Council No. 23, Local 1905, Am. Federation of State, County and Mun. Emp. v. Recorder's Court Judges

Decision Date01 March 1976
Docket NumberNo. 10,10
Citation248 N.W.2d 220,94 L.R.R.M. (BNA) 2392,399 Mich. 1
PartiesCOUNCIL #23, LOCAL 1905, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, and Chase S. Osborn, IV, Plaintiffs-Appellants, v. RECORDER'S COURT JUDGES, Defendants-Appellees. ,
CourtMichigan Supreme Court

Zwerdling, Maurer & Papp by George M. Maurer, Jr., Detroit, for plaintiffs-appellants.

Alphonso R. Harper, Detroit, for defendants-appellees.

LINDEMER, Justice (To Affirm):

We believe the Recorder's Court Judges were justified in refusing to enter into binding arbitration on the grievance filed by Chase S. Osborn, IV. Appellant Osborn was discharged from employment as a probation officer pursuant to the provisions of M.C.L.A. § 771.10; M.S.A. § 28.1140. The dissent finds § 15 of PERA controls and would order the Recorder's Court Judges to submit to binding arbitration. In so holding, they have resolved a conflict between two state statutes in favor of PERA, the more general statute. This is in violation of the rule that

'In case of conflict between two such legislative enactments the special statute or code must prevail. This is the commonly-accepted view in dealing with such conflicts. In Attorney General ex rel. Owen v. Joyce, 233 Mich. 619 (207 N.W. 863 (1926)), the rule suggested was applied although the special law preceded in its enactment the general statute.' Imlay Twp. School Dist. v. State Bd. of Ed., 359 Mich. 478, 485, 102 N.W.2d 720, 723 (1960).

We believe the specific provision of M.C.L.A. § 771.10; M.S.A. § 28.1140 should be held to be the only procedure necessary for the discharge of a probation officer. Probation officers are agents of the courts. While the Michigan Corrections Commission is charged with the duty of appointment and removal of probation officers, they do so at the recommendation of the judges. Probation officers perform duties particularly central to the administration of criminal justice. M.C.L.A. § 771.14; M.S.A. § 28.1144 directs that a probation officer must conduct a presentence investigation and report this information to the trial judge. (Perhaps under the dissenting opinion AFSCME could force the Recorder's Court Judges to collectively bargain on whether or not they would have to continue to prepare presentence reports.) Judges must place great reliance on the ability of their probation officers to prepare accurate reports for use at sentencing. Additionally, probation officers are required to supervise persons placed on probation under the regulations as prescribed by the courts. A judge's ability to discharge his judicial functions can be affected by the capability of his probation officer.

In the private sector, the grievance procedure is necessary to guarantee that an employee cannot be terminated at the whim of an employer. Grievance procedures insure that the employee is given a hearing at which he has an opportunity to present his side of the dispute. In the present case, M.C.L.A. § 771.10; M.S.A. § 28.1140 serves that function. It guarantees the probation officer a full hearing at which the court must determine the probation officer was guilty of incompetence, misconduct, neglect of duty or refusal to carry out the order of the court before it can recommend removal. Submission of that decision to a grievance procedure with binding arbitration could result in a reinstatement of a probation officer in which the court could no longer place trust or confidence. We cannot accept that the Legislature in adopting § 15 of the PERA in 1965 meant to encumber the judicial process in such a manner.

We would affirm the Court of Appeals.


WILLIAMS, Justice (To Affirm).

The basic legal issue in this case is whether there is such a Positive repugnancy between the provisions of The Public Employees Relations Act (PERA) 1 and the probation officer removal statute 2 that PERA repeals the probation officer removal statute by necessary implication. The factual question posing the legal question is whether there must be binding arbitration pursuant to the bargaining agreement between Recorder's Court and its employees to review whether the Court properly removed a probation officer following the procedures of the probation officer removal statute.

