Mich Ed Ass'n v. Super Pub Instr

• Decision Date: 01 August 2006
• Docket Number: Docket No. 267714.
• Citation: 724 N.W.2d 478,272 Mich. App. 1
• Parties: MICHIGAN EDUCATION ASSOCIATION, Plaintiff-Appellant, v. SUPERINTENDENT OF PUBLIC INSTRUCTION, Department of Education, State Board of Education, State Treasurer, and Department of Treasury, Defendants-Appellees, and Coalition for Educational Choice, Intervening Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

724 N.W.2d 478

272 Mich. App. 1

MICHIGAN EDUCATION ASSOCIATION, Plaintiff-Appellant, v. SUPERINTENDENT OF PUBLIC INSTRUCTION, Department of Education, State Board of Education, State Treasurer, and Department of Treasury, Defendants-Appellees, and Coalition for Educational Choice, Intervening Defendant-Appellee.

Docket No. 267714.

Court of Appeals of Michigan.

Submitted July 12, 2006, at Lansing.

Decided August 1, 2006, at 9:00 a.m.

Released for Publication November 14, 2006.

COPYRIGHT MATERIAL OMITTED

Lee & Clark (by Suzanne Krumholz Clark) and Arthur R. Przybylowicz, Southfield, East Lansing, for the Michigan Education Association.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and D.J. Pascoe, Assistant Attorney General, for the Superintendent of Public Instruction, the Department of Education, the State Board of Education, the State Treasurer, and the Department of Treasury.

Dykema Gossett P.L.L.C. (by Richard J. Landau, Leonard C. Wolfe, and Jason T. Hanselman), Lansing, for the Coalition for Educational Choice.

Patrick J. Wright for the Mackinac Center for Public Policy. Midland.

Patrick J. Wright, Midland, for amicus curiae Mackinac Center for Public Policy.

Before: DONOFRIO, P.J., and O'CONNELL and SERVITTO, JJ.

DONOFRIO, P.J.

Plaintiff appeals as of right the trial court's order granting summary disposition to defendants. This case involves a challenge to the authority of Bay Mills Community College (BMCC) to authorize "public school academies" also referred to as "charter schools." Because we cannot conclude that plaintiff has standing to challenge the expenditure of state funds under the facts before us, we do not reach the substantive issue whether the public school academies BMCC has chartered are considered public schools and are eligible for public funding. We dismiss this appeal for lack of standing.

I. Facts

BMCC is a land grant school recognized under the federal Tribally Controlled College or University Assistance Act and is accredited by the North Central Association of Colleges and Schools. According to its charter, BMCC's district consists of the state of Michigan. BMCC's charter provides its board with the authority to issue contracts to create chartered public schools as provided under Michigan law. The record reflects that since December 2000, BMCC has chartered and opened 32 public school academies.

BMCC is run by a nine-member board of regents. Five of those regents are selected from the Bay Mills Indian Community Executive Council and serve two year terms. One is the business manager or representative of the Sault Ste. Marie Tribe of Chippewa Indians, one is the business manager or representative of the Grand Traverse Band of Ottawa/Chippewa Indians, one is the business manager or representative of the Little Traverse Bay Bands of Odawa Indians, and one is the executive director of the Inter-Tribal Council of Michigan, Inc. Additionally, there is one nonvoting member, the student body president of BMCC.

Plaintiff Michigan Education Association (MEA) represents approximately 136,000 members throughout the state of Michigan, including about 70,000 grade K-12 instructors. Testimony reveals that each member pays approximately $600 a year in dues to the MEA. In the instant case, plaintiff brought suit alleging, among other things, that BMCC's public chartered academies are not public schools and, therefore, the payment of public funds to BMCC's public chartered academies violates the Michigan Constitution's provision against public funding for nonpublic schools. The trial court dismissed all but the public-funding count for lack of standing. The trial court found standing for this allegation on the basis of plaintiff meeting the legislatively conferred standing granted for a nonprofit organization contesting the expenditure of state funds. The trial court then ruled that the schools in question were public schools entitled to public funds. This appeal followed.

II. Analysis

"Whether a party has legal standing to assert a claim [is] a question of law that we review de novo." Heltzel v. Heltzel, 248 Mich.App. 1, 28, 638 N.W.2d 123 (2001). "The question of jurisdiction is always within the scope of this Court's review." Walsh v. Taylor, 263 Mich.App. 618, 622, 689 N.W.2d 506 (2004).

A. Constitutional Standing

In this case, defendants argue that plaintiff does not meet the constitutional test required for standing and that the Legislature may not statutorily confer standing on a party that does not otherwise meet the constitutional requirements for standing. Plaintiff counters that, as a domestic nonprofit organization challenging the illegal expenditure of state funds, it has statutorily granted standing to institute this suit.

