions of the WDCA indicates the parties to whom a division or distribution of 

attorney fees applies. 

I agree with the Court of Appeals conclusion that the final sentence of § 

315(1) applies only to employers and their insurance carriers. This is because that 

interpretation harmonizes the final sentence with the remainder of § 315(1). The 

 14 Crary v Marquette Circuit Judge, 197 Mich 452, 454; 163 NW 905 

(1917). 

15 Random House Webster’s College Dictionary (2001). 
8

final sentence does not stand alone.16 It must be construed in the context of § 

315(1) in its entirety and harmonized with the statute’s other provisions to satisfy 

the purpose intended by the Legislature.17

Here is how that construction operates. Section 315(1) concerns employer 

liability to pay medical benefits to workers injured in the course of employment. 

The statute as a whole provides a process for employers and their insurance 

carriers to object to the medical treatment that an injured employee seeks. Hence, 

“prorate” in the final sentence of § 315(1), when read with the remainder of the 

statute, applies to the parties who might contest the payment of medical benefits: 

employers and their insurance carriers.18 This interpretation unifies the last 

sentence of § 315(1) with the remainder of the statute. 

I now consider the Legislature’s use of the word “may” with respect to 

prorating attorney fees. The word “may” is permissive in nature. As applied to 

“prorate,” “may” indicates that magistrates have discretion in determining whether 

 16 Under the doctrine of noscitur a sociis, the meaning of an unclear word 

or phrase should be determined by the words immediately surrounding it. People 

v Couzens, 480 Mich 240, 250; 747 NW2d 849 (2008). 

17 Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76 

(1993). 

18 Justice Markman would hold medical providers responsible for a 

proration of attorney fees. In support of this claim, he cites MCL 418.827, which 

provides a basis for nonparty employers to recover through the efforts of an 

employee’s attorney pursuing a third-party liability action. Had the Legislature 

intended a scheme in § 315 similar to that provided in § 827, it could have used 

similar or identical language. However, it did not do so. 
9

to award attorney fees. Hence, magistrates are allowed to award attorney fees, but 

they are not required to do so.19

Likewise, the word “may” bears on whether a proration must occur if a 

magistrate does award attorney fees. I would hold that the use of the word “may” 

grants magistrates the discretion to prorate attorney fees among employers and 

their insurance carriers. Should a magistrate determine that only one of those 

parties is liable, the magistrate may impose attorney fees against only that party. 

Conversely, should the magistrate find multiple parties liable, fees may be 

prorated accordingly. This interpretation affords the phrase “may prorate” its full 

meaning.20

Nonetheless, as evidenced by the dissents in this case, competing 

reasonable interpretations of § 315(1) exist when its language alone is 

considered.21 In fact, the words of § 315(1), in light of the entire statute and the 

 19 The Legislature often vests discretion in magistrates using the word 

“may.” Other provisions of the WDCA that vest discretion in magistrates using 

the word “may” include MCL 418.321, MCL 418.335, MCL 418.345, and MCL 

418.835. 

20 Contrary to Justice Markman’s contention, this interpretation does not 

“read[] an authorization into the statute.” Post at 8. Nothing in the definition of 

“prorate” indicates that one party cannot be apportioned zero liability. A 

“division” or “distribution” does not require that both parties subject to that 

division receive an assessment of liability. For example, liability could be 

allocated on a 50-50, 75-25, or 100-0 basis, depending on the magistrate’s 

allocation of fault and the number of parties involved. 

21 Justice Markman claims that I “withdraw[] from the process of statutory 

interpretation once other interpretations are presented.” Post at 17. This is 
10

WDCA, do not clearly indicate the parties to whom a proration of attorney fees 

applies. As a consequence, I am unable to ascertain the intent of the Legislature 

based solely on the language of the statute. I turn next to the question whether § 

315(1) is ambiguous. 

1. Lansing Mayor v Pub Service Comm

 This Court’s most recent pronouncement on the proper standard for 

discerning whether statutory language is ambiguous was espoused in Lansing 

Mayor v Pub Service Comm.

22 In that case, the Court examined MCL 247.183 to 

determine whether it required a company to obtain local government consent 

before beginning pipeline construction. Critical to the Court’s analysis was its 

discussion of the proper method for discerning statutory ambiguity. 

The Court stated that statutory provisions are not ambiguous unless one 

“irreconcilably conflicts” with another or unless a term is “equally susceptible to 

more than a single meaning.”23 Applying this definition, the Lansing Mayor

majority observed that “[o]nly a few provisions are truly ambiguous.”24

 

incorrect. Section 315(1) refers to multiple parties and lacks an indication of 

which of them is subject to a proration of attorney fees. No other provision in the 

WDCA resolves the question. From that I conclude that the statute is capable of 

being understood by reasonably well-informed persons in two or more different 

senses. See infra at 33-34. 

22 Lansing Mayor v Pub Serv Comm, 470 Mich 154; 680 NW2d 840 (2004). 

23 Id. at 166. Since having announced this exceedingly narrow definition of 

“ambiguity,” the Court has declined to find any statutory language ambiguous. 

24 Id. 
11

Lansing Mayor’s definition of “ambiguity” is unsupported by any Michigan 

law whatsoever, having been derived, as it were, from thin air.25 Rusinek v 

Schultz, Snyder & Steele Lumber Co is the only Michigan case predating Lansing 

Mayor that employs the language “equally susceptible.”26 However, Rusinek did 

not state that language is ambiguous only if it is equally susceptible to different 

interpretations. Instead, Rusinek simply held that statutes in derogation of 

common law must be strictly construed.27

Also unsupported as a threshold for finding ambiguity is the “irreconcilably 

conflicts with another provision” language found in Lansing Mayor. The Lansing 

Mayor majority cited Klapp v United Ins Group Agency, Inc28 for this definition of 

“ambiguity,” but Klapp simply states that language is ambiguous when “its 

provisions are capable of conflicting interpretations.”29 It neither requires an 

irreconcilable conflict nor that the language be equally susceptible to more than 

one interpretation. Thus, the two-pronged “equally susceptible” and 

 25 See Kelly and Postulka, The fatal weakness in the Michigan Supreme 

Court majority’s textualist approach to statutory construction, 10 TM Cooley J 

Prac & Clinical L 287, 289 (2008). 

26 Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502; 309 

NW2d 163 (1981). 

27 Id. at 507-508. 

28 Klapp v United Ins Group Agency, Inc, 468 Mich 459; 663 NW2d 447 

(2003). 

29 Id. at 467. 
12

“irreconcilably conflicts” test adopted in Lansing Mayor has no basis in Michigan 

law. 

 Furthermore, the Lansing Mayor majority made two explicit and glaring 

misstatements of law. First, it cited Klapp for the proposition that a finding of 

“ambiguity is a finding of last resort.”30 Klapp did not say this. Instead, Klapp

held that the rule of contra proferentum31 is a rule of last resort. Indeed, Klapp

concluded that the language at issue in that case was ambiguous, without 

commenting on whether such a conclusion was a “good” or a “bad” thing.32 

Wholly absent from Klapp, or other Michigan law, is any indication that 

consideration of whether language is ambiguous should be given only as a last 

resort. 

Second, I note that the Lansing Mayor majority expressly rejected the 

“reasonable minds” standard for discerning ambiguity as applied by the dissent in 

that case. The majority stated, “[t]hat is not, and has never been, the standard 

either for resolving cases or for ascertaining the existence of an ambiguity in the 

 30 Lansing Mayor, supra at 165 n 6, citing Klapp, supra at 474. 

31 “Contra proferentum” is a rule of contract interpretation stating that 

ambiguities will be construed against the drafter of a contract. 2 Restatement 

Contracts, 2d, § 206, p 105. 

32 I reject the Lansing Mayor majority’s implication that a finding of 

ambiguity is inherently a “bad” thing, as it is nothing more than an aid to statutory 

construction. See Lansing Mayor, supra at 165-166. 
13

law.”33 However, the Court cited no authority for this proposition. In fact, this 

holding was a blatant misstatement of the law.34

Because it was based on a mythical definition of “ambiguity” and egregious 

misstatements of law, I reject Lansing Mayor’s standard for discerning statutory 

ambiguity.35

 33 Id. at 165-166. 

34 See part II(A)(2) of this opinion. 

35 Unable to cite caselaw in support of its definition of “ambiguity,” the 

Lansing Mayor majority invented its own definition. This definition was premised 

on the majority’s implication that a finding of ambiguity is a “bad” thing because 

it enables judges to use “presumptive ‘rules of policy’” or “engage in a largely 

subjective and perambulatory reading of ‘legislative history.’” Lansing Mayor, 

supra at 164-165. These approaches were disdained because they supposedly 

allowed judges to “substitut[e] their own policy preferences for those of the 

Legislature.” Id. at 164. 

However, the Lansing Mayor majority failed to acknowledge that its “plain 

meaning” approach to statutory interpretation is equally susceptible to subjective 

and arbitrary determinations of legislative intent. For example, such an approach 

may lead to the selection of one dictionary definition among many for a specific 

term. Lacking may be any sound explanation why the chosen definition was the 

one that the Legislature intended to use. See, e.g., Liberty Hill Housing Corp v 

Livonia, 480 Mich 44, 56-57; 746 NW2d 282 (2008) (“We conclude that the 

second meaning [out of six] is the one the Legislature intended.”). Therefore, this 

approach is erroneous in the same way as is an approach that stretches to find 

ambiguity where none exists. I agree that it is inappropriate to inject policy 

considerations into the reading of an unambiguous statute. 
14

i. Stare Decisis36

 Because I conclude that Lansing Mayor’s definition of “ambiguous” is 

unsupported by Michigan law, I must now determine whether it ought to remain 

the controlling method for discerning ambiguity in the laws of this state. I treat 

the definition as governed by stare decisis for purposes of analysis. 

Stare decisis is short for stare decisis et non quieta movere, which means 

“stand by the thing decided and do not disturb the calm.” Stare decisis attempts to 

balance two competing considerations: the need of the community for stability in 

legal rules and decisions and the need of courts to correct past errors.37 This 

 36 I stated in my concurring opinion in Fluor Enterprises v Dep’t of 

Treasury, 477 Mich 170; 730 NW2d 722 (2007), that tools of statutory 

interpretation, such as the definition of “ambiguity,” are not “binding” in the same 

sense as is the holding in a case. Therefore, they are not entitled to the same level 

of deference, and stare decisis does not apply to them. However, Lansing Mayor

purported to “hold” that its definition of “ambiguity” was the only applicable 

method for discerning statutory ambiguity. Furthermore, the Lansing Mayor

majority explicitly stated in Fluor that “our current law [regarding ambiguity] is 

set forth in [Lansing Mayor].” Fluor, supra at 177 n 3. Perhaps for those reasons, 

this Court, as well as the Court of Appeals, has treated Lansing Mayor’s definition 

of “ambiguity” like any other binding precedent. See, e.g., People v Gardner, 482 

Mich 41, 50; 753 NW2d 78 (2008); Toll Northville, LTD v Northville, 480 Mich 6, 

15 n 2; 743 NW2d 902 (2008); Batko v Batko, 477 Mich 992; 725 NW2d 462 

(2007) (Markman, J., dissenting); Casco Twp v Secretary of State, 472 Mich 566, 

591; 701 NW2d 102 (2008); Wayne Co v Wayne Co Retirement Comm, 267 Mich 

App 230, 244; 704 NW2d 117 (2005). Although I disagree with that conclusion, I 

apply a stare decisis analysis to the Lansing Mayor definition of “ambiguity” for 

purposes of analysis. 

37 Am Jur, Courts, § 131. 
15

doctrine has been part of the American legal landscape since the country’s 

formation.38 

Alexander Hamilton wrote that, to “avoid an arbitrary discretion in the 

courts, it is indispensable that [courts] should be bound down by strict rules and 

precedents which serve to define and point out their duty in every particular case 

that comes before them . . . .”39 In the early twentieth century, Justice (thenJudge) Cardozo wrote that the “labor of judges would be increased almost to the 

breaking point if every past decision could be reopened in every case, and one 

could not lay one’s own course of bricks on the secure foundation of the courses 

laid by others who had gone before him.”40

 Although any rule is only as solid as its boundaries are clear, it was not 

until recently that this Court formally established a test to determine when it 

should depart from stare decisis. In 2000, in Robinson v Detroit,

41 the Court held 

that the first question in deciding whether to overrule precedent is whether an 

earlier decision was wrongly decided.42 Next, according to Robinson, courts 

 38 The doctrine can be traced back to medieval England. Healy, Stare 

decisis as a constitutional requirement, 104 W Va L R 43, 56-62 (2001). 

39 The Federalist No. 78, p 471 (Alexander Hamilton) (Clinton Rossiter ed, 

1961). 

40 Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven: 

Yale University Press, 1921), p 149. 

41 Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000). 

42 Id. at 464. 
16

should review (1) whether the decision defies practical workability, (2) whether 

reliance interests would work an undue hardship if the decision were overturned, 

and (3) whether changes in the law or facts no longer justify the decision.43 Thus, 

Robinson enunciated a test premised on whether the questioned decision was 

wrongly decided, to be followed by a three-pronged analysis of whether stare 

decisis nonetheless counsels upholding it. 

 Although the Robinson test was implemented as a mechanism for 

determining when a prior decision of the Court should be upheld, its application 

has proven superficial and cursory.44 In fact, an examination of cases applying the 

Robinson test demonstrates that not once has the Court cited it as a basis for 

upholding a prior decision.45 Robinson’s statement that a wrongly decided case 

 43 Id. 

44 See, e.g., Paige v Sterling Hts, 476 Mich 495, 513; 720 NW2d 219 

(2006) (“we need not consider whether changes in the law and facts no longer 

justify [the precedent] because [the precedent] itself was never justified.”); People 

v Hickman, 470 Mich 602, 610 n 6; 684 NW2d 267 (2004), and Mack v Detroit, 

467 Mich 186, 203 n 19; 649 NW2d 47 (2002) (citing Robinson only as an 

afterthought in a footnote). 

45 See, e.g., Gardner, supra at 61; People v Ream, 481 Mich 223, 240; 750 

NW2d 536 (2008); People v Barrett, 480 Mich 125, 138; 747 NW2d 797 (2008); 

Trentadue v Buckler Lawn Sprinkler, 479 Mich 378, 393; 738 NW2d 664 (2007); 

Renny v Dep’t of Transportation, 478 Mich 490, 503; 734 NW2d 518 (2007); 

People v Smith, 478 Mich 292, 315; 733 NW2d 351 (2007); Karaczewski v 

Farbman Stein & Co, 478 Mich 28, 38; 732 NW2d 56 (2007); Al-Shimmari v 

Detroit Med Ctr, 477 Mich 280, 297; 731 NW2d 29 (2007); Rowland v 

Washtenaw Co Rd Comm, 477 Mich 197, 214; 731 NW2d 41 (2007); Haynes v 

Neshewat, 477 Mich 29, 39; 729 NW2d 488 (2007); Paige, supra at 510; Grimes v 

Dep’t of Transportation, 475 Mich 72, 87; 715 NW2d 275 (2006); People v 
17

should “invariably” be overruled was a chilling signal that a conclusion that 

precedent has been wrongly decided is sufficient justification for overruling it.46 

These facts alone suffice to show that Robinson is insufficiently respectful 

of precedent. Therefore, I would modify it by shifting the balance back in favor of 

precedent and expanding on Robinson’s list of factors to consider in applying stare 

decisis. 

 I would hold that a stare decisis analysis should always begin with the 

presumption that upholding the precedent involved is the preferred course of 

action. The presumption should be retained until effectively rebutted by the 

conclusion that a compelling justification exists to overturn the precedent. 

Robinson, by contrast, contained no such presumption. Moreover, the 

Court’s applications of Robinson suggest that such a presumption was never 

 

Hawthorne, 474 Mich 174, 183; 713 NW2d 724 (2006); Devillers v Auto Club Ins 

Ass’n, 473 Mich 562, 584; 702 NW2d 539 (2005); People v Schaefer, 473 Mich 

418, 434; 703 NW2d 774 (2005); People v Starks, 473 Mich 227, 236; 701 NW2d 

136 (2005); Garg v Macomb Mental Health, 472 Mich 263, 285; 696 NW2d 646 

(2005); People v Davis, 472 Mich 156, 169; 695 NW2d 45 (2005); Neal v Wilkes, 

470 Mich 661, 667; 685 NW2d 648 (2004); Hickman, supra at 610; People v 

Lively, 470 Mich 248, 256; 680 NW2d 878 (2004); People v Moore, 470 Mich 56, 

69; 679 NW2d 41 (2004); Hayne v Dep’t of State Police, 468 Mich 302, 314; 664 

NW2d 129 (2003); Mack, supra at 203; Sington v Chrysler Corp, 467 Mich 144, 

161; 648 NW2d 624 (2002); People v Petit, 466 Mich 624, 633; 648 NW2d 193 

(2002); People v Cornell, 466 Mich 335, 358; 646 NW2d 127 (2002); Robertson v 

Daimler Chrysler Corp, 465 Mich 732, 756; 641 NW2d 567 (2002); Pohutski v 

City of Allen Park, 465 Mich 675, 693; 641 NW2d 219 (2002); Nawrocki v 

Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000); Mudel v Great 

Atlantic & Pacific Tea Co, 462 Mich 691, 708; 614 NW2d 607 (2000). 

46 Robinson, supra at 465. 
18

considered. Even if it had been initially applied, once a case was deemed to have 

been wrongly decided, any presumption in favor of upholding precedent 

disappeared.47 I would reject this approach and reiterate that a rebuttable 

presumption exists in favor of upholding precedent.48

 The question arises what deference should be paid to cases in which 

Robinson was used to overturn existing precedent. I believe that a lower level of 

deference should be accorded to these cases because they represent a departure 

from the traditional notions of stare decisis. In Adarand Constructors, Inc v 

Pena,

49 the United States Supreme Court expressly addressed the distinction 

between consideration of well established law and cases representing a recent 

departure from precedent: 

It is worth pointing out the difference between the 

applications of stare decisis in this case and in Planned Parenthood 

 47 See, e.g., Paige, supra at 512 n 21 (“the only instances in which we 

might decline to overrule [erroneous precedent] . . . is when it would produce 

chaos.”) (emphasis added); Hickman, supra at 610 n 6 (noting that no special 

justification is necessary to overrule erroneous precedent); People v Nutt, 469 

Mich 565, 575, 591; 677 NW2d 1 (2004) (concluding that the court is compelled

to overrule erroneous precedent); Petit, supra at 633-34 (stating that courts should

overturn erroneous decisions). 

48 I recognize and agree with Robinson that stare decisis is “not to be 

applied mechanically to forever prevent the Court from overruling earlier 

erroneous decisions,” nor is it “an inexorable command.” Robinson, supra at 463-

464. However, I again note that, if our stare decisis analysis leads to the Court 

overruling precedent every time it is applied, stare decisis becomes not an 

“inexorable command,” but rather a meaningless exercise. 

49 Adarand Constructors, Inc v Pena, 515 US 200; 115 S Ct 2097; 132 L Ed 

2d 158 (1995). 
19

of Southeastern Pa v Casey. Casey explained how considerations of 

stare decisis inform the decision whether to overrule a longestablished precedent that has become integrated into the fabric of 

the law. Overruling precedent of that kind naturally may have 

consequences for “the ideal of the rule of law.” In addition, such 

precedent is likely to have engendered substantial reliance, as was 

true in Casey itself. (“[F]or two decades of economic and social 

developments, people have organized intimate relationships and 

made choices that define their views of themselves and their places 

in society, in reliance on the availability of abortion in the event that 

contraception should fail.”). But in this case, as we have explained, 

we do not face a precedent of that kind, because Metro Broadcasting

itself departed from our prior cases—and did so quite recently. By 

refusing to follow Metro Broadcasting, then, we do not depart from 

the fabric of the law; we restore it. We also note that reliance on a 

case that has recently departed from precedent is likely to be 

minimal, particularly where, as here, the rule set forth in that case is 

unlikely to affect primary conduct in any event.[50]

Furthermore, the Court stated:

Our past practice in similar situations supports our action 

today. In United States v Dixon, we overruled the recent case of 

Grady v Corbin, because Grady “lack[ed] constitutional roots” and 

was “wholly inconsistent with earlier Supreme Court precedent.” In 

Solorio v United States, we overruled O’Callahan v Parker, which 

had caused “confusion” and had rejected “an unbroken line of 

decisions from 1866 to 1960.” And in Continental TV, Inc v GTE 

Sylvania Inc, we overruled United States v Arnold, Schwinn & Co,

which was “an abrupt and largely unexplained departure” from 

precedent, and of which “[t]he great weight of scholarly opinion 

ha[d] been critical.” See also, e.g., Payne v Tennessee (overruling 

Booth v Maryland, and South Carolina v Gathers; Monell v New 

York City Dept of Social Servs (partially overruling Monroe v Pape, 

because Monroe was a “departure from prior practice” that had not 

engendered substantial reliance); Swift & Co v Wickham (overruling 

Kesler v Department of Public Safety of Utah, to reaffirm “pre- 

 50 Id. at 233-234 (citations altered or omitted). 
20

Kesler precedent” and restore the law to the “view . . . which this 

Court has traditionally taken” in older cases).[51]

Thus, there is substantial support for applying a decreased presumption in favor of 

precedent when that precedent itself represents a recent departure from prior 

established caselaw.52

The next inquiry should be whether there exists a compelling justification 

for overruling precedent.53 A compelling justification is not a mere belief that a 

precedential case was wrongly decided or that the Court, as currently composed, 

would have decided the case differently. Rather, in determining whether a 

 51 Id. at 232-233 (citations altered or omitted). 

52 Other United States Supreme Court decisions also implicitly 

acknowledge that precedent that itself overruled recent precedent is entitled to a 

reduced presumption. See, e.g., Randall v Sorrell, 548 US 230, 244; 126 S Ct 

2479; 165 L Ed 2d 482 (2006) (stating that precedent should only be overruled in 

exceptional cases, and that “[t]his is especially true where, as here, the principle 

has become settled through iteration and reiteration over a long period of time.”) 

