                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan
                                                                Chief Justice:         Justices:



Syllabus                                                        Robert P. Young, Jr.   Stephen J. Markman
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack
                                                                                       David F. Viviano
                                                                                       Richard H. Bernstein
                                                                                       Joan L. Larsen
This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               Corbin R. Davis



         In re CERTIFIED QUESTION FROM THE UNITED STATES COURT OF APPEALS FOR
                     THE NINTH CIRCUIT (DEACON v PANDORA MEDIA, INC)

             Docket No. 151104. Argued on request to answer the certified question April 27, 2016.
       Decided July 6, 2016.

               Peter Deacon, individually and on behalf of all others similarly situated, brought an
       action in the United States District Court for the Northern District of California against Pandora
       Media, Inc., which operates a music-streaming program through the Internet that allows each
       listener to create a unique, customized radio station based on, for example, a preferred artist or
       musical genre. The music that Pandora streams becomes increasingly refined to more closely
       match the listener’s music preferences as the listener indicates to Pandora whether he or she likes
       or dislikes particular songs being played. The listener may skip or bypass a song, but may not
       save, fast forward, or rewind a song. In addition, the listener cannot select the particular song to
       be played but must restrict himself or herself to the song selected by Pandora. Pandora is free,
       although listeners may elect to pay a fee to use a version of Pandora that does not have
       commercials. There was no indication that Deacon chose that option. Deacon claimed, in
       relevant part, that Pandora had violated the preservation of personal privacy act (PPPA),
       MCL 445.1711 et seq. (also commonly known as the video rental privacy act or VRPA), by
       publically disclosing personal information concerning his music preferences. The court ruled in
       Pandora’s favor and dismissed Deacon’s claim. 901 F Supp 2d 1166 (ND Cal, 2012). Deacon
       appealed in United States Court of Appeals for the Ninth Circuit and, pursuant to
       MCR 7.305(B)(1) (now MCR 7.308(A)(2)), that court certified the following question to the
       Supreme Court:

                      Has Deacon stated a claim against Pandora for violation of the [PPPA] by
               adequately alleging that Pandora is [in] the business of “renting” or “lending”
               sound recordings, and that he is a “customer” of Pandora because he “rents” or
               “borrows” sound recordings from Pandora?

       Furthermore, in certifying the question, the Ninth Circuit noted that the particular phrasing used
       in the certified question was not intended to restrict the Supreme Court’s consideration of the
       problems involved or the issues as the Supreme Court perceived them to be in its analysis of the
       record certified in the case. The Supreme Court ordered and heard oral argument on whether to
       answer the certified question. 498 Mich 882 (2015).
       In a unanimous opinion by Justice MARKMAN, the Supreme Court held:

        At all relevant times, the version of the PPPA originally enacted by 1988 PA 378 applied
to this case. MCL 445.1712 prohibited certain persons from disclosing any record or
information concerning the purchase, lease, rental, or borrowing of books or other written
materials, sound recordings, or video recordings by a customer that indicates the identity of the
customer. Under MCL 445.1715, only a customer may bring a civil action for a violation of the
PPPA. In the context of this case, MCL 445.1711(a) defined a customer as a person who rents or
borrows a sound recording. The Supreme Court limited the question in this case to whether
Deacon could be characterized as a customer of Pandora because he was a person who rented or
borrowed sound recordings from Pandora. The verb “rent” contemplates some form of payment.
For a Pandora listener to constitute a person who rents a sound recording, he or she must, at a
minimum, provide a payment to Pandora in exchange for that recording. Deacon was not a
person who rented a sound recording because he did not give any payment for it. The verb
“borrow” contemplates some promise to return the borrowed subject matter or its equivalent.
Deacon was not a person who borrowed a sound recording because there was no promise,
implied or expressed, that he would return the sound recording or its equivalent to Pandora. The
music-streaming program offered by Pandora only involved the delivery of a sound recording to
the listener. Therefore, Deacon was not a customer of Pandora under the PPPA because he
neither rented nor borrowed a sound recording from Pandora.

       Certified question, as limited by the Supreme Court, answered in the negative.

