Council No. 11, Am. Federation of State, County and Municipal Emp. (AFSCME), AFL CIO v. Michigan Civil Service Commission

Citation292 N.W.2d 442,408 Mich. 385
Decision Date27 May 1980
Docket NumberDocket No. 62418,AFL-CI,M,No. 3,3
PartiesCOUNCIL # 11, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES (AFSCME),yrl Lockett, Phil Helms, Betty Pearson, Bing Johnson, and Robert G. Cusack, on behalf of themselves and on behalf of all employees in the State of Michigan classified service, Plaintiffs-Appellees, v. MICHIGAN CIVIL SERVICE COMMISSION, Defendant-Appellant. Calendar
CourtSupreme Court of Michigan

Zwerdling & Maurer by George B. Washington, Detroit, for plaintiffs-appellees.

MacLean, Seaman, Laing & Guilford, Kenneth Laing, Kathleen Opperwall, Lansing, for defendant and appellant.

American Civil Liberties Union Fund of Michigan by Edward M. Wise, Gen. Counsel, Detroit, amicus curiae.

RYAN, Justice.

This case involves a conflict between the rule-making power of the Michigan Civil Service Commission and the law-making power of the Legislature and the need to determine which, upon the facts before us, is controlling.

We granted leave to appeal 1 to consider two specific issues raised in the defendant-appellant's application for leave to appeal:

1) Whether 1976 P.A. 169 2 has application to employees in the state classified civil service; and 2) Whether Rule 7 of the Michigan Civil Service Commission 3 constitutionally regulates the political activities of employees in the state civil service.

Our answer to the first question is "Yes". We do not reach the second issue.

Specifically, we hold that 1976 P.A. 169 properly applies to classified employees of the state civil service and that, to the extent that Rule 7 is in conflict with the statute or otherwise purports to regulate the off-duty political activity of state classified civil service employees, it is invalid. In view of our holding on that question, we do not reach the constitutional issue.

I. Facts

On September 22, 1976, plaintiffs filed a complaint in Wayne Circuit Court alleging that Rule 7 is invalid because it conflicts with 1976 P.A. 169 and because it violates Const.1963, art. 1, § 5. 4 Plaintiff Council 11, American Federation of State, County and Municipal Employees is a labor union representing approximately 6,500 of the nearly 65,000 classified employees in the state civil service. Plaintiff Robert Cusack was employed in the state civil service as an Attendant Nurse 04. He was discharged for violating Civil Service Commission Rule 7.3 in that he filed nominating petitions to become a candidate for Sheriff of Ionia County. The other individual plaintiffs were also employed by the state at the time the complaint was filed.

The trial court issued a declaratory judgment upholding both the statute and the Civil Service Commission rule, and in an attempt to reconcile their conflicting provisions found:

"Section 7.1 of the rules of the Civil Service Commission, as interpreted, and limited to the regulation of employees within the scope of employment within the state classified service, is a proper and constitutional exercise of authority."

"Insofar as § 2(c) of the P.A. 169 of 1976 is incompatible with § 7.3 of the rules of the commission, it may be without application to certain members of the classified state service."

Employing a balancing test, the court found that the "interests of the state in maintaining a separation between state employment and partisan pursuits outweighs an (individual employee's) interest to campaign (sic ) for partisan office while continuing (in) state employment". 5 Consequently, plaintiff Cusack's discharge for filing petitions to become a candidate for partisan elective office was upheld.

Both parties appealed to the Court of Appeals. That court upheld the application of 1976 P.A. 169 to the state classified service, found no compelling state interest to justify a blanket ban on civil service employees' off-duty political activity, and struck down Rule 7 as impermissibly overbroad. The court announced adoption of a rule requiring a case-by-case approach in the future in determining whether particular political activity adversely affects job performance. Because plaintiff Cusack was discharged without a showing that his off-duty political activity hindered his job performance, the Court of Appeals reversed the lower court ruling dismissing Cusack's complaint and ordered a remand. Council No. 11, AFSCME, AFL-CIO v. Civil Service Comm., 87 Mich.App. 420, 274 N.W.2d 804 (1978).

