J.F. Cavanaugh & Co. v. City of Detroit
| Decision Date | 18 August 1983 |
| Docket Number | 56688,Docket Nos. 56639 |
| Citation | 337 N.W.2d 605,126 Mich.App. 627 |
| Parties | , 45 Fair Empl.Prac.Cas. (BNA) 87 J.F. CAVANAUGH & COMPANY, a Michigan corporation; Greater Detroit Construction Employer's Council, a voluntary association, individually and on behalf of its members similarly situated; and Builders Exchange of Detroit and Michigan, a voluntary association individually and on behalf of its members similarly situated, Plaintiffs-Appellees, v. CITY OF DETROIT, a Michigan municipal corporation; City of Detroit Human Rights Commission, a City of Detroit agency; John Forsyth, Lillian Hatcher, Sybil Offen, Longworth Quinn, Jr., Norma Barth, Clarence Robinson, Arthur L. Johnson, Lacy Burke, Patricia Burnett and Norman Thomas in their official capacities as members of the City of Detroit Human Rights Commission; and the City of Detroit Human Rights Department, Defendants-Appellants, and Hispanos Organized to Promote Entrepreneurs, Inc.; Ser, Metro-Detroit Jobs for Progress, Inc.; Association of Minority Contractors and Laborers' International Local 334, Defendants/Intervenors-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Butzel, Long, Gust, Kelin & Van Zile by Robert J. Battista and Gregory S. Muzingo, Detroit, for plaintiffs-appellees.
Bodman, Longley & Dahling by Joseph N. Brown and David W. Hipp, Detroit, for defendants-appellants.
Before BRONSON, P.J., V.J. BRENNAN and GILLIS, JJ.
Defendants appeal as of right a declaratory judgment that the Detroit Omnibus Human Rights Ordinance, which took effect on March 24, 1979, is null and void. The decision of the circuit court was based on its determination that municipalities are preempted from enacting ordinances protecting civil rights.
Plaintiff Cavanaugh is a construction contractor which seeks to do business with the City of Detroit. The other plaintiffs are voluntary associations whose members likewise seek to do business with the City. The defendants are the City, its Human Rights Commission and Department and the individual members of the Commission.
On appeal, defendants first argue that the trial court erred by finding that it had jurisdiction to make a declaratory judgment in this case. If it had jurisdiction, defendants argue, it abused its discretion by exercising it. Plaintiffs respond by claiming that, since they are parties seeking to contract with the city, a real controversy existed concerning the Ordinance's requirements of nondiscrimination and affirmative action plans for contractors with the city.
We agree with the trial court that plaintiffs need not show the loss, for noncompliance, of a contract opportunity before challenging the regulations the City seeks to impose on contractors. We also agree that plaintiffs should not be forced to violate the Ordinance at their risk before challenging its validity.
At the same time, it is abundantly clear that the controversy in this case is over only those provisions of the Ordinance governing the conduct of those who contract with the city. Absent a showing of a party's standing, jurisdiction to make a declaratory judgment is absent. See Shavers v. Attorney General, 402 Mich. 554, 588-592, 267 N.W.2d 72 (1978), cert. den. 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 303 (1979). An "actual controversy" exists, under GCR 1963, 521.1, only when a judgment is necessary to guide a plaintiff's future conduct. To support the finding of an "actual controversy", it is essential that plaintiffs plead and prove facts which indicate an adverse interest. Shavers, supra, 402 Mich. p. 589, 267 N.W.2d 72. By deciding issues absent an actual controversy, this Court could impede the progress of future litigants who may be involved in a real factual controversy. Stockler v. Treasury Dep't, 75 Mich.App. 640, 645, 255 N.W.2d 718 (1977), app. dis. 435 U.S. 963, 98 S.Ct. 1598, 56 L.Ed.2d 54 (1978).
The failure of the parties to narrow the issues at trial has forced this Court to scrutinize carefully the entire ordinance in light of plaintiffs' pleadings. Plaintiffs alleged facts supporting their standing with respect only to the contracting provisions (2-7-3.1) of the ordinance. To the extent that the trial judge considered other provisions, he erred. To the extent that his judgment affects provisions of the ordinance other than 2-7-3.1, it is vacated.