We begin our analysis with the observation that our Supreme Court has indeed repeatedly endorsed the test for standing articulated by the United States Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). See Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 628-629, 684 N.W.2d 800 (2004); Crawford v. Dep't of Civil Service, 466 Mich. 250, 258, 645 N.W.2d 6 (2002); Lee v. Macomb Co. Bd. of Comm'rs, 464 Mich. 726, 739-740, 629 N.W.2d 900 (2001). In Nat'l Wildlife, our Supreme Court stated that, at a minimum, standing requires the following three elements:

"First, the plaintiff must have suffered an `injury in fact' — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) `actual or imminent', not `conjectural' or `hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be "`fairly . . . traceable to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court.'" Third, it must be "`likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" [Nat'l Wildlife, supra at 628-629, 684 N.W.2d 800, quoting Lee, supra at 739, 629 N.W.2d 900, quoting Lujan, supra at 560-561, 112 S.Ct. 2130.]

Thus, ordinarily, plaintiff must meet the constitutional minimum criteria for standing in order to have standing. First, plaintiff has neither alleged nor suffered the required "injury in fact." Plaintiff presented no evidence that it suffered an invasion of a legally recognized interest that is actual or imminent, not hypothetical or conjectural. Specifically, our review of the record reveals that plaintiff provides nothing beyond bare assertions that the public funding of BMCC's charter schools injures plaintiff's members, and does not identify an injury that is "`concrete and particularized,' and `actual or imminent.'" Nat'l Wildlife, supra at 628, 684 N.W.2d 800, quoting Lee, supra at 739, 629 N.W.2d 900, quoting Lujan, supra at 560, 112 S.Ct. 2130. Any alleged injury to plaintiff is based on conjecture and speculation.

Second, plaintiff has provided us nothing more than the simple assertion that BMCC's public funding reduces plaintiff's members' wages without any supporting evidence. While we can envision a scenario in the abstract in which BMCC's public funding does indirectly or even directly reduce the wages or wage increases of plaintiff's members, it takes more than imagination to establish the required causation element of standing. Nat'l Wildlife, supra at 628-629, 684 N.W.2d 800, quoting Lee, supra at 739, 629 N.W.2d 900, quoting Lujan, supra at 560, 112 S.Ct. 2130.

Third, plaintiff has provided no substantive evidence that the alleged harm could even be "redressed by a favorable decision." Nat'l Wildlife, supra at 629, 684 N.W.2d 800, quoting Lee, supra at 739, 629 N.W.2d 900, quoting Lujan, supra at 561, 112 S.Ct. 2130. Plaintiff offers no evidence to show that it is "likely," or even merely "speculative," that, if all public funds to BMCC schools are cut off, plaintiff's members' salaries will increase. Nat'l Wildlife, supra at 629, 684 N.W.2d 800, quoting Lee, supra at 739, 629 N.W.2d 900, quoting Lujan at 556, 112 S.Ct. 2130. There is absolutely no way to predict with any degree of certainty how the public dollars earmarked for BMCC schools would be appropriated if BMCC funding was discontinued. Plaintiff has provided no evidence whatsoever that these monies would be directly funneled into plaintiff's members' salaries. Moreover, there is another possible scenario. Even if plaintiff were to prevail, the BMCC schools might switch to a different chartering organization, such as a school district or local community college, where they would again be eligible for public funding. Plaintiff has not provided, and we cannot ascertain, any means of redress by a favorable decision of this Court. Nat'l Wildlife, supra at 629, 684 N.W.2d 800.

With myriad different scenarios possible, and not a shred of real evidence provided by plaintiff regarding any of the elements of standing, we must relegate its arguments to those of mere speculation, hypothesis, and conjecture. Mere hypothetical or conjectural injuries do not satisfy the constitutional requirements for standing. Nat'l Wildlife, supra at 628, 684 N.W.2d 800, quoting Lee, supra at 739, 629 N.W.2d 900, quoting Lujan, supra at 560, 112 S.Ct. 2130. Therefore, plaintiff has not provided sufficient evidence to satisfy the constitutional elements required for standing. Nat'l Wildlife, supra, at 628-629, 684 N.W.2d 800.

B. Statutorily Conferred Standing

In Nat'l Wildlife, our Supreme Court extensively discussed standing requirements and specifically addressed whether the Legislature can confer standing by statute. Nat'l Wildlife, supra at 614-615, 684 N.W.2d 800. Our Supreme Court counseled that judicial power, while not specifically defined by the Michigan Constitution, "is distinct from both the legislative and executive powers." Id. at 614, 684 N.W.2d 800. The Court elaborated,...