(emphasis added); United States v IBM, 517 US 843, 856; 116 S Ct 1793; 135 L 

Ed 2d 124 (1996) (the Court declined to overrule a case because it had “been 

controlling precedent for over 80 years.”) (emphasis added); Welch v Texas Dep’t 

of Highways and Pub Transportation, 483 US 468, 493-494; 107 S Ct 2941; 97 L 

Ed 2d 389 (1987) (declining to overrule precedent that had “been adhered to 

without exception by this Court for almost a century”) (emphasis added); and 

CBOCS West, Inc v Humphries, ___ US ___; 128 S Ct 1951, 1958; 170 L Ed 2d 

864 (2008) (declining to overturn “the well-embedded interpretation” of the statute 

at issue). 

53 Requiring a compelling justification to overrule precedent is consistent 

not only with most other jurisdictions, but also with United States Supreme Court 

precedent. See, e.g., Planned Parenthood v Casey, 505 US 833, 864; 112 S Ct 

2791; 120 L Ed 2d 674 (1992). 
21

compelling justification exists, the Court should consider several evaluative 

criteria, none of which, standing alone, is dispositive. 

These criteria include, but are not limited to: (1) whether the rule has 

proven to be intolerable because it defies practical workability, (2) whether 

reliance on the rule is such that overruling it would cause a special hardship and 

inequity, (3) whether related principles of law have so far developed since the rule 

was pronounced that no more than a remnant of the rule has survived, (4) whether 

facts and circumstances have so changed, or come to be seen so differently, as to 

have robbed the old rule of significant application or justification, (5) whether 

other jurisdictions have decided similar issues in a different manner, (6) whether 

upholding the rule is likely to result in serious detriment prejudicial to public 

interests, and (7) whether the prior decision was an abrupt and largely unexplained 

departure from precedent. 

Not all of these factors will be applicable in every case. Nor is there a 

magic number of factors that must favor overruling a case in order to establish the 

requisite compelling justification. Rather, I believe that the conclusion about 

whether these factors support finding a compelling justification should be reached 

on a case-by-case basis. 

ii. Application of stare decisis to Lansing Mayor

 As stated above, I begin my stare decisis analysis with a presumption in 

favor of upholding precedent. Only if a compelling justification exists should the 
22

Court overrule the prior decision. Although Lansing Mayor was wrongly decided 

with respect to the definition of ambiguity, this fact does not constitute the 

requisite compelling justification to overrule it. Instead, we must examine 

additional factors to determine whether there exists a compelling justification to 

overrule it. 

 First, I consider whether the method for discerning ambiguity in Lansing 

Mayor has proven intolerable because it defies practical workability. I believe that 

it does. Intrinsically, an analytical approach to interpreting statutes on the basis of 

their “plain meaning,” where reasonable minds disagree on what that meaning is, 

is unworkable. This standard gives judges unfettered discretion to pick and 

choose among available “plain meanings” or dictionary definitions, and thus sheds 

little light on what the Legislature intended statutory language to mean.54 It also 

potentially leads to arbitrary outcomes and injects instability into the law. 

Moreover, the mere fact that different justices of this Court, judges of the 

Court of Appeals, and trial judges disagree on the meaning of statutory language 

suggests that ambiguity exists. Allowing a judge to pick one meaning among 

several equally plausible meanings without using the rules of statutory 

construction is quite simply an exercise in speculation. As Justice Stevens of the 

United States Supreme Court stated: 

 54 See, e.g., Fluor, supra at 189 n 4 (Kelly, J., concurring) (“It is a bizarre 

notion that the language of a statute can have only one reasonable meaning when 

four separate independent entities have split on its correct interpretation.”). 
23

[T]he “minimalist” judge who holds that the purpose of [a] 

statute may be learned only from its language retains greater 

discretion than the judge who will seek guidance from every reliable 

source. A method of statutory interpretation that is deliberately 

uninformed, and hence unconstrained, increases the risk that the 

judge’s own policy preferences will affect the decisional process.[55]

I share Justice Stevens’s concerns and believe that Lansing Mayor’s definition of 

“ambiguity” is inherently unworkable. 

 I also note that application of Lansing Mayor’s definition of “ambiguity” 

has never once led the Court to find statutory language ambiguous.56 If a rule of 

 55 BedRoc Ltd, LLC v United States, 541 US 176, 192; 124 S Ct 1587 

(2004) (Stevens, J., dissenting) (citations and quotation marks omitted). 

56 See, e.g. Dimmit & Owens Fin, Inc v Deloitte & Touche, 481 Mich 618; 

752 NW2d 37 (2008); Ross v Blue Care Network, 480 Mich 153; 747 NW2d 828 

(2008); Wesche v Mecosta Co Rd Comm, 480 Mich 75; 746 NW2d 847 (2008); 

Ernsting v Ave Maria College, 480 Mich 985 (2007); Trentadue v Buckler Lawn 

Sprinkler, 479 Mich 378; 738 NW2d 664 (2007); Lash v Traverse City, 479 Mich 

180; 735 NW2d 628 (2007); Brown, supra; Renny v Dep’t of Transportation, 478 

Mich 490; 734 NW2d 518 (2007); South Haven v Van Buren Co Bd of Comm’rs, 

478 Mich 518; 734 NW2d 533 (2007); Omdahl v West Iron Co Bd of Ed, 478 

Mich 423; 733 NW2d 380 (2007); Bukowski v Detroit, 478 Mich 268; 732 NW2d 

75 (2007); Karaczewski, supra; Fluor, supra; Rowland, supra; People v Peals, 

476 Mich 636; 720 NW2d 196 (2006); Paige, supra; Cameron v Auto Club Ins 

Ass’n, 476 Mich 55; 718 NW2d 784 (2006); Ford Motor Co v Woodhaven, 475 

Mich 425; 716 NW2d 247 (2006); People v Derror, 475 Mich 316; 715 NW2d 

822 (2006); People v Williams, 475 Mich 245; 716 NW2d 208 (2006); People v 

Yamat, 475 Mich 49; 714 NW2d 335 (2006); Grimes, supra; Michigan v Monaco, 

474 Mich 48; 710 NW2d 46 (2006); Ostroth v Warren Regency, GP, LLC, 474 

Mich 36; 709 NW2d 589 (2006); Co Rd Ass’n v Governor, 474 Mich 11; 705 

NW2d 680 (2005); Devillers, supra; Reed v Yackell, 473 Mich 520; 703 NW2d 1 

(2005); Ayar v Foodland Distributors, 472 Mich 713; 698 NW2d 875 (2005); 

Casco Twp, supra; Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851 

(2005); Jarrad v Integon Nat’l Ins Co, 472 Mich 207; 696 NW2d 621 (2005); 

Roberts v Atkins, 470 Mich 679; 684 NW2d 711 (2004); Neal, supra; People v 
24

statutory interpretation inevitably leads to the same result in each case in which it 

is applied, such a rule is innately unworkable. Accordingly, this factor weighs 

strongly in favor of abrogating the Lansing Mayor definition. 

 Second, I examine whether reliance on the rule is such that overruling it 

would cause a special hardship and inequity. I believe that litigants have 

reasonably relied on Lansing Mayor’s definition of “ambiguity.”57 Its application 

potentially leads to a different statutory interpretation than one based on 

alternative definitions. Hence, I conclude that rejecting the definition may 

prejudice current litigants who have relied on it. 

However, I also recognize that litigants have continued to rely on previous 

standards for discerning ambiguity. This reliance is also reasonable given the 

inconsistent application of Lansing Mayor’s definition,58 as well as the 

 

Barbee, 470 Mich 283; 681 NW2d 348 (2004); Lively, supra; People v Laney, 470 

Mich 267; 680 NW2d 888 (2004); Lansing Mayor, supra. 

57 A review of filings in this Court and lower courts demonstrates that in 

post-2004 cases involving statutory interpretation, litigants often cite Lansing 

Mayor for the applicable definition of “ambiguity.” 

58 Compare, e.g., Kinder Morgan Michigan, LLC v City of Jackson, 277 

Mich App 159, 163-164; 744 NW2d 184 (2007) (“[W]hen a statute is ambiguous 

on its face and reasonable minds can differ with respect to its meaning, judicial 

construction is necessary to determine the intent of the Legislature.”), with Village 

of Holly v Holly Twp, 267 Mich App 461, 474; 705 NW2d 532 (2005) (“Although 

reasonable minds may differ on the interpretation of subsection 3, that is not the 

test to determine whether a statutory ambiguity justifies judicial construction . . . 

[r]ather, a provision of the law is ambiguous only if it ‘irreconcilably confict[s]’ 

with another provision . . . or when it is equally susceptible to more than a single 

meaning.”) (citations omitted). 
25

disagreement over the proper definition of “ambiguity” among the justices of this 

Court.59 Such reliance is not surprising given that Lansing Mayor’s definition is 

so vastly different from the definitions of ambiguity that preceded it for more than 

150 years.60 In fact, despite its explicit holding, Lansing Mayor did not overrule 

or cite any previous cases that addressed the proper method for discerning 

ambiguity. 

Nevertheless, because Lansing Mayor stands as the most recent declaration 

of how to discern statutory ambiguity, litigants reasonably relied on it for this 

point. I therefore conclude that this factor weighs moderately in favor of 

upholding the definition. 

 Third, I consider whether related principles of law have so far developed 

since the Lansing Mayor definition of “ambiguity” was pronounced that only a 

remnant of the definition has survived. This factor is inapplicable to the stare 

decisis analysis in this case. The definition of “ambiguity” is a tool of judicial 

 

As the United States Supreme Court stated in Pearson v Callahan, ___ US 

___; 129 S Ct 808, 818; 172 L Ed 2d 565 (2009), “[w]here a decision has been 

questioned by members of this Court in later decisions and has defied consistent 

application by the lower courts, these factors weigh in favor of reconsideration.” 

(internal quotation marks and punctuation omitted). Thus, despite reliance on the 

new and old definitions of “ambiguity,” it is noteworthy that the United States 

Supreme Court has held that inconsistent application of a new rule favors 

reexamination of that rule. 

59 See Stone v Williamson, 482 Mich 144, 152, 173 and n 4; 753 NW2d 106 

(2008). 

60 See, e.g., Bidwell v Whitaker, 1 Mich 469 (1850). 
26

construction. Its only relevance is to discern ambiguity or the lack of it in a given 

statute. Thus, the definition of “ambiguity” stands alone and is not inherently 

related to other principles of law. Accordingly, this factor neither weighs in favor 

of nor against replacing the Lansing Mayor definition. 

 Fourth, I examine whether facts and circumstances have so changed, or 

have come to be seen so differently, as to rob the old definition of significant 

justification. This factor focuses on real-world practicalities.61 However, the 

definition of “ambiguity” is not beholden to the underlying facts and 

circumstances of a given case. Accordingly, because the definition of “ambiguity” 

does not implicate practical concerns, I do not believe that this factor weighs in 

favor of or against replacing the Lansing Mayor definition. 

 Fifth, I consider whether other jurisdictions have decided similar issues in a 

different manner. My review indicates that Lansing Mayor’s definition of 

“ambiguity” is unsupported by any other jurisdiction. In fact, not a single 

jurisdiction, state or federal, requires an irreconcilable conflict between provisions 

or that language be equally susceptible to more than one meaning before finding 

 61 See, e.g., Casey, supra at 860 (discussing how advancements in medical 

treatment since Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1972), 

was decided have not rendered the “factual underpinnings” of Roe’s central 

holding obsolete). 
27

statutory ambiguity.62 Accordingly, this factor weighs strongly in favor of 

rejecting the Lansing Mayor definition. 

 I note that the sixth factor, whether upholding the Lansing Mayor definition 

is likely to result in serious detriment prejudicial to public interests, has no bearing 

on this case. As previously stated, the definition of “ambiguity” is merely a tool 

of statutory interpretation. As such, its application has no relevance to public 

interests because the definition of “ambiguity,” standing alone, does not dictate 

any course of action in a particular case. 

 Finally, I consider whether the prior decision was an abrupt and largely 

unexplained departure from precedent. As noted earlier, Lansing Mayor’s 

definition of ambiguity is nothing more than a legal fiction, wholly unsupported 

by any law. Furthermore, it represented a decisive and abrupt shift from precedent 

without recognition of the prior standards for discerning statutory ambiguity. 

Accordingly, this factor weighs heavily in favor of abrogating Lansing Mayor’s

definition of ambiguity. 

Under my analysis of the aforementioned factors, Lansing Mayor’s 

definition of “ambiguity” has proven unworkable, is unsupported by other 

jurisdictions, and represents an abrupt and unexplained departure from precedent. 

Although it has been relied on in Michigan, reliance has been uneven and short-

 62 See post at 31. 
28

lived. Accordingly, I conclude that a compelling justification exists for replacing 

it.63

 63 Justice Markman has criticized my stare decisis analysis. I offer the 

following response. 

(1) As I state supra at 14 n 36, I continue to believe that tools of statutory 

interpretation, such as the definition of “ambiguity,” are not entitled to stare 

decisis status. However, Justice Markman, other members of this Court, the Court 

of Appeals, and lower courts have treated Lansing Mayor’s definition of 

“ambiguity” as fully entitled to it. See id. Hence, a thorough analysis of that 

case’s definition of ambiguity and its precedential worth is appropriate, even if not 

mandated. 

(2) My fealty to stare decisis speaks for itself. As evidenced by this 

opinion, only because I find that, after a thorough examination of the relevant 

factors, a compelling justification exists for overruling precedent do I do so. This 

stands in stark contrast to the former majority’s approach to stare decisis, as shown 

supra at notes 44 and 47. 

(3) Justice Markman claims that “when the previous majority overruled a 

precedent, it was to ensure that the decisions of this Court more closely reflected 

the judgments of the people’s elected representatives.” Post at 46. This is simply 

a reflection of his personal opinion and that of the justices who shared his view in 

those cases. As indicated earlier, the former majority’s overrulings showed little 

respect for the doctrine of stare decisis and developed a superficial rule in 

Robinson to deal with it. They disdained longstanding cases that had stood for 

many years before the former majority’s ascension to the bench. 

(4) Contrary to Justice Markman’s contention, I have not ignored precedent 

in any of the cases to which he cites. For a comprehensive response to Justice 

Markman on this issue, see my concurring opinion in Potter v McLeary, ___ Mich 

___; ___ NW2d ___ (2009), decided July 31, 2009 (Docket No. 136336). 

(5) Justice Markman claims that I have never joined an opinion that 

articulates a “compelling justification” for upholding a prior decision that I believe 

was wrongly decided. This comes as no surprise, however. The finding of a 

compelling justification as a requisite to overruling precedent has never been the 

standard in Michigan during my years as a justice. Robinson did not require a 

compelling justification to overrule precedent. 
29

2. The Proper Method of Discerning Ambiguity

Having rejected the Lansing Mayor definition of “ambiguity,” I now iterate 

the proper method of discerning statutory ambiguity. Before Lansing Mayor was 

decided, Michigan courts used several analogous variations of statutory 

interpretation. For example, in In re MCI Telecom Complaint,

64 we held that 

“[s]hould a statute be ambiguous on its face . . . so that reasonable minds could 

differ with respect to its meaning, judicial construction is appropriate to determine 

the meaning.”65 This Court has applied the “reasonable minds” standard on 

numerous other occasions.66

 

(6) Justice Markman’s claim that I “find[] it necessary to depart from the 

150-year old standard [regarding stare decisis] that [I] previously hailed . . .” is 

hopelessly off the mark. Justice Markman himself joined the Court’s opinion in 

Robinson, which established an unprecedented test for evaluating prior decisions 

of the Court. Although I objected to it, I followed Robinson in subsequent cases. 

See, e.g., Perry v Golling Chrysler Plymouth Jeep, Inc, 477 Mich 62, 71; 729 

NW2d 500 (2007) (Kelly, J., dissenting). Moreover, my position in Rowland, 

supra, is entirely consistent with this opinion. As I stated in Rowland, “the 

doctrine [of stare decisis] carries such persuasive force that we have always 

required a departure from precedent to be supported by some special justification.” 

477 Mich at 253-254, citing United States v IBM, supra. Only now do I expand 

upon Robinson and define the boundaries of a “compelling justification” because 

of Robinson’s insufficient deference to precedent. 

64 In re MCI Telecom Complaint, 460 Mich 396; 596 NW2d 164 (1999). 

65 Id. at 411-412. Justice Cavanagh authored the opinion in In re MCI. 

Also signing it were then-Chief Justice Weaver and Justices Corrigan, Taylor, 

Brickley, and myself. Justice Young did not participate in the case. 

66 See, e.g. People v Petty, 469 Mich 108, 114; 665 NW2d 443 (2003); 

People v Warren, 462 Mich 415, 427; 615 NW2d 691 (2000); Yaldo v North 

Pointe Ins Co, 457 Mich 341, 347; 578 NW2d 274 (1998); Sam v Balardo, 411 

Mich 405, 418-419 n 9; 308 NW2d 142 (1981). Petty, authored by Justice 
30

This Court has also employed a “doubtful” standard in deciding whether 

ambiguity exists. In Smith v Grand Rapids City Comm,

67 we held that 

“[w]here . . . the language of a statute is of doubtful meaning, the court should 

give it a reasonable construction looking to the purpose to be subserved thereby, 

and the object sought to be accomplished and its occasion and necessity.”68

Finally, this Court has used a “susceptible” standard. Applying this method 

of interpretation, we held that “[i]t is only where a statute is unclear and 

susceptible to more than one interpretation that judicial construction is allowed.”69 

These corresponding approaches to evaluating statutes for ambiguity have endured 

in Michigan caselaw throughout the nineteenth and twentieth centuries.70

 These historical standards for discerning ambiguity are easily reconcilable 

and analogous. The crux of the “reasonable minds” standard is that, when two 

 

Cavanagh, was notably signed by then-Chief Justice Corrigan and Justices 

Weaver, Taylor, Young, Markman, and myself. Yet Justices Taylor, Corrigan, 

Young, and Markman apparently chose to ignore Petty and the “reasonable minds” 

standard in Lansing Mayor and its progeny applying Lansing Mayor’s aberrant 

definition of “ambiguity.” 

67 Smith v Grand Rapids City Comm, 281 Mich 235; 274 NW 776 (1934). 

68 Id. at 240-241 (citations omitted). 

69 People v Morris, 450 Mich 316, 326; 537 NW2d 842 (1995). 

70 See, e.g., In re MCI Telecom Complaint, supra; Sam, supra; City of 

Lansing v Lansing Twp, 356 Mich 641; 97 NW2d 804 (1959); People v Detroit, 

GH & M R Co, 228 Mich 596; 200 NW 536 (1924); Crary, supra; Borden v 

Fletcher’s Estate, 131 Mich 220; 91 NW 145 (1902); Lane v Ruhl, 103 Mich 38; 

61 NW 347 (1894); Bidwell, supra. 
31

persons reasonably afford different meanings to statutory language, it is 

ambiguous. As for the “doubtful” standard, it suggests that a statute is ambiguous 

when its language is of questionable or unclear meaning. The “susceptible” 

standard is self-explanatory in that, if a statute is susceptible to more than one 

interpretation, it is ambiguous. 

I adopt a definition of “ambiguity” that encompasses all three of the 

aforementioned well-established standards for determining ambiguity.71 

Specifically, I would hold: 

[W]hen there can be reasonable disagreement over a statute’s 

meaning, or, as others have put it, when a statute is capable of being 

understood by reasonably well-informed persons in two or more 

different senses, [a] statute is ambiguous. For example, this Court 

has concluded that statutes [are] ambiguous when one word in the 

 71 Justice Markman claims that “[a] facile resort to ambiguity affords the 

judge a readily-available means of acting beyond the scope of his or her authority 

to exercise exclusively the ‘judicial power.’” Post at 19. It seems obvious that the 

“judicial power” must include the authority to interpret statutes as written and 

interpret ambiguity where appropriate. Also, misuse of our “judicial power” can 

certainly occur where ambiguity is never found and judges use few judicial tools 

to discern what they believe to be plain language. 

Moreover, Justice Markman questions “what . . . arguments [I] have for 

substantially expanding the range of judicial decision-making . . . .” Post at 30. I 

do not need an “argument,” however, to defend my definition of ambiguity, as it is 

supported by a multitude of cases in every state and every federal jurisdiction. See 

infra, notes 73, 74 and 75. To the contrary, it is Justice Markman who fails to 

advance any justification for the definition of ambiguity that he favors. As 

indicated earlier, that definition was based not on any precedent whatsoever, but 

rather derived from thin air. While he passionately decries that his definition is 

“fair,” post at 33, and “grounded in logic and common sense,” post at 28, whether 

a legal principle is “fair” or “logical” is highly subjective. Its fairness comes into 

serious question when it has no basis in the law. 
32

statute has an unclear meaning, when a statute’s interaction with 

another statute has rendered its meaning unclear, or when 

application of the statute to facts has rendered the correct application 

of the statute uncertain.[72]

This standard gleans the fundamental principles from the “reasonable minds,” 

“doubtful,” and “susceptible” tests. It has been applied, in some variation, by 

every other state in the country,73 all the federal circuit courts,74 and by the United 

States Supreme Court.75

 72 Yellow Freight System, Inc v State, 464 Mich 21, 38; 627 NW2d 236 

(2001) (Cavanagh, J., dissenting) (citations omitted), rev’d Yellow Transp Inc v 

Michigan, 537 US 36 (2002). 

