House Speaker v. Governor

• Decision Date: 03 August 1992
• Docket Number: Nos. 148677-148679,s. 148677-148679
• Parties: HOUSE SPEAKER v. GOVERNOR. MICHIGAN UNITED CONSERVATION CLUBS v. GOVERNOR. MICHIGAN ENVIRONMENTAL PROTECTION FOUNDATION v. GOVERNOR.
• Court: Court of Appeal of Michigan — District of US

Page 832

491 N.W.2d 832

195 Mich.App. 376

HOUSE SPEAKER v. GOVERNOR.

MICHIGAN UNITED CONSERVATION CLUBS v. GOVERNOR.

MICHIGAN ENVIRONMENTAL PROTECTION FOUNDATION v. GOVERNOR.

Nos. 148677-148679.

Court of Appeals of Michigan.

Submitted May 6, 1992 at Lansing.

Decided Aug. 3, 1992 at 10:25 a.m.

Released for Publication Nov. 19, 1992.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Susan I. Leffler, Mary Kay Scullion, and Raymond O. Howd, Asst. Attys. Gen., for plaintiffs in No. 148677.

M. Carol Bambery, and Tom Downs, of Counsel, Lansing, for plaintiffs in Docket No. 148678.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Deborah Anne Devine and Thomas C. Nelson, Asst. Attys. Gen., for defendant.

Peter W. Steketee, Grand Rapids, and Karen Kendrick-Hands, Grosse Pointe Park, and Marcia M. McBrien, Ann Arbor, for plaintiff in No. 148679.

Dykema Gossett by Richard D. McLellan, William J. Perrone, and Lori M. Silsbury, and Dickinson, Wright, Moon, Van Dusen & Freeman by Peter H. Ellsworth and William C. Bertrand, Jr., Lansing, amicus curiae, for George Romney.

Helveston, Waldman, O'Hare, Helveston, Hodges & Barnes, P.C. (by Theodore Sachs and Eileen Nowikowski), and Jordan Rossen, Connye Y. Harper, and Richard W. McHugh, Intern. Union, UAW, Detroit, amicus curiae, for Intern. Union, UAW, Michigan State AFL-CIO, Ken Morris, Jesse A. Damesworth, Robert Kellerman, and William Tuinstra.

Before WAHLS, P.J., and MARILYN J. KELLY and REILLY, JJ.

MARILYN J. KELLY, Judge.

BACKGROUND AND ISSUES ON APPEAL

Defendants appeal as of right from an order of the Ingham Circuit Court which EO 1991-31 alters the state's role with respect to its natural resources by expressly abolishing the existing Department of Natural Resources (DNR) and creating a new one. The trial court characterized the order as an attempt to accomplish the most comprehensive reorganization of state government since the implementation of the 1963 constitution. A second order, EO 1991-33, creates an Environmental Science Board to advise the Governor on environmental issues.

granted summary disposition to plaintiffs and enjoined defendants [195 Mich.App. 380] from implementing Executive Order 1991-31. They argue on appeal that plaintiffs lacked standing and that the claims are nonjusticiable political questions. They assert that the Governor is absolutely immune from suit and that his executive order was a valid exercise of authority granted him by the Michigan Constitution. Plaintiffs Michigan Environmental Protection Foundation et al. (MEPF) cross appeal, arguing that the trial court erred in denying them attorney fees and costs and in failing to find a second executive order, EO 1991-33, unconstitutional.

The circuit court ruled that all the plaintiffs had standing. It then found that EO 1991-31 violated the separation of powers clause of the Michigan Constitution. Const.1963, art. 3, Sec. 2. In addition, it determined that, in issuing EO 1991-31, the Governor exceeded his authority under both the Michigan Constitution and the Executive Organization Act, M.C.L. Sec. 16.101 et seq.; M.S.A. Sec. 3.29(1) et seq. It found the Governor lacked authority to appoint the head of the Natural Resources Commission (NRC). It ruled he was not empowered to abolish commissions and boards whose functions include the holding of public hearings. The court concluded by ruling that EO 1991-31 was not violative of the Open Meetings Act, M.C.L. Sec. 15.261 et seq.; M.S.A. Sec. 4.1800(11) et seq., Freedom of Information Act, M.C.L. Sec. 15.231 et seq.; M.S.A. Sec. 4.1801(1) et seq., Revised Judicature Act, M.C.L. Sec. 600.101 et seq.; M.S.A. Sec. 27A.101 et seq., or substantive due process. The court refused to award attorney fees on the basis that a public question was involved. ¹

We affirm the actions of the circuit court.