The defendant Civil Service Commission now contends, as it did before the Court of Appeals, that its authority to order a flat ban on the off-duty as well as on-duty partisan political activity by all state classified civil service employees, as described in Rule 7, is derived from "the plain language" of Const.1963, art. 11, § 5; that its constitutional authority to do so is preemptive of legislative power to legislate in conflict therewith; and that the "same conclusion follows from the case law interpreting the (Michigan) Constitution and the history of civil service in Michigan". 6

Plaintiffs, on the other hand, claim that as between the legislative enactment specifically authorizing state classified civil servants to enjoy the exercise of freedom of speech and expression involved in off-duty political activity, including running for public office, and the Civil Service Commission prohibition of such activity, the legislative enactment is controlling. Plaintiff claims that is so because neither the "plain language" of Const.1963, art. 11, § 5, our prior cases, nor the history of civil service in Michigan justify the appellant's conclusion that the Civil Service Commission is empowered to ban off-duty political activity, even in the absence of legislative authorization to the contrary. Plaintiffs claim further that the Rule 7 ban on off-duty political activity violates both the Federal and state constitutional provisions guaranteeing to all citizens freedom of speech.

II. Applicability of 1976 P.A. 169 to Civil Service Employees

The power, indeed the duty, to protect and insure the personal freedoms of all citizens, including the rights of free speech and political association, is reposed in the Legislature as one of the three co-equal branches of government by art. 1 of the Michigan Constitution. 7 The enactment of laws designed to assure the protection and enhancement of such rights is therefore a particularly proper legislative concern.

For example, by a specific grant of power from the people in art. 2 of the state constitution, the Legislature has been given the responsibility of regulating nominations and elections, providing for the registration of voters, declaring their eligibility within constitutional limits and, in general, enacting laws guaranteeing in myriad ways the rights of citizens to participate in the political process and exercise the elective franchise. It is well settled that the Legislature of this state is empowered to enact laws to promote and regulate political campaigns and candidacies. Evans v. Detroit Election Comm., 381 Mich. 382, 162 N.W.2d 141 (1968); Jeffries v. Wayne County Election Comm., 294 Mich. 255, 293 N.W. 546 (1940); People v. Gansley, 191 Mich. 357, 158 N.W. 195 (1916).

1976 P.A. 169 is an uncommon exercise of this power in that it undertakes to authorize and extend to a specific class of citizens employees in the state classified civil service the right to engage in partisan political activity, serve as convention delegates, and run for elective office while on mandatory leave of absence. In most cases, when state legislatures have addressed the subject of political activity by state classified civil servants, it has been to sharply restrict or entirely preclude the kind of partisan politicking authorized by 1976 P.A. 169. 8

Defendant claims the statute is unconstitutional to the extent that it conflicts with Rule 7, because the Civil Service Commission enjoys exclusive jurisdiction, derived from art. 11, § 5 of the constitution, specifically the fourth paragraph thereof, to "legislate" on the subject of political activity by classified civil servants. That paragraph states:

(Commission's Duties as to Classification, Compensation, Examinations, Personnel Transactions and Conditions of Employment.)

"The commission shall classify all positions in the classified service according to their respective duties and responsibilities, fix rates of compensation for all classes of positions, approve or disapprove disbursements for all personal services, determine by competitive examination and performance exclusively on the basis of merit, efficiency and fitness the qualifications of all candidates for positions in the classified service, make rules and regulations covering all personnel transactions, and regulate all conditions of employment in the classified service." (Emphasis added.)

It is upon the emphasized reference to "all personnel transactions" and "all conditions of employment" that defendant principally relies for its claim of authority.

In Oakland County Taxpayers' League v. Oakland County Supervisors, 355 Mich. 305, 323, 94 N.W.2d 875, 885 (1959), a test was formulated to determine whether a statute is constitutional. We held:

"(T)his Court will not declare a statute unconstitutional unless it is plain that it violates some provisions of the Constitution and the constitutionality of the act will be supported by all possible presumptions not clearly inconsistent with the language and the subject matter."

We turn then to the question whether it is "plain" that 1976 P.A. 169 violates art. 11, § 5 of the state constitution and specifically the provision thereof which declares that the Civil Service Commission shall "regulate all conditions of employment in the classified service".

To address the issue adequately, it is necessary to examine the history of the civil service system in Michigan and the origin of the constitutional provision here in question.

It is generally...

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