# Park v. Employment Security Commission

> Michigan Supreme Court · June 8, 1959 · 355 Mich. 103

URL: https://www.frixlaw.com/law-library/cases/9713069

## Case

- **Full name:** Park v. Employment Security Commission; Dorsey v. Same
- **Court:** Michigan Supreme Court
- **Decided:** June 8, 1959
- **Citations:** 355 Mich. 103; 94 N.W.2d 407
- **Precedential status:** Published
- **Opinion:** Concurrence by Black
- **Judges:** Smith, Black, Voelker, Edwards, Kelly, Carr, Dethmers, Smyth, Yoelker, Kavanagh
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9713069

## Opinion text

Black, J.
(concurring in reversal). The majority opinion of Chrysler Corp. v. Smith (1941), 297 Mich 438 ( 135 ALR 900 ), looks in vain for a defender around our conference table. No one here is quite so bold as to do it reverence. Yet the Chief Justice would have us consecrate — and so perpetuate — the *142 tragic and now conceded * blunder made by Chrysler’s majority when tbe statutorily-employed word “establishment” was construed, over sharp and unerring dissent, in such manner as to deny unemployment benefits to thousands of industrial employees; employees we now know were rightfully entitled to such benefits.
Admitting that Chrysler’s minority was and is right, the Chief Justice interposes the perennially ■debated rule of stare decisis — in its most extreme and wholly discredited form of judicial self-stultification — as a pronounced bar to correction by this Court of its so confessed error. In plain bread and butter words, the asserted position amounts to no more than this: Because, in 1941, an irreparable injustice was committed by the Court against a multitude of Chrysler employees — the legislature since having remained disinterested in correction by its hand of our grievous misinterpretation at that time, — the Court in 1959 must equally oppress thousands more of correspondingly situated Ford employees; indeed, must continue such oppression in future like cases until the legislature directs •otherwise. Thus rudely denuded, we behold the .altiloquent notion that stare decisis renders judicial ■error — of statutory interpretation — frozen-final so *143 far as the errant appellate court is concerned.. Needless to say, we reject both the notion and its. disreputable postulates.
This disputed ground has recently been fought upon, inconclusively so far, by our divided membership. In Sheppard v. Michigan National Bank, 348 Mich 577, 596-603 , Mr. Justice Smith — supported by Justice Voelker and the writer — hewed the reasoned and authoritative answer to this proposition that a court of last resort has but one fateful' and irretrievable opportunity to construe a standing statute. In the nest ensuing term the issue was skirmished again, this time to a 4r-4 draw. See Van Dorpel v. Haven-Busch Co., 350 Mich 135, 145-155 , wherein Mr. Justice Voelker, supported by Justices-Smith and Edwards and the writer, seized and shook “this beguiling doctrine” (that if a legislature “delay long enough to correct our errors those errors thus-become both respectable and immutably frozen”) and found that it amounted to outright abdication of judicial responsibility and a fast pass of duty-buck to a coy and wary legislature. It is time that this unseemly duel be brought to an end, and so it is ordained by majority signature this day of Mr. Justice Edward’s foregoing opinion; an opinion which definitely commits this Court to the not-so-formalistic view of stare decisis one finds in the above identified opinions of Justices Smith and' Voelker. * More should be said, though, lest our interpretation of the doctrine of stare decisis (as- *144 applied to the cases now here) be construed in some eager quarters as complete disregard of a judicial rule which, in its proper setting of discretionary application, the undersigned have always respected and continue to respect.
In these early days of 1959, no member of this Court may pretend unawareness of the stark fact that the philosophic debate shown in Sheppard and Van Dorpel has boiled to high temperature at national jurisprudential levels. From the current “outburst of criticism” one naturally would gather that discretionary, distinguished from monolithic, application of stare decisis is something new and repugnant to proper judicial conduct; that the practice threatens our liberties and free institutions, and that legislation (by constitutional amendment or otherwise) is necessary to curb present-day appellate judges whose view of stare decisis is not that of rigid adherence to the formulas of former adjudication (see “The Supreme Court Must Be Curbed,” U. S. News and World Report, May 18,1956, p 50; “A Court Under Fire,” U. S. News and World Report, March 21, 1958, p 58; “Supreme Court: A Critical Look by State Justices,” U. S. News and World Report, August 29, 1958, p 62; “What a State Chief Justice Says About the Supreme Court,” U. S. News and World Report, December 12, 1958, pp 88-93, and the “Crusade” of Dozier A. De Yane, “until recently chief judge of the U. S. District Court for Northern Florida,” U. S. News and World Report, December 26, 1958, p 67). Now let us examine this “outburst” in the light of that which surely was respectable in the known days of judicial respectability.
In 1910, long before such outburst was manufactured and launched, the following levelheaded definition of stare decisis appeared in the official re *145 ports (Hertz v. Woodman, 218 US 205, 212 [ 30 S Ct 621 , 54 L ed 1001]):
“The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed, or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided.”
