Why Aren't There More Conflicts Panels?

Over the years, I have observed that there are many times when the Court of Appeals in a published decision does not acknowledge a prior published opinion that is on point, or disagrees with a prior published opinion. In those instances, the later panel is supposed to call a conflicts panel under MCR 7.215(J), but that does not always happen. It seems that the later court's failure to convene a conflicts panel does a disservice to the parties, and all the litigants whose cases might be affected by the conflict.

For instance, in Froling Revocable Living Trust v Bloomfield Hills Country Club, a published opinion from April 9, 2009, the Court of Appeals recognized a previous conflict in Court of Appeals' published decisions on the issue of whether the Supreme Court's decision in Garg v Macomb County Community Mental Health Services regarding the continuing violations doctrine applied to all cases (including the nuisance and trespass case at issue in Froling) or only to civil rights cases (the issue presented by Garg). The published Court of Appeals' decisions after Garg disagreed on whether Garg abrogated the doctrine for all cases or just for civil rights employment discrimination cases. Because the later panels of published decisions failed to convene a conflicts panel, the Court of Appeals in Froling decided that it was bound by the earlier published decisions, and thus, the continuing violations doctrine has been abrogated for all cases in Michigan. Based on the reasoning of Froling, any time the Court of Appeals fails to convene a conflicts panel when a later published opinion does not follow a prior published opinion, other panels must follow the earlier decision and disregard the latter decision.