Mayor of Cadillac v. Blackburn

Citation857 N.W.2d 529,306 Mich.App. 512
Decision Date26 August 2014
Docket NumberDocket No. 312803.
PartiesMAYOR OF CADILLAC v. BLACKBURN.
CourtCourt of Appeal of Michigan (US)

Foster, Swift, Collins & Smith, PC, Grand Rapids (by Michael D. Homier and Laura J. Genovich ), for petitioner.

McCurdy, Wotila & Porteous, PC, Cadillac (by Roger Wotila and Cynthia Wotila ), for respondent.

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

Opinion

PER CURIAM.

Petitioner, the mayor of the city of Cadillac, appeals by leave granted the trial court's ruling that it would hear and decide the mayor's petition for removal of respondent as a civil service commissioner under 1935 PA 78, MCL 38.501 et seq., by determining whether the mayor proved the allegations in his removal petition by the preponderance of the evidence.1 The mayor argues that the trial court's ruling provides for review de novo of the mayor's administrative decision, contrary to the review provided for in Const. 1963, art. 6, § 28, and would also violate the doctrine of the separation of powers, Const. 1963, art. 3, § 2. We affirm and remand for further proceedings.

During the city's 2011 election cycle, the mayor was informed that respondent served on a political committee or was active in the management of the campaign of the mayor's political opponent. Respondent had served for several years as an unpaid, appointed commissioner of the city's Act 78 fire and police department civil service commission. The commission consists of three members, one appointed by the “principal elected officer of the city,” one selected by the paid members of the police and fire department, and one selected by the other two commissioners. MCL 38.502. The act prohibits any civil service commissioner from serving on “any political committee or [taking] any active part in the management of any political campaign.” MCL 38.503. Section 4 of the act provides that the mayor or principal executive officer of the pertinent city, village, or municipality “shall at any time remove any commissioner for incompetency, dereliction of duty, malfeasance in office or any other good cause....” MCL 38.504. The mayor or principal executive officer must initiate removal in a writing filed with the commission and served on the commissioner. But when the executive initiates removal, § 4 provides that “ such removal shall be temporary only and shall be in effect for a period of 10 days.” Id.

The commissioner is “deemed removed” if he or she does not respond within the 10 days. If, however, the commissioner answers the removal notice within 10 days, the statute provides:

[T]he mayor shall file in the office of the clerk of the circuit court of said county a petition setting forth in full the reason for said removal and praying for the confirmation by said circuit court of the action of the mayor in so removing the said commissioner. A copy of said petition, in writing, shall be served upon the commissioner so removed simultaneously with its filing in the office of the clerk of the circuit court and shall have precedence on the docket of the said court and shall be heard by said court as soon as the removed commissioner shall demand. [MCL 38.504.]

Petitioner complied with the initial removal requirements of MCL 38.504 by sending respondent written notice of his removal and by then petitioning the circuit court for confirmation of his removal decision after respondent promptly answered the notice. The circuit court held that it had original jurisdiction over the dispute under MCL 38.504 so that petitioner had to prove, by a preponderance of the evidence, the good cause for removing respondent from office that petitioner alleged in its removal petition. On appeal, petitioner argues that the court erroneously interpreted MCL 38.504 in a manner inconsistent with the judicial review of administrative decisions provided for in Const. 1963, art. 6, § 28. Petitioner also asserts that a circuit court's review de novo of a mayor's removal decision would violate the separation of powers doctrine, Const. 1963, art. 3, § 2. We hold that the circuit court correctly applied the plain terms of the statute and that this reading of the statute is not contrary to Michigan's Constitution.

