Activist Supreme Court majority overturns its own decision

   In the year 2000, the Michigan Supreme Court addressed the statute of limitations involving malpractice and wrongful death, in the context of the new requirement to provide Notice of Intent to Sue.  The Court held in the Omelenchuk case that if the Personal Representative of an Estate filed a Notice of Intent to Sue within the statutory time limit, the Notice would "toll" (or delay) the expiration of the statute of limitations for the six-month time period after the Notice was given, (and during which suit cannot be filed).  The alternative, as a practical matter, was to conclude that adoption of the Notice of Intent and six-month waiting period by the Legislature resulted in the inadvertent reduction of the statute of limitations by the duration of the six-month waiting period.

      Less than four years later, after Governor Engler had stuffed the Court with his arch-conservative appointees, the Supreme Court chose to reconsider this issue, and overturned the Omelenchuk decision in Waltz v. Wyse.  This kind of abrupt reversal of precedent is precisely what most people consider to be inappropriate "judicial activism".    The conservative majority of the Court then summarily suggested in two later opinions that the Waltz decision overruling Omelenchuk should be applied with full retroactivity--in other words, to cases that had applied the Omelenchuk analysis and relied upon it to delay filing:  if practitioners had [wrongly] assumed that the Supreme Court's holding was law and hadn't anticipated an activist court re-considering and re-writing the law four years later, their clients would be punished for their lawyer's lack of prescience.

        Several Court of Appeals Judges, particularly including the veteran practitioner Peter D. O'Connell, refused to accept this unjust interpretation and wrote opinions in which they refused to countenance full retroactivity and punishment of clients whose attorneys had reasonably relied upon "settled law".  The intellectual acuity and courage of these Court of Appeals' judges was rewarded this week when the unanimous Supreme Court recognized that applying the change in the law retroactively contradicted Michigan jurisprudence.  While this latest decision will rescue about fifty claimants from an unfair outcome, many litigants whose cases were rejected in the interim will not regain a "day in court".  The decisions in their cases are either too stale to re-open or they gave up on the work and expense of what appeared to be a hopeless appeal.