Musselman v. Governor of Michigan
| Decision Date | 19 July 1993 |
| Docket Number | Docket No. 142142 |
| Citation | 505 N.W.2d 288,200 Mich.App. 656 |
| Parties | Ann MUSSELMAN, Herschel Irons, Zelma Rifkin, Katherine Keeling, Jeanine Poirier, Mary Christian, Etta Mae Pierce, and C. Ann Graham, Plaintiffs, v. GOVERNOR OF MICHIGAN; Treasurer; Director of the Department of Management and Budget; Auditor General; Acting State Superintendent of Public Instruction; Public School Employees' Retirement Board; and the Legislature of the State of Michigan, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
White, Beekman, Przybylowicz, Schneider & Baird, P.C. (by James A White and Karen Bush Schneider), Okemos, for plaintiffs.
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Michael J. Moquin, Thomas C. Nelson, and Walter V. Kron, Asst. Attys. Gen., for defendants.
Before REILLY, P.J., and MARK J. CAVANAGH and CORRIGAN, JJ.
In this original mandamus action, plaintiffs challenge the legality of Executive Order 1991-17 and 1991 P.A. 119 and seek to compel state officials to transfer monies from the State School Aid Fund to the Public School Employees' Retirement System (Retirement System). Plaintiffs' request for a writ of mandamus is denied.
Plaintiffs are individuals who are either current or retired public school employees who have accrued or are drawing benefits from the Retirement System. 1980 P.A. 300, as amended, MCL 38.1301 et seq.; M.S.A. § 15.893(111) et seq. Plaintiffs seek a declaration that Executive Order 1991-17, insofar as it reduced the previously enacted appropriations to the Retirement System for the 1990-91 fiscal year and changed the actuarial method of funding the health benefits of that system, is violative of Const. 1963, art. 9, § 24 and, therefore, is void. Plaintiffs also seek a declaration that the adoption by the Legislature of 1991 P.A. 119, which appropriated only sufficient funds to cover health care premiums for the fiscal year 1991-92, also violated the funding provisions of Const. 1963, art. 9, § 24 and is illegal and void. Finally, plaintiffs request that this Court issue a writ of mandamus compelling defendants to transfer funds from the State School Aid Fund to the Retirement System in accordance with the mandate of Const. 1963, art. 9, § 24.
Executive Order 1991-17, which reduced general fund-general purpose fund expenditures for the 1990-91 fiscal year by $178,914,737, was issued on June 18, 1991, after approval of a majority of both the House and Senate Appropriations Committees. The portion of the executive order that affects funds available to the Retirement System provides, in pertinent part:
e. Public School Employees Retirement System
(1) The appropriations to the public school employees retirement system from the school aid fund, as provided jointly by Act 214 of the Public Acts of 1990 and Act 357 of the Public Acts of 1990, hereby are reduced by $53,795,700 GFGP/School Aid Fund ($55,773,300 Gross) as a result of the following revision of section 41(2) of Act 300 of the Public Acts of 1980 (public school employees retirement act of 1979) as amended:
(2) The contribution rate for benefits payable in the event of the death of a member before retirement or the disability of a member shall be computed using a terminal funding method of valuation. The contribution rate for other benefits, including health benefits, shall be computed using an individual projected benefit entry age normal cost method of valuation. FOR THE 1990-91 STATE FISCAL YEAR, THE CONTRIBUTION RATE FOR HEALTH BENEFITS SHALL BE COMPUTED USING A CASH DISBURSEMENT METHOD. [Emphasis in original.]
1991 P.A. 119 was adopted by the Legislature on October 11, 1991. That provision appropriated funding for the Retirement System health care benefits in the 1991-92 fiscal year on the basis of a premium disbursement, i.e. cash disbursement, method. 1
At the time Executive Order 1991-17 was issued and 1991 P.A. 119 was enacted, § 41(2) of the retirement system act provided that the contribution rate for health benefits was to be computed using an "individual projected benefit entry age normal cost method of valuation." 2 M.C.L. § 38.1341(2); M.S.A. § 15.893(151)(2).
Plaintiffs argue that the change in the method of funding health benefits from the entry age normal method to the cash disbursement method was unconstitutional in light of the mandate of Const. 1963, art. 9, § 24, which provides:
The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.
Financial benefits arising on account of service rendered in each fiscal year shall be funded during that year and such funding shall not be used for financing unfunded accrued liabilities.
All the parties refer to the method of funding provided by art. 9, § 24 as "prefunding" and acknowledge that the cash disbursement method does not satisfy the requirements of art. 9, § 24.