I. STANDARD OF REVIEW

This case presents questions of law regarding statutory interpretation and also the application of our state Constitution, which we review de novo. In re Sanders, 495 Mich. 394, 404, 852 N.W.2d 524 (2014). Statutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Id. When interpreting a statute, our primary goal is to “give effect to the intent of the Legislature.” Superior Hotels, LLC v. Mackinaw Twp., 282 Mich.App. 621, 628, 765 N.W.2d 31 (2009). If the language of a statute is unambiguous, we presume the Legislature “intended the meaning expressed in the statute.” Briggs Tax Serv., LLC v. Detroit Pub. Sch., 485 Mich. 69, 76, 780 N.W.2d 753 (2010). A statutory provision is ambiguous only if it conflicts irreconcilably with another provision or it is equally susceptible to more than one meaning. Fluor Enterprises, Inc. v. Dep't of Treas., 477 Mich. 170, 177 n. 3, 730 N.W.2d 722 (2007). A statute is not ambiguous merely because a term it contains is undefined or has multiple definitions in a dictionary, especially when the term is read in context. Cairns v. East Lansing, 275 Mich.App. 102, 107, 738 N.W.2d 246 (2007). When construing a statute, we must assign every word or phrase its plain and ordinary meaning unless the Legislature has provided specific definitions or has used technical terms that have acquired a peculiar and appropriate meaning in the law. Superior Hotels, 282 Mich.App. at 629, 765 N.W.2d 31.

The primary goal of the judiciary when construing Michigan's Constitution is to ascertain the purpose and intent of the provision at issue. Adair v. Michigan, 486 Mich. 468, 477, 785 N.W.2d 119 (2010). To do so, courts must apply the original meaning attributed to the words of a constitutional provision by its ratifiers, i.e., the most obvious commonly understood meaning the people would have assigned the words employed at the time of ratification. People v. Nutt, 469 Mich. 565, 573, 677 N.W.2d 1 (2004). This is known as the rule of “common understanding.” Traverse City Sch. Dist. v. Attorney General, 384 Mich. 390, 405, 185 N.W.2d 9 (1971). Under the rule of common understanding, we must apply the meaning that, at the time of ratification, was the most obvious to the common understanding, the one that reasonable minds and the great mass of the people themselves, would give it. In re Burnett Estate, 300 Mich.App. 489, 497, 834 N.W.2d 93 (2013). Thus, words should be given their common and most obvious meaning, and consideration of dictionary definitions used at the time of passage for undefined terms may be appropriate. Id. at 497–498, 834 N.W.2d 93. While historical records such as those concerning the debate that occurred at the constitutional convention are relevant, they are not controlling. Lapeer Co. Clerk v. Lapeer Circuit Court, 469 Mich. 146, 156, 665 N.W.2d 452 (2003). Furthermore, all provisions must be read in light of the whole document and no provision should be read to nullify another. Id.

II. ANALYSIS

We hold the circuit court correctly read the plain terms of MCL 38.504 as placing the burden of proof on petitioner to establish good cause for removal by the preponderance of evidence at a hearing de novo. We also find that this reading of MCL 38.504 violates neither the provision for judicial review of final administrative decisions established in Const. 1963, art. 6, § 28, nor the constitutional doctrine of the separation of powers, Const. 1963, art. 3, § 2.

First, we examine the plain terms of the statute. Contrary to petitioner's contention, the mayor's administrative (or executive) decision to seek removal of respondent is, on the facts of this case, not final. Rather, the statute plainly provides that where, as here, respondent answers the mayor's notice of removal within 10 days, the notice results in only a suspension of the commissioner during the removal proceedings. When the commissioner subject to removal timely answers the notice, the statute places the burden of going forward on the mayor, who must file “a petition setting forth in full the reason for said removal and praying for the confirmation by said circuit court of the action of the mayor in so removing the said commissioner.” MCL 38.504. If the mayor fails to file a petition for confirmation of the removal decision within 10 days after the commissioner's answer, the “commissioner shall immediately resume his position as a member of the civil service commission.” Id. On the timely filing of the petition, “the commissioner so suspended shall remain suspended until a hearing is had upon the petition of the mayor.” Id.

Under the foregoing, MCL 38.504 clearly does not provide for circuit court review of a final administrative decision; rather, it provides a procedure for an original action by the mayor or other principal executive officer of a city, village, or municipality that has established an Act 78 fire and police department civil service commission for the removal of a commissioner that the executive believes to be incompetent or has committed malfeasance, or for which other good cause exists for removal. The statute in no way impinges on the administrative or executive determination in the first instance that good cause to remove a commissioner exists. Indeed, the mayor's interpretation of the statute is entitled to respectful consideration, consonant with the principle of the separation of powers. In re Complaint of Rovas Against SBC Mich., 482 Mich. 90, 93, 103, 754 N.W.2d 259 (2008). But interpreting the law is a defining aspect of judicial power. Id. at 98, 754 N.W.2d 259. While an administrative agency in a...

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