Nick Krieger (@nckrieger):
On Wednesday, I wrote that Attorney General Bill Schuette had reached the correct conclusion with respect to his interpretation of § 391(1) of the Revised School Code in Opinion No. 7292. Lest there be any confusion, however, this does not mean that I believe Schuette's opinion is binding or enforceable.
This morning, I read a Michigan Capitol Confidential article in which Schuette's spokesperson says that the Attorney General's opinion "is binding on state agencies." Is it really?
True, the Michigan Court of Appeals has frequently remarked that opinions of the Attorney General are "binding on state agencies." This remark can be directly traced to the Court of Appeals decision in People v Penn, 102 Mich App 731, 733; 302 NW2d 298 (1981), which cited the last paragraph of footnote 2 of the Michigan Supreme Court decision in Traverse City School District v Attorney General, 384 Mich 390, 406 n 2; 185 NW2d 9 (1971).
The problem? In a subsequent decision, the Michigan Supreme Court explicitly stated that an opinion of the Attorney General "does not have the force of law and certainly does not compel agreement by a governmental agency . . . ." East Grand Rapids School District v Kent Co Tax Allocation Board, 415 Mich 381, 394; 330 NW2d 7 (1982).
A later Supreme Court decision generally takes precedence over an earlier one. And a statement of law by the Michigan Supreme Court obviously takes precedence over a conflicting statement of law by the Michigan Court of Appeals. Accordingly, it is simply not clear that an opinion of the Attorney General "is binding on state agencies." The issue remains unsettled.
It is clear, however, that opinions of the Attorney General are not binding on the judiciary. So irrespective of whether Schuette's opinion on the meaning of § 391(1) is correct, we can be sure that no court will ever be required to follow his interpretation.