73 See, e.g., AmSouth Bank v Holberg, 789 So 2d 833 (Ala, 2001); Alaska v 

Saathoff, 29 P3d 236 (Alas, 2001); State v Gomez, 212 Ariz 55; 127 P3d 873 

(2006); Yamaha Motor Corp, USA v Richard’s Honda Yamaha, 344 Ark 44; 38 

SW3d 356 (2001); Hughes v Bd of Architectural Exam’rs, 17 Cal 4th 763; 72 Cal 

Rptr 2d 624; 952 P2d 641 (1998); Colorado v Nieto, 993 P2d 493 (Colo, 2000); 

State v Marsh & McLennan Companies, Inc, 286 Conn 454; 944 A2d 315 (2008); 

LeVan v Independence Mall, Inc, 940 A2d 929 (Del, 2007); State v Huggins, 802 

So 2d 276, 277 (2001); Aldrich v City of Lumber City, 273 Ga 461, 542 SE2d 102 

(2001); Barnett v Hawaii, 91 Hawai’i 20, 979 P2d 1046 (1999); State v Yzaguirre, 

144 Idaho 471; 163 P3d 1183 (2007); In re BC, 176 Ill 2d 536; 680 NE2d 1355 

(1997); In re Lehman, 690 NE2d 696; 702 (Ind, 1997); City of Waterloo v 

Bainbridge 749 NW2d 245 (2008); State v Paul, 285 Kan 658; 175 P3d 840 

(Iowa, 2008); Revenue Cabinet v Rohm & Haas Ky Inc, 929 SW2d 741 (Ky App, 

1996); Burnette v Stalder, 789 So 2d 573 (La, 2001); In re Estate of Kingsbury, 

946 A2d 389 (Me, 2008); Twine v State, 395 Md 539; 910 A2d 1132 (2006); Town 

of Falmouth v Civil Serv Comm, 447 Mass 814; 857 NE2d 1052 (2006); Amaral v 

Saint Cloud Hosp, 598 NW2d 379 (Minn, 1999); Dawson v Townsend & Sons, 

Inc, 735 So 2d 1131 (Miss App, 1999); State v Graham, 204 SW3d 655 (Mo, 

2006); Montana Contractors Ass’n, Inc v Dep’t of Highways, 220 Mont 392; 715 

P2d 1056 (1986); State ex rel Johnson v Marsh, 149 Neb 1; 29 NW2d 799 (1947); 

Chanos v Nevada Tax Comm, 181 P3d 675 (Nev, 2008); In re Baker, 154 NH 186; 

908 A2d 806 (2006); Fairway Dodge, LLC v Decker Dodge, Inc, 191 NJ 460; 924 

A2d 517 (2007); Maestas v Zager, 141 NM 154; 152 P3d 141 (2007); Charter 

Dev Co v City of Buffalo, 6 NY3d 578; 815 NY Supp 2d 13; 848 NE2d 460 
33

B. Application to § 315(1) 

I believe that § 315(1) is ambiguous because the statute is capable of being 

understood by reasonably well-informed persons in two or more different senses. 

As mentioned before, the term “prorate” could reasonably be understood to apply 

to employers, their insurance providers, health care providers, and to employees 

 

(2006); Morris v Thomas, 161 NC App 680; 589 SE2d 419 (2003); Walberg v 

Walberg, 748 NW2d 702 (ND, 2008); Clark v Scarpelli, 91 Ohio St 3d 271; 744 

NE2d 719 (2001); YDF, Inc v Schlumar, Inc, 136 P3d 656 (Okla, 2006); State v 

Cooper, 319 Or 162; 874 P2d 822 (1994); Pridgen v Parker Hannifin Corp, 588 

Pa 405; 905 A2d 422 (2006); Unistrut Corp v RI Dept of Labor & Training, 922 

A2d 93 (RI, 2007); Kennedy v South Carolina Retirement Sys, 345 SC 339, 549 

SE2d 243 (2001); Zoss v Schaefers, 598 NW2d 550 (SD, 1999); Sallee v 

Barrett, 171 SW3d 822 (Tenn, 2005); In re Missouri P R Co, 998 SW2d 212 (Tex, 

1999); Martinez v Media-Paymaster Plus/Church of Jesus Christ of Latter-Day 

Saints, 164 P3d 384 (Utah, 2007); Green Mountain Power Corp v Sprint 

Communications, 172 Vt 416; 779 A2d 687 (2001); Brown v Lukhard, 229 Va 

316; 330 SE2d 84 (1985); Yakima v Int’l Ass’n of Fire Fighters, 117 Wash 2d 655; 

818 P2d 1076 (1991); Phillips v Larrys Drive-In Pharmacy, Inc, 220 W Va 484; 

647 SE2d 920 (2007); State v Williams, 198 Wis 2d 479; 544 NW2d 400 (1996); 

Story v Wyoming, 755 P2d 228 (1988). 

74 See, e.g., United States v O’Neil, 11 F3d 292, 297-298 (CA 1, 1993); 

Natural Resources Defense Council v Muszynski, 268 F3d 91, 98 (CA 2, 2001); 

Dobrek v Phelan, 419 F3d 259, 264 (CA 3, 2005); Newport News Shipbuilding & 

Dry Dock Co v Brown, 376 F3d 245, 248 (CA 4, 2004); United States v Lowe, 118 

F3d 399, 402 (CA 5, 1997); Saxion v Titan-C-Mfg Inc, 86 F3d 553, 560 (CA 6, 

1996); Williams v Banning, 72 F3d 552, 554 (CA 7, 1995); Design Profesionals 

Ins Co v Chi Ins Co, 454 F3d 906, 910 (CA 8, 2006); Mt Adams Veneer Co v 

United States, 896 F2d 339, 342 (CA 9, 1990); Wright v Fed Bureau of Prisons, 

451 F3d 1231, 1235 (CA 10, 2006); Medical Transportation Mgmt Corp v 

Comm’r of Internal Revenue Service, 506 F3d 1364, 1368 (CA 11, 2007); United 

States v Villanueva-Sotelo, 380 US App DC 11, 515 F3d 1234, 1237 (2008);

Butterbaugh v Dep’t of Justice, 336 F3d 1332, 1339 (CA Fed, 2003). 

75 See, e.g., Gonzales v Oregon, 546 US 243, 258; 126 S Ct 904; 163 L Ed 

2d 748 (2006); Houghton v Payne, 194 US 88, 99; 24 S Ct 590; 48 L Ed 888 

(1904). 
34

seeking workers’ compensation benefits. Indeed, § 315 and the entire WDCA are 

entirely silent as to who, among these parties, is subject to a proration of attorney 

fees. Absent extra-textual sources, any determination of the Legislature’s intent 

becomes a mere exercise in speculation. Thus, having found that § 315(1) is 

ambiguous, I may now look to extra-textual sources to aid in its interpretation.76

1. Harmonization with the WDCA 

I seek an interpretation of § 315(1) that is in accord with the principles 

underlying the WDCA as a whole. The act is remedial in nature.77 Thus, where 

ambiguity exists and judicial construction of the act is necessary, we construe the 

act’s terms liberally to grant rather than deny benefits to injured workers.78 This 

canon of statutory construction is deeply embedded in both American and 

Michigan jurisprudence.79

 76 I find it noteworthy that neither of the dissents in this case characterizes § 

315(1) as unambiguous under any of the historical standards for discerning 

ambiguity or the definition enunciated in Lansing Mayor. 

However, Justice Hathaway, in her concurring opinion, opines that § 315(1) 

is unambiguous. A claim that a provision is ambiguous or unambiguous is best 

accompanied by a discussion of what constitutes statutory ambiguity, or lack 

thereof. Yet Justice Hathaway fails to address this step in the process of statutory 

interpretation. 

77 Sabotka v Chrysler Corp, 447 Mich 1, 20 n 18; 523 NW2d 454 (1994). 

78 Paschke v Retool Industries, 445 Mich 502, 511; 519 NW2d 441 (1994), 

citing Bower v Whitehall Leather Co, 412 Mich 172, 191; 312 NW2d 640 (1981). 

79 See Haynes, supra at 42-44 (Kelly, J., concurring). 
35

 The WCAC has explicitly recognized the importance of holding employers 

and their insurance carriers responsible for a proration of attorney fees pursuant to 

§ 315(1). In Harvlie v Jack Post Corp, the WCAC stated, “the purpose of [the] 

attorney fee provisions . . . is not merely to assure that a claimant’s attorney is 

paid, but also to deter employers from breaching their statutory duty to provide 

medical treatment to injured workers. . . .”80

I find this reasoning persuasive and applicable to this case. If employers 

and their insurance carriers are not held accountable for a prorated share of 

attorney fees, they will have an incentive to deny medical benefits.81 They will be 

tempted to deny an injured employee’s request for coverage in the hope that, in 

 80 Harvlie v Jack Post Corp, 2006 Mich ACO 69 at 5, citing Lahti v 

Fosterling, 357 Mich 578; 99 NW2d 490 (1959) (emphasis added). 

81 The dissents argue that my interpretation of § 315(1) will penalize 

employers who validly contest an employee’s claim for benefits. This is not the 

case. Nothing in this opinion can be construed as requiring a magistrate to prorate 

fees against an employer or the employer’s insurance carrier. Furthermore, even if 

there were a wrongful denial of medical treatment under § 315(1), the magistrate 

is vested with the discretion not to prorate fees. Thus, the denial of a treatment, 

whether valid or not, on its own, does not assure that an employer or its insurance 

carrier will be subject to a proration of attorney fees. 

Justice Young correctly asserts that “a workers’ compensation claimant is 

ordinarily responsible for his own personal attorney fees.” Post at 6. However, § 

315(1) deals not with attorney fees for a workers’ compensation claim, generally, 

but with attorney fees specifically related to an employer’s failure, neglect, or 

refusal to pay for “reasonable medical, surgical, and hospital services and 

medicines, or other attendance or treatment recognized by the laws of this state as 

legal, when they are needed . . .” MCL 418.315(1). Thus, a workers’ 

compensation claimant generally remains responsible for his or her attorney fees 

unrelated to the matters governed by § 315(1). 
36

subsequent litigation, they will not be found liable. And even if they were found 

liable, they would be responsible only for actual medical expenses but not for 

attorney fees, despite their wrongful denial of valid claims. 

Likewise, if injured workers were forced to pay a prorated portion of their 

own attorney fees, their ultimate recovery could be reduced below their actual 

costs of securing medical treatment. Such a result would violate the remedial goal 

of the WDCA. 

2. Caselaw Has Employed Similar Reasoning 

 Caselaw also supports my interpretation of § 315(1). I find persuasive the 

fact that every previous case that has analyzed § 315(1) with respect to the 

proration of attorney fees has employed reasoning similar to mine. 

The Court of Appeals first considered the proration of attorney fees 

pursuant to § 315(1) in Boyce v Grand Rapids Asphalt Paving Co.

82 There, the 

plaintiff argued that his health care provider should be held responsible for a 

portion of his attorney fees. The Court rejected this argument, noting that a party 

does not become liable for attorney fees merely by accepting the benefits of an 

attorney’s services.83 The Court also ruled that § 315(1) could be construed to 

 82 Boyce v Grand Rapids Paving Co, 117 Mich App 546; 324 NW2d 28 

(1982). 

83 Id. at 549-550. 
37

require either the employer or its insurance carrier to pay a plaintiff’s attorney 

fees. 

Finally, the Court noted that Administrative Rule 14 of the Bureau of 

Workers’ Compensation, which was in effect when the plaintiff was injured, 

precluded attorneys from recovering a percentage fee for accrued medical 

services.84 The Court questioned the soundness of Rule 14, noting that requiring 

employers or insurance carriers to pay attorney fees when they refuse to pay 

mandatory medical benefits would serve justice.85

 84 Before 1979, Rule 14 provided that a plaintiff’s attorney shall deduct 

reasonable expenses before computing a fee. These included expenses for 

hospitals, surgery, medical providers, and burials. However, the statute was 

amended in 1979 and the Legislature removed these from the expenses an attorney 

is precluded from recovering. Thus, Rule 14 no longer prevents attorneys from 

recovering a percentage attorney fee assigned by a recovery of medical services. 

Watkins v Chrysler Corp, 167 Mich App 122, 131 n 1; 421 NW2d 597 (1988). 

85 Boyce, supra at 551-552 n 45. In Zeeland Community Hosp v Vander 

Wal, 134 Mich App 815; 351 NW2d 853 (1984), the Court of Appeals applied 

analogous reasoning. Examining § 315(1), it noted, “Since the clause concerning 

attorney fees follows the clause concerning the employer’s refusal to pay the 

employer’s reasonable medical expenses, the final sentence is logically construed 

to require either the employer or the insurance carrier to pay a portion of [a 

plaintiff’s] attorney fees.” Id. at 823-825. The Court also held that the statute 

does not evince an intent by the Legislature to require health care providers to pay 

a portion of attorney fees. Id. 

The Court of Appeals used the same reasoning in Duran v Sollitt 

Construction Co, 135 Mich App 610, 615; 354 NW2d 277 (1984), which noted 

that § 315(1) “seems to refer to payment by the employer or his insurer . . . .” 

Moreover, the Duran Court agreed with Boyce that the statute precluded an 

assessment of attorney fees against a health care provider. Id. 
38

In Watkins v Chrysler Corp,

86 the Court of Appeals reaffirmed the principle 

expounded in Boyce that the term “prorate” in the final sentence of § 315(1) 

applies to employers and their insurance carriers. Watkins involved an injured 

plaintiff who sought and was awarded workers’ compensation benefits. He 

subsequently requested a hearing regarding his right to attorney fees related to 

medical expenses ultimately paid by Blue Cross Blue Shield of Michigan. The 

magistrate ruled that he was not entitled to such fees. The Workers’ 

Compensation Appeal Board (WCAB) reversed the magistrate’s decision and 

awarded attorney fees to be paid by the plaintiff’s employer. 

On appeal, the Court of Appeals reversed, holding that the imposition of 

attorney fees under § 315(1) would be unconscionable. It noted that the plaintiff’s 

medical expenses had been timely paid and that there had been no neglect, breach 

of duty, or failure to provide medical care.87 Nonetheless, the Court reiterated that 

the WCAB had improperly ignored the policy aspect of Boyce that an employer 

and its insurer should bear attorney fees when medical expenses are not timely 

paid.88

In contrast to Watkins, defendant in this case did not timely pay plaintiff’s 

medical expenses such that there was no neglect, breach of duty, or failure to 

 86 Watkins v Chrysler Corp, 167 Mich App 122; 421 NW2d 597 (1988). 

87 Id. at 132. 

88 Id. at 131-132, citing Boyce, supra at 551-552 n 45. 
39

provide medical care. Midwest failed to pay medical expenses despite the fact that 

it was paying other workers’ compensation benefits to plaintiff. As the WCAC 

noted, Midwest knew of plaintiff’s medical bills well in advance of trial, yet 

simply refused to pay them. Thus, the employer “fail[ed], neglect[ed], or 

refus[ed]” to furnish reasonable medical expenses for plaintiff’s injuries under § 

315(1).89

Finally, in Harvlie v Jack Post Corp,

90 the Court of Appeals found a unity 

of purpose for § 315(1) by holding that its last sentence authorizes a magistrate to 

prorate attorney fees among an employer and its insurance carrier. The Court 

held: 

Here, the WCAC majority’s construction of § 315(1) is 

consistent with a harmonious reading of the last two sentences of § 

315(1). The third sentence of § 315(1) provides that “the . . . 

magistrate may prorate attorney fees at the contingent fee rate paid 

by the employee.” Standing alone, this sentence contains ambiguity 

because it fails to identify whom the magistrate may order to pay the 

attorney fees. This sentence is not to be construed in isolation, 

however, but instead must be read in the context of the whole statute 

and harmonized with the statute’s other provisions in a manner that 

effectuates the purpose intended by the Legislature. The second 

sentence of § 315(1) addresses the consequences of an employer’s 

failure to pay medical expenses and authorizes a magistrate to order 

the employer to reimburse either the injured claimant or the 

claimant’s medical insurance provider for the reasonable medical 

expenses incurred. This second sentence addresses the 

consequences to a nonpaying employer that “fails, neglects, or 

refuses” to provide reasonable medical services. The WCAC 

 89 See id. at 132. 

90 Harvlie v Jack Post Corp, 280 Mich App 439; 760 NW2d 277 (2008). 
40

properly construed the final two sentences of § 315(1) and provided 

a unity of purpose for this statute.[91] 

The Court noted that its holding was consistent with prior interpretations of 

315(1).92

In sum, I agree with the magistrate, the WCAC, the Court of Appeals, and 

established caselaw that employers and their insurance carriers are the only parties 

subject to a proration of attorney fees under § 315(1). This interpretation 

harmonizes the last sentence of § 315(1) with the preceding sentences of the 

provision as well as with the remedial goals of the WDCA. Workers’ 

compensation magistrates may thus prorate an employee’s attorney fee incurred in 

procuring payment for medical expenses against an employer, or against its 

insurance carrier, or against both. 

Here, the magistrate’s proration of attorney fees against defendants was 

appropriate, given defendants’ failure to pay plaintiff’s medical services as 

mandated by § 315(1). Accordingly, I conclude that the magistrate properly 

prorated plaintiff’s attorney fees under § 315(1) against Midwest and Magna.

III. THE INAPPLICABILITY OF THE AMERICAN RULE

Finally, I note that Michigan courts follow the so-called “American rule” 

 91 Id. at 445-446 (citations omitted). 

92 Id. at 446. 
41

with respect to the payment of attorney fees.93 We have held that, “[u]nder the 

American rule, attorney fees are not recoverable from the losing party as costs in 

the absence of an exception set forth in a statute or court rule expressly authorizing 

such an award.”94 This rule is codified at MCL 600.2405(6), which provides that 

among items that may be taxed as costs are “[a]ny attorney fees authorized by 

statute or court rule.”95

Here, § 315(1) explicitly grants magistrates the discretionary authority to 

prorate attorney fees related to an employer’s failure to provide services in 

accordance with the statute. Thus, the statute contemplates that a party other than 

a plaintiff could, in the discretion of the magistrate, be ordered to pay attorney fees 

in connection with a plaintiff’s suit. Accordingly, § 315(1) constitutes an express 

statutory authorization of attorney fees, which trumps the otherwise applicable 

American rule. 

IV. CONCLUSION

I recommend that the Court modify and expand the principles set forth in 

Robinson v Detroit governing when the Court should depart from the principle of 

stare decisis. A stare decisis analysis should always begin with a presumption that 

 93 Haliw v Sterling Hts, 471 Mich 700, 706; 691 NW2d 753 (2005). 

94 Id. at 707. 

95 The American rule stands in contrast to the English rule. Under the 

English rule, the losing party pays the prevailing party’s attorney fees and costs 

absent an exception. Id. 
42

upholding precedent is the preferred course of action. Next, the Court should 

determine whether a compelling justification exists to overturn the precedent. A 

compelling justification is not a mere belief that the precedential case was wrongly 

decided or that the Court as currently composed would have decided the case 

differently. The factors listed in this opinion should be used on a case-by-case 

basis to determine whether a compelling justification exists to overrule an existing 

precedent. 

However, consistent with United States Supreme Court precedent, I would 

accord a lower level of deference to cases that represent a recent departure from 

the traditional notions of stare decisis. 

I also reject as unworkable the definition of statutory ambiguity espoused in 

Lansing Mayor. I conclude that MCL 418.315(1) is ambiguous because it is 

capable of being understood by reasonably well-informed persons in two or more 

different senses. As a consequence, the statute fails to clearly indicate the parties 

among whom attorney fees may be prorated. 

Finally, we would hold that the Legislature intended that the term “prorate” 

in the last sentence apply only to employers and their insurance carriers. This 

construction is consistent with well-established principles of statutory 

interpretation, caselaw, the remedial nature of the WDCA, and the purpose of § 

315(1). I would also hold that the American Rule of attorney fees does not apply 

to § 315(1). 
43

Plaintiff’s motion to dismiss defendant’s application for leave to appeal is 

considered, and it is denied. We affirm the judgment of the Court of Appeals. 

Marilyn Kelly 

Michael F. Cavanagh
S T A T E O F M I C H I G A N 

SUPREME COURT 

RICK PETERSEN, 

 Plaintiff-Appellee, 

v Nos. 136542, 136543 

MAGNA CORPORATION and MIDWEST 

EMPLOYERS CASUALTY COMPANY, 

 Defendants-Appellants, 

and 

KOLEASECO and THE ACCIDENT FUND 

COMPANY, MAGNA CORPORATION and 

TIG INSURANCE COMPANY, BCN 

TRANSPORTATION SERVICES and TIG 

INSURANCE COMPANY, KOLEASECO, 

INCORPORATED and CITIZENS 

INSURANCE COMPANY, BCN 

TRANSPORTATION SERVICES, SERTA 

RESTOKRAFT MATTRESS COMPANY, 

INCORPORATED and HARLEYSVILLE 

LAKE STATES INSURANCE COMPANY, 

 Defendants-Appellees. 

HATHAWAY, J. (concurring). 

I concur in the lead opinion only to the extent that it concludes that the term 

“prorate” in MCL 418.315(1) applies exclusively to employers and their insurance 

carriers. I write separately because I do not find MCL 418.315(1) to be 

ambiguous. Section 315(1), when read as a whole, indicates that the term 
2

“prorate” in MCL 418.315(1) applies only to employers and their insurance 

carriers. 

