Hackel v. Macomb Cnty. Comm'n

• Decision Date: 30 October 2012
• Docket Number: Docket No. 310402.
• Citation: 298 Mich.App. 311,826 N.W.2d 753
• Parties: HACKEL v. MACOMB COUNTY COMMISSION.
• Court: Court of Appeal of Michigan — District of US

298 Mich.App. 311

826 N.W.2d 753

HACKEL

v.MACOMB COUNTY COMMISSION.

Docket No. 310402.

Court of Appeals of Michigan.

Submitted Oct. 5, 2012, at Detroit.

Decided Oct. 30, 2012, at 9:15 a.m.

Clark Hill PLC (by James E. Brenner, Detroit and Gregory N. Longworth, Grand Rapids), for Mark Hackel.

O'Reilly Rancilio, P.C., Sterling Heights (by Lawrence M. Scott and Donald P. DeNault, Jr.), for the Macomb County Commission.

Before: KIRSTEN FRANK KELLY, P.J., and MARKEY and SERVITTO, JJ.

MARKEY, J.

Defendant, Macomb County Commission (the Commission), appeals by right the trial court's order granting summary disposition to plaintiff, Mark Hackel (the Executive), denying summary disposition to the Commission and granting the Executive's request for attorney fees. The Executive brought this action for declaratory and injunctive relief arising from a dispute regarding whether the Executive or the Commission has the authority to approve Macomb County contracts. We reverse and remand for entry of summary disposition for the Commission.

The Commission argues that the trial court erred by granting summary disposition to the Executive and in denying summary disposition to the Commission. We agree. This Court reviews de novo a trial court's decision on a motion for summary disposition. Wayne Co. v. Wayne Co. Retirement Comm., 267 Mich.App. 230, 243, 704 N.W.2d 117 (2005). The Commission moved for summary disposition under MCR 2.116(C)(7), (8), and (10), and the Executive moved for summary disposition under MCR 2.116(C)(9) and (10). The trial court, however, did not indicate under which subrule it decided the motions. Because it is not necessary to consider evidence outside the pleadings to resolve this issue, we conclude that review is appropriate under MCR 2.116(C)(8) and (9). See MCR 2.116(G)(5); Hughes v. Region VII Area Agency on Aging, 277 Mich.App. 268, 273, 744 N.W.2d 10 (2007).

A motion under MCR 2.116(C)(8) “tests the legal sufficiency of the complaint on the basis of the pleadings alone to determine if the opposing party has stated a claim for which relief can be granted.” Begin v. Mich. Bell Tel. Co., 284 Mich.App. 581, 591, 773 N.W.2d 271 (2009). A reviewing court must accept all well-pleaded allegations as true and construe them in the light most favorable to the nonmoving party. Id. The motion should be granted only if no factual development could possibly justify a recovery. Id.

“A motion brought under MCR 2.116(C)(9) seeks a determination whether the opposing party has failed to state a valid defense to the claim asserted against it.” In re Smith Estate, 226 Mich.App. 285, 288, 574 N.W.2d 388 (1997). A motion under MCR 2.116(C)(9) “is analogous to one brought pursuant to MCR 2.116(C)(8) in that both motions are tested by the pleadings alone, with the court accepting all well-pleaded allegations as true.” Id. When a party's defenses are so untenable as a matter of law that no factual development could possibly deny the plaintiff's right to recovery, the motion is properly granted. Id.

This Court reviews de novo questions of law that arise in a declaratory judgment action. Detroit City Council v. Detroit Mayor, 283 Mich.App. 442, 449, 770 N.W.2d 117 (2009). Thus, the interpretation of a statute or a municipal charter is a question of law we review de novo. Wayne Co., 267 Mich.App. at 243, 704 N.W.2d 117. Also, we review de novo whether a statute is void for vagueness, S.T.C., Inc. v. Dep't of Treasury, 257 Mich.App. 528, 538–539, 669 N.W.2d 594 (2003), and whether the doctrine of the separation of powers applies, Harbor Tel. 2103, L.L.C. v. Oakland Co. Bd. of Comm'rs, 253 Mich.App. 40, 50, 654 N.W.2d 633 (2002).

“Any county may frame, adopt, amend or repeal a county charter in a manner and with powers and limitations to be provided by general law.... The law may permit the organization of county government in form different from that set forth in this constitution....” Const. 1963, art. 7, § 2. Pursuant to this authority, the Legislature enacted the charter counties act, MCL 45.501 et seq.Lucas v. Wayne Co. Election Comm., 146 Mich.App. 742, 749, 381 N.W.2d 806 (1985). MCL 45.514(1) provides, in relevant part:

A county charter adopted under this act shall provide for all of the following:

(a) In a county having a population of less than 1,500,000, for a salaried county executive, who shall be elected at large on a partisan basis, and for the county executive's authority, duties, and responsibilities. In a county having a population of 1,500,000, or more, a county charter adopted under this act shall provide for a form of executive government described and adopted under [MCL 45.511a].