        Chief Justice YOUNG, concurring, joined the majority opinion in full and wrote separately
only to explain why, given his longstanding views on the questionable constitutionality of
responding to certified questions from federal courts, he choose to participate in responding to
the certified question in this case. Chief Justice YOUNG believed that, as a prudential matter, the
Supreme Court should accept and answer certified questions from the federal courts sparingly
and only when the Michigan legal issue is a debatable one and pivotal to the federal case that
prompted the request for the certified question. The Michigan legal issue here—whether Deacon
was a customer who rented or borrowed sound recordings under the PPPA—was determinative
to the federal case and a debatable question, actively contested by the parties. The case called
for the federal courts to interpret and apply a statute rarely seen in Michigan courts to new
technologies not in existence when the statute was enacted, and the majority opinion gave effect
to the plain and ordinary meaning of the PPPA’s provisions.




                                    ©2016 State of Michigan
                                                                            Michigan Supreme Court
                                                                                  Lansing, Michigan
                                                      Chief Justice:          Justices:



OPINION                                               Robert P. Young, Jr. Stephen J. Markman
                                                                           Brian K. Zahra
                                                                           Bridget M. McCormack
                                                                           David F. Viviano
                                                                           Richard H. Bernstein
                                                                           Joan L. Larsen

                                                                       FILED July 6, 2016


                            STATE OF MICHIGAN

                                   SUPREME COURT

In re CERTIFIED QUESTION FROM THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT


PETER DEACON, individually and on
behalf of all others similarly situated,

              Plaintiff,

v                                                              No. 151104

PANDORA MEDIA, INC.,

              Defendant.


BEFORE THE ENTIRE BENCH

MARKMAN, J.
       Plaintiff, Peter Deacon, filed suit against defendant, Pandora Media, Inc., in the

United States District Court for the Northern District of California, claiming in relevant

part that defendant had violated the preservation of personal privacy act, MCL 445.1711
et seq., 1 by publically disclosing personal information concerning his music preferences.

The federal district court ruled in favor of defendant, and under MCR 7.305(B), 2 the

United States Court of Appeals for the Ninth Circuit certified the following question to

this Court:

              Has Deacon stated a claim against Pandora for violation of the
       VRPA by adequately alleging that Pandora is [in] the business of “renting”
       or “lending” sound recordings, and that he is a “customer” of Pandora
       because he “rents” or “borrows” sound recordings from Pandora?

Furthermore, in certifying the question, the Ninth Circuit noted that

       “the particular phrasing used in the certified question[s] is not to restrict the
       [Michigan] Supreme Court’s consideration of the problems involved and
       the issues as the [Michigan] Supreme Court perceives them to be in its
       analysis of the record certified in this case. This latitude extends to the
       [Michigan] Supreme Court’s restatement of the issue or issues and the
       manner in which the answers are to be given, whether as a comprehensive
       whole or in subordinate or even contingent parts.” [Deacon v Pandora
       Media, Inc., unpublished amended order of the United States Court of
       Appeals for the Ninth Circuit, entered February 24, 2015 (Case No. 12-
       17734), p 12, quoting Martinez v Rodriquez, 394 F2d 156, 159 n 6 (1968)
       (alterations in original).]




1
  While other courts have referred to this statute as the “video rental privacy act”
(VRPA), its provisions also cover books, written materials, and sound recordings.
Accordingly, we will refer to it throughout this opinion as the “preservation of personal
privacy act” (PPPA).
2
  When the question was certified, MCR 7.305(B)(1) provided that “[w]hen a federal
court, state appellate court, or tribal court considers a question that Michigan law may
resolve and that is not controlled by Michigan Supreme Court precedent, the court may
on its own initiative or that of an interested party certify the question to the Michigan
Supreme Court.” Effective September 1, 2015, the court rule was renumbered as MCR
7.308(A)(2) with a few slight changes in wording.



                                              2
Having now heard oral argument and considered the issues involved, we grant the Ninth

Circuit’s request to answer its question. However, we limit the question to whether

plaintiff can be characterized under the PPPA as a “customer” of defendant because at the

relevant time he was a person who “rent[ed]” or “borrow[ed]” sound recordings from

defendant. We conclude that plaintiff was not such a “customer.”