This is a case of statutory interpretation. The proper interpretation and 

application of a statute presents a question of law, which receives de novo review.1

 

Assuming that the Legislature has acted within its constitutional authority, the 

purpose of judicial statutory construction is to discern and give effect to the intent 

of the Legislature.2

 In determining the intent of the Legislature, this Court must 

first look to the language of the statute.3

 The Court must, first and foremost, 

interpret the language of a statute in a manner that is consistent with the intent of 

the Legislature.4 As far as possible, effect should be given to every phrase, clause, 

and word in the statute.5

 The statutory language must be read and understood in 

its grammatical context, unless it is clear that something different was intended.6

 

Moreover, when considering the correct interpretation, the statute must be read as 

a whole.7

 Individual words and phrases, while important, should be read in the 

 1 Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). 

2 Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). 

3 Id. 

4 Id. 

5 Id. at 237. 

6 Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008). 

7 Sun Valley, supra at 237. 
3

context of the entire legislative scheme.8

 While defining particular words in 

statutes, we must consider both the plain meaning of the critical word or phrase, as 

well as its placement and purpose in the statutory scheme.9

 A statute must be read 

in conjunction with other relevant statutes to ensure that the legislative intent is 

correctly ascertained.10 The statute must be interpreted in a manner which ensures 

that it works in harmony with the entire statutory scheme.11 

To determine the intent of MCL 418.315(1), the plain language of the 

statute must first be examined. Section 315(1) provides in pertinent part: 

The employer shall furnish, or cause to be furnished, to an 

employee who receives a personal injury arising out of and in the 

course of employment, reasonable medical, surgical, and hospital 

services and medicines, or other attendance or treatment recognized 

by the laws of this state as legal, when they are needed. . . . After 10 

days from the inception of medical care as provided in this section, 

the employee may treat with a physician of his or her own choice by 

giving to the employer the name of the physician and his or her 

intention to treat with the physician. The employer or the 

employer’s carrier may file a petition objecting to the named 

physician selected by the employee and setting forth reasons for the 

objection. If the employer or carrier can show cause why the 

employee should not continue treatment with the named physician of 

the employee’s choice, . . . the . . . magistrate may order that the 

employee discontinue treatment with the named physician or pay for 

the treatment received from the physician . . . . If the employer fails, 

neglects, or refuses so to do, the employee shall be reimbursed for 

 8 Herman, supra at 366. 

9 Id., quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L 

Ed 2d 472 (1995). 

10 Wayne Co v Auditor General, 250 Mich 227, 233; 229 NW 911 (1930). 

11 Id. at 234. 
4

the reasonable expense paid by the employee, or payment may be 

made in behalf of the employee to persons to whom the unpaid 

expenses may be owing, by order of the workers’ compensation 

magistrate. The workers’ compensation magistrate may prorate 

attorney fees at the contingent fee rate paid by the employee. 

[Emphasis added.] 

Section 315(1) gives magistrates the discretionary authority to prorate 

attorney fees at the contingent fee rate paid by the employee. The question in this 

case is against whom attorney fees can be prorated. 

 Although I disagree with the lead opinion that the final sentence of § 315(1) 

is ambiguous, I agree with its conclusion that the final sentence of § 315(1) applies 

only to employers and their insurance carriers. This interpretation of the statute 

harmonizes the individual sentences and phrases in § 315(1) with each other. The 

final sentence of § 315(1) cannot be construed to stand alone without reading it in 

the context of the entire statute.12 It must be examined and analyzed as part of the 

particular statutory provision and then harmonized with the statute’s other 

provisions to satisfy the purpose intended by the Legislature.13 

Section 315(1) pertains to employer liability to pay medical benefits to 

workers injured in the course of employment. Section 315(1) mandates that 

employers furnish an employee with medical treatment needed for an injury 

arising out of and in the course of employment. The statute also enumerates 

 12 People v Couzens, 480 Mich 240, 250; 747 NW2d 849 (2008). 

13 Farrington v Total Petroleum, Inc, 442 Mich 201, 209; 501 NW2d 76 

(1993). 
5

certain types of treatment for which reimbursement costs can be contested by 

employers and their insurance carriers. However, if an employer fails, neglects, or 

refuses to provide covered medical expenses, the employer must reimburse the 

employee for the expenses, or make a payment to a medical provider for unpaid 

expenses that may be owing. The last sentence of § 315(1) gives a magistrate the 

discretion to prorate attorney fees at the contingent fee rate paid by the employee 

to recoup costs expended to recover medical expenses. Thus, the term “prorate” in 

the final sentence of the § 315(1), when read with the rest of the statute, applies to 

parties who might contest the payment of medical benefits: employers and their 

insurance carriers. This interpretation provides a unity of purpose for § 315(1). 

In closing, I concur only with of the lead opinion’s conclusion that the term 

“prorate” in MCL 418.315(1) applies exclusively to employers and their insurance 

carriers. I write separately because I do not find that § 315(1) is ambiguous. 

Section 315(1), when read as a whole, indicates that the term “prorate” in § 315(1) 

applies only to employers and their insurance carriers. This interpretation 

harmonizes the final sentence of the statute with the entire statute as a whole. 

Diane M. Hathaway 

Elizabeth A. Weaver 
S T A T E O F M I C H I G A N 

SUPREME COURT 

RICK PETERSEN, 

 Plaintiff-Appellee, 

v Nos. 136542, 136543 

MAGNA CORPORATION and MIDWEST 

EMPLOYERS CASUALTY COMPANY, 

 Defendants-Appellants. 

and 

KOLEASECO and THE ACCIDENT FUND 

COMPANY; MAGNA CORPORATION 

and TIG INSURANCE COMPANY; BCN 

TRANSPORTATION SERVICES and TIG 

INSURANCE COMPANY; KOLEASECO, 

INCORPORATED and CITIZENS 

INSURANCE COMPANY; BCN 

TRANSPORTATION SERVICES; SERTA 

RESTOKRAFT MATTRESS COMPANY, 

INCORPORATED and HARLEYSVILLE 

LAKE STATES INSURANCE COMPANY, 

 Defendants-Appellees. 

 

CORRIGAN, J. (dissenting). 

I fully join Justice Markman’s dissenting opinion. I also join part II(B) of 

Justice Young’s dissenting opinion. 

Maura D. Corrigan
S T A T E O F M I C H I G A N 

SUPREME COURT 

RICK PETERSEN, 

 Plaintiff-Appellee, 

V Nos. 136542, 136543 

MAGNA CORPORATION and MIDWEST 

EMPLOYERS CASUALTY COMPANY, 

 Defendants-Appellants. 

and 

KOLEASECO and THE ACCIDENT FUND 

COMPANY; MAGNA CORPORATION 

and TIG INSURANCE COMPANY; BCN 

TRANSPORTATION SERVICES and TIG 

INSURANCE COMPANY; KOLEASECO, 

INCORPORATED and CITIZENS 

INSURANCE COMPANY; BCN 

TRANSPORTATION SERVICES; SERTA 

RESTOKRAFT MATTRESS COMPANY, 

INCORPORATED and HARLEYSVILLE 

LAKE STATES INSURANCE COMPANY, 

 Defendants-Appellees. 

 

YOUNG, J. (dissenting). 

I fully join in parts IV(A), IV(C) through (F), and V of Justice Markman’s 

dissenting opinion. I further dissent from the majority’s conclusion that “the term 

‘prorate’ in MCL 418.315(1) applies only to employers and their insurance 
2

carriers,”1 and with Chief Justice Kelly’s conclusion that a workers’ compensation 

claimant may never be deemed responsible for a portion of the attorney fees 

incurred because doing so would “violate the remedial goal of the WDCA.”2

 

Normally, a workers’ compensation claimant is responsible for bearing the 

costs of his portion of the litigation, including attorney fees.3

 I believe that MCL 

418.315(1) serves as an exception to this general rule, permitting the magistrate to 

prorate attorney fees between the claimant and the employer when the employer 

refuses to pay “reasonable” and “needed” medical expenses for an injury “arising 

out of and in the course of employment.” When an employer unjustifiably refuses 

to fulfill its statutory duty to pay for medical expenses incurred as a result of a 

work-related injury, it is entirely appropriate for the magistrate to consider 

whether to exercise the discretionary powers the Legislature has provided to 

prorate the fees between the parties according to the respective merits of their 

positions. In sum, the discretionary authority to prorate is a fee shifting power that 

reduces the claimant’s usual obligation to bear the entire burden of his own 

attorney fees. 

 1 Ante at 2. 

2 Ante at 36 (emphasis added). 

3 Gilroy v Gen Motors Corp (After Remand), 438 Mich 330, 340; 475 

NW2d 271 (1991) (“As in any other civil litigation, a workers’ compensation 

claimant is ordinarily responsible for personal attorney fees.”) See also Gross v 

Great Atlantic & Pacific Tea Co, 87 Mich App 448; 274 NW2d 817 (1978).
3

In contrast, the majority allows only proration between the employer and its 

insurer, while the claimant is relieved of paying any portion of his attorney fees. 

As such, the majority position must be predicated on the assumption that every

claim for benefits is meritorious and that any contest of such a claim venal. The 

reality is that some claims have merit and some should be contested; others may 

involve unresolved factual and legal questions under the Worker’s Disability 

Compensation Act that can be definitively resolved only by the magistrate and the 

Workers’ Compensation Appellate Commission (WCAC). In consideration of this 

reality, I believe that the proration provision was a legislative recognition that 

neither the employer nor the claimant may have entirely meritorious positions in a 

particular case. Thus, the magistrate has been authorized to “split the baby” and 

divide the claimant’s fees when the respective merits of the party’s positions 

warrant this. The majority does not prorate so much as shift the entire attorney fee 

burden from the claimant to the employer in every case. 

I. STATUTORY CONSTRUCTION 

The statute at issue, MCL 418.315(1), provides in relevant part: 

The employer shall furnish, or cause to be furnished, to an 

employee who receives a personal injury arising out of and in the 

course of employment, reasonable medical, surgical, and hospital 

services and medicines, or other attendance or treatment recognized 

by the laws of this state as legal, when they are needed. . . . If the 

employer fails, neglects, or refuses so to do, the employee shall be 

reimbursed for the reasonable expense paid by the employee, or 

payment may be made in behalf of the employee to persons to whom 

the unpaid expenses may be owing, by order of the worker’s 

compensation magistrate. The worker’s compensation magistrate 
4

may prorate attorney fees at the contingent fee rate paid by the 

employee.

 

It is clear that an employer has an affirmative statutory obligation to furnish 

“reasonable” medical treatment for personal injuries “arising out of and in the 

course of employment” when such treatment is “needed.” However, if the 

employer fails to do so, the statute provides two options. If the claimant has paid 

the medical expenses, the “employee shall be reimbursed for the reasonable 

expense.” However, if the expenses remain “unpaid,” “payment may be made in 

behalf of the employee to persons to whom the unpaid expenses may be owing, by 

order of the worker’s compensation magistrate.” This sentence gives the 

magistrate the discretion to direct payment to the third-party medical provider on 

“behalf of the employee.” The last sentence provides that the “worker’s 

compensation magistrate may prorate attorney fees at the contingent fee rate paid 

by the employee.” As I agree with the majority that the word “prorate” simply 

means to divide or distribute proportionately, the question in this case is simply 

whether the attorney fees are to be divided between the claimant and the employer, 

or the claimant and the medical provider.4

 

 4

 For the reasons explained earlier, I believe that the majority has simply 

concluded that the employer must always pay the claimant’s attorneys fees. While 

Justice Markman’s interpretation of the statute is certainly plausible, I do not 

believe that the structure or language of MCL 418.315(1) evinces any legislative 

intent to impose attorney fees upon third-party medical creditors who are not 

parties to the litigation, did not contract with or agree to the services of plaintiff’s 

attorney, and are entitled to the entirety of their fees (subject only to the cost 
5

Reading the first sentence of the statutory provision together with the last 

two sentences leads to the conclusion that the fees may be prorated between the 

claimant and the employer. The first sentence establishes an affirmative duty on 

the employer to pay reasonable medical expenses for work-related injuries. 

However, if the employer “fails, neglects, or refuses so to do,” payment can be 

compelled, either by reimbursing the claimant or paying the claimant’s medical 

creditors directly. The last sentence of the statute relates to the sentence preceding 

it, permitting the proration of attorney fees between the parties when the employer 

“fails, neglects, or refuses” to pay needed and reasonable medical expenses related 

to the claimant’s work-related injury. In effect, this provision permits shifting to 

the employer some of the attorney fee burden that the claimant would otherwise 

bear. 

II. ANALYTIC PROBLEMS WITH THE MAJORITY 

A 

Contrary to the majority’s analysis, there is no principled basis to 

distinguish an employer from its insurance carrier for the purposes of prorating 

attorney fees. It makes little sense to suggest, as the majority does, that the 

claimant’s attorney fees can only be prorated between the employer and its 

 

containment rules) both as a matter of statute and as a matter of contract. See MCL 

418.315(2); Boyce v Grand Rapids Asphalt Paving Co, 117 Mich App 546; 324 

NW2d 28 (1982); Zeeland Community Hosp v Vander Wal, 134 Mich App 815; 

351 NW2d 853 (1984); and Duran v Sollitt Construction Co, 135 Mich App 610; 

354 NW2d 277 (1984). 
6

carrier. The reasons are fairly obvious. The statute does not say that proration can 

only occur between an employer and its insurer. Moreover, when an employer is 

insured, its carrier is merely its agent: the insurer’s duty is to indemnify and 

defend its insured according to the terms of the insurance contract.5

 In the case of 

a self-insured employer, the majority’s analysis makes even less sense since there 

is only one entity—the employer—and thus no one with whom to prorate as the 

majority has exempted the claimant from the proration equation. En fin, whether 

the employer is self-insured or insured, the claim is paid from the same pocket. 

Thus, the majority deprives the word “prorate” of any value under any 

circumstance, and employers will always bear the entire cost of attorney fees. If 

the Legislature had intended that only the employer pay a claimant’s attorney fees, 

it could have easily said as much and presumably would have done so in much 

more direct language. 

B 

As noted, this Court and the WDCA have long recognized that a workers’ 

compensation claimant is ordinarily responsible for paying his own personal 

attorney fees.6

 The majority’s holding that workers’ compensation claimants are 

categorically excluded from ever paying any portion of their attorney fees under 

 5 Blackwell v Citizens Ins Co of America, 457 Mich 662; 579 NW2d 889 

(1998). 

6

 See n 3, supra. The majority does not mention this authority nor does it 

overrule it. 
7

MCL 418.315(1) represents a major departure from our caselaw and is 

inconsistent with MCL 418.858, which permits the director to limit the “maximum 

attorney fees” “paid by the employee.”7

 This legislative enactment, permitting the 

limitation of attorney fees for those representing injured workers in a workers’ 

compensation claim, applies exclusively to disputes between attorneys and their 

clients8

 and recognizes that attorney fees are generally payable by the claimant.9

Thus, contrary to the majority’s claim that requiring a claimant to pay a portion of 

his attorney fees would “violate the remedial goal of the WDCA,” decades of 

caselaw, as well as the plain language of MCL 418.858(2), indicate otherwise. 

C 

The majority holds that the term “prorate” is limited to “the parties who 

might contest the payment of medical benefits: employers and their insurance 

carriers.”10 As an initial matter, nothing in the language of this provision limits 

the term “prorate” to the party “contesting” the payment of medical benefits, to 

 7

 MCL 418.858(2). The predecessor of this statutory provision was first 

enacted in 1912. See 1912 (1st Ex Sess) PA 10, part III, § 10; Mackin v DetroitTimkin Axle Co, 187 Mich 8; 153 NW 49 (1915). 

8

 See Gross v Great Atlantic & Pacific Tea Co, supra at 451 (MCL 418.858 

“applies to disputes between attorneys and their clients; it does not apply to 

disputes between parties.”). 

9

 See May v Charles Hoertz & Son, 204 Mich 432; 170 NW 305 (1919);

Pearson v Gillard, 231 Mich 541; 204 NW 725 (1925); Vellenoweth v Gen Motors 

Bldg Corp, 247 Mich 274; 225 NW 522 (1929); Rench v Kalamazoo Stove & 

Furnace Co, 290 Mich 476; 287 NW 884 (1939).

10 Ante at 8. 
8

the exclusion of the party “seeking” the payment of medical benefits. The majority 

adds language to the statute because the majority imagines that an employer might 

“be tempted to deny an injured employee’s request for coverage in the hope that, 

in subsequent litigation, they would not be found liable.”

11 However, contrary to 

the apparent beliefs of the majority, an employer is not statutorily liable for every 

medical expense submitted by a claimant. Rather, pursuant to MCL 418.315, an 

employer is only obligated to pay reasonable and needed medical expenses for 

work-related injuries. I find nothing strange or reprehensible, much less unlawful, 

about an employer declining to pay medical expenses that it had no legal 

obligation to pay. 

Where there are legitimate legal or factual disputes to be resolved on 

disputed workers’ compensation claims, the hearing before the workers’ 

compensation magistrate is the sole mechanism that settles those disputes and 

determines whether the medical treatment was needed and reasonable, and 

whether the medical treatment was related to “a personal injury arising out of and 

in the course of employment.” While employers should be discouraged from 

wrongly denying medical benefits, the majority articulates no legal or logical basis 

for concluding that an employer should be discouraged from or punished for 

correctly denying claims to which a claimant is not entitled, or from seeking a 

 11 Ante at 35-36 (emphasis added). 
9

resolution of arguable legal or factual disputes that call into question the 

employer’s obligation to pay.12 

Here, Chief Justice Kelly’s lead opinion states that “the magistrate’s 

proration of attorney fees against defendants was appropriate, given defendants’ 

failure to pay plaintiff’s medical services as mandated by § 315(1).”13 However, 

in this case, where plaintiff was a “leased” employee, there were genuine factual 

and legal issues to be resolved regarding whether Koleaseco or BCN 

Transportation was plaintiff’s employer, and whether a valid workers’ 

compensation insurance policy existed between BCN Transportation and Midwest 

Employers Casualty Company. In light of these unresolved issues, it is unclear 

that Midwest unreasonably refused to pay plaintiff’s medical benefits. Moreover, 

the magistrate did not find that Midwest unreasonably refused to pay medical 

benefits as the basis for assessing attorney fees against Midwest. Rather, the 

magistrate assessed attorney fees against Midwest on the basis of the “substantial 

amount of work” and time expended by plaintiff’s counsel in litigating the case. 

 12 This is consistent with the WCAC’s treatment of MCL 418.315(1), which 

permitted the award of attorney fees “in cases where an employer or carrier has 

failed, neglected, or refused to pay for medical services a claimant is clearly 

entitled to. Thus, an attorney fee may be awarded only where there was nonpayment in the face of a ‘clear entitlement.’” Beattie v Wells Aluminum Corp, 

2005 ACO 157 at 10-11 (emphasis added). See also Scheland v Jet Box Co, 1995 

ACO 242; Gessner v Keeler Brass Co, 1997 ACO 548; Gronley v St Clair 

Fiberglass, Inc, 2001 ACO 298; Sikkema v Taylor Carving, Inc, 1992 ACO 469. 

13 Ante at 40. 
10

However, awarding attorney fees based on the amount of work and time expended 

by the attorney is in direct contravention of the last sentence of § 315(1), which 

contemplates the payment of attorney fees on a contingent rather than hourly 

system. I would remand this case to the magistrate to assess the issue of attorney 

fees under the appropriate legal standard. 

Robert P. Young, Jr. 
S T A T E O F M I C H I G A N 

SUPREME COURT 

RICK PETERSEN, 

 Plaintiff-Appellee, 

v Nos. 136542-43 

MAGNA CORPORATION and MIDWEST 

EMPLOYERS CASUALTY COMPANY, 

 Defendants-Appellants, 

and 

BCN TRANSPORTATION SERVICES, 

INC.; KOLEASECO, INC. and CITIZENS 

INSURANCE COMPANY OF AMERICA; 

KOLEASECO, INC. and ACCIDENT 

FUND OF AMERICA; BCN 

TRANSPORTATION SERVICES and TIG 

INSURANCE COMPANY; MAGNA 

CORPORATION and TIG INSURANCE 

COMPANY; and SERTA RESTOKRAFT 

MATTRESS COMPANY, INC. and 

HARLEYSVILLE LAKE STATES 

INSURANCE COMPANY, 

 Defendants-Appellees. 

MARKMAN, J. (dissenting). 

Because I disagree with the majority interpretation of the statute in 

controversy, MCL 418.315, I respectfully dissent.1

 1

By the “majority interpretation,” I refer only to the result reached by a 

majority of this Court in the opinions of the Chief Justice (joined by Justice 
2

I. BACKGROUND 

 Plaintiff, a truck driver, fell off his truck and injured his back while 

working. He sought workers’ compensation benefits under the Worker’s 

Disability Compensation Act (WDCA), MCL 418.101 et seq. The magistrate 

granted benefits and medical costs to plaintiff, and also imposed $46,034 against 

defendants for plaintiff’s attorney fees pursuant to MCL 418.315(1).2

 The 

Workers’ Compensation Appellate Commission (WCAC) affirmed. 

 The Court of Appeals initially denied leave to appeal, but this Court 

remanded for consideration as on leave granted on the division of defendants’ 

liabilities and the assessment of attorney fees. 477 Mich 871 (2006). On remand, 

the Court of Appeals affirmed the WCAC’s imposition of liability against certain 

defendants, and that issue is not the subject of this appeal. The Court of Appeals 

also affirmed the WCAC’s assessment of attorney fees against defendants. 

