Buback v. Romney

• Decision Date: 04 March 1968
• Docket Number: No. 15,15
• Citation: 156 N.W.2d 549,380 Mich. 209
• Parties: Peter L. BUBACK, Plaintiff and Appellant, v. George ROMNEY, Governor of the State of Michigan, Frank J. Kelley, Attorney General of the State of Michigan, and Francis A. Castellucci, Judge of the Probate Court for the County of Macomb, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 549

156 N.W.2d 549

380 Mich. 209

Peter L. BUBACK, Plaintiff and Appellant, v. George ROMNEY, Governor of the State of Michigan, Frank J Kelley, Attorney General of the State of Michigan, and Francis A. Castellucci, Judge of the Probate Court for the County of Macomb, Defendants and Appellees.

No. 15.

Supreme Court of Michigan.

March 4, 1968.

Joseph W. Louisell and Ivan E. Barris, Detroit, for plaintiff-appellant

Frank J. Kelly, Atty. Gen., Robert A. Derengoski, Sol. Gen., William J. Mullaney, Stewart H. Freeman, Asst. Attys. Gen., Lansing, for defendants-appellees and cross-appellants.

Before the Entire Bench.

ADAMS, Justice.

Plaintiff originally sought to prevent the holding of a removal proceeding under C.L. 1948, § 201.7 et seq., as amended (Stat.Ann.1965 Cum.Supp. § 6.697 et seq.), prior to completion of a criminal prosecution against him arising from the same circumstances. It was claimed that to hold such a proceeding would violate plaintiff's privilege against self-incrimination and deprive him of procedural due process. The criminal prosecution has been dismissed. Plaintiff's claims for injunctive and other relief, denied by the Court of Appeals, are now moot and will not be considered.

Upon a motion for rehearing in the Court of Appeals, the constitutional question as to separation of powers was raised. The Court held:

'The provisions of C.L. 1948, § 201.7, authorizing the governor to direct the attorney general or prosecuting attorney to conduct a hearing on the charges alleged as the basis for removal of a county officer before a probate judge or circuit court commissioner is an unlawful imposition of executive functions on judicial officers in contravention of the provisions of the Michigan Constitution of 1963, art. III, § 2.

'This opinion is based on the authority and reasoning of the following cases: In re Slattery (1945), 310 Mich. 458 (17 N.W.2d 251), and Local 170, Transport Workers Union of America, v. Genesee Circuit Judge (1948), 322 Mich. 332 (34 N.W.2d 71), and the exposition of the reasoning approved in those cases as set forth in the opinion of Justice Cardozo in the case of In the matter of Richardson, 247 NY 401 (1960 NE 655). See also Township of Dearborn v. Dearborn Township Clerk (1952), 334 Mich. 673 (55 N.W.2d 201).' Order of Court of Appeals. Not officially reported.

The decision of the Court of Appeals was cross-appealed to this Court by the Attorney General.

THE STATUTE

C.L. 1948, § 201.7 et seq., as amended (Stat.Ann.1965 Cum.Supp. § 6.697 et seq.), provides that the Governor may direct the Attorney General or the prosecuting attorney of the county 'to conduct and inquire into the charges made, * * * at which he will proceed to the examination of witnesses in relation to such charges before some circuit court commissioner * * * or Any judge of probate who may be appointed by the governor for such purpose

(emphasis supplied).' Upon application of the accused officer, the commissioner or probate judge shall require the endorsement of witnesses in the same manner and subject to the same rules as required in criminal cases. He shall observe the rules of evidence followed in chancery cases and shall have authority to rule on questions of procedural law. He may authorize the taking of depositions in the same manner as provided for civil cases. In the present case, Governor Romney indicated that the question of delaying the commencement of the removal proceedings was one to be decided solely by Probate Judge Castellucci.

CONSTITUTIONAL PROVISIONS

Article III, § 2, of the 1963 Constitution provides:

'The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise Powers properly belonging to another branch except as expressly provided in this constitution.' (Emphasis supplied.)

Immediately following Article III, the legislative branch, the executive branch, and the judicial branch are respectively dealt with in Articles IV, V, and VI.

Article VI, § 1, reads as follows:

'The Judicial power of the state Is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, One probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.' (Emphasis supplied.)

Article VI, § 15, reads as follows:

'In each county organized for judicial purposes there shall be a probate court. The legislature may create or alter probate court districts of more than one county if approved in each affected county by a majority of the electors voting on the question. The legislature may provide for the combination of the office of probate judge with any judicial office of limited jurisdiction within a county with supplemental salary as provided by law. The jurisdiction, powers and duties of the probate court and of the judges thereof shall be provided by law. They shall have original jurisdiction in all cases of juvenile delinquents and dependents, except as otherwise provided by law.' (Emphasis supplied.)

