Michigan State AFL-CIO v. Civil Service Com'n

• Decision Date: 06 February 1995
• Docket Number: AFL-CIO,I,Docket No. 149885,AFL-CI
• Citation: 528 N.W.2d 811,208 Mich.App. 479
• Parties: , 149 L.R.R.M. (BNA) 2502 MICHIGAN STATEnternational Union-UAW, Local 6000, Michigan Council 25-AFSCME, Michigan Corrections Organization Seiu Local 526-M, Michigan State Employees Association, United Technical Employees Association, Local 31-M Service Employees International Union,CLC, Marilyn Laclair, and Gloria Hajduk-Emmons, Plaintiffs-Appellants, v. CIVIL SERVICE COMMISSION, Martha Bibbs, and George G. Matish, Defendants-Appellees, and American Civil Liberties Union Fund Of Michigan, Amicus Curiae. (After Remand)
• Court: Court of Appeal of Michigan — District of US

Page 811

528 N.W.2d 811

208 Mich.App. 479, 149 L.R.R.M. (BNA) 2502

MICHIGAN STATE AFL-CIO, International Union-UAW, Local 6000 Michigan Council 25-AFSCME, Michigan Corrections Organization Seiu Local 526-M, Michigan State Employees Association, United Technical Employees Association, Local 31-M Service Employees International Union, AFL-CIO CLC Marilyn Laclair, and Gloria Hajduk-Emmons, Plaintiffs-Appellants, v. CIVIL SERVICE COMMISSION, Martha Bibbs, and George G Matish, Defendants-Appellees and American Civil Liberties Union Fund Of Michigan, Amicus Curiae. (After Remand)

Docket No. 149885.

Court of Appeals of Michigan.

Submitted May 17, 1994, at Detroit.

Decided Feb. 6, 1995, at 9:05 a.m.

Released for Publication March 21, 1995.

Sachs, Waldman, O'Hare, Helveston, Hodges & Barnes, P.C. by Theodore Sachs and Andrew Nickelhoff, Detroit, for plaintiffs.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Deborah Ann Devine, Asst. Atty. Gen., for defendants.

Mark Brewer, Detroit (Paul Denenfeld, of counsel), for amicus curiae ACLU Fund of Michigan.

Before MICHAEL J. KELLY, P.J., and CORRIGAN and CORWIN, ^* JJ.

AFTER REMAND

CORRIGAN, Judge.

This is the second appeal challenging the validity of Civil Service Rule (CSR) 1-5.7, modified effective July 14, 1988, restricting the use of union leave programs for partisan political activity. This Court, in the original appeal, AFL-CIO v. Michigan Civil Service Comm., 191 Mich.App. 535, 478 N.W.2d 722 (1991) (hereinafter AFL-CIO I ), ruled that the modification of the rule was within the Civil Service Commission's authority and did not conflict with § 4 of the political activities of public employees act, 1976 PA 169, § 4, M.C.L. § 15.404; M.S.A. § 4.1702(4). This Court reversed the circuit court's holding, dissolved the injunction against enforcement of CSR 1-5.7, and remanded for a determination of the remaining constitutional issues in counts I and III of plaintiffs' August 1988 complaint.

Plaintiffs appeal as of right the order on remand granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(8) (failure to state a claim) and 2.116(C)(10) (no genuine issue of material fact). We affirm the circuit court's determination that CSR 1-5.7, as modified, does not violate classified public employees' rights of free expression and association under the Michigan Constitution's Declaration of Rights, Const1963, art 1, §§ 3 ¹ and 5, ² nor is the rule unconstitutionally vague or overbroad, nor does it violate classified employees' rights to equal protection and due process, Const1963, art 1, §§ 2 ³ and 17. ⁴

I. UNDERLYING FACTS

The pertinent facts and procedural history are fully set forth in AFL-CIO I. We emphasize AFL-CIO I's summary of the relevant texts and the factual predicate that spawned the modification of the rule:

Before July 14, 1988, CSR 1-5.7, relating to political activities, provided:

"1-5.7 Prohibited During Work Hours. Activities permitted under sections 1-5.1 and 1-5.5 shall not be engaged in by a classified employee during the hours the employee is on actual duty."

Effective July 14, 1988, the rule was amended by adding the following language:

"Actual duty includes the employee's scheduled work hours and overtime. Off duty includes all time outside scheduled work hours and overtime, annual leave, unpaid leave of absence, lost time and leave granted to the employee to become a full time employee of an employee organization holding exclusive representation rights, pursuant to an approved collective bargaining agreement. For purposes of this rule, employees released from their regular state workplace for union activities, union business or any other employee organization purpose under any leave arrangement, including 'annual leave buyback' provisions, shall be considered to be on actual duty, released by the employer to take part in union activities deemed to be in the best interests of the state and not including partisan political activity."

The modification was apparently adopted in response to a training seminar on election campaign strategies held December 1-3, 1987. The session was sponsored jointly by the United Auto Workers-Community Action Program (UAW-CAP) and the Michigan Democratic Party. A handbook on political campaign techniques prepared by the National Democratic Committee was used as a training manual at the seminar. Although the Director of the Office of State Employer knew the three-day seminar was an event sponsored by the UAW-CAP, he did not know that it was a seminar that was patently political.