We will limit our consideration of the preemption question to the regulation of municipal contractors in the field of civil rights. Section 2-7-3.1 of the ordinance in question requires all contractors doing business with the city to take affirmative action to achieve reasonable representation in their work force of minorities and women 2-7-3.1(A). Each contract with the city, and each subcontract with a city contractor, is required to contain an affirmative action covenant, breaches of which are made material breaches of contract, 2-7-3.1(A), (B). Each contract with the city is required to contain a nondiscrimination covenant, a breach of which is also made a material breach of contract, 2-7-3.1(C). An exception is made for discrimination based on bona fide occupational qualifications, 2-7-3.1(C). Each city contract is required to include a covenant to furnish requested information concerning the contractor's obligations not to discriminate and to take affirmative action and a breach of this covenant is made a material breach of contract 2-7-3.1(D). Each city contract is required to contain a clause negotiated between the parties providing for liquidated damages for the contractor's noncompliance with the Ordinance 2-7-3.1(E). Section 2-7-3.1(F) gives the city the right, at its option, to cancel or suspend a contract, recover liquidated damages, or seek other relief upon a contractor's noncompliance with the equal employment opportunity or affirmative action provisions of the contract in question. Section 2-7-3.1(H) makes the following provisions for enforcement;
If plaintiffs wish to challenge other portions of the Ordinance, they must present facts to the trial court showing that an actual controversy exists.
Our Supreme Court has provided the following guidelines for determining if municipal regulation is preempted in a specified area:
"Fourth, the nature of the regulated subject matter may demand exclusive state regulation to achieve the uniformity necessary to serve the state's purpose or interest." (Footnotes omitted.) People v Llewellyn, 401 Mich 314, 323-324; 257 NW2d 902 (1977), cert den 435 US 1008; 98 S Ct 1879; 56 L Ed 2d 390 (1978).
The trial judge held that the Ordinance was preempted on all four grounds. He cited several different provisions of the Elliott-Larsen Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., and found that these provisions, read in light of the absence of an explicit grant of power to cities to legislate in this field, showed an "express intent" to preempt the field. Legislative intent is seldom "express"; it is generally implied from the language of a statute. "Expressly" means in an express manner, in direct or unmistakable terms, explicitly, definitely, directly. San Francisco v. Western Air Lines, Inc., 204 Cal.App.2d 105, 22 Cal.Rptr. 216, 225 (1962). In the Llewellyn Court's example of this prong of the preemption doctrine, Noey v. Saginaw, 271 Mich. 595, 261 N.W. 88 (1935), language conferring on the liquor control commission "complete control" of, and the "sole right, power and duty to control", the alcoholic beverage trade was held to preempt local regulation of the hours of sale. The trial judge erred because his holding was based on implication, not on express provision. No express provision for preemption of the field appears in the Elliott-Larsen act.
The trial judge also found that the legislative history of the Elliott-Larsen act demonstrates the intent to preempt the field. In the case cited by the Supreme Court in the passage from Llewellyn relied on by the trial court, the history supporting preemption presented a very clear indication of legislative intent, which was bolstered by the language of the statute and the nature of the subject matter. See Walsh v. River Rouge, 385 Mich. 623, 189 N.W.2d 318 (1971). In the present case, the Legislature's failure to enact proposed substitute bill...
To continue reading
Request your trial
-
Victorson v. Department of Treasury
...to obtain commission approval does not result in summary disposition in favor of the plaintiff. Citing J.F. Cavanaugh & Co. v. Detroit, 126 Mich.App. 627, 337 N.W.2d 605 (1983), the Court of Appeals opined that an employer's failure to obtain commission approval precludes the employer from ......
-
Reisman v. Regents of Wayne State University
...of Sec. 210 of the Civil Rights Act, M.C.L. Sec. 37.2210; M.S.A. Sec. 3.548(210), by the Court in J F Cavanaugh & Co. v. Detroit, 126 Mich.App. 627, 337 N.W.2d 605 (1983). Section 210 A person subject to this article may adopt and carry out a plan to eliminate present effects of past discri......
-
Health Cent. v. Commissioner of Ins.
...and ripeness to warrant judicial intervention. See Warth v. Seldin, supra. As we recently reiterated in J.F. Cavanaugh & Co v. Detroit, 126 Mich.App. 627, 632, 337 N.W.2d 605 (1983): "By deciding issues absent an actual controversy, this Court could impede the progress of future litigants w......
-
Ruppal v. Department of Treasury, Docket No. 90912
...the plan "will not insulate an employer from charges that it violated the state's nondiscrimination law." J.F. Cavanaugh & Co v. Detroit, 126 Mich.App. 627, 337 N.W.2d 605 (1983). Stated differently, protection from a lawsuit alleging[163 MICHAPP 227] discrimination cannot be guaranteed abs......