THE PLAINTIFFS HAVE STANDING

Defendants argue initially that plaintiffs lacked standing to bring this action. The requirement of standing ensures that only those who have a substantial interest in a dispute will be allowed to come into court to be heard. House Speaker v. State Administrative Bd., 190 Mich.App. 260, 265, 475 N.W.2d 440 (1991), lv. gtd. 439 Mich. 1013 (1992), citing Highland Recreation Defense Foundation v. Natural Resources Comm, 180 Mich.App. 324, 328, 446 N.W.2d 895 (1989). Plaintiffs must show both a substantial interest in the dispute and that they will be detrimentally affected by the litigation in a manner different than the citizenry at large. House Speaker, 190 Mich.App. at 266, 475 N.W.2d 440, citing Muskegon Building & Construction Trades v. Muskegon Area Intermediate School Dist., 130 Mich.App. 420, 423-424, 343 N.W.2d 579 (1983).

In House Speaker, certain legislators brought suit claiming that the state administrative board's transfer of funds within various state departments exceeded the board's statutory authority and violated the state constitution. They asserted that the intertransfers could be accomplished only by the state budget director, subject to review by legislative appropriations committees. Alternatively, they argued that, if the Management and Budget Act, %2990,0000,195 Mich.App. [PG382]M.C.L. Sec. 18.1101 et seq.; M.S.A. Sec. 3.516(101) et seq., authorized the transfers, the act was unconstitutional, as it delegated legislative power to the executive branch of state government. This Court determined that, under either theory, the legislators, members of the appropriations committees or their appointors, clearly asserted substantial interests different in kind from those of the citizenry at large. Id., 190 Mich.App. at 266-267, 475 N.W.2d 440.

As in House Speaker, the legislator plaintiffs here argue that the Governor violated the separation of powers clause by exceeding the scope of legislative power which Michigan's constitution grants him. Const.1963, art. 5, Sec. 2. The legislator plaintiffs are: Lewis Dodak, Speaker of the Michigan House of Representatives; Thomas Alley, Chair of the House Committee on Conservation, Recreation and the Environment; Tracey Yokich, member of the House Committee on Conservation, Recreation and the Environment; John D. Cherry, the Senate Minority Floor Leader; and Arthur Miller, the Senate Minority Leader.

The Michigan Legislature is constitutionally mandated to protect the natural resources of this state from pollution, impairment and destruction. The executive order challenged eliminates a substantial number of boards and commissions which the Legislature created for the purpose of protecting the environment. See Const.1963, art. 4, Sec. 52. We agree with the trial court that the legislator plaintiffs clearly have asserted substantial interests as legislators different in kind from those of the citizenry at large. House Speaker, at 267, 475 N.W.2d 440.

Plaintiffs Michigan United Conservation Clubs et al. (MUCC) and MEPF also unquestionably had standing to bring this action and to obtain the relief sought and granted. The trial court ruled that their standing was based on their status as taxpayers. MCR 2.201(B)(4). MUCC and MEPF are nonprofit corporations, organized for civic, protective or improvement purposes. They and five or more of their members, who own property assessed for direct taxation by the county in which they reside, filed this action. MCR 2.201(B)(4)(a) and (b). In concert with the legislator plaintiffs, these plaintiffs alleged that the executive order exceeded the Governor's authority and that any expenditure of funds by a new DNR would be illegal. MCR 2.201(B)(4).

The standing of MUCC and MEPF may be based, also, on their status as nonprofit corporations which were incorporated to establish and protect the rights and interests of their members. See Muskegon Building Trades, 130 Mich.App. at 428, 343 N.W.2d 579. Individual plaintiffs are members of MUCC or MEPF and either are also members of, or regularly attend and speak at meetings of, boards and commissions to be abolished under EO 1991-31. These plaintiffs clearly have a substantial interest different in kind from the citizenry at large. See Muskegon Building Trades, supra.

NONJUSTICIABLE POLITICAL QUESTIONS ARE NOT INVOLVED

Defendants next assert that the trial court should have used its "equitable discretion" and dismissed this case, because the matters at issue are nonjusticiable political questions. They point out that the doctrine of equitable discretion should be applied, since the Legislature may: 1) elect to reject the two contested executive orders by mustering a majority vote of both the House and Senate; 2) overturn the orders through subsequent legislation; and 3) reduce the orders' effectiveness through the appropriations process.

The federal doctrine of equitable discretion has been applied "where a congressional plaintiff could obtain substantial relief from his fellow legislators through the enactment, repeal, or amendment of a statute." House Speaker, 190 Mich.App. at 270, 475 N.W.2d 440 citing Dornan v. United States Secretary of Defense, 271 U.S.App.D.C. 195, 196, 851 F.2d 450 (1988). Here, the legislator plaintiffs seek a judicial determination that the Governor unlawfully usurped authority which the constitution granted to the Legislature. They argue that they could not obtain "substantial relief" if the Legislature rejected, overturned or reduced the effectiveness of EO 1991-31 and EO 1991-33; no legislative action could prevent the Governor from once again exceeding his authority in the guise of yet another executive reorganization. We agree and decline to apply the federal doctrine of equitable discretion to this case.

The trial court was correct in determining that this case does not present nonjusticiable political questions. The decision whether the constitution committed a matter to another branch of government, or whether the actions of a branch exceeded the authority committed, is a matter of constitutional interpretation. As such,...