Unpublished opinion per curiam of the Court of Appeals, issued April 17, 2008 

(Docket Nos. 273293 and 273294). The majority determined that attorney fees 

could be imposed on employers and their insurers under § 315(1), while Judge 

Zahra, in dissent, concluded that § 315(1) did not allow such imposition. This 

Court granted leave to appeal to consider the meaning of § 315(1), 482 Mich 994 

 

Cavanagh) and Justice Hathaway (joined by Justice Weaver). 

2

 Defendants are various business entities that were either found to be 

plaintiff’s “employer” for purposes of the WDCA or else liable for those payments 

as insurers. 
3

(2008), and now affirms the Court of Appeals. Because I believe the Court of 

Appeals dissent is correct, I dissent. 

II. STANDARD OF REVIEW 

 Questions of statutory interpretation are reviewed de novo. Brackett v 

Focus Hope, Inc, 482 Mich 269, 275; 753 NW2d 207 (2008). 

III. STATUTE 

 MCL 418.315(1) provides, in part: 

 The employer shall furnish, or cause to be furnished, to an 

employee who receives a personal injury arising out of and in the 

course of employment, reasonable medical, surgical, and hospital 

services and medicines, or other attendance or treatment recognized 

by the laws of this state as legal, when they are needed . . . The 

employer shall also supply to the injured employee dental service, 

crutches, artificial limbs, eyes, teeth, eyeglasses, hearing apparatus, 

and other appliances necessary to cure, so far as reasonably possible, 

and relieve from the effects of the injury. If the employer fails, 

neglects, or refuses so to do, the employee shall be reimbursed for 

the reasonable expense paid by the employee, or payment may be 

made in behalf of the employee to persons to whom the unpaid 

expenses may be owing, by order of the worker’s compensation 

magistrate.[3] The worker’s compensation magistrate may prorate 

attorney fees at the contingent fee rate paid by the employee. 

The instant dispute centers on the meaning of the final sentence, specifically what 

it means for the magistrate to be allowed to “prorate attorney fees.” Plaintiff 

contends, and a majority of this Court agrees, that this sentence allows a 

magistrate, when granting a recovery under the penultimate sentence, to order the 

 3

 Presumably, if the employee has not paid the reasonable expenses for 

“medical, surgical, and hospital services,” then the medical providers of those 

services are the “persons to whom the unpaid expenses may be owing.” 
4

employer to pay, in addition to the amount awarded for reimbursement of unpaid 

medical expenses, the employee’s attorney fees attributable to the unpaid 

benefits.4

 Defendants, however, argue that the final sentence allows a magistrate, 

when ordering an employer to pay unpaid medical expenses to “persons to whom 

the unpaid expenses may be owing,” to deduct a proportionate share from those 

payments for the employee’s attorney fees.5

 

 The primary goal of statutory interpretation is to discern and give effect to 

the Legislature’s intent. Neal v Wilkes, 470 Mich 661, 665; 685 NW2d 648 

(2004). A court first looks at the statute’s language, Brown v Detroit Mayor, 478 

Mich 589, 593; 734 NW2d 514 (2007), from which “the Legislature’s intent must 

be gathered,” Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 

515; 573 NW2d 611 (1998) (quotation marks omitted). When reviewing the 

statute, “[a]ll words and phrases shall be construed and understood according to 

the common and approved usage of the language,” MCL 8.3a, and “a word or 

 4

 Under this approach, if the magistrate ordered the employer to pay either 

the employee or a medical provider $2,000 for unpaid expenses, the magistrate 

could also order the employer to pay the employee’s attorney fees for the 

contingency fee on that amount. Assuming a 30% contingency fee, the employer 

would pay $2,600 total, with $2,000 paid to the employee or medical provider and 

$600 paid to the employee’s attorney. 

5

 Under this approach, if the magistrate ordered the employer to pay a 

medical provider $2,000 for unpaid expenses, the magistrate would apportion an 

amount based on the employee’s contingency fee from that payment to go towards 

the employee’s attorney fees. Assuming a 30% contingency fee, the employer 

would pay $2,000, with $600 paid to the employee’s attorney and $1,400 paid to 

the medical provider. 
5

phrase is given meaning by its context or setting,”6 Koontz v Ameritech Services, 

Inc, 466 Mich 304, 318; 645 NW2d 34 (2002). 

 I agree with the Court of Appeals dissent, and with defendants, that the 

better interpretation of § 315(1)’s final sentence is that a magistrate can apportion 

an amount of the employee’s attorney fees from an employer’s payment to the 

medical care providers. This interpretation rests principally on the meaning of 

“prorate,” which means “to divide, distribute, or calculate proportionately.” 

Random House Webster’s College Dictionary (1997). Thus, the final sentence can 

be read to allow the magistrate to either divide or distribute proportionately 

attorney fees. That the division or distribution must be proportionate necessarily 

implies that there must be some basis, or rational calculation, upon which the total 

amount of attorney fees can be divided or distributed. This basis becomes 

increasingly apparent when § 315(1)’s final sentence is considered with the 

previous sentence, in which the magistrate is directed to order the employer to 

make “payment . . . in behalf of the employee to persons to whom the unpaid 

expenses may be owing.” Thus, payments will be made to medical providers in 

the amount of the unpaid expenses owed by the employee. These payments 

logically supply the basis upon which the attorney fees can be proportionately 

divided, because each payment constitutes a portion of the whole on which the 

 6

 “It is only, therefore, within a context that a word, any word, can 

communicate an idea.” Leach v FDIC, 860 F2d 1266, 1270 (CA 5, 1988). 
6

employee’s attorney fees are calculated.7

 That is, if the magistrate orders payment 

to multiple medical providers, then a share of the employee’s attorney fees is 

deducted from each payment based on the proportion of the whole that each 

payment represents. 

 The Legislature’s use of the word “may” to confer upon the magistrate the 

authority to “prorate attorney fees” lends further support to this interpretation. By 

this word choice, the Legislature has indicated that there are times when a 

magistrate might not “prorate attorney fees.” If “prorate” is interpreted to allow a 

division of fees between medical care providers, then the use of “may” in this 

context makes sense. In those instances that the magistrate directs payment to the 

medical providers, the magistrate would divide the fees, but when the magistrate 

only ordered reimbursement to the employee for his or her “reasonable expenses 

paid,” the magistrate would not divide the fees. Thus, the final sentence 

recognizes that under the penultimate sentence the magistrate may direct payment 

either to the employee, in which case the division of attorney fees would be 

inappropriate, or the magistrate may direct payment to multiple medical care 

 7

 This interpretation reflects the common understanding of the term 

“prorate” as often used, for example, in rental arrangements. A landlord will often 

“prorate” the tenant’s rent when the lease does not begin on the first of the month. 

The tenant pays a prorated amount of the monthly rent based on the number of 

days (out of the whole month) that the tenant will be living in the apartment before 

the beginning of the next month. 
7

providers, or to the employee and medical care providers, in which case division 

of the attorney fees would be appropriate. 

 By contrast, the majority interpretation of § 315(1)’s final sentence allows a 

magistrate to impose attorney fees against the employer, in addition to the 

payment for unpaid medical expenses, with utterly no direction concerning the 

circumstances in which the magistrate should do so. That is, the majority 

interpretation accords the magistrate the discretion to assess attorney fees against 

an employer when the employer “fails, neglects, or refuses” to pay benefits, but 

provides no guidance for ascertaining when that discretion should or should not be 

exercised. Had the Legislature truly intended for the magistrate to impose 

attorney fees against an employer, it seems likely that the Legislature would have 

included some standard for determining the circumstances under which fees 

should be assessed.8

 Even more troubling is that the Chief Justice apparently finds the entire 

final sentence of § 315(1) irrelevant in concluding that a magistrate can impose 

attorney fees against an employer. She states: 

 8

 The Chief Justice asserts that giving the magistrate such standardless 

discretion is supported by “[o]ther provisions of the WDCA that vest similar 

discretion in magistrates using the word ‘may.’” Ante at 9 n 19. Contrary to her 

assertion, however, those other provisions do not similarly vest in a magistrate 

standardless discretion; rather, they provide at least some specific direction by 

which the magistrate is to exercise his discretion. With regard to the final 

sentence of § 315(1), this dissent finds that direction in the penultimate sentence of 

§ 315(1); by contrast, the Chief Justice finds the penultimate sentence to be 

irrelevant to her analysis. 
8

 [T]he word ‘may’ bears on whether a proration must occur if 

a magistrate does award attorney fees. . . . Should a magistrate 

determine that only one [party] is liable, the magistrate may impose 

attorney fees against only that party. Conversely, should the 

magistrate find multiple parties liable, fees may be prorated 

accordingly. [Ante at 8-9.] 

Thus, the Chief Justice interprets § 315(1) to allow a magistrate to impose attorney 

fees absent any “proration” of the fees because she interprets “may” as according 

the magistrate the discretion to decide “whether a proration must occur,” after he 

has already decided to award attorney fees. If the magistrate determines that the 

attorney fees should be imposed on “multiple parties,” then the magistrate can 

“prorate” or divide the fees among those parties. However, if “only one [party] is 

liable,” the magistrate can impose the fees “against only that party” without 

having to “prorate” or divide the fees at all. This completely fails to recognize that 

§ 315(1) only allows the magistrate to “prorate” or not “prorate” attorney fees. 

Interpreting § 315(1) to allow the magistrate to impose attorney fees without 

relying on the specific authority to “prorate” reads an authorization into the statute 

that clearly does not exist. 

 The Chief Justice supports her interpretation by reasoning that because the 

“statute . . . provides a process for employers and their insurance carriers to object 

to the medical treatment that an injured employee seeks,” the final sentence “when 

read with the remainder of the statute, applies to the parties who might contest the 

payment of medical benefits: employers and their insurance carriers.” Ante at 8. 

That is, to “harmonize[] the final sentence with the remainder of § 315,” and to 
9

avoid the final sentence “stand[ing] alone,” § 315(1)’s final sentence must be read 

to impose additional liability on employers and their insurers, in order to maintain 

a “unity of purpose.” Ante at 7-8; see also ante at 4 (Hathaway, J., concurring). 

Contradicting this pursuit of “harmony” and “unity,” however, are fundamental 

differences between § 315(1)’s final sentence and the preceding sentences, which 

clearly establish an employer’s liability for particular expenses. In these 

preceding sentences, the Legislature states that the employer “shall furnish, or 

cause to be furnished,” various reasonable medical expenses and that the employer 

“shall also supply” various correctional devices (e.g., eyeglasses, artificial limbs, 

crutches). MCL 418.315(1). If the employee pays these reasonable expenses, 

then under the penultimate sentence the employee “shall be reimbursed” for the 

reasonable expense paid by the employee. Id. Thus, the penultimate sentence 

relates back to the listed expenses that an employer “shall” pay. Attorney fees are 

not included in those expenses; yet the majority interpretation effectively gives the 

phrase “may prorate” the same meaning as the phrases “shall furnish” and “shall 

supply” so that the final sentence imposes an additional payment obligation upon 

the employer. This conclusion is contrary to the logical assumption that, had the 

Legislature intended to affirmatively impose payment of attorney fees upon an 

employer, it would have done so with at least approximately the same clarity with 

which it imposed liability for other expenses upon the employer earlier within the 
10

same subsection.9

 Instead, the Legislature chose to use considerably different 

language in the final sentence than in the immediately preceding sentences.10 

 The final sentence is much better read, in my judgment, as an adjunct to the 

magistrate’s ability to direct payment to medical providers established in the 

penultimate sentence. The legislative amendment adding the final sentence to § 

315(1) specifically supports such a relationship. Before this amendment, the thenfinal sentence of former MCL 412.4, which is now § 315(1)’s penultimate 

sentence, only allowed the employee to receive payment for medical expenses: 

 If the employer shall fail, neglect or refuse so to do, such 

employee shall be reimbursed for the reasonable expense incurred by 

or on his behalf in providing the same, by an award of the 

commission. [MCL 412.4, as amended by 1955 PA 250.] 

When the Legislature amended the statute to allow payment to also be directed to 

the medical providers, it added the now-final sentence in dispute here: 

 If the employer shall fail, neglect or refuse so to do, such 

employee shall be reimbursed for the reasonable expense paid by 

him, or payment may be made in behalf of such employee to persons 

to whom such unpaid expenses may be owing, by an award of the 

 9

 Indeed, the Legislature has been fairly consistent throughout the WDCA 

when it imposes liability against the employer. For example, § 301(1) states that 

an employee “shall be paid compensation as provided in this act”; § 345 states that 

“the employer shall pay, or cause to be paid, the reasonable expense of the 

employee’s last sickness, funeral, and burial”; and § 351(1) states that “the 

employer shall pay” weekly compensation when the employee is totally 

incapacitated from work. (Emphasis added.) 

10 Although the Chief Justice and Justice Hathaway purport to “read [§ 

315(1)’s final sentence] with the remainder of the statute,” ante at 8 and ante at 5 

(Hathaway, J. concurring), both fail to even give consideration to the language in 

the immediately preceding sentence. 
11

commission. The commission may prorate attorney fees in such 

cases at the contingent fee rate paid by such employee and it may 

also prorate such payments in the event of redemptions. [MCL 

412.4, as amended by 1963 PA 199.] 

Thus, the magistrate’s ability to “prorate attorney fees” directly accompanied the 

magistrate’s ability to direct payments to medical providers.11 This association 

seems to indicate that the Legislature recognized that when medical providers 

received payment from the employer, the medical providers themselves could 

fairly be said to have been enriched by the work of the employee’s attorney. 

 Prior to the amendment, a medical provider was relegated to seeking 

payment from the employee through a separate cause of action. Even if the 

medical providers recovered the full amount in the action, each would still have to 

pay its own attorney costs due to the longstanding “American Rule” regarding 

 11 Recognizing that “not all legislative history is of equal value,” In re 

Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003), this 

amendment of the statute constitutes the legislative action that established the 

present relationship between § 315(1)’s penultimate and final sentences that can 

be gleaned from the sentences themselves. See supra at 6-7. As such, the fact of 

this amendment represents what is clearly the most compelling form of legislative 

history, because it is derived purely from the enacted words of the statute. On the 

other hand, relying on legislative history based upon a legislative analysis, see, 

e.g., Adrian School Dist v Michigan Pub School Employees’ Retirement Sys, 458 

Mich 326, 335; 582 NW2d 767 (1998) (Kelly, J.); Omne Financial, Inc v Shacks, 

Inc, 460 Mich 305, 315 n 12; 596 NW2d 591 (1999) (Kelly, J.), created by staff 

offices within the Legislature is significantly less compelling, In re Certified 

Question, 468 Mich at 115 n 5, and legislative history that relies exclusively upon 

the statements of a single one of 110 members of the House of Representatives, or 

a single one of 38 members of the state Senate, is even less compelling. 
12

attorney fees.12 In effect, the Legislature set forth a shortcut to this practice in § 

315(1). Rather than requiring medical providers to hire their own attorneys and 

commence separate actions against the employee, § 315(1) now allows the 

medical provider to recover through the action instituted by the employee.13 

 12 In Haliw v Sterling Hts, 471 Mich 700, 706-707; 691 NW2d 753 (2005), 

we stated: 

Michigan follows the “American rule” with respect to the 

payment of attorney fees and costs. Under the American rule, 

attorney fees generally are not recoverable from the losing party as 

costs in the absence of an exception set forth in a statute or court rule 

expressly authorizing such an award. [Citation omitted.] 

13 This is similar to the arrangement provided by § 821(2), which allows an 

employee to assign a portion of his workers’ compensation award to an insurance 

company, health maintenance organization, or medical care and hospital service 

corporation that makes an advance or payment to the employee under an insurance 

policy that provides that benefits are not payable for workers’ compensation 

injuries. Upon enforcement of that assignment, the insurance company, health 

maintenance organization, or medical care and hospital service corporation shall 

pay “a portion of the attorney fees of the attorney who secured the worker’s 

compensation recovery.” MCL 418.821(2). Thus, the employee retains an 

attorney to recover benefits, and the recovery subject to the assignment helps pay 

the employee’s attorney fees. 

 Likewise, pursuant to § 827, a nonparty employer can recover through the 

efforts of an employee’s attorney pursuing a third-party liability action, whereby 

an employee can seek recovery for the same damages he “would be entitled to 

recover in an action in tort.” MCL 418.827(5). If the employee recovers, then he 

shall first “reimburse the employer or carrier for any amounts paid or payable” 

under the WDCA, reduced by “expenses of recovery,” id., which include 

“reasonable expenditures, including attorney fees, incurred in effecting recovery,” 

MCL 418.827(6). Thus, the employer does not recover the full amount it paid 

under its workers’ compensation policy. Rather, the full amount is less any 

attorney fees, which the employer would have had to pay had it sued the third 

party for recovery as it is entitled to do. MCL 418.827(1) (employer can bring suit 

against third party in name of employee if one year has passed since the 
13

Medical providers receive the same reimbursement amount as they did before the 

amendment, while employees retain more of the recovery to which they are 

entitled.14 

 The majority interpretation would impose an additional cost upon the 

workers’ compensation process by penalizing employers and forcing them to pay 

not only for their own attorneys, but also for their employees’ attorneys. This 

 

employee’s injury). This reduction of the recovery amount is the same as when a 

magistrate “prorates” pursuant to § 315(1)’s final sentence. 

14 The financial outcome for medical providers remains the same, whereas, 

by eliminating the need for providers to hire attorneys, the employee actually 

keeps more of his medical expenses. For example, assume that an employee has 

paid $3,000 in medical expenses provided for in § 315(1) and still owes a medical 

provider $2,000 for such expenses. Further assume that attorney fees are 30% of 

any recovery. Prior to the addition of § 315(1)’s final sentence, an employee 

would seek recovery of $5,000 from the employer and, upon receiving that 

amount, would owe his attorney $1,500. After the medical provider commenced 

an action for the $2,000 and obtained a judgment for that amount, the employee 

would be left with $1,500, half of what he paid. The medical provider would owe 

its attorney $600, meaning that the medical provider recovered $1,400 for its 

$2,000 bill. Thus, the employee retained $1,500, the medical provider retained 

$1,400, and the attorneys (employee’s and medical provider’s) went home with 

$2,100. On the other hand, after the addition of § 315(1)’s final sentence as 

interpreted in this dissent, the magistrate would direct payment of $2,000 to the 

medical provider but with $600 appropriated for the employee’s attorney. The 

magistrate would also direct payment of $3,000 to the employee but with $900 

appropriated for the employee’s attorney. As a result, the medical provider 

recovers the same amount that it would have recovered in a separate action against 

the employee, but the employee is left with $2,100, which is $600 more than he 

would have recovered under the old system. The $600 is available because the 

Legislature provided a way in which recovery could be realized by both the 

employee and the medical provider without requiring both to hire their own 

attorneys. 
14

increased expense is at odds with § 801(3), in which the Legislature has already

provided a penalty for unpaid medical benefits: 

 If medical bills or travel allowance are not paid within 30 

days after the carrier has received notice of nonpayment by certified 

mail, in cases where there is no ongoing dispute, $50.00 or the 

amount of the bill due, whichever is less, shall be added and paid to 

the worker for each day over 30 days in which the medical bills or 

travel allowance are not paid. Not more than $1,500.00 in total may 

be added pursuant to this subsection. 

The majority interpretation would establish a new penalty provision with § 

315(1)’s final sentence that is inconsistent with the WDCA’s actual penalty 

provision, in which the Legislature expressly provides for a penalty payment only 

“where there is no ongoing dispute.” Nothing in the majority interpretation 

prevents the attorney-fees penalty from operating even in the presence of a 

dispute, which is directly contrary to when the Legislature has stated a penalty 

should apply. If the Legislature intended § 315(1) to operate as a penalty 

provision, then it would seem that such penalty would at least be assessed 

consistently with the penalty provided under § 801(3). This lack of consistency 

casts further doubt on the majority interpretation. 

 With respect to the magistrate’s authority over medical providers that are 

not parties to the action, § 315(2) implies that the magistrate indeed does have 

authority over medical providers when they are operating in the context of § 315 

by providing that any recovery by a medical provider can be reduced by the 

magistrate to the “maximum charge established under the rules.” (Emphasis 

added.) Thus, the magistrate may reduce the provider’s recovery even if the 
15

provider is not a party to the action. It follows that the magistrate has the same 

ability to reduce the recovery to pay for an employee’s attorney fees when the 

statute grants the magistrate such authority in § 315(1).15 

 In conclusion, several clues supplied by § 315(1) and the WDCA support 

the interpretation set forth in this dissent. Particularly relevant in this regard are: 

(1) the use of “prorate,” the proportionality of the division this term conveys, and 

the fact that there is some logical standard or basis for calculating proportions 

under this interpretation, but not under the majority interpretation; (2) the use of 

“may” in describing the magistrate’s authority to prorate, and the fact that there is 

 15 I also respectfully disagree with Justice Young’s interpretation that § 

315(1) “permit[s] the magistrate to prorate attorney fees between the claimant and 

the employer . . . .” Ante at 2. First, he does not account for why the magistrate’s 

authority to “prorate attorney fees” is only triggered “when an employer 

unjustifiably refuses to fulfill its statutory duty to pay for medical expenses . . . .” 

