House Speaker v. Governor
| Decision Date | 01 May 1993 |
| Docket Number | Docket Nos. 94631-94633,No. 6,6 |
| Citation | 506 N.W.2d 190,443 Mich. 560 |
| Parties | HOUSE SPEAKER v. GOVERNOR. MICHIGAN UNITED CONSERVATION CLUBS v. GOVERNOR. MICHIGAN ENVIRONMENTAL PROTECTION FOUNDATION v. GOVERNOR. Calendar, |
| Court | Michigan Supreme Court |
Susan I. Leffler, Asst. Atty. Gen., Raymond O. Howd, Asst. Atty. Gen., Mary Kay Scullion, Sp. Asst. Atty. Gen., Attorneys, Lansing, for plaintiffs Lewis N. Dodak, et al.
M. Carol Bambery, Tom Downs, Lansing, for MUCC.
Frank J. Kelly, Atty. Gen., Thomas L. Casey, Sol. Gen., Deborah Anne Devine, Thomas C. Nelson, Asst. Attys. Gen., Lansing, for defendants-appellants State Affairs Div.
Peter W. Steketee, Karen Kendrick-Hands, Marcia M. McBrien, Grand Rapids, for MEPF, et al.
Dickinson, Wright, Moon, Van Dusen & Freeman, Peter H. Ellsworth, William C. Bertrand, for amicus curiae George Romney.
Dykema Gossett, Richard D. McLellan, William J. Perrone, Lori M. Silsbury, Sandra M. Cotter, for amicus curiae George Romney.
Almost exactly three decades ago, the State of Michigan ratified a new constitution. The document was the culmination of months of work, through the 1961 Constitutional Convention, restructuring Michigan's government to make it more efficient and accountable. Perhaps the biggest need for restructuring was in the executive branch, which, before the new constitution, was composed of so many boards, commissions, and departments that the executive branch lacked any kind of effective coordination or supervision. 1 Indeed, the general consensus at the convention was that there was "absolutely no rhyme or reason to the structure of the state government." 2 Official Record, Constitutional Convention 1961, p 1836 (statement of Delegate Martin).
To give the Governor, as its head, some real control over the executive branch, the convention delegates agreed that the executive branch had to be given some logical structure. 2 To provide such structure, the constitution included a provision mandating that all entities within the executive branch be allocated among and within not more than twenty principal departments. 3 The Legislature was given primary responsibility for this task, but, if it failed, the Governor was given authority to effect the allocation. 4 The Governor was also given authority to make changes after the initial organization. 5 The Governor serving at that time did not participate in the initial organization, however, because the Legislature, within its allotted time, enacted the Executive Organization Act (EOA), M.C.L. 16.101 et seq.; M.S.A. § 3.29(1) et seq., and provided the required organization of the executive branch.
This case requires us to determine the scope of authority given to the Governor to effect subsequent changes in the structure of the executive branch. Specifically, we are asked whether the Governor, through an executive order not disapproved by the Legislature, may constitutionally transfer the authority, powers, duties, functions, and responsibility of the legislatively created Department of Natural Resources to a new, gubernatorially created DNR. We are also asked whether this issue concerning the Governor's authority presents a nonjusticiable political question and whether the plaintiffs in the consolidated lawsuit have standing to raise these issues. Finally, we have been asked to determine the validity of Executive Order No. 1992-19 that created the Michigan Environmental Science Board.
For the reasons that follow, we hold that the not-for-profit corporate plaintiffs have standing to pursue this lawsuit and that the issues presented are not political questions. We then hold that, under Const. 1963, art. 5, § 2, the Governor has the authority to transfer all the authority, powers, duties, functions, and responsibilities of a legislatively created principal department to a gubernatorially created principal department. The constitutional validity of Executive Order No. 1991-31 therefore is sustained. Additionally, we sustain the validity of Executive Order No. 1992-19, which created the Michigan Environmental Science Board.