                               I. FACTS AND HISTORY

       Defendant is a Delaware corporation with its principal place of business in

California. It operates a music-streaming program through the Internet called “Pandora” 3

that allows each listener to create a unique, customized “radio station” based on, for

instance, a preferred artist or musical genre. Thereafter, the music streamed by Pandora

becomes increasingly refined to more closely match the listener’s music preferences as

the listener indicates to Pandora whether he or she likes or dislikes particular songs being

played. 4 The listener may skip or bypass a song, but may not save, fast forward, or

rewind a song. In addition, the listener cannot select the particular song to be played, but

must restrict himself or herself to the song selected by Pandora. Pandora is free, although




3
  “A stream is an electronic transmission that renders the musical work audible as it is
received by the client-computer’s temporary memory. . . . [T]here is a playing of the song
that is perceived simultaneously with the transmission.” United States v American
Society of Composers, Authors & Publishers, 627 F3d 64, 74 (CA 2, 2010).
4
  As described by defendant in the Form S-1 Registration Statement it filed with the
Securities and Exchange Commission, Pandora “uses intrinsic qualities of music to
initially create stations and then adapts playlists in real-time based on the individual
feedback of each listener.”



                                             3
listeners may elect to pay a fee to use a version of Pandora that does not have

commercials.

       In September 2011, plaintiff, a Michigan resident, sued defendant in the federal

district court. He alleged that defendant (a) made its listeners’ profile pages, each of

which included information about the listener’s music preferences, “publicly available

and searchable on the World Wide Web for anyone to view” and (b) “unilaterally

integrated its [listeners’] profile pages with their Facebook accounts.” 5 According to

plaintiff, that integration resulted in the public release of “sensitive listening records to all

of [a listener’s] Facebook ‘friends.’ ”       As a consequence of these two disclosures,

plaintiff claimed, defendant had violated both the PPPA and the Michigan Consumer

Protection Act (MCPA), MCL 445.901 et seq. Plaintiff sought monetary and equitable

relief for himself and on behalf of a putative class of all Michigan residents who were

registered listeners of Pandora before August 5, 2010, and who allegedly had suffered

similar public disclosures of personal information. The federal district court granted

defendant’s motion to dismiss both claims. Deacon v Pandora Media, Inc, 901 F Supp

2d 1166 (ND Cal, 2012). Plaintiff appealed the dismissal of his PPPA claim in the Ninth

Circuit, and that court certified the present question to this Court. 6 We ordered oral

argument on whether to grant the request to answer this question, In re Certified Question


5
  During the proceedings in the Ninth Circuit, the parties disputed whether the allegedly
disclosed information concerning plaintiff’s music preferences connected those
preferences with his full name. We do not address that dispute.
6
 Plaintiff did not appeal the dismissal of his MCPA claim, and that claim is not at issue
here.



                                               4
from the United States Court of Appeals for the Ninth Circuit, 498 Mich 882 (2015), and

argument was heard on April 27, 2016.

                              II. STANDARD OF REVIEW

      “This Court reviews de novo issues of statutory interpretation.” In re COH, 495

Mich 184, 191; 848 NW2d 107 (2014).

                                     III. ANALYSIS

      “Our goal in interpreting a statute ‘is to give effect to the Legislature’s intent,

focusing first on the statute’s plain language.’ ” Malpass v Dep’t of Treasury, 494 Mich

237, 247-248; 833 NW2d 272 (2013), quoting Klooster v City of Charlevoix, 488 Mich

289, 296; 795 NW2d 578 (2011). “[W]ords used by the Legislature must be construed

and understood in accordance with their common, ordinary meaning.”               Smitter v

Thornapple Twp, 494 Mich 121, 129; 833 NW2d 875 (2013). “When the language of a

statute is clear, it is presumed that the Legislature intended the meaning expressed

therein.” Epps v 4 Quarters Restoration LLC, 498 Mich 518, 529; 872 NW2d 412

(2015).

      The title of the PPPA states that it is

      [a]n act to preserve personal privacy with respect to the purchase, rental, or
      borrowing of certain materials; and to provide penalties and remedies for
      violation of this act.[7]


7
  1988 PA 378, title. On May 2, 2016, while this case was pending before this Court, the
Governor signed into law 2016 PA 92, effective July 31, 2016. That public act amends
the PPPA in several respects, but not in any respect that affects our analysis here. Our
opinion refers only to the version of the PPPA in effect at the time of the events giving
rise to this case.



