Shavers v. Attorney General

Fitzgerald, J.

(concurring in part, dissenting in *666 part). I write to make a few brief observations. I would uphold the constitutionality of the challenged provisions of 1972 PA 294 , MCL 500.3101 et seq.; MSA 24.13101 et seq., as amended. At this juncture, the act, under our traditional due process and equal protection standards, is a reasonable legislative method of assuring that victims of automobile accidents are promptly and adequately compensated.

The gist of plaintiffs’ many complaints about the no-fault insurance act is that the act is a heavy-handed solution to non-existent problems in a workable tort system. Plaintiffs miss the point. Justice Levin’s observation in Manistee Bank & Trust Co v McGowan, 394 Mich 655, 680 ; 232 NW2d 636 (1975), is pertinent:

"Courts should proceed cautiously and should defer to legislative judgments which are reasonable. The Legislature must be free to experiment without being required to attain 'mathematical nicety’ in its formulation of remedies to social and economic problems.”

I would not remand any of the issues in this case for a factual determination. Because this case arises in a declaratory judgment posture, the "facts” to be gleaned on remand must necessarily be somewhat speculative. I see nothing to be gained by remanding for more current discourse on plaintiffs’ perceived evils of the no-fault system. The act is not yet beyond the experimental stages.

I, too, am concerned about the procedural due process issue. I cannot, however, conscientiously reach the merits of that issue in the posture of this case. Footnote 14 of the majority opinion shows that the constitutionality of compulsory no-fault insurance in the context of rate-setting procedures was not appealed to this Court. The "actual *667 controversy” requirement for issuance of a declaratory judgment might well be met had plaintiffs raised the issue. 1 Plaintiffs may have standing to raise the issue and the question may be ripe for decision, but the fact remains that plaintiffs did not question procedural due process in rate regulation or insurance availability. I suspect the litigants will be quite surprised at the outcome of this case.

Assuming arguendo that the issue of the merits of compulsory insurance/procedural due process was before us, I can not find a constitutional due process violation without a factual record. I do not address possible due process violations based on the entitlement doctrine relied upon by the majority because to do so does not square with my conception of the process that is due litigants from the court system.

I cannot say the question of due process protections arises in a case where no plaintiff has claimed an entitlement or a denial of due process. Due process does not exist in a vacuum. The leading entitlement cases spring from a ruling adverse to the plaintiff. See, for example, Bundo v Walled Lake, 395 Mich 679 ; 238 NW2d 154 (1976) (refusal to renew liquor license); Bell v Burson, 402 US 535 ; 91 S Ct 1586 ; 29 L Ed 2d 90 (1971) (suspension of driver’s license); Goldberg v Kelly, *668 397 US 254 ; 90 S Ct 1011 ; 25 L Ed 2d 287 (1970) (termination of welfare benefits); Board of Regents v Roth, 408 US 564 ; 92 S Ct 2701 ; 33 L Ed 2d 548 (1972) (refusal to grant tenure); Arnett v Kennedy, 416 US 134 ; 94 S Ct 1633 ; 40 L Ed 2d 15 (1974) (dismissal of Federal civil servant); and Bishop v Wood, 426 US 341 ; 96 S Ct 2074 ; 48 L Ed 2d 684 (1976) (dismissal of policeman).

The law on the entitlement doctrine is not so clear but that I feel an adversary presentation is necessary to decide whether an entitlement exists. Likewise, such a presentation is needed to decide whether the requisite state action is present. 2 Moreover, determining what due process protections are required by the Constitution ought to involve a balancing of the interests of consumers, insurance companies and the state agency charged with regulating the insurance industry. 3 I would *669 prefer to hear what those interests are 4 before deciding what is minimally required to satisfy due process.

While there may come a time when the people of the State of Michigan deserve an opinion on a question not raised by the litigants, requiring us to assume facts not in the record, the instant case does not warrant such judicial initiative. I would not today take judicial action to precipitate a crisis at the risk of hasty and ill-conceived reform. At this juncture I would leave what some perceive as a crisis in the hands of those who best understand the problems and solutions.

In a proper case, at another time when the procedural due process issue is properly raised, and a factual record is developed so that we can determine whether or not "rates are * * * , in fact, 'excessive, inadequate or unfairly discriminatory’ ”, my decision could be otherwise. This Court should bide its time until that proper case arrives.