Article VI, § 19, provides as follows:

'The supreme court, the court of appeals, the circuit court, The probate court and other courts designated as such by the legislature shall be courts of record and each shall have a common seal. Justices and judges of courts of record must be persons who are licensed to practice law in this state. No person shall be elected or appointed to a judicial office after reaching the age of 70 years.' (Emphasis supplied.)

The removal power with which we are here concerned is contained in local government article, Article VII, § 33:

'Any elected officer of a political subdivision may be removed from office in the manner and for the causes provided by law.'

The broad authority to remove from office is dealt with in various sections of the 1963 Michigan Constitution. For example, Article IV, § 16, deals with the power of each house of the legislature to expel a member. Article VI, § 25, deals with the power of the Governor to remove a judge on concurrent resolution of two-thirds of the members elected to and serving in each house of the legislature. Article V, § 10, deals with the Governor's power to remove any elective or appointive state officer, except legislative or judicial. Article XI, § 5 (civil service), provides: 'No * * * removals in the classified service shall be made for religious, racial or partisan considerations.'

It will be seen from the above that, in general, the constitutional scheme for removals from office has been to assign to each branch of government the removal power within that branch. In the case of judges, an exception, the removal power is assigned to the chief executive with the concurrence of two-thirds of the legislature. Other removals from office within the judicial branch, by decision of this Court--Gray v. Clerk of Common Pleas Court (1962), 366 Mich. 588, 115 N.W.2d 411--are a judicial function. Absent constitutional restraint, the removal power is implied in all governmental operations--Hawkins v. Common Council of the City of Grand Rapids (1916), 192 Mich. 276, 158 N.W. 953--but is normally exercised in a specific branch of State government as a part of the operations and powers of that branch.

REMOVALS FOR CAUSE BY THE EXECUTIVE AND

EXERCISE OF JUDICIAL POWER

Where the removal power has been assigned to the Governor or to a State agency, this Court has refused directly to interfere with the exercise of that power. People ex rel. Clay v. Stuart (1889), 74 Mich. 411, 41 N.W. 1091; Fuller v. Attorney General (1893), 98 Mich. 96, 57 N.W. 33; Speed v. City of Detroit Common Council (1894), 98 Mich. 360, 57 N.W. 406, 22 L.R.A. 842; Attorney General v. Jochim (1894), 99 Mich. 358, 58 N.W. 611, 23 L.R.A. 699; Attorney General v. Berry (1894), 99 Mich. 379, 58 N.W. 617; Attorney General v. Hambitzer (1894), 99 Mich. 380, 58 N.W. 617; In re Fredericks (1938), 285 Mich. 262, 280 N.W. 464, 125 A.L.R. 259; Lilienthal v. City of Wyandotte (1938), 286 Mich. 604, 282 N.W. 837, rehearing denied 1939. However, an arbitrary exercise of the removal power is subject to judicial review. People ex rel. Andrews v. Lord (1861), 9 Mich 227; Dullam v. Willson (1884), 53 Mich. 392, 19 N.W. 112; Lilienthal v. City of Wyandotte, supra; McDonald v. Schnipke (1968), 380 Mich. 14, 155 N.W.2d 169.

The reasons why the role of the courts in removal proceedings is an exceedingly limited one and why a court should avoid involvement were examined in Koeper v. Detroit Street Railway Commission (1923), 22 Mich. 464, 193 N.W. 221; and again in In re Fredericks, supra, in which this Court said (285 Mich. p. 265, 280 N.W. p. 465):

'The act of removing for cause * * * (is) primarily administrative and, although judicial in a sense, not an act of such a nature that it requires performance by the judicial branch of the government or permits an appeal thereto.'

The removal power here under consideration was assigned by the legislature to the executive branch of State government. Even though the proceeding is an executive one, removal from office for cause is also a Quasi judicial proceeding. The power must be exercised in such fashion as to afford due process. See, for example, Dullam v. Willson, supra; Speed v. Common Council, supra; Attorney General v. Bairley (1920), 209 Mich. 120, 176 N.W. 403; In re Fredericks, supra; Lilienthal v. City of Wyandotte, supra. The mere fact that it is to be conducted in a judicial or Quasi judicial fashion does not make it any less an executive proceeding. Within the executive branch are such bodies as the State Tax Commission, the Workmen's Compensation Appeal Board and the Corporation Tax Appeal Board, all performing Quasi judicial functions.

It may be noted that the second sentence of Article I, § 17, the due...