Approximately fifty-six employees who were members of the UAW Local 6000 attended the seminar. Seventeen invoked the union officer leave provision of their collective bargaining agreement, one used the Administrative Leave Bank 1 provision of the agreement, and one attended without utilizing any union leave arrangement. The remaining thirty-seven were union members who used the administrative leave buyback program, which was not negotiated as part of a collective bargaining agreement but gained recognition over a period of time. [AFL-CIO I, supra 191 Mich.App. at 537-541, 478 N.W.2d 722.]

II. LAW OF THE CASE

Because this Court already has decided controlling questions that affect this appeal, we apply the doctrine of law of the case. Under that doctrine, an appellate court's decision concerning a particular issue binds courts of equal or subordinate jurisdiction during subsequent proceedings in the same case. A legal question may not be decided differently where the facts remain materially the same. Bruce Twp. v. Gout (After Remand), 207 Mich.App. 554, 526 N.W.2d 40 (1994); People v. Peters (After Remand), 205 Mich.App. 312, 316, 517 N.W.2d 773 (1994); Bennett v. Bennett, 197 Mich.App. 497, 499, 496 N.W.2d 353 (1992). The doctrine applies only to those questions specifically determined in the prior decision and to questions necessarily determined in arriving at that decision. Peters, supra. The basic purpose of the doctrine is to maintain consistency and to avoid reconsideration of matters previously decided during a single continuing lawsuit. Locricchio v. Evening News Ass'n., 438 Mich. 84, 109, 476 N.W.2d 112 (1991); Bennett, supra.

In AFL-CIO I, this Court held that the Civil Service Commission did not exceed its constitutional authority or violate the provisions of 1976 PA 169, M.C.L. § 15.401 et seq.; M.S.A. § 4.1702(1) et seq., by adopting CSR 1-5.7 as modified. Section 4 of 1976 PA 169, M.C.L. § 15.404; M.S.A. § 4.1702(4), prohibits a public employee from engaging in otherwise-protected political activities ⁵ "during those hours when that person is being compensated for the performance of that person's duties as a public employee." AFL-CIO I, supra 191 Mich.App. at 548, 478 N.W.2d 722.

Plaintiffs have not contested the validity of CSR 1-5.1 through CSR 1-5.5 or 1976 PA 169. Rather, they have argued that "union leave" is off-duty time beyond the reach of Civil Service Commission regulation. This Court has already rejected plaintiffs' characterization of union leave as off-duty time, AFL-CIO I, supra at 550-551, 478 N.W.2d 722. CSR 1-5.7 defines union-leave time as "actual duty." AFL-CIO I held that actual duty means "on-the-job behavior related to job performance" for purposes of § 4 of 1976 PA 169 and CSR 1-5.7, including activities of classified employees during working hours for which they were being compensated. AFL-CIO I, supra at 550, 478 N.W.2d 722. The Court relied on Council No. 11, AFSCME v. Civil Service Comm., 408 Mich. 385, 408, 292 N.W.2d 442 (1980), in which our Supreme Court stated that "the commission's 'sphere of authority' delimits its rule-making power and confines its jurisdiction over the political activity of classified personnel to on-the-job behavior related to job performance." AFL-CIO I held that a prohibition against political activity by classified employees is permissible if three conditions are satisfied:

(1) the classified employee receives some form of compensation for the time spent on leave, (2) the employee would be performing duties at the usual job site if the employee were not on leave, and (3) the employee is permitted to leave for a specific purpose approved by the employer. [AFL-CIO I, supra 191 Mich.App. at 550, 478 N.W.2d 722].

This Court concluded that the release of employees under various union-leave arrangements was part of the employees' duties for which they were being compensated. The law of this case establishes that a civil servant's release to participate in union activities under various union-leave arrangements is on-the-job behavior related to job performance; the union-leave programs at issue do not implicate classified employees' off-duty activities. Plaintiffs may not relitigate this issue on appeal.

III. FREE SPEECH AND ASSOCIATION

Plaintiffs first contend that CSR 1-5.7, as modified, abridges classified employees' rights to free speech and association, contrary to Const1963, art 1, §§ 3 and 5. Plaintiffs do not contest the commission's authority to regulate classified employees' political activities on the job or the constitutionality of 1976 PA 169, which prohibits a public employee from engaging in political activity while on duty, M.C.L. § 15.404; M.S.A. § 4.1702(4). See n. 5, supra. They again contend that CSR 1-5.7 creates a blanket prohibition of partisan political activity during off-hours and off-premises union activities. As noted, it is the law of this case that union leave constitutes actual-duty time. Thus, we reject plaintiffs' attempt to recast union leave as off-duty time in contravention of AFL-CIO I.

The circuit court concluded that CSR 1-5.7 satisfied a strict scrutiny standard. Although we do not reject the circuit court's holding, we conclude that CSR 1-5.7, as modified, need not be evaluated under the strict scrutiny standard reserved for governmental attempts to restrict the speech of...