Justice Moody’s Lament Unanswered: Michigan’s Unprincipled Retroactivity Jurisprudence

Excerpt from MichBar.org: (click for entire article)

It is now going on two decades since Justice Blair Moody, Jr. lamented that "there has been inconsistency in both analysis and result in the Supreme Court of Michigan’s application of its law-changing decisions," while calling for a "new and detailed look at both the factors which should enter into a retroactivity determination and the means by which this decision should be reached."2 It was his hope that his article would "provide a starting point for such reexamination and reanalysis."3

It is most unfortunate that Michigan retroactivity jurisprudence remains as "inconsistent" and "confused" as it was when Justice Moody urged that it was "time for the Michigan high court to take a long look" at that jurisprudence.4 If it was time for that look in 1982, it is certainly long past time in 2000. In an appropriate case, the court should examine the state of its retroactivity jurisprudence, to the extent that any real "jurisprudence of retroactivity" can be ascertained at present.

The statement by Professors LaFave and Scott quoted at the beginning of this article is an overstatement of a presumptive rule of the operation of case decisions, a rule that is most likely to be discarded in cases of law-changing decisions. All law-changing decisions, however, are not of one piece, and an appropriate retroactivity jurisprudence should set forth some different rules depending on the sort of authority the court is exercising in reaching the law-changing decision in question. Unlike the United States Supreme Court, the Michigan Supreme Court has explicit authority over practice and procedure, including the authority to promulgate and revise procedural rules of evidence.