                                                5
At all times relevant to this case, MCL 445.1712 of the PPPA prohibited the disclosure of

certain materials:

              Except as provided in [MCL 445.1713] or as otherwise provided by
       law, a person, or an employee or agent of the person, engaged in the
       business of selling at retail, renting, or lending books or other written
       materials, sound recordings, or video recordings shall not disclose to any
       person, other than the customer, a record or information concerning the
       purchase, lease, rental, or borrowing of those materials by a customer that
       indicates the identity of the customer.[8]

Furthermore, MCL 445.1711(a) of the PPPA defined “customer” as follows:

              “Customer” means a person who purchases, rents, or borrows a book
       or other written material, or a sound recording, or a video recording.[9]

Finally, MCL 445.1715 of the PPPA provided a civil remedy for its violation:

              Regardless of any criminal prosecution for a violation of this act, a
       person who violates this act shall be liable in a civil action for damages to
       the customer identified in a record or other information that is disclosed in
       violation of this act. The customer may bring a civil action against the
       person and may recover both of the following:

             (a) Actual damages, including damages for emotional distress, or
       $5,000.00, whichever is greater.

              (b) Costs and reasonable attorney fees.




8
  MCL 445.1713(a) to (e) set forth five exceptions to the general prohibition against
disclosure under MCL 445.1712. None of these exceptions is relevant here. 2016 PA 92
adds a sixth exception to MCL 445.1713, effective July 31, 2016.
9
  Effective July 31, 2016, MCL 445.1711(a) will provide that “ ‘[c]ustomer’ means an
individual who purchases, rents, or borrows a book, other written material, a sound
recording, or a video recording.” See 2016 PA 92.



                                            6
       Under MCL 445.1715, only a “customer” may bring a civil action for a violation

of the PPPA. For the reasons that follow, we conclude that plaintiff was not a “customer”

as defined by MCL 445.1711(a) because he neither “rent[ed]” nor “borrow[ed]” a sound

recording. 10   Accordingly, we need not address whether plaintiff established the

remaining elements of a PPPA claim, such as, for example, whether the PPPA applied to

defendant because it was “engaged in the business of . . . renting, or lending . . . sound

recordings” under MCL 445.1712.

       The PPPA does not define either “rent” or “borrow.” “When considering the

meaning of a nonlegal word or phrase that is not defined in a statute, resort to a lay

dictionary is appropriate.” Wesche v Mecosta Co Rd Comm, 480 Mich 75, 84; 746

NW2d 847 (2008). In this regard, it is best to consult a dictionary from the era in which

the legislation was enacted. See Cain v Waste Mgt, Inc (After Remand), 472 Mich 236,

247; 697 NW2d 130 (2005) (“Because the statute itself does not define ‘loss,’ . . . we

must ascertain the original meaning the word ‘loss’ had when the statute was enacted in

1912.”). Because the PPPA was enacted in 1988, we consult dictionaries from that era to

define those words. Furthermore, because those words are used as verbs in the statute,

we identify the definitions of those words as verbs.

       Concerning “rent,” The Random House Dictionary of the English Language:

Second Unabridged Edition (1987), defines the transitive form of the verb “rent” as “to

take and hold (property, machinery, etc.) in return for the payment of rent . . . .” Because


10
 Plaintiff does not argue that he “purchase[d]” a sound recording for the purposes of
MCL 445.1711(a).



                                             7
the dictionary definition of the verb “rent” incorporates the noun “rent,” we also

determine the definition of the noun form of that word. The noun “rent” is defined as “a

payment or series of payments made by a lessee to an owner in return for the use of

machinery, equipment, etc.” 11 Id. Thus, for a listener to constitute a person who “rents”

a sound recording, he or she must, at a minimum, provide a payment in exchange for that

recording. Stated otherwise, the word “rent” contemplates some form of payment. Here,

however, there is nothing to suggest that plaintiff was one of those listeners who paid the

optional fee to receive sound recordings using the commercial-free version of Pandora.

Further, there is nothing to suggest that plaintiff otherwise provided any payment to

defendant in exchange for a sound recording. Thus, because plaintiff did not provide a

payment for a sound recording, 12 we conclude that he was not “a person who . . . rents . . .

a sound recording . . . .” 13 MCL 445.1711(a).