In 1932 Mr. Justice Brandéis recorded his enduring epigram that “Stare decisis is not, like the rule of res judicata, a universal, inexorable command.” (Burnet v. Coronado Oil & Gas Co., 285 US 393, 405 [ 52 S Ct 443 , 76 L ed 815].) From that point, and having approvingly quoted Hertz’ rule as above, the Justice went on to say:
“Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. Compare National Bank v. Whitney, 103 US 99, 102 (26 L ed 443, 444). This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. * But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.” (pp 406-408 of Burnet’s report.)
In Helvering v. Hallock, 309 US 106, 119-121 ( 60 S Ct 444 , 84 L ed 604, 125 ALR 1368 ), the Court came to grips with today’s identical controversy. Having found an earlier rule of statutory construc *146 tion quite untenable, the court was immediately confronted by a contention tbat congress, having failed to correct the court’s error, had perforce ratified that error and thus had rendered it immune from judicial correction. The court (pp 119-122) said (Justices Roberts and McReynolds dissenting):
“We recognize that stare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psycho-logic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience. * † * *
“Nor does want of specific congressional repudiations of the St. Louis Union Trust Cases serve as an implied instruction by congress to us not to reconsider, in the light of new experience, whether those decisions, in conjunction with the Klein Case, make for dissonance of doctrine. It would require very persuasive circumstances enveloping congressional silence to debar this court from re-examining its own doctrines. To explain the cause of nonaction by congress when congress itself sheds no light is to venture into speculative unrealities. * * * Various considerations of parliamentary tactics and strategy might be suggested as reasons for the inaction of the treasury and of congress, but they would only be sufficient to indicate that we walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle.
“This court, unlike the House of Lords, has from the beginning rejected a doctrine of disability at self-correction. * * * The real problem is whether *147 a principle shall prevail over its later misapplications. Surely we are not bound by reason or by the considerations that underlie stare decisis to persevere in distinctions taken in the application of a statute which, on further examination, appear consonant neither with the purposes of the statute nor with this court’s own conception of it.”
Here, then, is our contributed view that stare decisis is a discretionary rather than obstinate rule of judicial conduct. Fairly analyzed, it declares that appellate courts should adhere to precedent save only when due consideration leads to firm conviction that the earlier decision or decisions in scrutiny are wrong as well as unjust, and that more rather than less injustice will flow from perpetuation of that which is found erroneous.
Those rare cases, usually involving the law of property, where the litigant citing an earlier decision or decisions is shown as having acted in reliance thereon, * have not been overlooked. In such instance the Court, having determined to overrule, may make its overruling decision prospective in effect (Donohue v. Russell, 264 Mich 217 ; followed in Metsen v. Department of Revenue, 310 Mich 622, 629 , and Gentzler v. Constantine Village Clerk, 320 Mich 394, 398 ). In these cases of Park and Dorsey, there is and could be no such claim that the employer — or any interested party — acted or proceeded in any way on strength of Chrysler’s ill-starred majority opinion.
We would advert to a further test of that which is pleaded in bar of Chrysler’s rejection. Michigan reports of the past 2 decades disclose curious disinterest in this doctrine of legislative ratification *148 of judicially announced interpretation of a statute when the shoe of interpretation is on the other foot. Why, when original liberal constructions of Michigan’s other great remedial statute (the workmen’s compensation act) were regularly being repudiated here in favor of noose-tightening constrictions of the same unamended statutory provisions, did some Justice not rise to point out that a quiescent and acquiescent legislature had approved the original interpretation or interpretations and so had left the Court powerless to do other than follow its earlier precedents? A perfect example of this failure will be found in the rough life — between Luteran in 1946 and Dyer in 1957 * — of Haller v. City of Lansing, 195 Mich 753 (LRA1917E, 324), and Brink v. J. W. Wells Lumber Co., 229 Mich 35 . Dyer tells the story this way:
“Haller (1917) and Brink (1924) were written into our reports by distinguished predecessors composing the so-called Fellows Court. Presumably, they knew more about the background and intended scope of the pivotal phrase — ‘arising out of and in the course of his employment,’ — found in original and present section 1 of part 2 of the workmen’s compensation act, than we do. The Court members of that day ‘were there,’ as the saying goes, and they tell us through Haller and Brink of original and steadfast legislative will that such phrase extend its protective range to a reasonable time and space for the employee to approach and leave the locality or zone of his work.” (p 95)
“With changes of personnel here, unfortunate changes of interpretive thought reared themselves. No intervening amendment of the statute brought this about. Inapposite yet contagious notions re *149 corded in Daniel, Hickman and Pilgrim —imported from Massachusetts and renounced this day in Freiborg v. Chrysler Corporation, 350 Mich 104 ,—de-scended unnoticed on Haller and Brink and resulted finally in flat repudiation of both.” (p 94)