I cannot accept the majority’s attempt to soften the blow by holding the act unconstitutional at some future date if no legislative or agency action is taken. As authority for that procedure, Robinson v Cahill, 62 NJ 473; 303 A2d 273 (1973), is *670 cited. That decision, invalidating New Jersey’s method of financing public schools through local and ad valorem taxation of real property, is now commonly referred to as Robinson I. A look at the later history of that case convinces me that this Court ought not follow a similar procedure. 5

In sum, today’s action by the majority potentially junks a workable solution to a problem of importance to the entire population and dictates to the Legislature in a manner neither seemly nor called for. The Court embarks on a perilous course of grave consequence to everyone.

While the declaratory judgment rule, GCR 1963, 521, is to be liberally construed and administered, the granting of a declaratory judgment is still a matter of judicial discretion. To raise an issue sua sponte on appeal from a lower court declaratory judgment is extraordinary. I am puzzled by the majority’s statement that "before affirmative declaratory relief can be granted, it is essential that a plaintiff, at a minimum, pleads facts entitling him to the judgment he seeks and proves each fact alleged, i.e., a plaintiff must allege and prove an actual justiciable controversy” and reference to Kuhn v East Detroit, 50 Mich App 502 ; 213 NW2d 599 (1973), Iv den, 391 Mich 815 (1974). I read Kuhn as strong authority for not deciding the procedural due process issue here.

One author offers the following observation concerning Pennsylvania’s insurance rate-making scheme, which appears essentially similar to our own:

"Pennsylvania’s insurance rate regulation procedure, despite its failure to provide for public notice and hearing before rates go into effect, does not appear susceptible to challenge under the due process clause of the fourteenth amendment. It is unlikely that a court would consider the state’s role in the process to constitute state action. Nor, if the public utility analogy is employed, do consumers have a property interest in fixed insurance rates.”

He goes on to say:

"The lack of serious constitutional objections to the present rate-making scheme suggests that the resolution of the problem may lie in legislative rather than judicial hands.”

Lewis, Comment: Insurance Rate Regulation in Pennsylvania: Does the Consumer Have a Voice?, 81 Dickinson L Rev 297, 309 (1977).

The Insurance Commissioner has indicated some of the pertinent considerations:

"The concern for essential insurance availability and regulation manifests itself in several ways which at first glance seem unrelated. Some people cannot easily find the necessary insurance at all. Others, though they can find insurance, feel that the rate charged is unfair, either in absolute terms or in comparison to the rate charged to others. A third category of consumers find their choice of company limited so that they are unable to select the quality of service they would prefer, or are hesitant to shop among companies because they *669 fear cancellation of their coverage. The public also questions the extent and nature of government involvement in the marketplace. On the one hand, there is little dispute that government should intervene in the free marketplace where the marketplace will not by itself act in the public interest. On the other hand, there is a strong and growing sense that government regulation has come to intervene in cases where it is unnecessary and may in fact be a negative influence. All of these concerns are pertinent to Michigan, and must be examined if sound public policy is to exist.”

Insurance Bureau, A Report to the Governor: Essential Insurance in Michigan (1977), p 4.

Some of the considerations to be balanced are listed in Comment: Entitlement, Enjoyment, and Due Process of Law, 1974 Duke L J 89,’ 120-122.

See Robinson II, 63 NJ 196; 306 A2d 65 (1973) (court would not disturb statutory scheme previously held unconstitutional unless Legislature failed to enact by December 31, 1974, legislation compatible with Robinson I); Robinson III, 67 NJ 35; 335 A2d 6 (1975) (court declined to determine a remedy for the 1975-76 school year); Robinson IV, 67 NJ 333; 339 A2d 193 (1975) (court mandated provisional remedies for the 1976-77 school year). The provisional remedies were not put into effect because the Legislature did enact a statutory scheme designed to remedy the constitutional defects noted in Robinson I. In Robinson V, 69 NJ 449; 355 A2d 129 (1976), the court found the new statute facially constitutional, conditioned on the assumption that complete funding would follow. The court retained jurisdiction. When complete funding did not follow the court issued an injunction freezing spending for New Jersey’s public schools, Robinson VI, 70 NJ 155; 358 A2d 457 (1976). The injunction was dissolved by order on July 9, 1976 because the Legislature provided for funding by enacting a state income tax, Robinson VII, 70 NJ 464-465; 360 A2d 400 (1976).