My brother Levin's opinion holds that the subsequent PERA supersedes the probation officer removal statute because of 'the apparent legislative intent that the PERA be the governing law for public employee labor relations,' and the Recorder's Court must proceed to arbitration. Rockwell v. Crestwood School District Board of Education, 393 Mich. 616, 629, 227 N.W.2d 736, 741 (1975). My brother Lindemer's opinion, on the other hand, holds that a specific prior statute like the probation officer removal statute cannot be overruled by a general statute like PERA, and that the Recorder's Court properly removed plaintiff Osborn and is not subject to review by arbitration. Imlay Twp. School District v. State Board of Education, 359 Mich. 478, 485, 102 N.W.2d 720 (1960).

As indicated above this opinion reverts to the basic doctrine underlying the rules my brothers rely on, to wit, that there is no repeal by implication unless there is Positive repugnancy between the later and earlier statutes. That is the way legislative intention is expressed. That is the foundation for the rule that normally a general statute does not repeal a specific one.

Examination of PERA under this rule fails to disclose any specific preemption in the field of employee removal or review by arbitration of such removal that would create a positive repugnancy and repeal by implication the probation officer removal statute. Supporting this finding is the consideration that legislative intention to delegate to a private person the power to remove or reinstate so sensitive a judicial official as a probation officer, because of constitutional implications, could not be presumed absent specific language to that effect.


To rehearse the facts in any detail would be redundant, as Justice Levin has fairly and adequately set them forth. Suffice it to say, the Recorder's Court judges after notice and hearing and finding plaintiff probation officer 'incompetent or . . . guilty of misconduct, neglect of duty or refusal to carry out the order of the court' recommended plaintiff probation officer to the Corrections Commission for removal pursuant to the probation officer removal statute. Plaintiff AFSCME filed a grievance requesting arbitration pursuant to their bargaining agreement. The Recorder's Court relying on the probation officer removal statute declined to submit to arbitration. Plaintiffs thereupon unsuccessfully sought mandamus in the Court of Appeals.


In the final analysis what this case involves is whether there is repeal by implication. In the ideal situation, the Legislature enacts new laws either covering fresh areas or specifically repealing former acts covered by the new legislation. The reality is, of course, that that is not what always happens. The courts therefore have evolved rules to construe old laws in light of new ones.

The most fundamental rule for the construction of two statutes covering the same subject generally is that they must be construed together to give meaning to both, if that is at all possible. Borden v. Department of Treasury, 391 Mich. 495, 523, 218 N.W.2d 667 (1974). The correlative of this is that there is a presumption against repeal by implication. Sands Sutherland Statutory Construction § 23.10.

If it does not appear that two statutes can be construed together, the next question is does the later statute repeal the prior statute by implication. MLP §§ 63, 64. The general rule as to repeal by implication was well stated in Edwards v. Auditor General, 161 Mich. 639, 644--645, 126 N.W. 853, 855 (1910), as follows:

'Repeals by implication are not favored. A statute can be repealed only by an express provision of a subsequent law, or by necessary implication through a Positive repugnancy between provisions of the latter and former enactment, to such an extent that they cannot stand together, or be consistently reconciled.' (Emphasis added)

The subsequent statute in that case required certain officials having in their control the bodies of unknown dead to ship them to the University of Michigan; the prior statute permitted the justice of the peace to hold inquest and bury the bodies of unknown dead. No repugnancy was found. This case also referred to the specific statute prevailing over the subsequent general one. See also Connors v. Iron Co., 54 Mich. 168, 171, 19 N.W. 938 (1884).


Turning then to analysis of whether the subsequent PERA repeals by implication the probation officer removal statute, we must bear three rules in mind. First, two statutes must be construed together if that is at all possible. Second, '(r)epeals by implication are not favored.' Third, '(a) statute can be repealed only . . . by necessary implication through a Positive repugnancy . . . to such an extent that they cannot stand together'.

Our analysis permits PERA and the probation officer removal statute to stand together. The public employer, the Recorder's Court, and the public employees, the probation officers, can bargain collectively about all subjects that the Legislature and the Constitution permit them to bargain on. They can even bargain about binding arbitration so long as they do not bargain about matters otherwise reserved by the Legislature or the Constitution, for example, they obviously couldn't bargain or arbitrate whether probation officers could prescribe sentences.

By so construing the statutes together, we have followed the first two pertinent dictates of statutory construction. We have construed the two statutes together giving meaning to both. We have not favored...

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