“A court speaks through its written orders and decrees” and not its oral pronouncements is a legal principle that dates back to at least 1866 in Michigan. Newbould v Stweart, 15 Mich 155 (1866) (“The court below had announced its decision, but no decree had been actually drawn up or filed. It was held that under these circumstances there was no legal determination of the cause, and therefore nothing to appeal from. The appeal was dismissed as premature.”)
Through its written decisions, a court or jurist may also speak to the Legislature inviting them to revisit a matter.
Chief Justice Clement recently did in her concurring statement in Sterling Heights v Bahnke, (166885, order issued September 27, 2024):
However, I write to draw the Legislature’s attention to what I believe is likely an unintended result of MCL 28.457. Specifically, I question whether MCL 28.457(1) was truly meant to prohibit local ordinances such as the one at issue here, which requires vendors of fireworks to provide purchasers with informational flyers.
Chief Justice Clement extended similar invitations in other docket numbers like 162968 (“I urge the Legislature to reconsider the statutory scheme that applies when a criminal defendant suffers from mental illness during the commission of a crime.”), and 166305 (“I would not perpetuate confusion and unfairness when I am by no means certain that the majority is wrong. For these reasons, despite my lingering questions, I concur with the majority. At the same time, I encourage the Legislature to amend the statute in order to clarify the definition of ‘normal salary schedule,’ particularly whether a normal salary schedule can exist outside the CBA context.”).
Retired Chief Justice McCormack was known to do the same like in docket number 159715 (“Under these unique circumstances, I encourage the Legislature to consider whether it intended to exclude individuals such as the plaintiff—call them “new evidence plus-ers”—from the WICA.”), and 163354 (“I don’t like administering legal rules that I can’t explain to the people they impact. Please fix it, legislators.”).
Justice Viviano has also invited the Legislature to revisit matters like in 158013 (“Although they need not be resolved to dispose of this case, I write to highlight these problems and encourage the Legislature to address them in order to clarify the statute’s meaning.”), 164564 (“As shown by this case, the confusion caused by the recent amendment of MCL 168.558(2) threatened the democratic process by nearly depriving the city of Highland Park’s legislative body of sufficient membership to govern. I strongly encourage the Legislature to correct this problem before the next election cycle.”), and 164807 (“I strongly encourage the Legislature to consider adopting a requirement that voters be provided with the full text of any proposed constitutional amendments or laws that they will be asked to vote upon.”).
And Justice Welch has flagged several areas for the Legislature like in 163320 (“Based on this nonsensical outcome, I encourage the Legislature to review the usury carveouts and determine whom it intends to protect.”), 163807 (“While the SDNL is invoked with relative rarity in Michigan, I would encourage the Legislature to consider amending the SDNL to better ensure that the competing rights of all parties involved are safeguarded to the highest degree possible.”), 163981 (“I write separately to encourage the Legislature to reexamine MCL 700.2807—the provision of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., at issue in this case—which, upon divorce, automatically revokes the disposition of assets to stepchildren explicitly set forth in a former stepparent’s will or trust.”), 164435 (“I encourage the Legislature to solve this dilemma by clarifying whether the Steelworkers trilogy standard of review should continue to be applied to labor arbitrations in Michigan.”), and 166549 (“I invite the Legislature to consider amending MCL 211.9m(2)(c) and to work with the MTT and local assessor offices to avoid this type of inequitable result in the future.”).
Justice Bolden, herself once a member of the Michigan House of Representatives, recommended “that the Legislature seriously consider the recommendations of the TCFC and use next year’s sunset provision as the prime opportunity to formally reevaluate MCL 769.1k(1)(b)(iii) by implementing the TCFC recommendations prior to May 1, 2024.” and hoped “that the Legislature considers the gravity of the issue and provides the necessary fix before the provision sunsets next May.” in 163073.
Whether the Legislature takes heed of these opportunities is unpredictable, but it’s certainly not for a lack of the Michigan Supreme Court’s trying.