Ante at 2. It would seem more logical under his interpretation that a magistrate 

could impose attorney fees against an employer any time the employer “fails, 

neglects, or refuses” to pay for the medical expenses. Nowhere does the statute 

include the caveat that the refusal must be “unjustified” before the magistrate can 

“prorate” the fees. Second, the statute directs proration “at the contingent fee rate 

paid by the employee,” MCL 418.315(1), not “according to the respective merits 

of [the parties’] positions,” ante at 2. Third, the penultimate sentence “provides 

two options”-- the magistrate can direct payment to the employee or to medical 

providers-- and Justice Young, in my judgment, fails to recognize that these 

options provide an obvious statutory basis upon which the magistrate can exercise 

his discretion to “prorate attorney fees.” Finally, although medical providers are, 

in fact, “entitled to the entirety of their fees” before litigation, ante at 4 n 4, the 

reality is that a recovery will always be subject to attorney fees. Rather than 

“impos[ing]” fees against the providers, the Legislature created a mechanism 

whereby the fees are simply deducted from the recovery being paid to the 

provider, and whereby the number of “parties to the litigation” can be reduced, 

without affecting the outcome to those potential parties. 
16

some logical standard or basis for exercising this authority under this 

interpretation, but not under the majority interpretation; (3) the consistency of this 

interpretation, and the lack of consistency of the majority interpretation, with the 

penalty provision in § 801(3); (4) the fact that the majority interpretation reads 

words into § 315(1) that are absent and nullifies words that are present; (5) the 

significant differences in language between the introductory sentences of § 315(1), 

which clearly establish an employer’s liability for particular expenses, and its final 

sentence, which does nothing equivalent; (6) the logical implications drawn from § 

315(1)’s final sentence being positioned after the penultimate sentence, and the 

legislative amendment of § 315(1); and (7) the similarity in the arrangement 

between employees’ attorneys and medical providers set forth in this dissent and 

the arrangement between employees’ attorneys and nonparties set forth in §§ 821 

and 827. 

IV. RESPONSE TO THE CHIEF JUSTICE 

 Not content with merely misconstruing the law, the Chief Justice adopts an 

approach to statutory interpretation that can only be described as bizarre. She 

begins her interpretation by asserting that the “threshold question is whether 

. . . the last sentence of § 315(1) is ambiguous.” Ante at 7.16 After an entirely 

gratuitous citation to the dictionary definition of “prorate,” one that promptly 

proves to be irrelevant to any subsequent analysis, the Chief Justice determines 

 16 I note that this approach has not garnered majority support on this Court. 
17

that “the term ‘prorate’ could reasonably apply to employers, their insurance 

carriers, health care providers, and to employees seeking workers’ compensation 

benefits, or to any combination of them.” Ante at 7. This finding should come as 

no surprise considering the Chief Justice’s focus on the word “prorate” without 

regard to its context. Next, the Chief Justice initially determines that “neither § 

315 as a whole nor the statute’s other provisions indicates the parties to whom a 

division or distribution of attorney fees applies,” but nevertheless proceeds to 

adopt her own interpretation because it “unifies the last sentence of § 315(1) with 

the remainder of the statute.” Ante at 8. Satisfied that her interpretation also gives 

effect to the word “may,” cf. supra at 7-8, the Chief Justice then concludes that her 

interpretation “affords the phrase ‘may prorate’ its full meaning.” Ante at 9. After 

all this, the Chief Justice continues to answer her “threshold question” in the 

affirmative, concluding that the statute is ambiguous because other “interpretations 

of § 315(1) exist.” Ante at 9. That is, rather than even giving the appearance that 

she has reached the conclusion that the statute is “ambiguous” based upon her 

difficulty in ascertaining its meaning, the Chief Justice withdraws from the process 

of statutory interpretation once other interpretations are presented. It is apparently 

much easier to summarily declare “ambiguity,” and thereby avoid the 

inconvenience of having to actually carry out one’s judicial duties by deciding 

what the statute or contract actually states.17

 17 Because interpreting either statutes or contracts requires a court to give 
18

A. Ambiguity 

 As evident from her “interpretation” here, the Chief Justice’s dependence 

on an extraordinarily low threshold for finding ambiguity, and her resultant 

conclusion that § 315(1) is, of course, “ambiguous,” are essential to her analysis. 

The Chief Justice then proceeds on the assumption that, once ambiguity has been 

established, a judge is essentially unencumbered by any serious restraints imposed 

by the language of a statute or contract and effectively has carte blanche to utilize 

whatever factors are deemed appropriate in reaching a result. 

 I disagree with this approach to “interpretation,” not merely because it 

divorces the interpretative process from the law that is purportedly being 

“interpreted,” but also because it raises the unavoidable suspicion that a judge is 

reaching the result he or she would personally prefer rather than the result 

compelled by the law. That is, instead of abiding by the traditional exercise of the 

“judicial power” in which the judge, employing the statute or contract itself as the 

lodestar, says only what the law “is,” the Chief Justice by her understanding of 

ambiguity would effectively exercise the “legislative power” to say what the law 

“ought to be” by arbitrarily picking and choosing among a practically limitless 

 

meaning to specific language, the interpretative approach signaled by a particular 

view of ambiguity “applies with equal force whether the court is interpreting a 

statutory text or a contractual one.” Mayor of Lansing v Pub Service Comm, 470 

Mich 154, 165 n 6; 680 NW2d 840 (2004). See also Ellis v Farm Bureau Ins Co, 

482 Mich 1119, 1120-1121; 760 NW2d 212 (2008); Zahn v Kroger of Michigan, 

483 Mich 34, 40 n 8; 764 NW2d 207 (2009). 
19

variety of available extra-textual considerations.18 For the Chief Justice, the 

concept of ambiguity is one to be both casually and peremptorily invoked-- as in 

this case in which no party has even asserted that the statute is ambiguous-- to 

avoid the discipline of the traditional judicial process, while maintaining at least 

some appearance that this process has been respected. The lower the barrier to 

finding ambiguity, the more effortlessly a judge can dispense with the hard work 

of giving meaning to difficult and complex provisions of statutes and contracts, 

and the less risk that this regular process of interpretation will lead to the “wrong” 

results. A facile resort to ambiguity affords the judge a readily-available means of 

acting beyond the scope of his or her authority to exercise exclusively the “judicial 

power.” 

 It is hard to conceive of a much lower barrier to ambiguity than that 

propounded by the Chief Justice. A statute, we are instructed, is “ambiguous” 

when it is “capable of being understood by reasonably well-informed persons in 

two or more different senses.”19 Ante at 33. If this definition does not describe 

 18 When deciding a case, the judiciary’s role is, and has always been, to 

answer the question, “what is the law, and not what ought the law to be.” Detroit 

v Blackeby, 21 Mich 84, 118 (1870) (Cooley, J., dissenting); see also Michigan 

United Conservation Clubs v Secretary of State (After Remand), 464 Mich 359, 

397; 630 NW2d 297 (2001) (Markman, J., concurring), citing Marbury v Madison, 

5 US (1 Cranch) 137; 2 L Ed 60 (1803). “It is for the court to declare what the law 

is-- not to make it.” Wilson v Arnold, 5 Mich 98, 104 (1858). 

19 The Chief Justice also states that a statute is ambiguous when “two 

persons reasonably afford [a] different meaning[ ]” to it, or when it is “of 

questionable or unclear meaning.” Ante at 31. She has previously opined that a 
20

almost all litigation coming before this Court, it certainly describes much of this 

litigation. There are relatively few appellate litigants-- most of whom have 

undertaken the financial burdens of litigation, accepted the psychological and 

emotional tolls of a protracted legal process, and endured trial, intermediate 

appeal, Supreme Court appeal, remands, and motions for reconsideration, all while 

being represented by attorneys who are ethically obligated to ensure some degree 

of meritoriousness in their clients’ legal positions-- whose statutory and 

contractual disputes could not be fairly characterized under the Chief Justice’s 

definition as entailing ambiguity. Indeed, little would be clearly excluded from the 

realm of ambiguity by her definition other than genuinely frivolous lawsuits, 

which are both rare and sanctionable. Matters of interpretation are resolved in 

judicial venues precisely because statutes and contracts are susceptible to “being 

understood by reasonably well-informed persons in two or more different senses.” 

 

statue is ambiguous “when its application to the facts of the case is uncertain,” 

DaimlerChrysler Corp v State Tax Comm, 482 Mich 220, 240 n 2; 753 NW2d 605 

(2008) (Kelly, J., concurring in the result), or when “there can be reasonable 

disagreement over its meaning,” Fluor Enterprises, Inc v Dep’t of Treasury, 477 

Mich 170, 186; 730 NW2d 722 (2007) (Kelly, J., concurring). As with her latest 

definition of ambiguity in this case, what would be truly remarkable about any of 

these definitions would be if they served to exclude many statutory or contractual 

disputes from their purview. “Uncertainty” and “disagreement” are what draw 

parties into litigation in the first place. See also Nat’l Pride at Work, Inc v 

Governor, 481 Mich 56, 95 n 34; 748 NW2d 524 (2008) (Kelly, J., dissenting), in 

which the Chief Justice asserted that a general provision of Michigan’s 

constitution was “ambiguous” because it did not expressly set forth every specific 

circumstance to which it was applicable. The majority responded, “If that were 

the case, almost all constitutional provisions would be rendered ambiguous.” Id.

at 81 n 21. 
21

 Even more remarkable, however, is that the Chief Justice’s own “analysis” 

in this case does not even satisfy her own low threshold for discerning ambiguity, 

since there is nothing therein that suggests that either the plaintiff’s or the 

defendants’ position is “reasonable.” In fact, the Chief Justice never once 

compares any interpretation other than her own to the statute. She simply notes 

the “exist[ence]” of competing interpretations and declares ambiguity. Ante at 9. 

Essentially, the Chief Justice’s standard for discerning ambiguity is more 

accurately stated as: “A statute is ambiguous when parties offer conflicting 

interpretations.”20

 The Chief Justice has previously observed that, “I find frequent ambiguity 

in statutory language.” Haynes v Neshewat, 477 Mich 29, 40; 729 NW2d 488 

(2007) (Kelly, J., concurring).21 This is not surprising. For once a statute or 

 20 Such disagreement between parties is hardly a precedent-shattering event 

in this Court. 

21 At least in this regard, she is unquestionably correct. See, for example, 

the following list of cases enumerated in footnote 56 of the Chief Justice’s opinion 

to get some sense of the breadth of the matters that she apparently views as 

“ambiguous” among our published opinions over the past five years alone. With 

regard to each of these “examples,” the dissenting justices in this case are 

implicitly chastised for having “declined” to find ambiguity: 

 See, e.g., Dimmit & Owens Fin, Inc v Deloitte & Touche, 481 

Mich 618; 752 NW2d 37 (2008); Ross v Blue Care Network, 480 

Mich 153; 747 NW2d 828 (2008); Wesche v Mecosta Co Rd Comm, 

480 Mich 75; 746 NW2d 847 (2008); Ernsting v Ave Maria College, 

480 Mich 985 (2007); Trentadue v Buckler Lawn Sprinkler, 479 

Mich 378; 738 NW2d 664 (2007); Lash v Traverse City, 479 Mich 

180; 735 NW2d 628 (2007); Brown [v Detroit Mayor, 478 Mich 
22

contract has been deemed “ambiguous,” this Court “may go beyond the plain 

language of the statute [or contract],” ante at 6, and then employ decision-making 

 

589; 734 NW2d 514 (2007)]; Renny v Dep’t of Transportation, 478 

Mich 490; 734 NW2d 518 (2007); South Haven v Van Buren Co Bd 

of Comm’rs, 478 Mich 518; 734 NW2d 533 (2007); Omdahl v West 

Iron Co Bd of Ed, 478 Mich 423; 733 NW2d 380 (2007); Bukowski v 

Detroit, 478 Mich 268; 732 NW2d 75 (2007); Karaczewski v 

[Farbman Stein & Co, 478 Mich 28; 732 NW2d 56 (2007)]; Fluor 

[Enterprises, Inc v Dep’t of Treasury, 477 Mich 170; 730 NW2d 722 

(2007)]; Rowland [v Washtenaw Co Rd Comm, 477 Mich 197; 731 

NW2d 41 (2007)]; People v Peals, 476 Mich 636; 720 NW2d 196 

(2006); Paige [v Sterling Hts, 476 Mich 495; 720 NW2d 219 

(2006)]; Cameron v Auto Club Ins Ass’n, 476 Mich 55; 718 NW2d 

784 (2006); Ford Motor Co v Woodhaven, 475 Mich 425; 716 

NW2d 247 (2006); People v Derror, 475 Mich 316; 715 NW2d 822 

(2006); People v Williams, 475 Mich 245; 716 NW2d 208 (2006); 

People v Yamat, 475 Mich 49; 714 NW2d 335 (2006); Grimes [v 

Dep’t of Transportation, 475 Mich 72; 715 NW2d 275 (2006)]; 

Michigan v Monaco, 474 Mich 48; 710 NW2d 46 (2006); Ostroth v 

Warren Regency, GP, LLC, 474 Mich 36; 709 NW2d 589 (2006); 

Co Rd Ass’n v Governor, 474 Mich 11; 705 NW2d 680 (2005); 

Devillers [v Auto Club Ins Ass’n, 473 Mich 562; 702 NW2d 539 

(2005)]; Reed v Yackell, 473 Mich 520; 703 NW2d 1 (2005); Ayar v 

Foodland Distributors, 472 Mich 713; 698 NW2d 875 (2005); 

Casco Twp [v Secretary of State, 472 Mich 566; 701 NW2d 102 

(2005)]; Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851 

(2005); Jarrad v Integon Nat’l Ins Co, 472 Mich 207; 696 NW2d 

621 (2005); Roberts v Atkins, 470 Mich 679; 684 NW2d 711 (2004); 

Neal [v Wilkes, 470 Mich 661; 685 NW2d 648 (2004)]; People v 

Barbee, 470 Mich 283; 681 NW2d 348 (2004); [People v] Lively, 

[470 Mich 248; 680 NW2d 878 (2004)]; People v Laney, 470 Mich 

267; 680 NW2d 888 (2004); Lansing Mayor [v Pub Service Comm, 

470 Mich 154; 680 NW2d 840 (2004)]. 

It should be clearly understood that in each of these cases, as well as in all other 

cases in which ambiguity is found, justice under the law would be replaced by the 

personal “justice” of the men and women who comprise the Court’s majority. 

This is the “rule of men [and women],” not the rule of law. 
23

factors that would ordinarily be unavailable in the interpretative process. There is 

no lack of variety in these newly-available factors. As I offered in my concurring 

opinion in Haynes: 

 Having reached the proper result in this case through a proper 

legal analysis, Justice Kelly in a concurrence to her own majority 

opinion proceeds to demonstrate that she could have reached the 

same result through less disciplined means. Not content to rely, as 

she does in her majority opinion, on the actual language of the law, 

Justice Kelly invokes an array of alternative techniques to “interpret” 

the law in her concurring opinion. She relies upon a “liberal 

construction” of the statute in question; she relies upon 

characterizations of the statute as “broad” and “remedial”; she relies 

upon a summary description of the law as “ambiguous,” therefore 

apparently affording her the discretion to pick and choose the law 

she prefers; she relies upon the Legislature’s inaction in the wake of 

an earlier court decision, equating this to approval of the Court’s 

decision; she disparages the value of dictionaries as an essential tool 

in the interpretative process; and she relies upon an extraordinarily 

broad understanding of “legislative history.” For the sake of future 

reference, a further catalogue of language-avoidance “interpretative” 

techniques would include the following: divining the “spirit of a 

statute”; relying upon considerations of “public policy”; 

standardlessly applying “equity”; characterizing statutes with which 

a judge disagrees as “absurd”; and concocting creative “balancing” 

and “totality of circumstances” tests. Innovatively applied, each of 

these techniques can be relied upon to avoid the hard task of having 

to discern a statute’s meaning from its actual language. [Haynes, 

477 Mich at 48-49 (Markman, J., concurring).] 

The use of these and other factors to reach a decision far more closely resembles 

the exercise of the constitution’s “legislative power” than its “judicial power.” It 

is an undisciplined and standardless approach to giving meaning to the law, 

enabling the judge at his or her discretion to determine which factors to take into 
24

account, and what priority to give those factors.22 It is an approach that 

disrespects the separation of powers23 and that enhances the power of judges at the 

expense of the rule of law. 24 

B. Dissent and Ambiguity 

 The Chief Justice’s definition of ambiguity stands in contrast to what has 

been the predominant approach in our state. In Mayor of Lansing v Pub Service 

Comm, 470 Mich 154, 166; 680 NW2d 840 (2004), this Court stated that “a 

provision of the law is ambiguous only if it ‘irreconcilably conflict[s]’ with 

another provision or when it is equally susceptible to more than a single meaning.” 

(Citation omitted.) Similarly, in Klapp v United Ins Group Agency, Inc, 468 Mich 

459, 467; 663 NW2d 447 (2003), this Court found a contract to be ambiguous 

because two provisions “irreconcilably conflict[ed]” with each other.25 Such an 

 22 “It is only by interpretations of the law that are in accord with the words 

of the lawmaker-- that is, interpretations in which judges look outside themselves 

for a source of law-- that the decisions of courts are truly removed from the realm 

of politics and policymaking.” Robertson v DaimlerChrysler Corp, 465 Mich 732, 

761; 641 NW2d 567 (2002). 

23 “The powers of government are divided into three branches legislative, 

executive and judicial. No person exercising powers of one branch shall exercise 

powers properly belonging to another branch except as expressly provided in this 

constitution.” Const 1963, art 3, § 2. 

24 “[I]t is to the words of the statute itself that a citizen first looks for 

guidance in directing his actions. This is the essence of the rule of law: to know in 

advance what the rules of society are.” Robinson v Detroit, 462 Mich 439, 467; 

613 NW2d 307 (2000). 

25 In her assertion that this Court “has declined [during a four-year period] 

to find any statutory language ambiguous,” ante at 10 n 23, the Chief Justice fails 
25

understanding of ambiguity restricts the judge to saying what the law “is” based 

on the words chosen by the Legislature in all but the most extraordinary 

circumstances. While the Chief Justice suggests that the relative rarity of a finding 

that a law or contract is ambiguous under this definition constitutes its vice, ante at 

23, by preserving a broader realm within which the ordinary process of 

interpretation may proceed, and in which deference will be shown to the decisions 

of the lawmaker, this may be better understood as its principal virtue. 

Many disputes before this Court involve difficult or complex interpretations 

of statutes and contracts, yet it remains our responsibility to sort out these 

difficulties and complexities and finally determine what constitutes the most 

reasonable, if not always the perfect or the crystalline, meaning of the law. 

Judges have traditionally approached this responsibility by looking to the language 

of a statute or contract, considering relevant dictionary definitions of words and 

 

to mention that this Court found the contract in Klapp itself to be ambiguous and 

then resolved this ambiguity by the application of the traditional rule contra 

proferentem (resolving a contract dispute against its drafter). See also Stone v 

Williamson, 482 Mich 144, 157; 753 NW2d 106 (2008). Perhaps more to the 

point, however, it is odd that the Chief Justice would make a virtue of a judge 

quickly throwing up his or her hands in the face of even a slightly difficult statute 

and dispensing with his or her obligation to say what the law means, while making 

a vice of a judge laboring hard to determine what even a highly difficult statute 

means in order to ensure that the legislative decisions of the people’s 

representatives are respected. 
26

phrases,26 assessing the existence and meanings of “terms of art,”27 evaluating the 

context of words28 and grammatical, syntactical, and punctuational clues,29

comparing related and companion provisions of the law,30 discerning the 

organization and structure of statutes and contracts,31 invoking traditional default 

rules and maxims of interpretation,32 and applying proper understandings of legal 

purpose and precedent. 33 

 26 See Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 

(2002) (stating that a court “may consult dictionary definitions” to help ascertain 

the meaning of terms not defined in the statute). 

27 “It is a cardinal rule in the interpretation of statutes that words which 

have acquired a well-defined technical meaning, are to be understood in their 

technical sense . . . .” Pitcher v People, 16 Mich 142, 147 (1867); see also MCL 

8.3a. 

28 “[A] word or phrase is given meaning by its context or setting.” Tyler v 

Livonia Pub Schools, 459 Mich 382, 391; 590 NW2d 560 (1999). 

29 See Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 

(1999) (stating that “statutory language must be read and understood in its 

grammatical context”). 

30 “[I]n the interpretation of the statutes, we are to take into view all such 

parts as relate to the same subject.” Malonny v Mahar, 1 Mich 26, 28 (1847). 

31 See Lash v Traverse City, 479 Mich 180, 190; 735 NW2d 628 (2007) 

(rejecting an argument regarding the statute’s purported purpose as being 

“completely contrary to the structure of the statute”). 

32 See, e.g., In re Haley, 476 Mich 180, 198; 720 NW2d 246 (2006) 

(“[W]here a statute contains a specific statutory provision and a related, but more 

general, provision, the specific one controls.”). 

33 See Pohutski v City of Allen Park, 465 Mich 675, 694; 641 NW2d 219 

(2002) (emphasizing that a crucial aspect to the proper understanding of precedent 
27

 This should not be understood as a mechanical process, for judges engaged 

conscientiously in this exercise will sometimes disagree about the meaning of the 

law, but it is a process in which the focus is directed outwardly toward the 

language of the statute or contract, rather than inwardly toward the personal 

predilections of the judge.34 As Justice Felix Frankfurter once remarked, “the 

 

is that it “should not be applied mechanically to prevent this Court from overruling 

erroneous decisions regarding the meaning of a statute”). 

34 The Chief Justice disparages this approach by stating that a “‘plain 

meaning’ approach to statutory interpretation is equally susceptible to subjective 

and arbitrary determinations of legislative intent [because] such an approach may 

lead to the selection of one dictionary definition among many for a specific term.” 