Haller (as noted with detail in Mack v. Reo Motors, Inc., 345 Mich 268, 278-280 ) once was “a leading case in this country;” yet it was too liberal an interpretation of said section 1 for the composition of the Court as it stood between 1946 and 1956. So Haller , having first been questioned in Luteran and then airily cast aside in Hickman v. City of Detroit, 326 Mich 547, 550 , was finally overruled with no word—then or at any other time—for legislative “acquiescence” in Haller’s construction of said section 1; a construction which had governed relevant application and administration of said section 1 for at least 29 years.
Are we to understand, from all this, that the asserted aphorism of legislative ratification applies only when the decision to overrule results in a more liberal interpretation of the once-interpreted statute? Let there be forthright answer. E or our part the doctrine is and will be recognized only for what it has always been, that is to say, legislative acquiescence is but one of the many considerations by which an appellate court arrives at a determination to follow or overrule an earlier precedent of challenged and doubtful validity. It is a persuasive but *150 not necessarily controlling factor and, in the language of text-amended American Jurisprudence, “must give way to overriding considerations under cogent circumstances.” Such overriding considerations are definitely present at this sitting, and no member of the Court is willing or able to defend that which we now overrule.
To conclude: In his opinion Mr. Justice Edwards has appropriately referred to the thoroughly considered and painstakingly documented thesis appearing in current issue of Michigan Law Review (57 Mich L Rev, December, 1958, p 151 et seq.). There the reader will find proof that stare decisis has never been allowed to stand in the way of necessary and righteous correction of the judicial process by judicial process, and that self-reversal has taken place by order of distinguished judges from as far back as the time of John Marshall. The title is “ ‘Overruling’ Opinions In The Supreme Court.” It lends to this opinion an appropriate conclusion (p 183):
“Here * * * is a discussion of the judicial discretion which leads to overrulings, and a presentation of some of the criteria which determine when the exercise of that discretion was ‘necessary,’ ‘justified’ or possibly ‘unwarranted.’
“Here also is a plea for more definite and expressed overrulings — and a plea for the proposition that it is ‘the duty of every judge and every court to examine its own decisions, * * * without fear, and to revise them without reluctance.’ For there is nothing wrong with a public confession of error. It is, of course, far more important that the Supreme Court be right than that it be consistent. It is far more important that the law be definite than that discredited and outmoded doctrine be permitted to survive.”
*151 By these presents we concur unreservedly in the foregoing opinion of Mr. Justice Edwards.
Smyth and Yoelker, JJ., concurred with Black, J.
Kavanagh, J., did not sit.
Our admission that Chrysler’s majority erred is fully chronicled with release of present opinions. In the first instance Mr. Justice •Carr, then the circuit judge whose decision was reviewed in Chrysler, reasoned with Chrysler’s minority that “plaintiff’s (Chrysler) different plants must be regarded as separate establishments insofar as the application of section 29, subd (d) is concerned.” Now, by the opinion he has proffered for signature in the cases before us, the Chief Justice says — “Were this a matter of first impression” — he would find himself in agreement with Ghrysler’s minority. Einally, & more members of the Court as now composed have agreed that Chrysler’s majority dialectic (that all involved units of Chrysler Corporation “constitute one ‘establishment’ within the meaning of that term as ■employed in the act”) should at long last be set right. (See above ■opinion of Mr. Justice Edwards.) Thus our confession of Chrysler’s mistake, if not exactly hearty, so far stands unopposed in these ■chambers.
Note how Arrow Builders Supply Corp. v. Hudson Terrace Apartments, Inc., 15 NJ 418 ( 105 A2d 387 ), cited and quoted by Mr. Justice Voelker in Van Dorpel at pages 150-152, has brought about a-recent reeast of the text of American Jurisprudence (see 14 Am Jur, 1958 Cum Supp, Courts, § 66, p 47). The text, citing Arrow, is now decidedly modified as follows:
“The principles of stare decisis and legislative acquiescence in the judicial interpretation of statutes are not absolute, however, and must give way to overriding considerations under cogent circumstances.”
Here, as footnote 1, Justice Brandéis listed a number of authorities in support of this terse explanation: “This Court has, in matters deemed important, occasionally overruled its earlier decisions' although correction might have been secured by legislation.”
“The picture of the bewildered litigant lured into a course of action by the false light of a decision, only to meet ruin when the light is extinguished and the decision overruled, is for the most part a figment of excited brains.” (Mr. Justice Cardozo in The Growth of the Law, p 122.)
The references are to Luteran v. Ford Motor Co., 313 Mich 487 and Dyer v. Sears, Roebuck & Company, 350 Mich 92 .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9713069. Public record. Not legal advice.