Hart v. Wayne County, Docket No. 19285

• Decision Date: 28 May 1975
• Docket Number: Docket No. 19285,No. 1,1
• Citation: 61 Mich.App. 188,232 N.W.2d 678
• Parties: George Z. HART, Plaintiff-Appellant, v. The COUNTY OF WAYNE et al., Defendants-Appellees, and The Judges of the Recorder's Court of the City of Detroit, InterveningDefendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 678

232 N.W.2d 678

61 Mich.App. 188

George Z. HART, Plaintiff-Appellant, v. The COUNTY OF WAYNE et al., Defendants-Appellees and The Judges of the Recorder's Court of the City of Detroit InterveningDefendants-Appellees.

Docket No. 19285.

Court of Appeals of Michigan, Division No. 1.

May 28, 1975.

Released for Publication Sept. 9, 1975.

James T. Thomson, Dearborn, for plaintiff-appellant.

Aloysius J. Suchy, Corp. Counsel, David R. Kaplan, Asst. Corp. Counsel, Detroit, for Wayne County.

Maureen P. Reilly, Asst. Corp. Counsel, Detroit, Samuel Brezner, Southfield, for defendants-appellees.

Before BRONSON, P.J., and McGREGOR and CARLAND, ^* JJ.

BRONSON, Presiding Judge.

The County of Wayne has funded portions of the salaries of Detroit Recorder's Court judges for 55 years. The legality of that well-established practice is challenged in this appeal.

Appellant can hardly take credit for this, however. He has failed to submit a brief in accordance with GCR 1963, 813. We have been given a sheaf of papers labeled 'brief', but careful and repeated readings of its contents have as yet served no purpose. Appellant's one-paragraph 'argument' is simply a series of unsupported conclusions. If this were the usual case, we would hold that appellant's failure to file a brief constitutes issue abandonment. Mitcham v. Detroit, 355 Mich. 182, 203, 94 N.W.2d 388 (1959).

But this is not the usual case. The trial judge, the principal defendants, and the intervening defendants have done an excellent job in developing, researching, and analyzing the troublesome issues presented here. We have also been favored with a comprehensive, scholarly opinion by the trial judge. Because this case involves the important question of the constitutionality of a state statute, because its resolution affects all of the residents of Wayne County, and because it has been properly prepared for decision, plaintiff's failure to shoulder his appellate burden should be ignored.

The parties agree that this case involves solely a question of law and can appropriately be disposed of by summary judgment. We proceed to consider whether the trial judge erred in entering summary judgment on behalf of defendants rather than plaintiff.

I.

Prior to 1920, the judges of the Recorder's Court of the City of Detroit were paid pursuant to M.C.L.A. § 726.6; M.S.A. § 27.3556, which provides, in pertinent part:

'Each of said judges shall receive From the treasury of the state of Michigan the same annual salary as may be payable to circuit judges. * * *' (Emphasis added.)

In 1919, the Michigan Legislature enacted P.A. No. 369. This act was enabling legislation designed to permit our cities to establish municipal courts and to allow municipalities already possessing municipal courts to adopt the procedural alterations it contained. Section 13 of the 1919 act ¹ provides, in relevant part:

'Each judge of said court, including the presiding judge, shall receive an annual salary from the County in which said court is located in the same amount as that paid by the State to circuit judges * * *.' ² (Emphasis supplied.)

On April 5, 1920 the 1919 act was approved by a majority of the electorate of the City of Detroit. ³

Since Recorder's Court is the municipal court for the City of Detroit, People v Buckley, 302 Mich. 12, 18, 4 N.W.2d 448 (1942); Moline v. Judge of Recorder's Court, 238 Mich. 78, 82, 213 N.W. 204 (1927), when the 1919 act was adopted by referendum, it necessarily amended those portions of the Recorder's Court act ⁴ with which it was inconsistent. Therefore, if the act of 1919 was validly adopted, then it supersedes M.C.L.A. § 726.6; M.S.A. § 27.3556. If it was not validly adopted, then M.C.L.A. § 726.6; M.S.A. § 27.3556--providing for State payment of the judges' salaries--remains applicable to Recorder's Court.

II.

Plaintiff attacks the assessment of Wayne County residents for payment of part of the salaries of the judges of the Recorder's Court. ⁵ Plaintiff is a resident taxpayer of Wayne County but not a resident of the City of Detroit. He seeks to relieve similarly situated Wayne County taxpayers of those future assessments the proceeds of which are used to pay the judges' salaries.

We have concluded that 1919 P.A. 369 was never constitutionally adopted, that M.C.L.A. § 726.6; M.S.A. § 27.3556 is still in force, and that plaintiff is therefore entitled to the relief requested.

