Michigan Supreme Court Order On Right To Work Advisory Opinion Hints At Split Over Fundamental Question

The nature of the questions asked and the dissents to the Michigan Supreme Court order released Saturday inviting the solicitor general to "express the views of the state of Michigan" as to whether the Court should grant the governor’s request for an advisory opinion about the new Right to Work legislation hint at an interesting difference of opinion about the advisory opinions. The order asked the solicitor general to address:

1. Why prompt resolution of the constitutional question regarding application to the Civil Service Commission is necessary to guide the state employer in its fall contract negotiations with civil service employees.
2. Why the matter warrants the Court’s present intervention when § 14(4) of 2012 PA 348 and § 10(6) of 2012 PA 349 explicitly grant “exclusive original jurisdiction over any action challenging the validity of [the pertinent subsections]” in the Court of Appeals, which “shall hear the action in an expedited manner.”
3. How the Court’s intervention in the absence of an actual case and controversy would necessarily aid in resolution of the issues presented rather than produce confusion and delay, given that there are adversarial proceedings already pending in several courts, and in light of the non-precedential nature of an advisory opinion, see Anway v Grand Rapids R Co, 211 Mich 592, 603 (1920); Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 460 n 1 (1973), .
4. The value of an advisory opinion from this Court addressing federal equal protection issues since federal courts are not bound by state court determinations on federal constitutional issues, see Woods v Holy Cross Hosp, 591 F2d 1164, 1171-1172 (CA 5, 1979).

Justice Cavanagh, in dissent, said that he does not agree with soliciting the solicitor general's contribution while the governor's request remains pending and does not believe that the majority’s order should in any way affect pending adversarial proceedings. Justice Markman, in apparent agreement that the solicitor general's views are not needed, would grant the governor's request without further delay:

If there is an obvious purpose behind the advisory opinion clause of the Constitution, it is to facilitate the resolution of legal disputes of precisely the sort raised by this case.