However, defendants argue that art. 9, § 24 does not apply because health care benefits are not "accrued financial benefits" or "financial benefits arising on account of service rendered." Defendants assert that the provisions of Executive Order 1991-17 reducing expenditures for Retirement System health benefits were justified pursuant to Const. 1963, art. 5, § 20. That constitutional provision declares:
No appropriation shall be a mandate to spend. The governor, with the approval of the appropriating committees of the house and senate, shall reduce expenditures authorized by appropriations whenever it appears that actual revenues for a fiscal period will fall below the revenue estimates on which appropriations for that period were based. Reductions in expenditures shall be made in accordance with procedures prescribed by law. The governor may not reduce expenditures of the legislative and judicial branches or from funds constitutionally dedicated for specific purposes.
Having stated the positions of the parties, we must determine whether we have the power to grant plaintiffs' request for relief. This action for mandamus is an original action in this Court pursuant to MCR 7.203; M.C.L. § 600.4401(1); M.S.A. § 27A.4401(1).
Mandamus is an extraordinary remedy and is appropriate only when there is, in practical terms, no other remedy, legal or equitable, that might achieve the same result. Delly v. Bureau of State Lottery, 183 Mich.App. 258, 260, 454 N.W.2d 141 (1990). Before this Court will order such relief, the plaintiff must establish (1) a clear legal right to performance of the specific duty sought to be compelled, (2) that the defendant has a clear legal duty to perform such act, and (3) that the act to be compelled is ministerial. Id. at 261, 454 N.W.2d 141. Mandamus will not lie to control the exercise or direction of discretion that is vested in a public official or administrative body. Teasel v. Dep't of Mental Health, 419 Mich. 390, 410, 355 N.W.2d 75 (1984).
We need not determine whether plaintiffs had a clear legal right to the "prefunding" of health care benefits or whether defendants had a clear legal duty to provide for the "prefunding" of health benefits because this Court is without authority to order the relief requested by plaintiffs in any event. The Supreme Court of Michigan has held that mandamus will not lie to compel the Governor to act, regardless of whether the actions sought to be compelled are discretionary or ministerial. Sutherland v. Governor, 29 Mich. 320 (1874); Germaine v. Governor, 176 Mich. 585, 142 N.W. 738 (1913); Born v. Dillman, 264 Mich. 440, 250 N.W. 282 (1933). We disagree with the concurring opinion's conclusion that these cases are inapplicable here. This case is similar to Born, supra, where the plaintiffs challenged as violative of the constitution action taken by the Governor pursuant to a statute. In this case, plaintiffs assert that the Governor's action under the authority of Const. 1963, art. 5, § 20 violated another provision of the constitution, art. 9, § 24. We find this situation to be virtually indistinguishable from that in Born, supra. Courts in other jurisdictions have reached the same conclusion as our Supreme Court in Sutherland. See also Kelly v. Curtis, 287 A.2d 426 (Me.1972); Boling v. Rockefeller, 52 Misc.2d 745, 277 N.Y.S.2d 168 (1967); Rice v. Draper, 207 Mass. 577, 93 N.E. 821 (1911). However, some courts have taken the position that a writ of mandamus may issue to compel a governor to perform a ministerial act. See 55 CJS, Mandamus, § 122, pp. 203-204; Jenkins v. Knight, 46 Cal.2d 220, 293 P.2d 6 (1956); Willits v. Askew, 279 So.2d 1 (Fla.1973). See also Nat'l Treasury Employees Union v. Nixon, 160 U.S.App.D.C. 321, 492 F.2d 587 (1974) .
In the present case, it is clear that plaintiffs are not seeking to compel the performance of a ministerial act. Rather, they seek an order compelling the Governor to exercise his discretion under Const. 1963, art. 5, § 20 in a particular manner. We cannot provide such a remedy. 3 Furthermore, it is not within our province to order the Legislature to appropriate funds. City of Jackson v. Comm'r of Revenue, 316 Mich. 694, 719-720, 26 N.W.2d 569 (1947); Kosa v. Dep't of Treasury, 78 Mich.App. 316, 318, 259 N.W.2d 463 (1977), modified in part sub nom Kosa v. State Treasurer, 408 Mich. 356, 292 N.W.2d 452 (1980).
Although we cannot compel the Governor or the Legislature to act in this case, the executive and legislative branches of government are not free to usurp or abuse their powers. As Justice Cooley explained in Sutherland:
Our government is one whose powers have been carefully apportioned between three distinct...
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