On November 8, 1991, Governor John Engler issued Executive Order No. 1991-31, which essentially abolished the existing DNR and created a "new" department. 6 The head of the "new" DNR continued to be the Commission of Natural Resources, but the order gave the Governor exclusive authority to appoint the commission chairperson, who served in that position at the Governor's will. 7 Additionally, the order abolished eighteen legislatively established boards and commissions relating to the state's natural resources and vested their authority in the director of the gubernatorially created "new" DNR. 8
Also on that date, Governor Engler issued Executive Order No. 1991-33, which established the Michigan Environmental Science Board as an independent, autonomous entity within the Department of Management and Budget. The board's general duties included advising the Governor, the commission, the DNR, and other state agencies about issues affecting the state's natural resources, assisting the Governor in reviewing state or federal environmental impact statements and coordinating reviews of other state agencies, reviewing the establishment of new standards for permits or operating licenses, reviewing the methodology for establishing permit or operating license conditions, and reviewing staff recommendations for the approval or denial of permit and license applications. Executive Order No. 1991-33(3)(a)-(e). The board also was given authority to "make inquiries, studies and investigations, hold hearings and receive comments from the public." Executive Order No. 1991-33(6).
By its terms, Executive Order No. 1991-31 was to become effective sixty days after its issuance. 9 Before that date, the Speaker of the House of Representatives and other legislators filed a complaint, seeking declaratory and injunctive relief on the ground that the order exceeded the Governor's limited legislative authority under the constitution as implemented by the EOA. 10
Similarly, complaints were filed by the Michigan United Conservation Clubs and the Michigan Environmental Protection Foundation, alleging that the Governor overstepped his authority in issuing Executive Order No. 1991-31. Additionally, the MEPF alleged that Executive Order No. 1991-33 was unconstitutional and unlawful because it usurped and intruded upon the rights of the people to an open, accessible, and accountable government. The board, the MEPF alleged, would enable the DNR director to make environmental and resource management decisions in the privacy of his office, without being guided by the principles of the public interest and relevant statutes.
By stipulation of the parties, the circuit court consolidated the three complaints. On competing motions for summary disposition, the court ruled almost completely in favor of the plaintiffs and permanently enjoined the Governor from enforcing Executive Order No. 1991-31. Initially, the court ruled that all the plaintiffs had standing to bring their lawsuits. It found beyond challenge the notion that the House Speaker and other legislators have a substantial interest in the orderly administration of government, the funding of principal departments, the administrative checks upon disbursing those funds, and the possible usurpation of legislative power by the executive branch. Furthermore, the court found that the MUCC and the MEPF had standing pursuant to the court rule that allows a "domestic nonprofit corporation organized for civic, protective, or improvement purposes" to bring an action to prevent the illegal expenditure of state funds. See MCR 2.201(B)(4)(a).
In discussing the Governor's authority to issue Executive Order No. 1991-31, the circuit court noted that the Separation of Powers Clause specifically prohibits one branch of government from exercising powers belonging to another branch unless such an exercise is expressly provided in the constitution. See Const. 1963, art. 3, § 2. The court found that, while the Governor argued that art. 5, § 2 provided the authority for Executive Order No. 1991-31, that provision does not expressly authorize the Governor to create new departments. Therefore, the court found, the Governor had no express authority to exercise the powers that ordinarily belong to the Legislature. As a result, the court concluded, Executive Order No. 1991-31 violated the Separation of Powers Clause.
Moreover, the court pointed out that art. 4, § 52 referring to the powers of the Legislature, lists the conservation and promotion of the state's natural resources as a "paramount public concern" within the Legislature's responsibilities to protect. This reference, the court asserted, provided further evidence to support the conclusion that Executive Order No. 1991-31 was beyond the Governor's authority.
Finally, the court noted that because art. 5, § 2 is not self-executing, it is limited by the bounds of the EOA limiting transfers of departments, boards, commissions, and functions to other "principal department(s) established by this act." See M.C.L. § 16.103(d); M.S.A. § 3.29(3)(d). The court was convinced that nothing in the EOA could possibly suggest that the Governor had the authority to abolish an existing department and create a completely new one.
The circuit court concluded that Executive Order No. 1991-31 violated the Separation of Powers Clause and was authorized neither by the state constitution nor the EOA. 11 Apparently, however, the court did not discuss the viability of Executive Order No. 1991-33. 12
The Court of Appeals affirmed in a divided opinion. 195 Mich.App. 376, 491 N.W.2d 832 (1992). For the same reasons espoused by the trial court, the Court of Appeals held that all the plaintiffs had standing. Id. at 381-383, 491 N.W.2d 832. The Court also agreed with the trial court that, by...
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