Ante at 13 n 35. The Chief Justice thus damns the very enterprise of judging by 

suggesting that it can never be anything other than “subjective” and “arbitrary,” 

for words may sometimes have multiple meanings. The Chief Justice then 

defends her own approach to the judicial role by effectively declaring that all 

interpretation is nothing but a fiction in which the judge, one way or another, gets 

to impose his own personal will. That is, since interpretations of the law can 

sometimes be difficult, and may entail the application of judgment and 

discernment, a “plain meaning” approach to interpretation (a characterization 

incidentally never used by any of the justices dissenting in this case) has no 

superior stature to a post-ambiguity approach to interpretation in which words are 

given no respect whatsoever. By equating the imperfections inherent in a human 

process in which language is taken seriously with the fundamental defects inherent 

in a process in which language is subordinate to a judge’s personal sense of which 

results are to be preferred, it is hard to imagine a more mistaken, and cynical, view 

of the judicial enterprise, albeit one that encapsulates well the persistent 

constitutional and jurisprudential divide between the justices in the majority and 

the dissenting justices. 

Concerning Liberty Hill Housing Corp v City of Livonia, 480 Mich 44, 57; 

746 NW2d 282 (2008), which the Chief Justice cites as somehow exemplifying 

the defects of the “plain meaning” approach, this Court explained: 

The third, fourth, and fifth meanings in the definition are 

clearly not relevant here. The first meaning defines “occupy” as “to 

have, hold, . . . possess, . . . or claim[.]” These parts of the definition 
28

highest exercise of judicial duty is to subordinate one’s personal will and one’s 

private views to the law.” 

C. Premises of Ambiguity Rule 

 Despite the Chief Justice’s view that an understanding of ambiguity does 

not constitute “binding precedent,” she nonetheless undertakes a strenuous effort 

to identify precedents in support of her position, while undertaking no discernible 

effort to actually justify her own understanding. Rather than constituting an 

“aberrant” approach to interpretation, ante at 30 n 66, Mayor of Lansing and 

Klapp set forth a rule of statutory interpretation that, as with most other such rules, 

is grounded in logic and common sense, and is designed to faithfully ascertain the 

intentions of the Legislature. The understanding of ambiguity articulated in 

 

are synonymous with ownership. Because the statute uses the 

conjunctive term “owned and occupied,” however, the Legislature 

must have intended different meanings for the words “owned” and 

“occupied.” Otherwise, the word “occupied” would be mere 

surplusage. 

See also id. at 57 n 12. Thus, Liberty Hill relied on the maxim that the Court 

should avoid rendering a portion of the statute nugatory or surplusage, i.e., the 

Court should give effect to all the words of the Legislature. Thus, contrary to the 

Chief Justice’s assertion, Liberty Hill demonstrated that a responsible judge, 

attempting faithfully to give meaning to the law, does not have “unfettered 

discretion to pick and choose among available ‘plain meanings,’” ante at 22, but 

rather is bound by existing rules, and by interpretative approaches, that are wellknown both to the judge and the parties beforehand. While such an 

“interpretivist” or “textualist” approach cannot dispense entirely with the exercise 

of judgment, unlike the approach preferred by the Chief Justice, the interpretative 

“rules of the game” under the former approach will be known in advance and are 

designed to reasonably ascertain the intentions of the lawmaker. 
29

Mayor of Lansing and Klapp is premised upon longstanding principles of sound 

constitutional government that are suggested by the following inquiries directed 

toward those who would advocate a broader understanding: 

-- When ambiguity is discerned, ordinary rules of interpretation no 

longer apply-- as the Chief Justice asserts, a court may then “go 

beyond the plain language of a statute [or contract]”-- and judges are 

accorded broad and arbitrary discretion to pick and choose from 

among a wide variety of factors as to how the law should be given 

meaning. Why would any responsible legal system wish to depart 

from its ordinary processes, from ordinary rules of interpretation and 

traditional exercises of the judicial power, with any greater 

frequency than is absolutely required? 

-- When ambiguity is discerned, ordinary rules of interpretation no 

longer apply-- as the Chief Justice asserts, a court may then “go 

beyond the plain language of a statute [or contract]”-- and judges are 

accorded broad and arbitrary discretion to pick and choose from 

among a wide variety of factors as to how the law should be given 

meaning. Why would any responsible legal system wish to replace a 

reasonably predictable rule of law with arbitrary, and possibly 

idiosyncratic, determinations of judges any more often than is 

absolutely required? 

-- When ambiguity is discerned, ordinary rules of interpretation no 

longer apply-- as the Chief Justice asserts, a court may then “go 

beyond the plain language of a statute [or contract]”-- and judges are 

accorded broad and arbitrary discretion to pick and choose from 

among a wide variety of factors as to how the law should be given 

meaning. Why would any responsible legal system wish to 

minimize the realm in which judges are bound by the written law 

and instead maximize the realm in which written law is subrogated 

to a variety of indeterminate factors at a judge’s disposal? 

-- When ambiguity is discerned, ordinary rules of interpretation no 

longer apply-- as the Chief Justice asserts, a court may then “go 

beyond the plain language of a statute [or contract]”-- and judges are 

accorded broad and arbitrary discretion to pick and choose from 

among a wide variety of factors as to how the law should be given 

meaning. Why would any responsible legal system wish to instill in 

litigants and the public the idea that the personal preferences of a 
30

judge, rather than the requirements of the law, are what is most 

important to the resolution of a legal dispute? 

-- When ambiguity is discerned, the “judicial power,” the only 

power properly exercised by a judge under the Constitution, is 

exercised in a manner incompatible with its usual exercise-- as the 

Chief Justice asserts, a court may then “go beyond the plain 

language of a statute [or contract].” Why would any responsible 

legal system wish to depart from traditional constitutional norms or 

to obscure the Constitution’s separation of powers? 

By contrast, what logical or other arguments does the Chief Justice have for 

substantially expanding the range of judicial decision-making within which courts 

“may go beyond the plain language of the statute [or contract],” and within which 

“it is the duty of the courts,” instead of the lawmaker, to give a “reasonable and 

sensible” interpretation to the law? Ante at 6. What conceivable arguments does 

the Chief Justice have for favoring an expansion in the range of judicial decisionmaking within which judges are empowered to devise, at their discretion, ad hoc 

and unpredictable criteria for determining how the law will be defined? Hers is a 

hollow opinion, evidenced not only by her failure to abide even by her own

standards for identifying ambiguity, but also by her failure to articulate even a 

minimal justification for these standards.35 

 35 The Chief Justice asserts that she need not justify her standard in light of 

the fact that other jurisdictions utilize similarly worded standards. Ante at 31 n 71. 

Whatever the relevance of this observation, one doubts that any of these variants 

have been applied in other jurisdictions in the wildly-overreaching manner 

reflected by the instant decision, reflected by the breadth of potentially 

“ambiguous” cases cited at n 21 supra, and reflected in the Chief Justice’s own 

passion for finding “frequent ambiguity” in the law. Haynes, 477 Mich at 40 

(Kelly, J., concurring). 
31

D. Logic of Ambiguity Rule 

 The Chief Justice asserts that language is ambiguous when it is “capable of 

being understood by reasonably well-informed persons in two or more different 

senses,” ante at 33, but she never supplies any explanation for how this definition 

is to operate practically in the real world. She fails to answer, or even ask, 

whether there is some threshold beyond which it can be said that an interpretation 

is “capable of being understood by reasonably well-informed persons in two or 

more different senses.” Is it sufficient, for example, in finding ambiguity that 10% 

or 20% or 30% of all “reasonably well-informed persons” might subscribe to a 

particular interpretation? Indeed, is it sufficient that the parties merely disagree, or 

must the Court intervene to determine that the position of each side is itself 

reasonable? 

 Given that the Mayor of Lansing/Klapp standard can be quantified as a 50% 

test-- i.e., if there are two equally reasonable interpretations, a law is ambiguous; 

otherwise it is not-- how would the Chief Justice characterize her standard? What 

is the approximate threshold at which a law should be found ambiguous? Unless 

any disagreement by any single “reasonably well-informed person” would be 

sufficient to trigger a finding of ambiguity, where is this threshold point? If 90 

percent of all “reasonably well-informed persons” believe that the proper 

interpretation of a statute is X, and 10 percent believe that it is Y, or if a judge is 

90% persuaded that the more reasonable interpretation is X, and 10% persuaded 

that it is Y, is there ambiguity? Obviously, the Chief Justice’s threshold for 
32

finding ambiguity falls somewhere below 50%, but approximately where? Are 

there any other areas of the law in which a judge, in the exercise of his 

fundamental obligation to interpret the law, must subordinate his or her own 

judgment concerning the meaning of the law to that of “reasonably well-informed 

[other] persons,” or to any other group of persons? 

 Given that the Chief Justice’s threshold must necessarily be less than 50%, 

why should that level ever be deemed sufficient to allow a judge to dispense with 

the language of a statute or contract as the dispositive factor in determining its 

meaning? That is, if a judge is 51% or 61% or 71% persuaded that some 

interpretation of the law is the better, or the “most reasonable,” interpretation, 

what is the rationale for allowing a judge to interpret the law in some different 

fashion? Why would a judge ever adopt an interpretation that he or she believes is 

the second-best, or the second most reasonable, interpretation? If any 

interpretation of the law, concerning which a judge is less than 100% certain-- say 

a 95% certainty-- will ever permit that judge to adopt such interpretation as the 

better, or the “most reasonable” interpretation, what is the reason why a 51% or 

61% or 71% interpretation should not prevail over a 29% or 39% or 49% 

interpretation-- much less with respect to what the Chief Justice describes as 

“more” interpretations that might be offered, see ante at 31, none of which may 

draw their legitimacy from the words of a statute or contract? Why shouldn’t the 

better, or the “most reasonable,” interpretation always prevail? Absent a perfectly 

clear statute or contract, why should a judge not prefer the 51% or 61% or 71% 
33

interpretation? Why should a 29% or 39% interpretation ever be placed on par 

with a 71% or 61% interpretation? Indeed, why should a definition of ambiguity 

be adopted that allows a judge to determine that neither the 75% nor the 25% 

“most reasonable” interpretations will be adopted? Ante at 31. Why isn’t it fair to 

conclude that the better, or the “most reasonable,” interpretation-- which may be 

the 51% interpretation-- is simply the correct interpretation of the law? 

 The Chief Justice has little interest in parsing § 315(1), little interest in 

explaining why either of the parties’ interpretations are “reasonable” or 

“unreasonable,” and little interest in explaining why, in either constitutional or 

logical terms, her understanding of ambiguity makes sense, much less why it 

makes better sense than what Mayor of Lansing and Klapp have set forth. Instead, 

the Chief Justice is content to proceed, without explanation, upon her 

deconstruction of the law of Michigan. 

E. No Previously-Established Rules 

 After her “analysis” of § 315(1)-- one consuming nearly a full paragraph 

and in which a sideways glance at the sentence immediately preceding the one in 

dispute is apparently seen as excessively rigorous-- the Chief Justice deems the 

statute “ambiguous,” i.e., alternative interpretations could “reasonably apply.” 

She then proceeds to select from among the available “interpretative” tools and 

adopt those that purportedly support her result. Apparently, for every ambiguous 

statute or contract reaching this Court, and there will be many such statutes and 

contracts if the Chief Justice’s position ever prevails, she will re-embark upon this 
34

“interpretative” process, picking and choosing at her discretion from among some 

uncertain array of tools lying “beyond the plain language of the statute [or 

contract].” See Haynes, 477 Mich at 48-49 (Markman, J., concurring), for a 

partial listing of such tools. The litigants will, of course, have no notice 

beforehand of which tools are to be employed, for the justices themselves will not 

know this beforehand. Among the universe of potential tools extending “beyond 

the plain language of the statute [or contract],” the Chief Justice will, by some 

means never quite explained, determine which of these are deemed to be relevant 

in interpreting the statute or contract in that case, and after several turns and twists 

of the mechanisms of her own internal Enigma machine, some result will emerge. 

One result will emerge if the “relevant” legislative history, for example, is the 

Senate committee report, another result will emerge if the “relevant” legislative 

history is the House committee report. Still other results will emerge if the 

“relevant” legislative history is comprised of the statements of the Senate or House 

committee chairman, the floor statements of the Senate or House majority leader, 

the committee testimony of witness A in the Senate or that of witnesses B, C, or D 

in the House, the staff analyses of the House or the Senate, or the floor colloquy of 

two random members of the House or two other random members of the Senate.36 

 36 See, e.g., Nat’l Pride, in which the Chief Justice in her dissent proposed 

to give meaning to an allegedly “ambiguous” provision of our constitution by 

assessing the language of campaign brochures by private organizations, statements 

of the Michigan Civil Rights Commission, the results of a private telephone 

survey, and a “wealth of extrinsic information available.” Nat’l Pride, 481 Mich 
35

All in all, this is a fine process, except that it is not a legal or judicial process. 

Instead, it is a process in which judges in the very guise of selecting the tools and 

factors to be employed in “interpreting” the law are effectively its formulators-- in 

short, judges who are wielding the legislative, not the judicial, power. 

 A critical strength of a judicial philosophy committed to exercising only the 

constitution’s “judicial power” is that reasonably clear rules of decision-making 

are established before the fact. That is, a judge essentially promises the parties 

that he or she will decide their case, as with all others, by attempting to discern the 

reasonable meaning of relevant statutes or contracts and that this will be done by 

relying upon recognized rules, and tools, of interpretation. By contrast, under the 

Chief Justice’s approach to ambiguity, in which there is essentially a limitless 

array of rules, and tools, that may be employed for “defining” the law apart from 

its language, there is no consistently applied interpretative process with which the 

 

at 95-96 (Kelly, J., dissenting). In response, the majority rejected her “apparent 

proposition that any stray bit of historical flotsam or jetsam can serve as guidance 

in giving meaning to the constitution.” Id. at 84 n 25. See also Kelly, The Fatal 

Weakness in the Michigan Supreme Court Majority’s Textualist Approach to 

Statutory Construction, 10 Thomas M. Cooley J Prac & Clinical L 287, 309 

(2008), in which she describes the dissenting justices’ “distrust” of legislative 

history, without evidencing any understanding of the basis for this “distrust,” and 

without recognizing differing attitudes toward different types of legislative history. 

See, e.g., supra note 11. It should not go unremarked that in this case, it is the 

dissent that cites legislative history, albeit a uniquely persuasive and statutorilygrounded type of legislative history, as a relevant factor in interpreting § 315(1), 

while the Chief Justice, the presumed advocate of legislative history, for no 

apparent reason excludes this from her post-ambiguity toolbox. Why? Apparently 

because she can choose to consider this factor if she wants to, and she can choose 

not to consider this factor if she does not want to. 
36

judge promises beforehand to comply. He or she may promise to be “fair,” and he 

or she may seek to be fair, but there are no rules for how this fairness is to be 

achieved. There is only the promise that the judge will address each dispute on a 

case-by-case basis, using whatever rules, and whichever tools, he or she believes 

are required in that instance. And the suspicion simply cannot be avoided that 

these varying and indeterminate rules, and tools, may be largely a function of the 

outcome preferred by the judge and by his or her personal attitudes toward the 

parties and their causes. Any interpretative rules will be identified only after the 

fact, and these “rules” may or may not have been invoked in resolving yesterday’s 

dispute, and may or may not be employed in resolving tomorrow’s dispute. Any 

judge can concoct an after-the-fact rationale for a decision; the judicial process, 

however, is predicated upon before-the-fact rationales. An ad hoc process is not a 

judicial process at all. In the place of predetermined rules-- otherwise understood 

as the rule of law-- the Chief Justice would substitute rules to be determined 

later.37 

 37 The arbitrariness of the Chief Justice’s approach can be glimpsed in 

Haynes, 477 Mich at 45 (Kelly, J., concurring), in which we are instructed that 

whenever ambiguity arises, a judge may consider another jurisdiction’s statute that 

is “substantially similar” to the Michigan statute before him or her. “[Foreign] 

case law interpreting [that jurisdiction’s statute] is instructive with regard to the 

correct interpretation of our statute.” Id. Yet, shortly thereafter in 

DaimlerChrysler Corp v State Tax Comm, 482 Mich at 241 (Kelly, J., concurring 

in the result), we are instructed by the same judge that, “[g]iven that these cases 

involve statutes that differ from Michigan’s statutes, I find them of little assistance 

in determining the proper interpretation of the Michigan statute.” Fair enough; 

distinctions may be legitimately made in these kinds of things. But where there 
37

F. Chief Justice’s Tools in This Case 

 What among the universe of available post-ambiguity tools does the Chief 

Justice choose to consider in reaching her decision here? The Chief Justice states 

that “caselaw,” among other tools, supports her interpretation of § 315(1). In 

evaluating this factor, the Chief Justice mainly invokes broad “public policy” 

considerations. For example, the Chief Justice, citing Harvlie v Jack Post Corp, 

2006 Mich ACO 69, emphasizes that the “WCAC has explicitly recognized the 

importance of holding employers and their insurance carriers responsible for a 

proration of attorney fees pursuant to § 315(1).” Ante at 35. Yet, in Harvlie, this 

“importance” was drawn from the following: “The attorney fee provision of 

Section 315 was designed to promote the assistance of counsel in medical dispute 

cases where there are minimal or no wage loss benefits from which to obtain an 

attorney fee.” 2006 ACO 69, at 3 (emphasis added). In essence, Harvlie found 

that interpreting § 315(1)’s final sentence to require an employer to pay attorney 

fees made it more likely that an attorney would take a case in which the only 

recovery available was based on medical costs. Thus, the “importance” of 

 

are 49 other state jurisdictions in the United States, and thousands of other local 

jurisdictions, and millions of other private contracts entered into in these 

jurisdictions, it would not seem terribly difficult to identify somewhere and 

someplace a statute or contract whose interpretation can be invoked in support of 

an interpretation sought to be obtained in this state. Nor is there any apparent 

reason why in an appropriate case one of the Chief Justice’s amorphous postambiguity tools could not consist of a judicial decision from France, New Guinea, 

or Azerbaijan. See, generally, Roper v Simmons, 543 US 551; 125 S Ct 1183; 161 

L Ed 2d 1 (2005). 
38

enforcing the majority interpretation is based on this putative “design” even 

though the reasoning in Harvlie in no way bears this out. The majority 

interpretation does not obviously “promote the assistance of counsel” because the 

employee’s attorney recovers the same amount-- the contingency fee calculated on 

the recovered medical expenses-- regardless of who pays his fees. See supra notes 

4 and 5. Thus, the supposed “design” set forth in Harvlie is a false one. 

Nonetheless, the Chief Justice insists that this reasoning somehow sustains her 

interpretation and supplies better guidance than the actual words of § 315(1).38 

 The Chief Justice next relies on Boyce v Grand Rapids Asphalt Paving Co, 

117 Mich App 546, 552; 324 NW2d 28 (1982), in which, after resolving a 

workers’ compensation attorney fees dispute on the grounds that an administrative 

rule did not allow an employee to recover fees from a medical provider or 

employer,39 the court proceeded to opine that such a result did not serve “justice.” 

However, whatever an individual judge’s personal sense of “justice,” it is the 

 38 The Chief Justice also cites Harvlie for her “public policy” argument that 

if employers are not held liable for employees’ attorney fees, employers will “have 

an incentive to deny medical benefits.” Ante at 35. Yet, she never examines the 

consequences of the corollary “public policy” wherein employers would be 

penalized by attorney fees even if they have a valid dispute that the employee did 

not “receive[] a personal injury arising out of and in the course of employment.” 

MCL 418.315(1). 

39 The Court of Appeals cases that followed also adhered to this rule. 

Duran v Sollitt Constr Co, 135 Mich App 610; 354 NW2d 277 (1984); Zeeland 

Community Hosp v Vander Wal, 134 Mich App 815; 351 NW2d 853 (1984); 

Nezdropa v Wayne Co, 152 Mich App 451; 394 NW2d 440 (1986). 
39

responsibility of that judge to do “justice under law.” Judges have no proper 

authority to countermand the decisions of the lawmaker by substituting a personal 

sense of “justice” for the justice of the law. I agree that there can be reasonable 

disagreement as to whether the position asserted by plaintiff or by defendants in 

this case is more “just.” However, that question has never been thought to be 

dispositive, or even relevant, in giving meaning to statutes and contracts, and it is 

not made more dispositive or relevant because it was addressed by the lower court. 

Many persons, including judges, may have a strong personal sense of “justice”-- 

how public resources should be apportioned, how rights and responsibilities 

should be understood, how the limits of government should be defined-- but it is 

“justice under law” that is the tool of the trade of the judge and that defines the 

judicial power. Moreover, even if ascertaining what constituted abstract “justice” 

in the instant case did define this Court’s mission, the Chief Justice never even 

purports to explain why her conception of “justice”-- requiring employers to pay 

employee’s workers’ compensation attorney fees-- is somehow superior to 

alternative conceptions of “justice,” including that of the Legislature which has 

chosen to rely upon a different rule than the Chief Justice.40 

 40 “The people have not forfeited lawmaking authority to a judicial 

aristocracy that may simply rewrite laws with which they disagree.” Karaczewski 

v Farbman Stein & Co, 478 Mich 28, 43; 732 NW2d 56 (2007). The Chief 

Justice’s reliance on her own personal brand of “justice” also suffers from the lack 

of virtue of “overturn[ing] compromises made in the legislative process, secondguess[ing] judgments of the lawmaker, and render[ing] the law increasingly 

arbitrary and unpredictable.” Rowland, 477 Mich at 226 (Markman, J., 
40

 The Chief Justice also relies on the WDCA’s “remedial . . . nature” to 

support her interpretation. Ante at 34. The WDCA is indeed remedial, because it 

provides a remedy for employees injured on the job. Yet, the Chief Justice fails to 

explain why this purpose, as important as it obviously is, should be elevated above 

every other purpose of the Legislature. The WDCA is the Legislature’s attempt to 

fulfill at least two purposes: “to ‘provide . . . not only for employees a remedy 

which is both expeditious and independent of proof of fault, but also for employers 

a liability which is limited and determinate.’” Simkins v Gen Motors Corp (After 

Remand), 453 Mich 703, 710; 556 NW2d 839 (1996) (citations omitted).41 By 

arbitrarily establishing priorities among the several purposes of the WDCA, the 

Chief Justice undermines the real-world negotiations and compromises that were 

engaged in by the Legislature. In the place of a statute enacted by a majority of 

 

concurring). It is also strange that, despite relying upon these post-ambiguity tools 

of “justice” and “public policy,” neither the Chief Justice nor any other justice 

even made the slightest effort during oral argument to inquire into anything 

relevant regarding the “justice” or “public policy” of alternative interpretations of 

§ 315(1), such as the economic impact of competing interpretations upon the 

health and competitiveness of Michigan’s businesses, or the impact of competing 

interpretations upon workers’ compensation insurance premiums. One might have 

thought such inquiries to be a useful precondition to judicial decisions predicated 

upon “justice” and “public policy.” 