(b) The election of a legislative body to be known as the county board of commissioners, ... and for their authority, duties, [and] responsibilities....

MCL 45.511a(8) prescribes the powers and duties to be granted to the county executive in a county having a population of 1.5 million or more. But in counties that have a population of fewer than 1.5 million, MCL 45.514(1) unambiguously says that the county charter shall provide for the county executive's authority, duties, and responsibilities and for the county board of commissioners' authority, duties, and responsibilities. MCL 45.514(1) thus represents the Legislature's decision “to delegate the function of allocating power in a charter county to the charter commission in the first instance, subject to final approval by the affected voters.” Oakland Co. Comm'r v. Oakland Co. Executive, 98 Mich.App. 639, 650, 296 N.W.2d 621 (1980).¹

Therefore, because Macomb County has a population of less than 1.5 million, this Court must look to the provisions of the Macomb County Charter to determine the manner in which that county's voters chose to allocate the respective powers of the Executive and the Commission. Id. at 649–650, 296 N.W.2d 621. County charter provisions are subject to the same rules of interpretation as are statutes. Wayne Co., 267 Mich.App. at 244, 704 N.W.2d 117. When the language of a charter provision is unambiguous, it controls. Id. at 243, 704 N.W.2d 117. The framers of the charter and the people who voted to adopt it, “must be presumed to have intended that the provision be construed as it reads.” Woods v. Bd. of Trustees of the Policemen & Firemen Retirement Sys. of Detroit, 108 Mich.App. 38, 43, 310 N.W.2d 39 (1981). When construing a statute, every word should be given meaning in order to avoid a construction that would render any part of the statute surplusage or nugatory. Lapeer Co. Abstract & Title Co. v. Lapeer Co. Register of Deeds, 264 Mich.App. 167, 172, 691 N.W.2d 11 (2004).

The Macomb County Charter unambiguously grants to the Commission the discretionary authority to approve contracts. Macomb County Charter, § 4.4 states, in relevant part: “In addition to other powers and duties prescribed in this Charter, the Commission may: ... (d) Approve contracts of the County[.]” “The normal meaning of ‘approve’ with relation to government action implies the power to disapprove.” Alco Universal Inc. v. City of Flint, 386 Mich. 359, 362, 192 N.W.2d 247 (1971). That is because the term “approve” generally contemplates an exercise of discretion. Id.Moreover, the word “may” is used to express opportunity or permission. Random House Webster's College Dictionary (2001).² Thus, the plain and ordinary meaning of § 4.4(d) is that it affords to the Commission an opportunity and permission to approve or reject county contracts.

Contrary to the Executive's argument, there is no language in § 4.4(d) limiting the Commission's approval authority to what the Executive calls “legislative contracts,” i.e., contracts for which the Commission's approval is otherwise required by the charter, by state law, or by the contract itself. Section 4.4(d) plainly says that the Commission “may ... [a]pprove contracts of the County.” There is no language qualifying the phrase “contracts of the County.” For example, § 4.4(d) does not modify the phrase “contracts of the County” with additional language such as, “for which the Commission's approval is otherwise required by law, charter, or contract.” This Court “long ago recognized that the judiciary cannot read restrictions or limitations into a statute that plainly contains none.” Rusnak v. Walker, 273 Mich.App. 299, 305, 729 N.W.2d 542 (2006). Patently, § 4.4(d) does not set forth the Executive's proposed limitations on the Commission's contract-approval authority. Therefore, the framers of the charter and the voters who adopted it presumably intended for § 4.4(d) to mean exactly what it says, i.e., that the Commission may approve contracts of the county, without limitation. Woods, 108 Mich.App. at 43, 310 N.W.2d 39.³

Further, even if § 4.4(d) did not expressly grant contract-approval authority to the Commission, the Commission could exercise that power pursuant to §§ 4.4(j) and 4.5. Section 4.4(j) says that the Commission may “ [e]xercise any power granted by law to charter or general law counties unless otherwise provided by this Charter.” Similarly, § 4.5 states:

The enumeration of powers in this Charter shall not be held or deemed to be exclusive. In addition to the powers enumerated in this Charter, implied by this Charter, or appropriate to the exercise of the powers enumerated in this Charter, the Commission shall have and may exercise all legislative powers which this Charter could specifically enumerate as provided by the Constitution and the laws of the State of Michigan.

Michigan law recognizes that counties possess authority to make contracts. MCL 45.3 states:

Each organized county shall be a body politic and corporate, for the following purposes, that is to say: To sue and be sued, to purchase and hold real and personal estate for the use of the county; to borrow money for the purpose of erecting and repairing county buildings, and for the building of bridges, to make all necessary contracts, and to do all other...