11
   By referring to this definition of the noun “rent,” we express no opinion on whether
plaintiff may be characterized as the “lessee” or defendant may be characterized as the
“owner” of sound recordings.
12
   Plaintiff summarily asserts in a footnote that he was a person who “rent[ed]” a sound
recording because he “gave Pandora ‘rent’ in the form of advertising impressions and
valuable personal and demographic information.” We conclude that this argument has
been abandoned because plaintiff has provided no support for it. See Mitcham v Detroit,
355 Mich 182, 203; 94 NW2d 388 (1959) (“It is not enough for an appellant in his brief
simply to announce a position or assert an error and then leave it up to this Court to
discover and rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position.”). Thus,
we will not further address the argument.
13
  Although we conclude that plaintiff was not a person who “rent[ed]” a sound recording
because he did not provide a payment for it, we do not intend to suggest that the opposite
conclusion would necessarily result if plaintiff had provided a payment. That is, we do
not address the parties’ arguments concerning whether and to what extent, if any, it is


                                             8
       Concerning “borrows,” The Random House Dictionary of the English Language:

Second Unabridged Edition (1987), defines the verb “borrow” as “to take or obtain with

the promise to return the same or an equivalent[.]”            Thus, the word “borrow”

contemplates some promise to return the borrowed subject matter or its equivalent. As

applied here, plaintiff was not a person who “borrow[ed]” a sound recording because

there was no promise, implied or expressed, that he would ever “return” the sound

recording or its equivalent to defendant.        Put simply, the music-streaming program

offered by defendant only involved the delivery of a sound recording to the listener; there

was no corresponding “return” of a recording or its equivalent from the listener to

defendant. American Broadcasting Cos, Inc v Aereo, Inc, 573 US ___, ___; 134 S Ct

2498, 2503; 189 L Ed 2d 476 (2014) (“See A Dictionary of Computing 494 (6th ed.

2008) (defining ‘streaming’ as ‘[t]he process of providing a steady flow of audio or video

data so that an Internet user is able to access it as it is transmitted’).”) (alteration in

original); Microsoft Computer Dictionary, Fourth Edition (Washington: Microsoft Press,

1999), p 425 (defining “streaming” as “the process of delivering information, especially

multimedia sound or video, in a steady flow that the recipient can access as the file is




only possible to “rent” a sound recording through “use” or “control.” Compare the
statement in defendant’s supplemental brief on appeal that “the District Court correctly
found the Complaint to be deficient because it is devoid of factual allegations sufficient
to support a plausible claim that Plaintiff exercised, over the temporary Internet file, the
type of use and control inherent in a ‘borrowing’ or ‘renting’ relationship” with the
statement in plaintiff’s supplemental brief on appeal that “the word ‘use’ never appears in
the [PPPA] so the entire line of argument focused on ‘use’ is utterly misplaced.”



                                             9
being transmitted”). 14 Nothing in the present dispute suggests that plaintiff or defendant

promised anything more. We accordingly conclude that plaintiff was not “a person

who . . . borrows . . . a sound recording . . . .” 15 MCL 445.1711(a).

                                    IV. CONCLUSION

       At all relevant times, MCL 445.1711(a) provided that “ ‘[c]ustomer’ means a

person who . . . rents, or borrows . . . a sound recording . . . .” We hold that plaintiff was

not a person who “rent[ed]” a sound recording because he did not give payment for it.

We further hold that plaintiff was not a person who “borrow[ed]” a sound recording

because there was no promise, implied or expressed, that he would “return” the sound




14
   Although we recognize that the federal district court dismissed the PPPA claim under
FR Civ P 12(b)(6) on the basis of its conclusion that plaintiff had “not alleged facts
showing that Pandora rented, lent and/or sold music to him,” Deacon, 901 F Supp 2d at
1176, and that he appealed the denial in the Ninth Circuit, we do not respond to the
certified question to apply federal law concerning FR Civ P 12(b)(6) to his complaint.
Rather, we only resolve an issue of Michigan law. In this regard, as stated previously, the
Ninth Circuit, quoting Martinez, 394 F2d at 159 n 6, has asserted that “ ‘the particular
phrasing used in the certified question[s] is not to restrict the [Michigan] Supreme
Court’s consideration of the problems involved and the issues as the [Michigan] Supreme
Court perceives them to be . . . .” (Alterations in original.) In our judgment, the issue of
Michigan law is best resolved without restricting it by the allegations in plaintiff’s
complaint. Thus, we will not answer the question presented here on the basis of an
allegation unsupported by the record-- that the sound recording is physically removed
from the listener’s computer and returned to defendant, which allegation appears to be
contrary to the basic definition of “streaming” found in computer dictionaries-- simply
because the question encompasses the phrase “stated a claim.”
15
   As with our conclusion concerning the word “rents,” our conclusion concerning the
word “borrows” leaves unresolved the issue of whether and to what extent, if any, it is
only possible to “borrow” a sound recording through “use” or “control.” See note 13 of
this opinion.