41 Most workers’ compensation statutes “represent[] a compromise between 

the competing interests of disabled laborers and their employers.” Potomac 

Electric Power Co v Office of Workers’ Compensation Programs Director, 449 

US 268, 282; 101 S Ct 509; 66 L Ed 446 (1980). 
41

the 148 members of the Legislature, the majority interpretation substitutes a statute 

approved only by four judges acting well beyond their proper authority. 

 The Chief Justice then asserts that she is empowered to “construe the act’s 

terms liberally,” ante at 34-- rather than merely “reasonably.” As a result of this 

process, one essentially indistinguishable from a judge asserting his or her right to 

place a thumb on the scales of justice, the Chief Justice proclaims that plaintiff is 

entitled under the WDCA to the greatest possible amount of recovery. Ante at 34. 

Is there anything more to the Chief Justice’s “liberal” construction than that 

plaintiff prevails on everything? Is this all that is implied by a “liberal” 

construction? At what point does the Court decide that its “liberal” construction 

has fully accomplished the goals of the WDCA? When the employee receives all 

that he asks for? When an employer can no longer afford to maintain its 

insurance, or cannot afford to maintain an employee? Does a “liberal” 

construction militate in favor even of a recovery of benefits that is not 

contemplated by the actual language of the WDCA? Having declined from the 

outset to attempt any “reasonable” interpretation of § 315(1), the Chief Justice is 

far more enthusiastic about proclaiming “ambiguity” and immediately proceeding 

to a “liberal” interpretation. That is, in the place of an interpretation that is 

grounded in some meaningful way upon the law itself, the Chief Justice much 

prefers an “interpretation” that is not really an interpretation at all. She engages in 

what is merely a political impulse, rather than any serious construction of the law 

as might once have been expected from a justice of the Supreme Court of this 
42

state. Rather than working to achieve the “best” possible or “most reasonable” 

interpretation of the law, the Chief Justice, apparently fearing that little good 

would come from such an approach, instead exercises a power that does not 

belong to judges under the pretext that she is actually engaging in some genuine 

interpretation of the law, albeit a “liberal” interpretation. While a genuine 

interpretation of the law is designed to achieve as perfect an understanding as 

possible of what the lawmaker has intended, a “liberal” interpretation appears here 

to be little more than a means to achieving a particular result. 

 In short, the Chief Justice invokes her own understanding of ambiguity for 

the purpose of providing some justification for her preferred course of “going 

beyond the plain language of the statute,” and thereby avoiding the difficult 

process of giving fair meaning to a statute, the fair meaning of which may not be 

to her liking. “No judge should manufacture ambiguity.” Paige v City of Sterling 

Hts, 476 Mich 495, 542; 720 NW2d 219 (2006) (Cavanagh, J., concurring in part) 

(emphasis omitted). Yet, there is no longer any need to “manufacture ambiguity” 

in light of the extraordinarily low threshold by which it can be found under the 

Chief Justice’s definition. In virtually every instance in which ambiguity is 

invoked, the Chief Justice would circumvent the actual language of a statute or 

contract in favor of her own notion of how that statute or contract should be 

configured. 
43

G. Stare Decisis 

 After stating that “stare decisis does not apply” to the Mayor of Lansing

standard for determining ambiguity, ante at 14 n 36, the Chief Justice nonetheless 

devotes almost a third of her opinion to rejecting the stare decisis test in Robinson 

v Detroit, 462 Mich 439; 613 NW2d 307 (2000), constructing a new test, and then 

“apply[ing]” it to Mayor of Lansing. It should be emphasized that only one other 

justice is in agreement.42 This leads to several reflections concerning the Chief 

Justice and precedent: 

 (1) The Chief Justice has repeatedly criticized other justices for 

“unnecessarily” overruling precedent.43 What could be less “necessary” than to 

overturn a case she characterizes as nonbinding precedent? The Chief Justice has 

also previously stated that a departure from precedent must be supported by some 

 42 Although the Chief Justice applies her newly-formulated “compelling 

justification” standard to conclude that Mayor of Lansing should be overruled, she 

neglects even to apply her new stare decisis standard to determine whether 

Robinson itself should be overruled. In this regard, see also infra note 47. 

43 See, for example, People v Smith, 478 Mich 292, 331; 733 NW2d 351 

(2007) (Kelly, J., dissenting); Rowland, 477 Mich at 248 (Kelly, J., concurring in 

part and dissenting in part); Joliet v Pitoniak, 475 Mich 30, 46; 715 NW2d 60 

(2006) (Kelly, J., dissenting); Rory v Continental Ins Co, 473 Mich 457, 492; 703 

NW2d 23 (2005) (Kelly, J., dissenting); People v Hickman, 470 Mich 602, 618; 

684 NW2d 267 (2004) (Kelly, J., dissenting); People v Kazmierczak, 461 Mich 

411, 427; 605 NW2d 667 (2000); (Kelly, J., concurring in part and dissenting in 

part); Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 749; 614 NW2d 

607 (2000) (Kelly, J., concurring in part and dissenting in part). 
44

“special justification.”44 What “special justification” could exist to overrule a case 

that she does not consider formally binding precedent?45

 (2) Given that in this case the Chief Justice would expressly overrule, not 

one, but two of this Court’s prior decisions, 

one is naturally tempted to re-inquire, see Rowland v Washtenaw Co 

Rd Comm, 477 Mich 197, 223-228; 731 NW2d 41 (2007) 

(Markman, J., concurring), whether the ongoing dispute between the 

[former] majority and Justice Kelly over overrulings of precedent 

truly concerns attitudes toward stare decisis or merely attitudes 

toward particular previous decisions of this Court. [People v Smith, 

478 Mich 292, 322-323 n 17; 733 NW2d 351 (2007).] 

“A justice’s perspective on stare decisis is not evidenced by her willingness to 

maintain precedents with which she agrees, but by her willingness to maintain 

precedents with which she disagrees.” Rowland, 477 Mich at 224-225 n 3 

(Markman, J., concurring). Now that the Chief Justice is positioned to overrule 

decisions with which she disagrees, her actions increasingly demonstrate that her 

former claims of fealty toward stare decisis were considerably overstated. Despite 

all her rhetoric concerning the importance of stare decisis for the exercise of the 

judicial power, see, e.g., her hollow claim that she possessed a “differing [and 

 44 See, for example, People v Gardner, 482 Mich 41, 85; 753 NW2d 78 

(2008) (Kelly, J., dissenting); Rowland, 477 Mich at 254 (Kelly, J., concurring in 

part and dissenting in part); People v Davis, 472 Mich 156, 189; 695 NW2d 45 

(2005) (Kelly, J., dissenting); Hickman, 470 Mich at 616 (Kelly, J., dissenting); 

Robinson, 462 Mich at 476 (Kelly, J., concurring in part and dissenting in part). 

45 Contrary to the Chief Justice’s assertion, ante at 28 n 63, nowhere in this 

opinion is it stated that a standard for ambiguity is or is not “entitled to [stare 

decisis]” consideration. 
45

elevated] esteem for stare decisis” than another justice, People v Gardner, 482 

Mich 41, 88 n 31; 753 NW2d 78 (2008), such rhetoric was in reality little more 

than a means of communicating her opposition to overruling particular past 

decisions with which she agreed.46 

 (3) As I also asserted in Rowland, 477 Mich at 26:

[N]o meaningful discussion of a court’s attitude toward 

precedent can be based solely on an arithmetical analysis in which 

raw numbers of overrulings are simply counted. Such an analysis 

obscures that not all precedents are built alike, that some are better 

reasoned than others, that some are grounded in the exercise of 

discretionary judgments and others in the interpretation of plain 

language, that some are thorough in their analyses and others 

superficial. 

The chart attached to my concurring opinion in Rowland demonstrates that the 

former majority’s overrulings of precedent overwhelmingly occurred in cases 

involving what the then-majority justices viewed as the “misinterpretation of 

straightforward words and phrases in statutes and contracts, in which words that 

were not there were read into the law or words that were there were read out of the 

law.” Id. at 226, 228-247. In contrast, the new majority’s overrulings of 

 46 The Chief Justice also stated in Gardner, 482 Mich at 87, that “stare 

decisis requires that we give those [earlier] decisions thoughtful and thorough 

consideration before tossing them aside.” See also Rowland, 477 Mich at 256 

(“The law has not changed. Only the individuals wearing the robes have changed. 

It is amazing how often the members of this majority have declared themselves 

more capable of understanding the law and reaching the “right” result than any 

justice who sat before.”) (Kelly, J., concurring in part and dissenting in part); 

Davis, 472 Mich at 190 (overruling multiple cases “destabilizes our state’s 

jurisprudence. It suggests to the public that the law is at the whim of whoever is 
46

precedent has moved toward just the opposite result, replacing decisions that 

sought to give reasonable meaning to the words of the law with decisions in which 

“words that were not there were read into the law or words that were there were 

read out of the law.” That is, when the previous majority overruled a precedent, it 

was to ensure that the decisions of this Court more closely reflected the judgments 

of the people’s elected legislative representatives and it was to more closely align 

case law and statutory law. By contrast, when the new majority has overruled, or 

at least ignored, a precedent, it has been to create a greater disparity between that 

case law and the statutory law. 

 (4) Indeed, since Chief Justice Kelly became a part of the new majority, 

this majority has dealt with precedents it did not like in an especially inappropriate 

manner-- by simply ignoring them. In the interest of clearing the law of this state 

of multiple and inconsistent precedents on the same matters of law, the former 

majority forthrightly and explicitly overruled precedents and never sought to 

obscure this process or to misleadingly minimize the number of overturned 

precedents, by either ignoring disfavored precedents or by dubiously 

“distinguishing” prior case law. Doubtlessly, because it is cognizant of the gap 

between its past rhetoric extolling the importance of stare decisis and its present 

actions disregarding stare decisis, the new majority has made an increasingly 

 

sitting on the Supreme Court bench. Surely, it erodes the public’s confidence in 

our judicial system.”). 
47

regular practice of simply ignoring inconvenient precedents.47 As a result for 

years to come, the clear rule of law will be stunted in this state as legal 

 47 See, e.g., Vanslembrouck v Halperin, 483 Mich 965 (2009), an order 

entered in which the new majority ignored Vega v Lakeland Hosps, 479 Mich 243; 

736 NW2d 561 (2007); Hardacre v Saginaw Vascular Services, 483 Mich 918 

(2009), an order in which it failed to follow Boodt v Borgess Med Ctr, 481 Mich 

558; 751 NW2d 44 (2008); Sazima v Shepherd Bar & Restaurant, 483 Mich 924 

(2009), an order in which it failed to follow Chrysler v Blue Arrow Transport 

Lines, 295 Mich 606; 295 NW 331 (1940), and Camburn v Northwest School Dist 

(After Remand), 459 Mich 471; 592 NW2d 46 (1999); Juarez v Holbrook, 483 

Mich 970 (2009), an order in which it failed to follow Smith v Khouri, 481 Mich 

519; 751 NW2d 472 (2008); Beasley v Michigan, 483 Mich 1025 (2009), an order 

in which it failed to follow Rowland; Scott v State Farm Mut Automobile Ins Co, 

483 Mich 1032 (2009), an order in which it failed to enforce Thornton v Allstate 

Ins Co, 425 Mich 643; 391 NW2d 320 (1986), and Putkamer v Transamerica Ins 

Corp of America, 454 Mich 626; 563 NW2d 683 (1997); Chambers v Wayne Co 

Airport Auth, 483 Mich 1081 (2009), an order in which it again failed to abide by 

Rowland; and Bush v Shabahang, 484 Mich ___; ___ NW2d ___ (issued July 29, 

2009, Docket Nos. 136617, 136653, and 136983), in which it ignored Roberts v 

Mecosta Co Gen Hosp (After Remand), 470 Mich 679; 684 NW2d 711 (2004) 

(Roberts II). 

In addition to ignoring precedents altogether, see Potter v McLeary, 484 

Mich ___; ___ NW2d ___ (issued July 31, 2009, Docket No. 136336), in which 

the new majority avoided overruling Roberts II, for an illustration of a seriously 

dubious “distinguishing” of precedent. Such treatment of inconvenient 

precedents, reflected also in the Chief Justice’s “comprehensive response” to these 

charges, ante at 28 n 63, which cites Potter, 484 Mich at ___ (Kelly, C.J., 

concurring), may well reduce the number of occasions on which precedents have 

been explicitly overruled, but they do nothing to uphold the values of stare decisis, 

which would seem to be the whole purpose of the exercise, while allowing 

multiple and inconsistent precedents to define the law of this state. In the end, 

there is no shortcut to resolving whether the new majority or the dissenting 

justices are correct in their characterizations of what the majority is doing. We 

can only identify what we believe to be the questionable decisions of the majority, 

identify the relevant precedents, and invite the reader to reach his or her own 

conclusions. 
48

practitioners and judges will be able to pick and choose between competing and 

inconsistent precedents. 

 (5) The Chief Justice concludes that Robinson’s standard for overruling 

binding precedent is “insufficiently respectful of precedent” because “not once has 

the Court cited it as a basis for upholding a prior decision.” Ante at 16-17. The 

Chief Justice, however, fails to illuminate the reader as to the number of occasions 

on which she has concluded that binding precedent was wrongly decided and yet 

joined an opinion maintaining that precedent. Perhaps, this is because the answer 

is “never.” Not once has the Chief Justice joined an opinion finding a “compelling 

justification,” or any other basis, for upholding a prior decision that she believed 

was wrongly decided.48 More to the point, however, in disparaging the impact of 

Robinson, the Chief Justice disregards that cases in which Robinson would have 

been viewed as militating against an overruling of precedent would have been 

 48 The Chief Justice responds that she has not upheld what she viewed as a 

wrongly decided precedent under the “compelling justification” standard because 

that “has never been the standard in Michigan during [her] years as a justice.” 

Ante at 28 n 63. However, the point is that, even under her own similar “special 

justification” standard, see, e.g., Gardner, 482 Mich at 85 (Kelly, J., dissenting), 

or under any other standard, the Chief Justice has never joined an opinion to 

uphold what she viewed as a wrongly decided precedent. Her application of her 

“special justification” standard also belies her claim that she “followed Robinson

in subsequent cases.” Ante at 29 n 63. 
49

precisely those cases in which there never would have been an opinion issuing 

from this Court in the first place.49 

 (6) In response to my concurring opinion in Rowland, then-Justice Kelly 

stated: 

 Justice Markman challenges me to develop my “own 

standards” concerning when I would overturn precedent. But I have 

no need to create my own standards when well-reasoned standards 

have been established in the laws of this country for over 150 years. 

As noted in McDowell [v Oyer, 21 Pa 417, 423 (1853)], when 

precedents are “free from absurdity, not mischievous in practice, and 

consistent with one another,” they should be retained. McDowell, 21 

Pa at 423. I would not lightly adopt new rules to guide my judicial 

philosophy when traditional tools used by courts throughout their 

history continue to serve well. [Rowland, 477 Mich at 255 n 8 

(Kelly, J., concurring in part and dissenting in part).] 

However, the Chief Justice now apparently finds it necessary to depart from the 

150-year old standard that she has previously hailed to fashion her own new 

“compelling justification” standard, with its seven evaluative criteria, and we are 

 49 The Chief Justice also neglects to mention that Robinson, 462 Mich at 

466 n 26, expressly identified two illustrative cases it likely would not have 

overruled even if it believed they had been wrongly decided. Massey v Secretary 

of State, 457 Mich 410; 579 NW2d 862 (1998), the case upholding term limits, 

and Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441; 208 

NW2d 469 (1973), this Court's initial advisory opinion with regard to automobile 

no-fault insurance. See also People v Lively, 470 Mich 248, 259; 680 NW2d 878 

(2004), (Markman, J., concurring) (finding it unnecessary to determine whether 

longstanding precedent should be overruled under Robinson standards); People v 

Starks, 473 Mich 227, 251; 701 NW2d 136 (2005) (Markman, J., joining 

concurring opinion stating it was unnecessary to overrule a prior case). 
50

left to ponder why she no longer views the “free from absurdity, not mischievous 

in practice, and consistent with another” standard as a sufficient test.50 

 Moreover, it is perplexing why the Chief Justice feels that it is necessary to 

overrule Robinson and replace it with her new test given the similarity of these 

standards.51 Why, to use her own standards, is this “necessary” and what is the 

 50 It also should not be lost on the reader that these criteria are nothing more 

than a hodgepodge thrown together without any prior case law in support. Given 

her criticism that the test for ambiguity set forth in Mayor of Lansing was made up 

out of “thin air,” ante at 11, one might think the Chief Justice would be especially 

careful to identify at least one or two courts that have utilized her own new 

criteria. 

51 Under the Chief Justice’s standard, stare decisis analysis “begin[s] with 

the presumption that upholding the precedent involved is the preferred course of 

action.” Ante at 17. Under Robinson, “[s]tare decisis is generally ‘the preferred 

course.’” Robinson, 462 Mich at 463 (citation omitted). Under the Chief Justice’s 

standard, we are to consider whether the precedent “has proven to be intolerable 

because it defies practical workability.” Ante at 21. Under Robinson, we 

considered “whether the precedent “defies ‘practical workability.’” Robinson, 462 

Mich at 464. Under the Chief Justice’s standard, a court is to consider “whether 

reliance on the [precedent] is such that overruling it would cause a special 

hardship and inequity.” Ante at 21. Under Robinson, we considered “whether 

reliance interests would work an undue hardship.” Robinson, 462 Mich at 464. 

Under the Chief Justice’s standard, we are to consider “whether related principles 

of law have so far developed since the rule was pronounced that no more than a 

remnant of the rule has survived.” Ante at 21. Under Robinson, we considered 

“whether changes in the law . . . no longer justify the questioned decision.” 

Robinson, 462 Mich at 464. Under the Chief Justice’s standard, we are to consider 

“whether facts and circumstances have so changed, or come to be seen so 

differently, as to have robbed the old rule of significant application or 

justification.” Ante at 18. Under Robinson, we considered “whether changes in 

the . . . facts no longer justify the questioned decision.” Robinson, 462 Mich at 

464. Under the Chief Justice’s standard, we are to consider “whether other 

jurisdictions have decided similar issues in a different manner.” Ante at 21. 

Under Robinson, we considered both the “practical workability” of the questioned 

decision and “changes in the law,” under which decisions from other jurisdictions 
51

“compelling justification” for doing this? Indeed, given the Chief Justice’s 

statements that the “application [of Robinson] has proven superficial and cursory,” 

ante at 16, and that Robinson, “as previously applied” is “insufficiently respectful 

of precedent,” ante at 17, one has to wonder whether her real concern is not with 

the Robinson test itself, but merely with what she views as the misapplication of 

that test. 

V. CONCLUSION 

 I would reverse the Court of Appeals because the final sentence of MCL 

418.315(1) does not allow a magistrate to assess an employee’s attorney fees 

 

could be used to address each factor. Robinson, 462 Mich at 464. Under the 

Chief Justice’s standard, we are to consider “whether upholding the rule is likely 

to result in serious detriment prejudicial to public interests.” Ante at 21. Under 

Robinson, we considered both the “practical workability” of the questioned 

decision and “changes in the law or facts that no longer justify the questioned 

decision,” Robinson, 462 Mich at 464, and each of these factors gave 

consideration, in the Chief Justice’s language, to “whether upholding the rule is 

likely to result in serious detriment prejudicial to public interests.” Ante at 21. 

 The final factor in the Chief Justice’s new test-- “whether the prior decision 

was an abrupt and largely unexplained departure from precedent,” ante at 21-- 

ignores two aspects of this Court’s former approach to stare decisis. First, by 

establishing a “lower level of deference” for cases that themselves have overruled 

precedent, the Chief Justice disregards that the particular precedents she so 

disfavors themselves often overruled decisions that “depart[ed] from precedent.” 

Ante at 21. See the chart in Rowland, 477 Mich at 228-247 (Markman, J., 

concurring), for a list of such decisions. Does the Chief Justice take this into 

account in her calculus? Second, I can only invite those interested in the workings 

of their judiciary to read the decisions of this Court in which the former majority 

overruled precedent, see id. at 223, and compare these with the decisions in which 

the new majority has now overruled or ignored precedent, see supra note 47, and 

assess which of these have been most “unexplained” or “abrupt.” 
52

against the employer. Rather, that sentence only allows a magistrate to divide 

attorney fees among medical providers when the magistrate has ordered direct 

payment for medical expenses from the employer to those providers. 

Stephen J. Markman 

Maura D. Corrigan