At the time of the passage of the 1919 act and the 1920 referendum held in the City of Detroit to consider its adoption, the Constitution of 1908 governed. Article 5, § 30 of that Constitution provided, in pertinent part, as follows:

'No local or special act * * * shall take effect until approved by a majority of the electors voting thereon in the district to be affected.' ⁶

There can be no doubt that 1919 P.A. 369 is a local act. The Supreme Court of Michigan explicitly so held in Attorney General ex rel. Cotter v. Lindsay, 221 Mich. 533, 536, 191 N.W. 826, 827 (1923). That case presented the question whether an amendment to 1919 P.A. 369 had been properly adopted in the City of Detroit. The amendment, 1921 P.A. 364, contained no referendum clause and no referendum vote was ever held. The Court invoked art. 5, § 30 of the 1908 Constitution and said:

'Whether we consider the object of the act of 1919 as expressed in its title, consider the act in its entirety, or consider the limitations placed on the referendum found in section 7, ⁷ we are irresistably forced to the conclusion that the act is amendatory of local legislation, and is local in character.'

In concluding that 1921 P.A. 364, as an amendment of the act of 1919, was a local act, the Court necessarily decided that the act of 1919 was itself local in character. ⁸

It is also clear that Wayne County voters living outside of the City of Detroit did not vote in the April 5, 1920 referendum which resulted in the apparent adoption of 1919 P.A. 369. Rather, the election was restricted to 'the qualified electors' of the City of Detroit in accordance with § 7 ⁹ of the act.

Defendants argue that the City of Detroit is the only 'district affected' by the act, because it primarily reorganized and improved the Recorder's Court for the City of Detroit. This 'local court refurbishing' ¹⁰ is said to affect Wayne County only insignificantly. The only other part of the act--the funding portion--need not be approved by referendum, the argument continues, because the Legislature has the power to order Wayne County taxpayers to pay the salaries of the Recorder's Court judges. And since the voters of the City of Detroit--the district affected--approved that portion of the act which required a referendum, ¹¹ it is said that 1919 P.A. 369 was validly adopted in Detroit.

Even if we were to accept the contention that the local features of the 1919 act do not affect Wayne County in an important way, ¹² we are unable to find support for the assertion that Wayne County can be forced to fund Recorder's Court judges' salaries in the manner contemplated by the act. ¹³ It is true that if the Legislature were to pass a General law calling for statewide county payment of municipal court judges' salaries, Wayne County residents could constitutionally be required to provide financial support. Wayne Circuit Judges v. Wayne County, 386 Mich. 1, 190 N.W.2d 228 (1971). Wayne County residents would in that case have to be content with having been represented by their duly elected legislators in the decision to enact a general statute.

However, we face here a Local law which seeks to impose on Wayne County residents a financial burden without their majority approval as required by the Constitution. ¹⁴ The cases cited in support of the proposition that the Legislature can require Wayne County residents to pay these salaries were decided Before the 1908 Constitution was adopted, adding the protection embodied in art. 5, § 30. People ex rel. Bristow v. Supervisors of Macomb County, 3 Mich. 475 (1955); People ex rel. Schmittdiel v. Board of Auditors, 13 Mich. 233 (1865). No case decided since the effective date of this constitutional provision has suggested that the power previously held by the Legislature--as documented in Schmittdiel and Bristow--has somehow been reestablished in Lansing in derogation of the plain language of the Constitution. We are not at liberty to ignore the mandate of art. 5, § 30. It was designed to prevent exactly what occurred here. Its purpose was eloquently announced by Justice Brooke in Attorney General ex rel. Dingeman v. Lacy, 180 Mich. 329, 337--338, 146 N.W. 871, 874 (1914):

'Considering the history of legislation under the Constitution of 1850, it is apparent that there had grown up a pernicious practice on the part of the Legislature in passing local acts. The practice was bad in two very important particulars. In the first place, much of the legislation thus enacted constituted a direct and unwarranted interference in purely local affairs and an invasion of the principles of local self-government. In the second place, such legislation affecting as it did certain limited localities in the state, the Senators and Representatives from unaffected districts were usually complaisant, and agreed to its enactment without the exercise of that intelligence and judgment which all legislation is entitled to receive from all the members of the Legislature. This course led to many abuses (principally in amendments to city charters), some of which found their way into the courts, and were there redressed so far as the Constitution then in force would permit.

'With these evils in mind, the Constitution of 1909 (sic) was formulated and adopted by the people. From a reading of the provisions above quoted and others of a similar character, it is, we think, entirely clear that it was the settled purpose of the framers of the new instrument and of the people who adopted it to forever insure to the people the right to...