                                             10
recording or its equivalent to defendant. We therefore conclude that plaintiff was not a

“customer” of defendant under the PPPA because he was not a person who “rent[ed]” or

“borrow[ed]” a sound recording from defendant. 16


                                                      Stephen J. Markman
                                                      Robert P. Young, Jr.
                                                      Brian K. Zahra
                                                      Bridget M. McCormack
                                                      David F. Viviano
                                                      Richard H. Bernstein
                                                      Joan L. Larsen




16
   We recognize that in our digitized world it is possible to transmit audio or visual
materials on a temporary basis absent any “return” of those materials. Our conclusion
that plaintiff was not one who “borrow[ed]” a sound recording is directed by the language
of the PPPA. To the extent that there are some who believe that the law should direct a
different result, those arguments should be addressed to the Legislature. People v
Dunbar, 499 Mich 60, 72; 879 NW2d 229 (2016) (“[W]hen the people wish to argue that
a statute is unwise or results in bad policy, those arguments should be addressed to the
Legislature.”) (quotation marks and citation omitted).



                                           11
                             STATE OF MICHIGAN

                                   SUPREME COURT

In re CERTIFIED QUESTION FROM THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT


PETER DEACON, individually and on
behalf of all others similarly situated,

              Plaintiff,

v                                                             No. 151104

PANDORA MEDIA, INC.,

              Defendant.


YOUNG, C.J. (concurring).
       I join the majority opinion in full and write only to explain why, given my

longstanding views on the questionable constitutionality of responding to certified

questions from federal courts, I choose to participate in responding to the instant certified

question. 1

       As I have stated previously, because of my constitutional reservations about

responding to federal certified questions, I believe this Court should, as a prudential


1
  See In re Certified Question from the United States Dist Court for the Western Dist of
Mich, 493 Mich 70, 83; 825 NW2d 566 (2012) (YOUNG, C.J., dissenting) (“I continue to
believe that this Court lacks the constitutional authority to issue advisory opinions other
than as described in article 3, § 8 of Michigan’s 1963 Constitution. My position
regarding the Court’s constitutional authority did not prevail, and I accept that the Court
has determined otherwise.”) (citations omitted).
matter, “accept and answer certified questions from the federal courts sparingly and only

when the Michigan legal issue is a debatable one and pivotal to the federal case that

prompted the request for the certified question.” 2

         The United States Court of Appeals for the Ninth Circuit has asked whether

plaintiff has stated a claim upon which relief may be granted under the preservation of

personal privacy act (PPPA), MCL 445.1711 et seq. The Michigan legal issue here—

whether plaintiff is a “customer” under the PPPA who “rents” or “borrows” sound

recordings—is determinative to the federal case. 3 Further, the legal question here is a

debatable one, actively contested by the parties on appeal in this Court. 4 By contrast, in

Certified Question, the plaintiff could have prevailed only if a court construed a statutory

term in a way that was completely inconsistent with the plain meaning of our succession

statute. 5 I believe the majority has given effect to the plain and ordinary meaning of

MCL 445.1711 and MCL 445.1712 of the PPPA, but the resolution of this dispute was

not as immediately apparent as it was in Certified Question, in which the answer to the




2
    Id. at 83-84.
3
 See MCL 445.1711 and MCL 445.1712; Certified Question, 493 Mich at 84 (YOUNG,
C.J., dissenting).
4
  Compare Certified Question, 493 Mich at 84-85 (YOUNG, C.J., dissenting) (“[T]he
question whether the children may be considered to have been alive at the time of their
father’s death is not debatable under our intestacy laws—a point plaintiff’s counsel
conceded at oral argument.”).
5
    See id. at 85.



                                              2
question of whether children created by in vitro fertilization after the father’s death were

“in gestation” during the father’s lifetime was patently clear and not contested. 6

         This case called for the federal courts to interpret and apply a statute rarely seen in

our state courts to new technologies not in existence at the time the statute was enacted. I

believe that the question is sufficiently nuanced that this Court, as a prudential matter,

properly responded by answering the question for the federal court.


                                                           Robert P. Young, Jr.




6
    See id. at 85-86.



                                                3
