Salas v. Clements

¶1I dissent. Eschewing the constitutional analysis for which leave was granted in this case, this Court nevertheless holds that the "name and retain” amendment1 to the dramshop act applies only to those plaintiffs who know the identity of the intoxicated person.

¶2The result, of course, is the creation by judicial fiat of an exception to the legislative determination that no one may maintain a dramshop action against a liquor supplier unless he names and retains in the action the alleged intoxicated person. Today’s judgment simply suspends the application of that statute to all plaintiffs who establish at a newly mandated hearing that in the exercise of due diligence they were unable to ascertain the identity of the person who injured them.

¶3The justification for exempting an entire class of prospective plaintiffs from the requirements of the legislation is the application of what is characterized as "the fundamental rule of statutory construction that departure from the literal construction of a statute is justified when such a construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question”.

¶4The Court of Appeals, in holding that the "name and retain” amendment is not offensive to the equal protection or due process clauses of the *112Michigan and United States Constitution, observed that the amendment "will, to some extent, reduce tavern-owner liability by restricting recourse to the dramshop. act”. In explaining how tavern-owner liability will be reduced, that Court said: "The provision will eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner”.

¶5This Court, however, attributes a wholly different purpose to that Court of Appeals language and claims that court’s example of how liability of tavern owners would be reduced was a statement of the object of the amendment. That was not what the lower court said and understandably so, since, while the quoted language is an object of the amendment, it is not the object.

¶6Clearly, if the only purpose of the "name and retain” amendment was to eliminate collusion between the intoxicated person and the injured plaintiff, the amendment would serve no purpose in cases where the identity of the intoxicated person is unknown.

¶7The amendment, however, has a number of objects. That one of several purposes is not furthered in an individual application of the amendment is not to say that the amendment produces absurd and unjust results clearly inconsistent with the purpose of the Legislature.

¶8That the "name and retain” amendment serves purposes other than those cited by my colleagues is apparent. Under the act the liability of the tavern owner depends on an illegal sale of liquor which proximately causes the injury to plaintiff. The illegality of the sale depends on the condition *113of the vendee: the vendee must be visibly intoxicated at the time of the sale. A valid objective of the "name and retain” amendment is to ensure that statutory dramshop actions are not conducted in a speculative or abstract manner — that is, in the absence of the alleged unlawful vendee. This purpose is clearly promoted by the "name and retain” amendment in all cases regardless of why an individual plaintiff does not produce the alleged intoxicated person/tortfeasor.

¶9Another purpose underlying the "name and retain” amendment is to protect tavern owners from harassment suits which are based on fictional intoxicated persons. Such a case would involve a plaintiff who slipped and fell in a tavern through his own negligence and then filed a dramshop action in addition to his common-law claim against the tavern owner, alleging that he was pushed by a visibly intoxicated person whom he is unable to identify. These suits were a very real possibility under the dramshop act before the Legislature added the "name and retain” amendment. The object of preventing these type actions is certainly furthered by application of the amendment in the situation where the plaintiff alleges that he is unable to identify the intoxicated person/tortfeasor.

¶10There may well be other purposes behind the challenged amendment. In any event, we have shown sufficient good reasons for reading the legislative word exactly as it is written. There is no need to depart from what is clearly required by the act since the result of applying the act in the case at bar and similar cases is not "absurd” or inconsistent with the purposes of the act. On the contrary, application of the amendment in this case clearly furthers legislative goals. It is not *114argued that these goals (e.g., concrete and factual basis for dramshop litigation, the. prevention of fabrication and harassment suits, the prevention of collusion) are unworthy or illegitimate legislative purposes. I fail to see how they may be characterized as "absurd”.

¶11My Brother Williams points out that the "name and retain” amendment creates a situation which may tempt liquor licensees to collude with visibly intoxicated tortfeasors to hide the latter’s identity from the injured plaintiff. This is true. However, after observing the effect of the unamended dram-shop act under which collusion between plaintiffs and tortfeasors was possible, the Legislature evidently made a determination that the "name and retain” amendment was the better course to follow in carrying out the policies of the Liquor Control Act. I fail to see how this determination can be characterized as producing results "clearly inconsistent with the purposes and policies of the act”.

¶12The Court today employs a "rule of construction” which substantially alters a recent enactment of the Legislature. The majority today does not mention the time-honored rule of law that "[w]hen a remedy is given by statute, all requirements imposed by it must be complied with”. Grand Rapids Independent Publishing Co v Grand Rapids, 335 Mich 620, 631; 56 NW2d 403 (1953). Accord, Leith v Citizens Commercial & Savings Bank, 304 Mich 508; 8 NW2d 156 (1943); Lafayette Transfer & Storage Co v Public Utilities Commission, 287 Mich 488; 283 NW 659 (1939). Under the "name and retain” amendment certain plaintiffs will be barred from the statutory cause of action because they are unable or unwilling to comply with its requirements. Others will not obtain relief because they are unable to meet the burden of *115proof set out in the statute or to show the causal relationship required under the statute. These requirements are certainly not the only way, and perhaps not the best way, to carry out the policies of the Liquor Control Act. However, absent a transgression of constitutional limitations, "such arguments are properly addressed to the legislature, not to us. We refuse to sit as a 'superlegislature to weigh the wisdom of the legislation’ ”, Ferguson v Skrupa, 372 US 726, 731; 83 S Ct 1028; 10 L Ed 2d 93 (1963), quoting Day-Brite Lighting, Inc v Missouri, 342 US 421, 423; 72 S Ct 405; 96 L Ed 469 (1952).

¶13I must respectfully dissent as I do not find the result of the application of the amendment to these facts to be absurd, unjust or inconsistent with the legislative purposes as outlined above.